#25428-a-GAS

2010 S.D. 94

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   * * * *

STATE OF SOUTH DAKOTA,                       Plaintiff and Appellee,

v.

JOSHUA JOHN ARMSTRONG,                       Defendant and Appellant.

                                   * * * *

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE THIRD JUDICIAL CIRCUIT
                    MOODY COUNTY, SOUTH DAKOTA

                                   * * * *

                          HONORABLE TIM. D. TUCKER
                                  Judge

                                   * * * *

MARTY J. JACKLEY
Attorney General

FRANK GEAGHAN
Assistant Attorney General
Pierre, South Dakota                         Attorneys for plaintiff
                                             and appellee.


N. BOB PESALL
Flandreau, South Dakota                      Attorney for defendant
                                             and appellant.


                                   * * * *
                                             ARGUED APRIL 27, 2010

                                             OPINION FILED 12/15/10
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SEVERSON, Justice

[¶1.]        Joshua John Armstrong was convicted of Sexual Contact with a Person

Under Sixteen in violation of SDCL 22-22-7. The trial court admitted evidence of

Armstrong’s 1999 conviction of Rape in the Third Degree as well as statements he

made in group counseling sessions as part of the mandatory prison sex offender

counseling program. The trial court also limited Armstrong’s cross-examination of

the victim regarding allegations of sexual abuse she made against another

individual. Armstrong appeals. We affirm the trial court on all issues.

                                  BACKGROUND

[¶2.]        T.A. (Mother) is the mother of R.L., the thirteen-year-old victim in this

case. Mother and Armstrong divorced in 2001, in part because Armstrong was

convicted of Rape in the Third Degree on February 26, 1999, and was sentenced to a

ten-year term of imprisonment in the South Dakota State Penitentiary. Armstrong

was released on February 18, 2009. Upon release, Armstrong planned to return to

the Flandreau, South Dakota, community to live with his mother, Paula

Manwarren. But on February 18 and 19, 2009, after having dinner with his family

at Manwarren’s house, Armstrong spent the night at Mother’s home.

[¶3.]        Upon arriving home from dinner on February 19, 2009, Mother told

her four daughters to get ready for bed. She asked R.L. to go upstairs to get

pajamas for her three younger sisters. Armstrong followed R.L. upstairs. R.L.

testified that while she was in Mother’s room looking for the pajamas, Armstrong

came into the room to talk to her. Armstrong began speaking to R.L. about his

Wiccan religion. Armstrong described a dream in which he saw R.L. lying naked on


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a table surrounded by candles. As Armstrong described his dream, R.L. received a

phone call from a friend. R.L. sat on Mother’s bed while talking to her friend.

Armstrong sat down beside R.L. and began touching her breasts. When asked at

trial whether Armstrong touched her “more than once in more than one place,” R.L.

responded, “Yes.” R.L. stated that Armstrong also touched her on her butt and in

between her legs. R.L. moved away from Armstrong, but did not tell him to stop.

[¶4.]        When R.L. finished her phone call, Armstrong began talking to R.L.

about dragons. Armstrong told her that the dragons “wanted [her] for something”

because she had a “special quality or a special thing that his dragons wanted from

her.” Armstrong threatened her, saying that the dragons could “do bad things, that

. . . [they could] hurt her sisters.” Armstrong said that R.L. could stop anything

from happening to her sisters if she agreed to “take off [her] clothes.” When R.L.

refused, Armstrong told her that it was “right for parents to do bad things to their

children” and promised R.L. that he “would make [her] bedtime later if [she] would

let him do bad things to [her].” R.L. told Armstrong “it wasn’t right” and left the

room. Armstrong went downstairs and watched television with Mother.

[¶5.]        Manwarren picked up R.L. and her sister from school the following

day. When they arrived at R.L.’s home, R.L. told Manwarren that “she didn’t want

to go home, that she wanted to stay with [her].” Manwarren asked R.L. why she did

not want to go home. R.L. told Manwarren that Armstrong was inside babysitting

her younger sisters and that he “touched her” the night before. Manwarren took

R.L. to see Mother at her workplace. After speaking with Mother, Manwarren




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asked R.L. whether she wanted to confront Armstrong or whether she wanted to

talk to the police. R.L. said that “she wanted to talk to the cops.”

[¶6.]        Special Agent James Severson of the South Dakota Division of

Criminal Investigation interrogated Armstrong after he was arrested. Armstrong

told Agent Severson that he followed R.L. upstairs so that he could talk to her.

Armstrong told Agent Severson that he and R.L. began talking about “dragons and

different things that are involved in the Wiccan religion.” R.L. was “concerned

because she wasn’t having . . . visions” anymore. Armstrong explained that “she

didn’t have the visions because she is a Christian.” Armstrong said that “[R.L.] was

scared and was crying and wanted him to hold her and to hug her.” “She hugged

him and laid her head on his shoulder.” “He was patting her head and she was kind

of sitting on his lap next to him on the end of the bed.” Armstrong said that he “put

his hand on the side of her leg.” When Agent Severson confronted Armstrong with

R.L.’s allegations, Armstrong denied inappropriately touching her.

