(specially concurring).
In concurring, it is incumbent upon this writer, to add some relevant facts *:
1. Victim admitted, at trial, she was intoxicated, that her memory was faulty, and she was unable to remember what happened.
2. Victim testified she wanted to “forget it” (the alleged rape) but was persuaded by friends to prosecute Devall.
3. At issue was: Did Devall rape victim? Six witnesses testified at trial not simply that Devall raped victim, but at least four of them testified to details:
(a) Devall forced her on the ground, raped her after she said “No;”
(b) Devall pushed her on a lawn, pulled her pants down, and raped her after she said “No;”
(c) Devall pushed her down, pulled off her pants and raped her;
(d) Devall attacked her, pushed her down, and raped her.
*378Thereby, each statement of these four witnesses, plus the other two, were received as evidence before the jury, postured in this vein: That what the victim said as a fact to them — was indeed a fact. This appears to be an abuse of discretion in receiving such evidence when the victim testified at trial that she was intoxicated and unable to recall what happened. When reviewing the admission of evidence, this Court will disturb the decision of the trial court only upon a showing of an abuse of discretion. State v. Bawdon, 386 N.W.2d 484, 486 (S.D.1986). Certainly these witnesses should not be able to elevate the out-of-court hearsay statements above her own testimony at trial. For these witnesses to testify as to the details of the alleged rape, was an obvious attempt, by the prosecution, to reinforce the rape charge, the details of which seem to escape the victim when she testified before the jury. In most jurisdictions, the name of the offender cannot be related by the alleged victim when making a complaint, unless it is established that it is a part of the res gestae. 1 Wharton’s Crim.Law, § 727 p. 989 (1981); 44 AmJur., Rape, §§ 84, 85, pgs. 954, 955. A tenuous recollection was bolstered by inadmissible hearsay evidence. Obviously, having six witnesses testifying, as if they were eyewitnesses, prevented Devall from having a fair trial. An “impartial” trial is equated with a “fair” trial under our State Constitution, Art. VI § 7. State v. Lapice, 61 S.D. 389, 249 N.W. 634 (1933). Each one of these six witnesses testified in the state’s case-in-chief. They were actually not witnesses at all. They were witnesses to what someone told them. But, unfortunately, all six sat in the witness chair.
EXCITED UTTERANCE
State would rely upon Bult and Logue. These cases are distinguishable. In Bult, victim was a 5 year old boy; in Logue, victim was a four year old boy. Via State v. McCafferty, 356 N.W.2d 159, 161 (S.D.1984), this Court has relaxed, nay cut back, the rigid time and spontaneity requirements when statements are made by very young children. Here, we have a college girl, partying into the earlier hours of the morning, allegedly hugging and kissing a male acquaintance during the evening, leaving a downtown bar to party further at a fraternity house, and who, between 2 and 17 hours after the alleged rape, makes so called excited utterances; and, also, a college girl, who is a full grown adult, who went to sleep after the alleged rape. Upon arising, after a third “nap,” she showered and went back to bed. Upon awaking, she went out for breakfast and went to her sorority house. Other than a statement to Jill Groseclose, approximately an hour and a half after the alleged rape, all statements to the hearsay witnesses were after time had passed and an opportunity presented itself in her mind to contrive, or at least, misrepresent the situation. Perhaps, also, to favorably reconstruct the events of the evening, upon sobering up. Such a mental reconstruction would not be novel to mankind. In other words, sufficient time had evolved where her statements were not excited utterances. Under State v. Younger, 453 N.W.2d 834, 839 (S.D.1990) and State v. Swallow, 405 N.W.2d 29, 34 (S.D.1987) her statements were not excited utterances, allowable as evidence, as an exception to the hearsay rule.
