#25116-rev & rem-SLZ

2010 SD 63

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                   * * * *

STATE OF SOUTH DAKOTA,                              Plaintiff and Appellee,

      v.

KENNETH C. HUBER,                                   Defendant and Appellant.

                                   * * * *

                    APPEAL FROM THE CIRCUIT COURT
                     OF THE SIXTH JUDICIAL CIRCUIT
                     HYDE COUNTY, SOUTH DAKOTA

                                   * * * *

                     HONORABLE JAMES W. ANDERSON
                                Judge

                                   * * * *

MARTY J. JACKLEY
Attorney General

STEVEN R. BLAIR
Assistant Attorney General                           Attorneys for plaintiff
Pierre, South Dakota                                 and appellee.

MICHAEL J. BUTLER
Sioux Falls, South Dakota

CLINT L. SARGENT of
Meierhenry & Sargent, LLP                            Attorneys for defendant
Sioux Falls, South Dakota                            and appellant.

                                   * * * *
                                             ARGUED ON MAY 25, 2010

                                             OPINION FILED 07/28/10
#25116

ZINTER, Justice

[¶1.]        A jury found Kenneth C. Huber (Huber) guilty of first degree murder in

connection with the shooting death of his wife, Pam Huber. The only dispute was

whether the shooting was accidental or intentional. The State’s theory was that

Huber, a former chief of police, was an expert marksman who was too well-trained

in the safe-handling of handguns for the shooting to have been an accident. Over

Huber’s Daubert objection, the circuit court admitted the State’s expert’s testimony

that the shooting was inconsistent with an accidental act because well-trained

officers do not accidentally discharge their firearms. On the other hand, the court

refused Huber’s expert’s testimony that well-trained officers do accidentally

discharge their firearms when certain conditions occur. Huber appeals these

rulings. He also appeals: the circuit court’s refusal to admit rebuttal evidence of a

deputy sheriff who accidentally discharged a handgun; the court’s admission of

Pam’s out-of-court statements; and, the court’s admission of other acts evidence. We

reverse and remand for new trial on the circuit court’s refusal to allow Huber’s

expert to testify. We affirm the circuit court on all other issues.

                            Facts and Procedural History

[¶2.]        We restate the facts in a light most favorable to the jury’s verdict.

Huber and Pam married in 1993. They had two daughters who were residing in the

home: Kari (thirteen years old) and Stephanie (eleven years old). Pam was the City

Finance Officer for Highmore, South Dakota. Shortly before the incident, Huber

had been Highmore’s Chief of Police.




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[¶3.]        At the time of the shooting, Huber and Jennifer Lowrie, the Hyde

County State’s Attorney, were involved in an extramarital affair that began in July

2007. Huber also had a previous extramarital affair with Cindy Erwin. Huber’s

affair with Erwin started in the spring of 2005, and Erwin ended the affair in

September 2005. According to Lowrie, Huber said he still loved Erwin, and Huber

was obsessed over the way the relationship with Erwin had ended. Lowrie testified

that in mid-October 2007, Huber was still discussing Erwin with both Pam and

Lowrie.

[¶4.]        Huber resigned as Highmore’s Chief of Police in August 2007 to take a

job with the Miller Police Department. While working in Miller, Huber met Tiffany

Joy. Joy had asked the Miller police department to help with harassment she was

receiving from her ex-husband. Joy testified that Huber would stop by her

residence to check on Joy and her children. Toward the end of August 2007, Huber

purchased a new car and took Joy and two of her children for a ride. At some point

after this incident, Huber attempted to kiss Joy, but Joy rebuffed his attempt.

When Joy’s ex-husband learned about the car ride, he filed a grievance with the city

commission and petitioned for a protection order against Huber. The city

commission asked Huber to resign. Huber submitted his resignation on September

28, 2007.

[¶5.]        Huber’s resignation left him unemployed and under considerable

stress. Huber unsuccessfully attempted to find a new law enforcement position. In

September 2007, Pam e-mailed Lowrie telling her that Huber was drinking himself




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to sleep every night. Huber was also taking sleeping pills. Lowrie testified that in

mid-October, she witnessed a fight between Huber and Pam over financial matters.

[¶6.]        On Sunday evening, October 28, 2007, at approximately 10:00 p.m.,

Huber made a fifty-minute phone call to Lowrie. Sometime after the phone call,

Stephanie entered her parents’ bedroom and joined Huber on the bed to watch

television. Pam subsequently joined Stephanie and Huber on the bed, where the

three watched television together.