[¶7.]        On March 6, 2009, a Moody County grand jury indicted Armstrong on

one count of Sexual Contact with a Person Under Sixteen in violation of SDCL 22-

22-7. The State filed a Part II Information on March 18, 2009, alleging that

Armstrong was a habitual offender under SDCL 22-7-7 given his prior felony

conviction of Rape in the Third Degree. The case proceeded to trial on July 9, 2009,

and the jury found Armstrong guilty. Armstrong appeared before the trial court on

September 2, 2009, for sentencing. The trial court, relying on the findings of the

pre-sentence investigation, sentenced Armstrong to a twenty-five-year term of

imprisonment in the penitentiary. Armstrong appeals.


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                           ANALYSIS AND DECISION

[¶8.]        1.    Whether the trial court abused its discretion by
                   admitting evidence of Armstrong’s 1999 conviction of
                   Rape in the Third Degree.

[¶9.]        On June 23, 2009, the State filed a Notice of Intent to Offer Other Acts

Evidence. The State sought to introduce evidence of Armstrong’s 1999 conviction of

Rape in the Third Degree. Armstrong was twenty-two years-old at the time of the

conduct giving rise to his prior rape conviction. On August 26, 1997, Armstrong

attended a party at a home in Sioux Falls. At some point during the night, he

noticed a fifteen-year-old female lying naked in a bedroom. Armstrong entered the

bedroom and asked the female if she wanted to have sex. The victim, who was

extremely intoxicated, said, “Yes.” Armstrong began kissing her neck and breasts

and had sexual intercourse with her. He later pleaded guilty to Rape in the Third

Degree in violation of SDCL 22-22-1. The trial court admitted the evidence of

Armstrong’s prior rape conviction to show that he had the specific intent to arouse

or produce sexual gratification when he touched R.L. and to rebut his defense of

mistake or accident.

[¶10.]       “[I]t is a settled and fundamental principle that persons charged with

crimes must be tried for what they allegedly did, not for who they are.” State v.

Moeller, 1996 S.D. 60, ¶ 6, 548 N.W.2d 465, 468 (citing United States v. Hodges, 770

F.2d 1475, 1479 (9th Cir. 1985)).

             Under our system, an individual may be convicted only for the
             offense of which he is charged and not for other unrelated
             criminal acts which he may have committed. Therefore, the
             guilt or innocence of the accused must be established by
             evidence relevant to the particular offense being tried, not by


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               showing that the defendant has engaged in other acts of
               wrongdoing.

Id. (quoting Hodges, 770 F.2d at 1479). “No matter how vile or despicable a person

may appear to be, he or she is entitled to a fair trial.” Id. “[I]ndividuals may only

be convicted for the crimes with which they are charged; they may not be subject to

criminal conviction merely because they have a detestable or abhorrent

background.” Id. (citing Hodges, 770 F.2d at 1479).

[¶11.]         The admission of prior acts evidence is governed by SDCL 19-12-5

(Rule 404(b)), which provides:

               Evidence of other crimes, wrongs, or acts is not admissible to
               prove the character of a person in order to show that he acted in
               conformity therewith. It may, however, be admissible for other
               purposes, such as proof of motive, opportunity, intent,
               preparation, plan, knowledge, identity, or absence of mistake or
               accident.

“Prior . . . acts evidence is not admissible to show that, merely because a defendant

committed a similar offense on another occasion, he has a propensity to commit the

offense charged.” State v. Steichen, 1998 S.D. 126, ¶ 17, 588 N.W.2d 870, 874

(quoting Moeller, 1996 S.D. 60, ¶ 12, 548 N.W.2d at 471). But prior acts evidence

may be admitted for other purposes, including, but not limited to, those listed in

SDCL 19-12-5 (Rule 404(b)). 1 Id. (citing State v. Champagne, 422 N.W.2d 840, 842

(S.D. 1988)). “It is the proponent of the prior act[s] evidence who must persuade the

trial court that the evidence has some permissible purpose.” State v. Lassiter, 2005




1.       As evidenced by the language of SDCL 19-12-5 (Rule 404(b)), the list of the
         inclusions is not exhaustive. State v. Fisher, 2010 S.D. 44, ¶ 23, 783 N.W.2d
         664, 672.

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S.D. 8, ¶ 15, 692 N.W.2d 171, 176 (citing State v. Wright, 1999 S.D. 50, ¶ 14, 593

N.W.2d 792, 798 (citing SDCL 19-12-1 (Rule 401))).