CUMULATIVE EVIDENCE
FAILURE TO WEIGH
SDCL 19-12-3 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Assuming arguendo, that the state is right; assume, conceptually, that these six witnesses’ testimony was valid based upon the excited utterance rule. Should we not recognize the above statute? Why 6 witnesses; surely, same is cumulative evidence. In Stormo v. Strong, 469 N.W.2d 816, 824 (S.D.1991) we expressed that cumulative evidence was “evidence of the same character as evidence previously produced *379which supports the same point. Here, this “relevance” by a 6 witness approach, was substantially outweighed by the danger of unfair prejudice. Nor was there any balancing on the record as this Court has required under State v. Klein, 444 N.W.2d 16, 19 (S.D.1989). See also, State v. Thomas, 381 N.W.2d 232, 240 (S.D.1986). We have repeatedly cautioned and advised the trial courts of this state that a balancing on the record must be done. Thus, a 6 witness parade, hearsay-approach was a painful, evidentiary procedure likened unto the Chinese torture method, that one drop of water on the forehead will not deprive you of your sound psyche but many, successive drops will. Collectively, the 6 witness approach, like the drops of water, took their toll on “a fair trial.” Clearly, the error here was not “harmless.” SDCL 23A-44-14 defines harmless error as “Any error, defect irregularity or variance which does not affect substantial rights [and] shall be disregarded.” “Prejudicial” error is “error which in all probability must have produced some effect upon the jury’s verdict and is harmful to the substantial rights of the party assigning it.” This parade of hearsay witnesses, obviously, had “some effect” upon the outcome of the trial. State v. Michalek, 407 N.W.2d 815, 818 (S.D.1987).
REBUTTAL WITNESSES
Having orchestrated the song, “Tell It To Me One More Time,” with 6 hearsay witnesses, state was not done. Having over-killed, the burial rite rubric must be performed; so, 3 rebuttal witnesses were called to convince the jury that this young man simply could not tell the truth. Thereby, understand, his defense that he and his coed partner, (both drinking intoxicants for hours, and supposedly partying, kissing, hugging) voluntarily shared in sexual intercourse was devastated; perforce, the conclusion was foisted upon the jury that she could not have consented to sex for, obviously, he was incapable of testifying truthfully. A bass drum for the state; a piccolo for the defendant. Again, unfairness. De-vall did not preserve the record for his counsel failed to timely object; under State v. Huftile, 367 N.W.2d 193, 195 (S.D.1985), his right to object is waived. With the majority opinion on this point I agree. And, frankly, I question that it was “plain error.” We are to apply said rule cautiously. State v. Brammer, 304 N.W.2d 111 (S.D.1981). So having expressed twice, that this issue should not be addressed, the majority proceeds to so do. Inasmuch as the majority does, my opinion is that the three rebuttal chariot harnesses too many horses charging on a ride of “he cannot tell the truth!” In the context of one on one testimony (“you forced me;” “I didn’t— you consented”), three witnesses create cumulative evidence. Two witnesses, after the first witness, is “evidence previously produced which supports the same point.” Stormo at 824. Admission of evidence from 3 veracity witnesses unfairly shifts a judgment of credibility in favor of one participant and against the other participant.
INTROSPECTION
In the celebrated works of THE PROPHET, by Kahlil Gibran, 25th printing, November, 1983, published by Alfred A. Knopf, Inc., page 38, it is written:
And let him who would lash the offender, look unto the spirit of the offended. And if any of you would punish in the name of righteousness and lay the axe unto the evil tree, let him see to its roots; And verily he will find the roots of the good and the bad, the fruitful and the fruitless, all entwined together in the silent heart of the earth.
My Sisters and Brothers of the Law: In the fullness of light, not in the hours of darkness and alcohol and revelry, what was the spirit of this college couple? If you would lay the axe unto the evil tree, would you not look and attempt to perceive the roots? Where, here, is the measure of right or wrong? To understand justice, should not the deeds of the night (darkness) be measured, upon reflection, in the fullness of the day (light)? Perhaps this young college couple, caught up in the excitement of Homecoming, at our State University, should look upon themselves inwardly; and temporary celebration and *380merriment were shared, not to be later adjudged, on one part, the guiltless and, on the other part, the blamed. Perhaps this night was but the fragment of each party’s own self. A jury will have to sort out the facts and judge the credibility of the parties; a new trial, must be fair, to insure deciding the ultimate issue of rape or consent to the sex act. State v. Mirikel, 89 S.D. 144, 230 N.W.2d 233 (1975). I am convinced that Devall did not have a fair trial and join the majority opinion. This dissertation on “INTROSPECTION” is not to suggest that any college coed or other woman does not have the right to say “No,” when the male attempts to physically overcome her resistance.
Majority opinion has six full paragraphs setting forth the state’s version of the facts; it skews the facts very favorably for the victim's version and extremely unfavorable for Devall. If the reader accepts all of these facts and the statements of the hearsay witnesses as truth because alleged victim said this happened, the reader is overcome with a belief that alleged victim was brutalized. Only the alleged victim and her consort that night had a recollection (of sorts) in their alcohol clouded minds. There appears to be at least 5 to 6 hours of consumption of liquor; the “rape” was preceded by both kissing and hugging, according to Devall. Victim denied this.