(concurring in result).
[¶ 26] The evidentiary ruling at issue here, to borrow from Justice Frankfurter, involves “living law in some of its most delicate as-pects_” Our decision today “may be important to results hereafter to be reached” and so a separate explanation for affirmance is necessary. Niemotko v. Maryland, 340 U.S. 268, 273, 71 S.Ct. 325, 328, 95 L.Ed. 267, 271 (1951).
[¶ 27] From 1109 pages of trial transcript, multiple motions, acquittals on fifteen counts and convictions on five counts, one issue emerges on appeal: the photo. The Court terms the trial judge’s refusal to admit it an abuse of discretion. By its calculus, if one side uses an exhibit, then the other side should be able to use a like exhibit. Such an approach relegates trial judges to functionaries, ignoring nuance, to achieve superficial parity in evidentiary rulings. Our rules of evidence, devised to attain truth and justice, call at times for careful discernment in deciding whether to admit doubtful material. SDCL 19-9-2 (Rule 102); see also John W. Larson, South Dakota Evidence § 102.1 (1991).
[¶ 28] Let us recognize the fine distinction between an illustration and a photo. State’s Exhibit 2 was a medical illustrator’s pencil drawing of what an abnormal anus would look like in a sexually abused child. Defense Exhibit Z, taken from a treatise, was a color photograph of an abnormal anus, reportedly from a child who had not been sexually abused. This photograph was an exact depiction offered to invite comparison with the photos of the actual victims in this case. The illustration, on the other hand, merely represented the characteristics generally found in similar sexual abuse. The trial court deduced the two exhibits were not the same as one merely illustrated a condition, whereas the other called for the jury to prejudicially measure one condition against the other. Even if we may have decided differently, for the trial court to rule one admissible and the other inadmissible is certainly not against reason. State v. Barber, 1996 SD 96 ¶ 14, 552 N.W.2d 817; State v. Lykken, 484 N.W.2d 869, 874 (S.D.1992).
[¶ 29] Furthermore, during trial experts for both sides agreed the abnormal condition found in these two boys could be caused by something other than sexual abuse. A picture showing the abnormality in a nonabused child, therefore, was superfluous. Kramer v. Sioux Transit, Inc., 85 S.D. 232, 180 N.W.2d 468, 471 (1970) (noting “[t]he admission of cumulative evidence is ordinarily in the sound discretion of the trial court....”); Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn.1994).
[¶30] For these reasons, I respectfully concur in result.
[¶ 31] MILLER, C.J., and GILBERTSON, J., join this special writing, and I am authorized to so state.