[¶12.]       A trial court must engage in a multi-prong analysis before admitting

prior acts evidence. Id. (citing State v. Ondricek, 535 N.W.2d 872, 873 (S.D. 1995)).

A trial court must consider (1) whether the intended purpose of the prior acts

evidence is relevant to some material issue in the case other than character (factual

relevance) and (2) whether the probative value of the evidence is substantially

outweighed by its prejudicial effect (legal relevance). Id. (citing Ondricek, 535

N.W.2d at 873). See United States v. Betterton, 417 F.3d 826, 831 (8th Cir. 2005)

(“For evidence of past crimes to be admissible under Rule 404(b), the evidence must

be (1) relevant to a material issue; (2) similar in kind and not overly remote in time

to the charged crime; (3) supported by sufficient evidence; and, (4) such that its

potential prejudice does not substantially outweigh its probative value.”) (citing

United States v. Williams, 308 F.3d 833, 837 (8th Cir. 2002)). A trial court’s

admission of prior acts evidence is reviewed under the abuse of discretion standard.

State v. Jones, 2002 S.D. 153, ¶ 6, 654 N.W.2d 817, 818-19 (quoting State v.

Chamley, 1997 S.D. 107, ¶ 7, 568 N.W.2d 607, 611).

[¶13.]       Prior acts evidence first must have a permissible purpose and be

relevant to some point genuinely in issue in the case. Lassiter, 2005 S.D. 8, ¶ 15,

692 N.W.2d at 176 (citing Ondricek, 535 N.W.2d at 873). Relevant evidence is

“evidence having any 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.” SDCL 19-12-1 (Rule 401). “[M]uch more is


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demanded than the mere repeated commission of crimes of the same class[.]”

Lassiter, 2005 S.D. 8, ¶ 16, 692 N.W.2d at 176 (quoting McCormick on Evidence §

190, at 449 (Edward W. Cleary ed., 2d ed. 1972)). Prior acts evidence “offered for

the sole purpose of establishing a propensity to commit a crime is irrelevant and

therefore inadmissible.” Id. ¶ 13, 692 N.W.2d at 175 (citing Wright, 1999 S.D. 50, ¶

14, 593 N.W.2d at 799).

[¶14.]       But prior acts evidence may be admissible to prove “absence of mistake

or accident.” SDCL 19-12-5 (Rule 404(b)). Armstrong initially claimed mistake or

accident when being interviewed by the police and then later raised that defense at

trial. His counsel argued during opening statement that “nothing inappropriate

happened.” He conceded that Armstrong touched R.L., but maintained that it was

done innocently in an attempt to comfort her. He contended that R.L.

misunderstood an attempt at affection given her prior experience with male

members of her household. See infra ¶ 24. In his closing argument, Armstrong’s

counsel argued that R.L. did not “know how to handle a loving hug.” Armstrong

made mistake or accident an issue at trial, and the evidence of his prior rape

conviction was relevant to rebut his defense. Because it was offered for the

permissible purpose of proving the absence of mistake or accident, the evidence of

Armstrong’s prior rape conviction was factually relevant. See Lassiter, 2005 S.D. 8,

¶ 13, 692 N.W.2d at 175 (citing Wright, 1999 S.D. 50, ¶ 14, 593 N.W.2d at 799).

[¶15.]       We turn then to the question whether the prior acts evidence was

legally relevant. See id. ¶ 15, 692 N.W.2d at 176 (citing Ondricek, 535 N.W.2d at

873). Even if relevant to a material issue of fact, prior acts “evidence may be


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excluded if its probative value is substantially outweighed by the danger of unfair

prejudice[.]” SDCL 19-12-3 (Rule 403). “Prejudice does not mean infliction of

damage to the opponent’s case that results from the legitimate probative force [of]

the evidence; rather, it refers to the capacity of the evidence to persuade the jury by

illegitimate means.” State v. Smith, 1999 S.D. 83, ¶ 19, 599 N.W.2d 344, 349-50

(citing State v. Iron Shell, 336 N.W.2d 372, 375 (S.D. 1983) (quoting 22 C. Wright &

K. Graham, Federal Practice and Procedure § 5215, at 274-75 (1978))). “[I]n order to

exclude the evidence, the danger of unfair prejudice must not only outweigh the

probative value, . . . it must outweigh it substantially.” Id., 599 N.W.2d at 350

(citing State v. Rhines, 1996 S.D. 55, ¶ 94, 548 N.W.2d 415, 440; State v. White, 538

N.W.2d 237, 243 (S.D. 1995)).

