State v. Litschewski

SABERS, Justice

(dissenting).

[¶ 34.] The trial court erred in denying the admission of the other act evidence offered by Litschewski. It was relevant to J.A.’s credibility and admissible for impeachment purposes. Therefore, I dissent.

[¶ 35.] I agree that consent was not in issue in this case. Consent was not even available as a defense to this charge because the victim was a minor. Rather Litschewski claimed that the rape did not occur. However, the other act evidence of an attempt by Litschewski to forcibly kiss J.A. hours before the alleged rape was proper impeachment and relevant to J.A.’s credibility. If the jury questioned J.A.’s credibility regarding the kissing incident, it could have believed J.A. would not have voluntarily stayed over at Litschewski’s house and questioned her credibility regarding the alleged rape. State v. Chamley, 1997 SD 107, ¶ 24, 568 N.W.2d 607, 615.

*905[¶ 36.] “Witness credibility is a question for the jury.” State v. Wooley, 461 N.W.2d 117, 120 (S.D.1990) (citing State v. Wilcox, 441 N.W.2d 209, 214 (S.D.1989)).

In many sex crime cases, credibility of the witnesses is of paramount importance. In fact, it may well be the most important factor the trier of fact considers because there is often no direct evidence implicating the defendant. Moreover, allegations of sexual misconduct are easy to allege and difficult to disprove. When this is the case, the jury’s decision to convict or acquit comes down to one person’s word against another’s. The victor of this credibility duel wins more than just vindication; the prize is a favorable verdict.

Chamley, 1997 SD 107 at ¶ 25, 568 N.W.2d at 615. Litschewski had the right to attempt to impeach J.A.’s credibility with the other act evidence. “The jury is the exclusive judge of the credibility of witnesses and the weight of the evidence in South Dakota.” State v. Huber, 356 N.W.2d 468, 476 (S.D.1984) (citing State v. Bonrud, 246 N.W.2d 790, 793 (S.D.1976)). The jury should decide the weight, if any, to give to the impeachment evidence. Therefore, I dissent. We should reverse and remand for a new trial.