[¶7.]        Stephanie testified that shortly thereafter, Huber walked to a dresser

on Pam’s side of the bed and retrieved his duty firearm, a .40 caliber Glock Model

22 handgun. The handgun was loaded with Smith and Wesson Black Talon

ammunition. A tactical light (a laser/flashlight device) was attached to the rail of

the gun. Stephanie testified that the previous night, Huber had taken the Glock out

of his duty-belt and checked the tactical light before replacing the gun in the belt.

[¶8.]        Stephanie observed Huber walk around the foot of the bed. Huber

carried the Glock in his right hand with his finger off the trigger. He then placed

the gun on the corner of the bed while he used a stool to search the shelves in the

bedroom closet. He stepped down from the stool, picked up the gun, and walked

into the hallway. Huber had a gun safe in the hallway immediately adjacent to the

bedroom door. A person could stand facing the gun safe and, by looking to the right,

see into the bedroom.




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[¶9.]          Stephanie heard clicks and beeps coming from the hallway, which

indicated an attempt to open the gun safe. 1 Stephanie testified that she then

drifted off to sleep. About three to five minutes later, around 11:30 p.m., Stephanie

awoke to the sound of a gun shot. She immediately observed that Pam had been

shot in the forehead.

[¶10.]         Huber came rushing into the room. Stephanie testified, “I seen my dad

running over to my mom and saying, ‘it’s an accident.’” Huber told Stephanie to get

Kari, to call 911, and to call Lowrie. When Kari arrived in the bedroom, Huber

(who was a certified emergency medical technician) told Kari and Stephanie to

retrieve his EMT bag. Huber began administering first aid.

[¶11.]         Huber also called 911, but the call was disconnected. Kari then called

Lowrie and told her to come to the house. After the Lowrie call, the 911 operator

called and spoke with Stephanie. While Stephanie was speaking with the 911

operator, Lowrie arrived at the Huber home. Lowrie took the phone from Stephanie

and spoke with the 911 operator until an ambulance arrived.

[¶12.]         The 911 call was recorded, and Huber can be heard in the background

speaking with the 911 operator, stating that the shooting was an accident.

               Huber: My wife has been shot. I’m here, it was me, it was an
               accident. (Huber in the background talking to his girls) Hang



1.       DCI Special Agent Jason Baldwin testified that access to the Huber gun safe
         would be gained by entering a numerical code on a keypad and then turning
         the safe’s handles. Each time a person pressed a number on the keypad, an
         audible “beep” would sound. Once a person entered the correct combination,
         several beeps would sound. As the safe’s handles turned, a loud metallic
         “thunk” would be heard. Stephanie testified that she did not hear the
         “thunk.”

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#25116

               on dial, Jennifer. . . . She was shot in the head – she was shot in
               the head, it ain’t good.
               911: Where is she shot?
               Huber in background: Right above the left eye. . . Right above
               the right eye.
               911: What was she shot with?
               Huber in background: Glock 40 with black talon.
               911: Was he cleaning his gun?
               Stephanie: Were you cleaning?
               Huber in background: Moving it from the safe over to here.

[¶13.]         Emergency responders were dispatched by the 911 operator. An

emergency medical technician testified that Huber said the shooting had occurred

accidentally while he was moving his gun. The ambulance transported Pam and

Huber to a medical facility in Miller.

[¶14.]         Law enforcement subsequently took Huber from Miller to the Hyde

County Courthouse in Highmore. Highway Patrolman Randi Erickson

administered a breath test, which indicated there was no alcohol in Huber’s

system. 2 Huber, who knew Erickson through his work in law enforcement, said:

“I’m sorry, Randi. It was an accident.”

[¶15.]         Pam died on November 2, 2007. Huber was arrested four days later.

Prior to trial, both parties made motions relating to the admission of evidence. The

circuit court allowed the State’s proposed use of Pam’s out-of-court statements and

Huber’s other acts. Both types of evidence related to domestic abuse and the

tenuous nature of the marital relationship. The circuit court also allowed the

State’s expert to give an opinion that the shooting was inconsistent with an



2.       Oxycodone, hydrocodone, gabapentin (prescription pain medications),
         zolpidem (a sleeping aid), alprazolam (an anti-anxiety medication), and cold
         and allergy medications were in his system.

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accidental act of a well-trained police officer. The court finally ruled that Huber’s

expert could neither opine that law enforcement officers accidentally discharge their

firearms nor give examples of possible causes of accidental discharges.