[¶16.]       The remoteness and similarity of the prior act to the charged offense

are significant factors in balancing probative value and prejudicial effect. Fisher,

2010 S.D. 44, ¶ 28, 783 N.W.2d at 673. Remoteness is not subject to a rigid rule,

but will depend on the facts of the case. Id. (citing Wright, 1999 S.D. 50, ¶ 24, 593

N.W.2d at 802). Indeed, “remoteness and similarity must be considered together

because the two concepts are so closely related[.]” Id. (quoting Fisher v. State, 641

N.E.2d 105, 109 (Ind.Ct.App. 1994)). See Betterton, 417 F.3d at 831 (“[T]o be

admissible under Rule 404(b), the evidence must be . . . similar in kind and not

overly remote in time to the charged crime[.]”) (citing Williams, 308 F.3d at 837).

“[T]he remoteness of a prior [act] takes on increased significance as the similarity

between the prior [act] and the charged offense increases.” Fisher, 2010 S.D. 44, ¶

28, 783 N.W.2d at 673 (quoting Fisher, 641 N.E.2d at 109). “Accordingly, a prior . . .


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act, despite its remoteness, may still be relevant if it is strikingly similar to the

charged offense. Conversely, less similarity may be required where the prior act is

closer in time to the charged [offense].” Id. (quoting Fisher, 641 N.E.2d at 109).

[¶17.]       Here, the trial court considered the remoteness and similarity of the

prior act to the charged offense. The trial court found that Armstrong’s prior rape

conviction was “similar in character and reasonably related to the offending conduct

giving rise to the pending charges.” Furthermore, because Armstrong was

incarcerated and released just forty-eight hours before the charged offense occurred,

the trial court noted that “the date of the prior offense and conviction [was] not so

remote as to render [the] evidence irrelevant.” The trial court thus found that the

“probative nature and relevance of [evidence of Armstrong’s prior rape conviction

was] not substantially outweighed by its prejudicial impact on the defense.” For

these reasons, the trial court concluded that the evidence of Armstrong’s prior rape

conviction was legally relevant.

[¶18.]       We must also consider the remoteness and similarity of the prior act to

the charged offense. We agree that, given Armstrong’s incarceration and release

just two days before the charged offense, his prior rape conviction was not remote.

Thus, under Fisher, less similarity between the prior act and the charged offense

was required. See id. ¶ 29, 783 N.W.2d 673-74 (holding that fourteen-year-old

sexual-contact conviction was not strikingly similar to the charged offense).

Because Armstrong’s victims were similar ages when the offenses occurred, the

requisite degree of similarity existed in this case. The evidence of Armstrong’s 1999




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conviction of Rape in the Third Degree was therefore factually and legally relevant,

and the trial court did not abuse its discretion by admitting it.

[¶19.]       2.     Whether the trial court abused its discretion by
                    admitting evidence of statements Armstrong made in
                    group counseling sessions as part of the mandatory
                    prison sex offender counseling program.

[¶20.]       Armstrong argues that the trial court abused its discretion by

admitting evidence of statements he made in group counseling sessions as part of

the mandatory prison sex offender counseling program. At trial, the State

presented the testimony of Sheila Kieso, a behavioral specialist employed by the

South Dakota Department of Corrections, who counsels sex offenders incarcerated

in the penitentiary. Kieso counseled Armstrong regarding sexual preferences and

boundaries, relapse prevention, the offending cycle, and the impact of his crime on

his victim. Kieso testified that Armstrong stated that “it was okay to have sex with

children as long as they had their period, then they were able to have sex.” Kieso

also testified that when she asked Armstrong how “he perceived the law that he was

convicted of” violating, “he said that it was man’s law not God’s law.”

[¶21.]       We first consider whether Armstrong’s statements to Kieso constitute

inadmissible hearsay. “‘Hearsay’ is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” SDCL 19-16-1(3) (Rule 801(c)). Hearsay is generally

inadmissible. SDCL 19-16-4 (Rule 802). But “[a] statement is not hearsay if it is

offered against a party and is . . . his own statement, in either his individual or a

representative capacity[.]” SDCL 19-16-3(1) (Rule 801(d)(2)(A)). The State offered

Armstrong’s statements to Kieso against him. His statements are therefore

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admissions by a party opponent under SDCL 19-16-3(1) (Rule 801(d)(2)(A)) and are

not inadmissible hearsay.

[¶22.]       Armstrong argues that the statements he made to Kieso during group

counseling sessions were not relevant. Although prior acts evidence offered for the

sole purpose of establishing propensity is irrelevant, it may be relevant to prove

“absence of mistake or accident.” SDCL 19-12-5 (Rule 404(b)). Armstrong raised

the defense of mistake or accident at trial, and Armstrong’s statements to Kieso

were relevant to rebut that defense. Armstrong’s statements to Kieso were also

relatively recent and bore sufficient similarity to the charged offense so that their

probative value is not substantially outweighed by their prejudicial effect. See

SDCL 19-12-3 (Rule 403). The trial court therefore did not abuse its discretion by

admitting evidence of statements Armstrong made in group counseling sessions as

part of the mandatory prison sex offender counseling program. See State v.

