(dissenting).
I dissent for these five reasons:
*3411. The trial court committed reversible error when it refused defense testimony that the “victim” shoplifted the package of condoms. To permit the “sanitized” testimony that she merely “obtained” the condoms simply does not cut it.
The defense theory was that the sex acts were consented to, not forced. Defense testimony showed that the victim had sex with Defendant and Ed Sapp on the same night on a prior occasion; that she told Sapp that they were both “good” the last time and she would like to have sex with them again. Sapp further testified that the victim got out of the car by herself and walked with Defendant from the car to the park with their arms around each other.
Whether this defense testimony is true is for the jury to decide, not the trial court and not the appellate court. Therefore, it was reversible error to deny the jury the relevant facts. State v. Dokken, 385 N.W.2d 493 (S.D.1986).
Whether the victim wanted to have sex with both Sapp and Defendant so bad that she risked arrest and punishment by shoplifting a package of three condoms is highly relevant. This is especially so when one considers that she already possessed one condom. If she only wanted sex with Sapp one condom was probably sufficient. At any rate, it was a jury question and it was reversible error to deny the jury that information. Dokken, supra.
2. The victim’s admission that she stole condoms is also relevant to her credibility and probative of untruthfulness under SDCL 19-14-10.
3. The state and federal constitutions guarantee the accused in a criminal proceeding the right to confront witnesses against him. U.S. Const, amend. VI; S.D. Const, art. VI, § 7. Despite these constitutional provisions, the trial court refused to allow the defense to cross-examine the victim concerning prior voluntary sexual encounters with Sapp connected to prior voluntary sexual encounters with Defendant and the statements attributed to her that “she enjoyed it last time” and “she wanted both of [them] again.”
The majority opinion whitewashes the trial court ruling on the basis of SDCL 23A-22-15 (Rape Shield Law), State v. Blalack, 434 N.W.2d 55 (S.D.1988), or because the evidence was “not relevant or material.” Certainly, whether she wanted to have sex with “them” again was both relevant and material to the defense that she consented.
SDCL 19-12-1 states that evidence is relevant when it has a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Whether the victim consented to the sex acts is a fact of consequence to the determination of this action. Evidence that the victim had consented to sex with Defendant in the past makes it more probable than it would be without that evidence that she consented again. Likewise, evidence that the victim had sex with Sapp just prior to having sex with Defendant and that Sapp instructed Defendant to go have sex with the victim makes it more probable than it would be without that evidence that the victim consented to sex with Defendant in the past. The same is true of evidence that the victim told Sapp she thought “both of [them] were good the last time,” and she wanted both of them again. Sapp told Woodfork of this conversation. Therefore, evidence of the victim’s prior sexual encounters with Sapp is highly relevant, and Woodfork should have been allowed to cross-examine the victim about these matters.
Unfortunately, we have apparently “laid to rest” the following statements from State v. Wounded Head, 305 N.W.2d 677, 680 (S.D.1981):
We recognize that the opportunity to cross-examine any prosecution witness is central to the fundamental right of confrontation and to the conduct of an effective defense. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). However, the “extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court,” Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624, 629 (1931), and the *342trial court may always limit cross-examination to prevent repetitive and unduly harassing interrogation. Davis v. Alaska, supra. That discretion, however, must be exercised “with the utmost caution and solicitude for the defendant’s Sixth Amendment rights.” United States v. Houghton, 554 F.2d 1219, 1225 (1st Cir.1977), cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 120 (1977). The trial court’s “latitude in the control of cross-examination ... ‘cannot ... justify a curtailment which keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony. ’ ” United States v. Harris, 501 F.2d 1, 8 (9th Cir.1974), quoting Gordon v. United States, 344 U.S. 414, 423, 73 S.Ct. 369, 375, 97 L.Ed. 447, 455 (1953).
(emphasis added). I would revive these statements and reverse and remand for a fair trial in accordance with our state and federal constitutions. Cross-examination is perhaps the most effective means of challenging a witness’ credibility, and this case hinges upon the credibility of Defendant and the victim. The muzzle that the trial court placed upon Defendant’s cross-examination of the victim denied Defendant his fundamental right to conduct an effective defense.
4. The errors of the trial court constitute “prejudicial error.” The correct definition of prejudicial error was stated in State v. Michalek, 407 N.W.2d 815, 818-819 (S.D.1987):
“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. [Dokken, supra at 498]; State v. Reddington, 80 S.D. 390, 396, 125 N.W.2d 58, 62 (1963).... SDCL 23A-44-14 defines harmless error as “[a]ny error, defect, irregularity or variance which does not affect substantial rights[.]” The harmless error rule governs even constitutional violations, not requiring the automatic reversal of a conviction, provided the court is able to declare a belief beyond a reasonable doubt that the error was harmless and did not contribute to the verdict obtained. State v. Heumiller, 317 N.W.2d 126, 130 (S.D.1982) citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).
In United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983), the Court followed Chapman and framed the question a reviewing court must ask as follows:
Absent [the alleged error] ... is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty?
Id. 461 U.S. at 510-511, 103 S.Ct. at 1981, 76 L.Ed.2d at 107.
Absent the errors here, it is not clear beyond a reasonable doubt that the jury would have returned a verdict of guilty. We simply cannot say beyond a reasonable doubt that absent these errors the jury would have returned the same verdict. Therefore, there is prejudicial error.
5. In fact, the cumulative effect of these errors effectively deprived Woodfork of his right to a fair trial contrary to Dokken, supra, and State v. Rufener, 392 N.W.2d 424, 431 (S.D.1986) (Sabers, J., dissenting), on rehearing, 401 N.W.2d 740 (S.D.1987), because he was denied the opportunity to fully present his theory of the case to the jury. Therefore, we should reverse and remand for a fair trial.