Roden v. Solem

HENDERSON, Justice

(specially concurring).

Less than six months ago, I joined in affirming a conviction involving pedophilia. See State v. Champagne, 422 N.W.2d 840, 844 (S.D.1988) (Henderson, J., specially concurring). I wrote, inter alia:

R.H., a sister of A.P. [victim], who lived in the same household (at one time) with appellant and her sister, testified that at a time not remote to A.P.’s molestation, she was sexually molested by appellant.
This appellant committed acts which were similar — evincing a plan and a scheme — to sexually molest the little girls in this household....
Though I believe this Court has been far too liberal in the past in affirming some convictions where certain “bad acts” were used, it is my opinion that the credibility of A.P. and appellant were greatly in dispute; R.H.’s testimony was sufficiently probative and relevant for admission under SDCL 19-12-5. Acts against R.H. were not remote-in-time, *671nor were they extrinsic, for they were within the family circle.

Champagne, id. (footnote omitted).

Instantly, we have another pedophilia case. I quote from State v. Roden (Roden I), 380 N.W.2d 669, 670 (S.D.1986):

Investigation prior and subsequent to Roden’s arrest led to the discovery that another minor, Roden’s stepdaughter, had been sexually molested and raped by him repeatedly while she was in the third to eighth grades. Specific incidences of sexual contact related by the stepdaughter paralleled the complaint made by the present victim.... The trial court noted the special circumstances present in domestic child sexual abuse cases and found that a common scheme of circumstances appeared.

This Court affirmed the trial court’s admission of the stepdaughter’s “bad acts” testimony. Id. at 671. See also State v. Willis, 370 N.W.2d 193 (S.D.1985). The propriety of admission of the stepdaughter’s testimony is res judicata. Roden cannot premise a claim of ineffective assistance of counsel on admission of that evidence. See Lee v. Solem, 405 N.W.2d 56 (S.D.1987).

Regarding the admission of testimony concerning Roden’s prior bad acts involving victim, the same rationale applies: The evidence was admissible to show plan, scheme, or design. This plan was to physically overcome little girls, then sexually assault them at a time when they were unprotected by other adults in a household, over which Roden exercised authority. The effect of this evidence was not unfairly prejudicial because it resulted from the legitimate probative force of the evidence: It did not institute an unfair advantage resulting from persuasion by illegitimate means. See State v. Kerkhove, 423 N.W.2d 160, 163 (S.D.1988); State v. Holland, 346 N.W.2d 302, 309 (S.D.1984).

Given the weight of evidence against Ro-den, the prosecutor’s improper remarks could not affect the outcome. Counsel’s failure to object to the prosecutor’s statements did not rise to the level of ineffective counsel because Roden did not pass the second step of the Strickland test: Counsel’s deficient performance did not prejudice the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Roden did not show “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, id. Roden was convicted in a jury trial, the result of which was reliable. In making this deduction, I consider past precedent in this Court, namely Woods v. Solem, 405 N.W.2d 59, 61 (S.D.1987). We held therein that prejudice exists only when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Another case announcing this principle is Lee v. Solem, 405 N.W.2d 56, 57 (S.D.1987). Here, evidence was overwhelming that Roden coerced the victim into having sexual intercourse. Accord, State v. Bittner, 359 N.W.2d 121, 125 (S.D.1984), involving murder of police officer where evidence was overwhelming. She testified as to the particulars of this act which took place on the morning of June 11, 1984, and one Chuck Wickstrom testified that he saw the victim coming out of the bedroom, unclothed and alone.