Anderson, 2000 S.D. 45, 608 N.W.2d 644 (holding that the trial court did not abuse

its discretion by admitting evidence of prior statements Anderson made concerning

his preparations for kidnapping women under SDCL 19-12-5 (Rule 404(b))).

[¶23.]       3.     Whether the trial court abused its discretion by limiting
                    Armstrong’s cross-examination of R.L. regarding
                    allegations of sexual abuse she made against another
                    individual.

[¶24.]       Before this case, R.L. twice made allegations of sexual abuse against

male members of her household. In 1999, when R.L. was four or five years-old, she

alleged that her uncle, Terrence Peltier, touched her inappropriately. Because

Peltier was found incompetent to stand trial, R.L.’s allegations did not result in a

conviction. In 2008, R.L. alleged that Mother’s boyfriend, Obang Ogeli, touched her

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inappropriately. R.L.’s allegations against Ogeli were similar to her allegations

against Armstrong. Ogeli was ultimately convicted and is currently serving a

prison sentence. The trial court permitted inquiry into R.L.’s allegations of sexual

abuse against Ogeli, but not against Peltier.

[¶25.]       Armstrong argues that the trial court abused its discretion by limiting

his cross-examination of R.L. regarding the allegations of sexual abuse she made

against Peltier. At trial, Armstrong’s counsel conceded that Armstrong touched

R.L., but maintained that the contact was not inappropriate. Because R.L. was the

only witness to testify to the nature of the contact, Armstrong contends that R.L.’s

credibility and experience were relevant. Armstrong argues that he should have

been allowed to cross-examine R.L. regarding her prior allegations of sexual abuse

so that the jury could assess whether he had the specific intent of arousal or sexual

gratification when he touched her.

[¶26.]       SDCL 23A-22-15 precludes evidence of specific instances of a victim’s

prior sexual conduct except when “the court shall first conduct a hearing in the

absence of the jury and the public to consider and rule upon the relevancy and

materiality of the evidence.” “The rule pertains to ‘prior sexual conduct,’ which pre-

supposes that it occurred.” State v. Juarez-Ralios, 2010 S.D. 43, ¶ 59, 783 N.W.2d

647, 663. In State v. Sieler, we held that to become relevant the prior charge of rape

must be shown to be “demonstrably false” as “prior truthful charges of rape are not

relevant[.]” 397 N.W.2d 89, 92 (S.D. 1986) (quoting State v. Kringstad, 353 N.W.2d

302, 311 (N.D. 1984)). See Juarez-Ralios, 2010 S.D. 43, ¶ 59, 783 N.W.2d at 663;

State v. Guthmiller, 2003 S.D. 83, ¶¶ 27-28, 667 N.W.2d 295, 305; State v. Dillon,


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2001 S.D. 97, ¶¶ 23-26, 632 N.W.2d 37, 47-48. To do otherwise would turn “the trial

into one of the victim.” Sieler, 397 N.W.2d at 92 (citations omitted).

[¶27.]       Only the trial court’s exclusion of R.L.’s allegations against Peltier is at

issue. “A trial court’s rulings on limiting cross-examination will be reversed on

appeal only when there is a clear abuse of discretion as well as a showing of

prejudice to the defendant.” State v. Carter, 2009 S.D. 65, ¶ 31, 771 N.W.2d 329,

338 (citing State v. Koepsell, 508 N.W.2d 591, 595 (S.D. 1993)). Peltier was found

incompetent to stand trial, and the trial for sexual contact with R.L. did not

proceed. Thus, the credibility of R.L.’s allegations was never raised. Even if Peltier

had been acquitted, “[i]n some instances even a not guilty verdict on an asserted

false charge may not be enough to make the prior accusations relevant[.]” Sieler,

397 N.W.2d at 92 (citation omitted). Because Armstrong has not demonstrated the

falsity of R.L.’s allegations against Peltier, they are not relevant in this case. The

trial court did not abuse its discretion by limiting Armstrong’s cross-examination of

R.L. regarding the allegations of sexual abuse she made against Peltier.

[¶28.]       Affirmed.

[¶29.]       GILBERTSON, Chief Justice, and KONENKAMP, Justice, concur.

[¶30.]       ZINTER, Justice, concurs specially.

[¶31.]       MEIERHENRY, Justice, concurs in result.



ZINTER, Justice (concurring specially).

[¶32.]       I join the opinion of the Court. I write to address the concurrence in

result’s application of SDCL 19-12-5 (Rule 404(b)). The concurrence in result


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concludes that the prior sexual misconduct with the first adolescent was too remote

and too dissimilar to be relevant under SDCL 19-12-5 (Rule 404). The concurrence

in result bases its conclusion on State v. Fisher, 2010 S.D. 44, 783 N.W.2d 664. But

the admission of the prior act in Fisher was reversed because that defendant was a

juvenile at the time of the prior act while Armstrong was twenty-two years-old at

the time of his prior act. Fisher expressly noted that the defendant’s juvenile status

was “vital” to finding dissimilarity:

             [V]ital . . . because, as the United States Supreme Court recently
             observed, “As compared to adults, juveniles have a ‘lack of
             maturity and an underdeveloped sense of responsibility’; they
             ‘are more vulnerable or susceptible to negative influences and
             outside pressures, including peer pressure’; and their characters
             are ‘not as well formed.’”

Fisher, 2010 S.D. 44, ¶ 30, 783 N.W.2d at 674 (quoting Graham v. Florida, __ U.S.

__, 130 S.Ct. 2011, 2026, 176 L.Ed.2d 825 (2010)).

[¶33.]       Even more importantly, unlike Armstrong, Fisher “offered neither

accident nor lack of intent as a defense,” the Rule 404(b) exceptions relied on by

Judge Tucker in this case. See id. ¶ 11, 783 N.W.2d at 668. Rather, “[r]elying solely

on the fact that Fisher denied committing the crimes charged [ ], the circuit court

ruled the prior conviction admissible under SDCL 19-12-5 (Rule 404(b)) to prove

intent, identity, plan, design or scheme.” Id. ¶ 22, 783 N.W.2d at 672. We have

often disapproved of this type of analysis broadly reciting the laundry list of

possible SDCL 19-12-5 (Rule 404(b)) exceptions. See State v. Chernotik, 2003

S.D. 129, ¶ 30, 671 N.W.2d 264, 274-75; State v. Wright, 1999 S.D. 50, ¶ 17, n.6, 593

N.W.2d 792, 800. But Judge Tucker did not utilize this type of laundry-list



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analysis. He allowed admission of the prior act only to rebut Armstrong’s mistake

defense and to prove specific intent.

[¶34.]        These specific purposes for the admission lead to a fundamental flaw

in the concurrence in result’s similarity analysis. “The degree of similarity required

for other act evidence will depend on the purpose for which it is offered.” Wright,

1999 S.D. 50, ¶ 16, 593 N.W.2d at 800. More similarity is required when evidence is

offered to prove identity rather than when offered to prove common plan or design.

State v. Big Crow, 2009 S.D. 87, ¶ 17, 773 N.W.2d 810, 815; Wright, 1999 S.D. 50, ¶

19, 593 N.W.2d at 800-01. And the degree of similarity required for intent and

absence of mistake are on the lower end of the spectrum. “[T]he similarity of other

acts to display that the act on trial was not inadvertent, accidental, unintentional,

or without guilty knowledge is not required to be as great as in instances where

common scheme, plan, or design is sought to be proved.” People v. Johnson, 124

Mich.App. 80, 87, 333 N.W.2d 585, 589 (1983) (citing McCormick on Evidence (2d.

ed.), § 190, p.450, n.42).

[¶35.]        Thus, the concurrence in result’s heightened similarity standard in

this case fails to recognize that where other acts evidence is offered to show intent,

the prior act need “only be of the same general category to be relevant.” People v.

McGhee, 268 Mich.App. 600, 611, 709 N.W.2d 595, 606 (2005) (citing People v.

VanderVliet, 444 Mich. 52, 80, 508 N.W.2d 114, 128 (1993) (citing Edward J.

Imwinkelried, Uncharged Misconduct Evidence, § 3:11 at 23)). As we have also

concluded, “evidence of prior acts need not be that of an identical offense but only of

similar involvement reasonably related to the offending conduct.” State v. Steichen,


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1998 S.D. 126, ¶ 30, 588 N.W.2d 870, 877; State v. Loftus, 1997 S.D. 94, ¶ 25, 566

N.W.2d 825, 830. “The litmus test is logical relevance rather than similarity.”

Imwinkelried, Uncharged Misconduct Evidence, § 5.05 at 14 (Rev. ed. 1999). See

also Wright, 1999 S.D. 50, ¶ 25, 593 N.W.2d at 803 (stating that “404(b) requires

that the evidence be offered for a logically relevant purpose”).

[¶36.]       In this case, the prior act was logically relevant to prove specific intent

to obtain sexual gratification from adolescents and to prove the absence of mistake.

As the Michigan Supreme Court explained, “when the evidence is proffered to rebut

innocent intent, to show motive, consciousness of wrongdoing, true plan, or

knowledge,” distinctive similarity between other acts and the charge at issue is not

required. VanderVliet, 444 Mich. at 69, n.21, 508 N.W.2d at 124. Evidence of prior

sexual assaults is logically relevant and probative of the defendant’s intent “because

it negates the otherwise reasonable assumption that the contact described in

testimony by [the victim] was accidental, as opposed for the purpose of sexual

gratification.” Id. at 80-81, 508 N.W.2d at 129.

[¶37.]       The concurrence in result focuses on certain factual dissimilarities in

Armstrong’s age, his relationship with the victims, the anatomical and geographical

location of the touchings, and the use of alcohol. It also focuses on dissimilarities in

the legal elements of the two offenses. Although such dissimilarities are often

important in identity cases, they have significantly less relevance in determining

mens rea. In examining logical relevance to prove mens rea, simple unlawfulness of

the charged and uncharged acts, similarity of the victims, similarity of the subject

matter of the offenses, similarity of the physical elements of offenses, and similarity


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of state of mind are the determinative comparisons. Imwinkelried, § 5.09 at 30

(Rev. ed. 1999). In this case both sexual acts were unlawful; both victims were

adolescents; both acts involved adult sexual abuse of adolescents who either were or

were dreamed by Armstrong to be lying naked; and, Armstrong believed that it was

permissible to have sexual relations with adolescents. These similarities make it

logically relevant; i.e., less likely under the doctrine of chances2 that R.L. was

mistaken about the nature of Armstrong’s hugging and touching and that

Armstrong’s hugging and touching were without intent to obtain sexual

gratification.

[¶38.]           With respect to remoteness, Armstrong was incarcerated for twelve

years between the two acts, but as the trial court observed, the relevant time period

was the forty-eight hours after Armstrong’s release from prison when he instigated

sexual contact with R.L. And this Court has “steadfastly refused to adopt an

inflexible rule on remoteness.” Wright, 1999 S.D. 50, ¶ 24, 593 N.W.2d at 802



2.       The doctrine of chances is described in VanderVliet:

                 This theory is widely accepted although its application varies with the
                 issue for which it is offered. Where material to the issue of mens rea, it
                 rests on the premise that “the more often the defendant commits an
                 actus reus, the less is the likelihood that the defendant acted
                 accidentally or innocently[.]”

         444 Mich. at 80 n.35, 508 N.W.2d at 128 n.35 (quoting Imwinkelried, § 3:11 at
         22-23). See also 22 Charles Alan Wright & Kenneth W. Graham, Federal
         Practice and Procedure § 5247, at 517-19 (1st ed. 1978).

                 Often the absence of mistake or accident is proved on a notion of
                 probability; i.e., how likely is it that the defendant would have made
                 the same mistake or have been involved in the same fortuitous act on
                 more than one occasion.

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(citing State v. Wedemann, 339 N.W.2d 112, 115 (S.D. 1983) (stating that asserted

remoteness of prior acts will “realistically depend upon their nature”)). See also

State v. Ondricek, 535 N.W.2d, 872, 877 (S.D. 1995) (holding that bad acts

conducted twenty years earlier were not too remote); and State v. Christopherson,

482 N.W.2d 298, 302 (S.D. 1992) (holding that molestation that occurred seventeen

years earlier was not too remote).

[¶39.]       Admission of prior acts evidence “is within the trial court’s discretion.”

State v. Larson, 512 N.W.2d 732, 736 (S.D. 1994). “Upon review of whether the trial

court abused its discretion in admitting evidence of other wrongs we must be careful

not to substitute our reasoning for that of the trial court. The test is not whether

judges of this [C]ourt would have made an original ruling.” Id. “An abuse of

discretion has been defined by this Court as a decision which is not justified by, and

clearly against reason and evidence.” State v. Moeller, 1996 S.D. 60, ¶ 141, 548

N.W.2d 465, 495. It is not against reason and evidence to admit evidence of prior

sexual relations with one adolescent to rebut an adult’s defenses of mistake and

lack of specific intent to obtain sexual gratification from a second adolescent.


MEIERHENRY, Justice (concurring in result on issue one).

[¶40.]       I concur with the majority on issues two and three, but concur in result

on issue one. I disagree with the majority’s conclusion that Armstrong’s prior rape

conviction was admissible under SDCL 19-12-5 (Rule 404(b)). The facts of that ten-

year-old conviction are too dissimilar to be admissible in the trial on the current

charged offense. See supra ¶ 16. Nevertheless, I would not find its admission into

evidence to be reversible error.

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[¶41.]       This Court recently addressed the admissibility of a prior sex crime

conviction in Fisher, which discussed the degree of similarity required for a prior

conviction to be relevant as a prior act under SDCL 19-12-5 (Rule 404(b)). Fisher,

2010 S.D. 44, ¶ 29, 783 N.W.2d at 673-74. Fisher was charged with sexual contact

and raping his daughter. The trial court admitted Fisher’s prior conviction for

sexual contact with his thirteen-year-old stepsister, which occurred fourteen years

earlier when Fisher was a juvenile. Id. ¶ 22, 783 N.W.2d at 671-72. Fisher’s prior

act was introduced to prove intent, identity, plan, design, or scheme. Id. In the

prior case, Fisher was approximately seventeen years-old, only four years older

than his thirteen-year-old stepsister with whom he had sexual contact. In the

subsequent case, Fisher was thirty-one years-old and the victim was his thirteen-

year-old daughter. Id. ¶ 29, 783 N.W.2d at 673-74. In the prior case, Fisher and his

stepsister did not live in the same home when the incident occurred. In the

subsequent case, Fisher’s daughter was living with him when he committed the

sexual contact and rape. Id. Ultimately, we determined that the prior act was

inadmissible because it was too remote and that the facts were too dissimilar to be

relevant. Id. ¶ 31, 783 N.W.2d at 674.

[¶42.]       Here, Armstrong’s prior rape conviction is similarly remote in time and

dissimilar in circumstances. The prior incident took place twelve years before the

current incident. Armstrong was twenty-two years-old at the time. He is now

thirty-three years-old. The prior victim was a fifteen-year-old female with whom he

was casually acquainted. The current victim is Armstrong’s thirteen-year-old

daughter. In the first incident, Armstrong was only seven years older than the


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victim, and here he is twenty years older than his daughter. The prior incident took

place at a house party where alcohol was involved, and both Armstrong and the

victim were intoxicated. It occurred when Armstrong saw the victim lying naked on

a bed in one of the bedrooms. He entered the bedroom and asked if she would like

to have sex. Since the victim was under the age of consent, Armstrong was charged

with third-degree rape. In this case, the alleged sexual contact took place in his

daughter’s home where Armstrong was an overnight guest. Alcohol was not

involved. Further, Armstrong is the victim’s biological father, and there is no

allegation that he attempted to have intercourse with her. Additionally, the current

charged offense is sexual contact with a child under sixteen, not rape.

[¶43.]       Even though the majority discounts the remoteness of this prior

incident because of Armstrong’s imprisonment, the passage of time should still be a

factor in the degree-of-similarity analysis. Id. ¶ 31, 783 N.W.2d at 673. See also

Chamley, 1997 S.D. 107, ¶ 16, 568 N.W.2d at 613-14. In this case, the prior act is

too remote and the facts are too dissimilar to be relevant under SDCL 19-12-5 (Rule

404(b)) to prove absence of mistake or accident.

[¶44.]       As the majority points out, a person should be tried for what he did,

not for who he is. See supra ¶ 10. SDCL 19-12-5 (Rule 404(b)) clearly prohibits the

admission of prior acts “to prove the character of a person in order to show that he

acted in conformity therewith.” We said in Steichen: “Prior [ ] acts evidence is not

admissible to show that, merely because a defendant committed a similar offense on

another occasion, he has a propensity to commit the offense charged.” 1998 S.D.

126, ¶ 17, 588 N.W.2d at 874 (quoting Moeller, 1996 S.D. 60, ¶ 12, 548 N.W.2d at


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471). SDCL 19-12-5 (Rule 404(b)) also prohibits the State from offering prior acts to

show propensity, i.e. inclination. Here, the prosecutor told the judge that one of the

reasons he was offering Armstrong’s prior rape conviction was to show “that

[Armstrong] has an inclination to commit sexual crimes or contact with minors.”

[¶45.]         Even though the trial court gave a limiting instruction during trial

that the prior act could be considered to show absence of mistake or accident, the

final instructions allowed the jury to consider the prior act “to show an inclination

to commit the act complained of.” 3 I would thus conclude that under the facts and

circumstances of this case, it was an abuse of discretion to admit evidence of

Armstrong’s prior rape conviction. The circumstances and nature of Armstrong’s

prior rape conviction were too remote and dissimilar when compared to the facts of

the current charged offense.

[¶46.]         Nevertheless, I am not convinced its admission warrants reversal.

Unlike Fisher, the prosecutor did not make the prior conviction a centerpiece of his



3.       Although the instruction is problematic, Armstrong did not object to the jury
         instruction at trial or challenge it on appeal. Jury Instruction 6A provided:

                       Evidence has been introduced that the Defendant
               committed an offense (or act) other than that which is now
               charged.
                       Although evidence of this nature is allowed, it may be
               used only to show an inclination to commit the act complained
               of, or absence of mistake or accident. You may not consider it as
               tending to show in any other respect the Defendant’s guilt of the
               offense with which the Defendant is charged. Before
               determining whether to consider this evidence, you must first
               determine if a preponderance of the evidence established that
               the Defendant committed the other acts.
                       You are not required to consider this evidence and
               whether you do is a matter within your exclusive province.

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case. It was only briefly described by one of the witnesses, who merely repeated

Armstrong’s version of the incident. The prosecutor did not use it in his closing

argument to the jury. Instead, the prosecutor emphasized that the jury’s decision

hinged on whether they believed the daughter’s testimony. As such, the error does

not merit reversal.




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