[¶16.]        Huber raises the following issues on appeal:

              1.     Whether the circuit court abused its discretion in allowing
                     the State’s expert to testify that the events were
                     inconsistent with an accidental act of a well-trained police
                     officer.

              2.     Whether the circuit court abused its discretion in
                     excluding Huber’s expert’s testimony that (1) law
                     enforcement officers accidentally discharge their firearms,
                     and (2) there are possible causes of accidental discharges.

              3.     Whether the circuit court abused its discretion in
                     excluding Huber’s rebuttal evidence of another law
                     enforcement officer who accidentally discharged a Glock
                     handgun.

              4.     Whether the circuit court abused its discretion in
                     admitting Pam’s out-of-court statements and Huber’s
                     other acts evidence.

                            1. The State’s Expert Testimony

[¶17.]        At a Daubert hearing, Huber unsuccessfully objected to the testimony

of the State’s firearms training expert, John Farnam. Thus, Farnam was permitted

to testify: that people like Huber, who are certified firearms instructors and “Glock

Armorers” (persons who have completed Glock Armorers training), are instructed to

keep their fingers off the trigger and outside the trigger guard until they intend to

fire; that keeping one’s finger in this “register” position prevents the vast majority of

accidents; and, that Farnam’s well-trained students never accidentally discharged

their firearms when their fingers were in the register position. Farnam opined that

if the trigger finger is in the register position, it is not possible in a “practical sense”

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for a gun to discharge accidentally. He testified: “It may be possible in an

astronomical sense. But among trained people whose finger is where it belongs, it’s

rare enough where I can say it’s not going to happen in a practical sense.” Farnam

ultimately opined that the facts of this case were inconsistent with an accidental

shooting.

[¶18.]       Huber did not challenge Farnam’s qualifications as an expert or the

relevance of Farnam’s testimony. Rather, Huber objected to the reliability of

Farnam’s testimony. Huber reasserts that objection on appeal, arguing that the

circuit court failed to (1) analyze the foundation upon which Farnam’s opinion was

based, (2) evaluate the methodology used by Farnam to arrive at his opinion, and

(3) make any findings regarding the reliability of Farnam’s conclusion. “We review

a circuit court’s decision to admit or deny an expert’s testimony under the abuse of

discretion standard.” Burley v. Kytec Innovative Sports Equip., Inc., 2007 SD 82, ¶

12, 737 NW2d 397, 402.

[¶19.]       The admission of expert testimony is governed by SDCL 19-15-2 (Rule

702), which provides:

             If scientific, technical, or other specialized knowledge will assist
             the trier of fact to understand the evidence or to determine a
             fact in issue, a witness qualified as an expert by knowledge,
             skill, experience, training, or education, may testify thereto in
             the form of an opinion or otherwise.

South Dakota courts determine the admissibility of expert evidence in accordance

with Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579, 113 SCt 2786, 125

LEd2d 469 (1993). State v. Weaver, 2002 SD 76, ¶ 25, 648 NW2d 355, 364-65. The

Daubert standard requires that the circuit court ensure an expert’s testimony “rests


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on a reliable foundation[.]” State v. Hofer, 512 NW2d 482, 484 (SD 1994)) (quoting

Daubert, 509 US at 597, 113 SCt at 2799). “The burden of demonstrating that the

testimony is . . . reliable rests with the proponent of the testimony. . . . The

proponent . . . must prove . . . admissibility by a preponderance of the evidence.”

State v. Lemler, 2009 SD 86, ¶ 23, 774 NW2d 272, 280 (citation omitted). A circuit

court has “‘considerable leeway’ in deciding in each case ‘how to go about

determining whether particular expert testimony is reliable.’” Burley, 2007 SD 82,

¶ 25, 737 NW2d at 406 (citation omitted).

Foundation

[¶20.]       Huber argues that Farnam’s testimony was not reliable because the

foundation was inadequate for his ultimate conclusion that the shooting was

inconsistent with an accidental act. Relying on State v. Guthrie, 2001 SD 61, 627

NW2d 401, Huber contends that because Farnam testified that the events were

inconsistent with an accidental act, Farnam was required to compare the facts of

this case with the known characteristics of accidental shootings. Huber asserts that

Farnam’s opinion was foundationally deficient because it was based on Farnam’s

specialized knowledge of the safe gun-handling characteristics of well-trained police

officers rather than the characteristics of accidental shootings.

[¶21.]       Guthrie involved specialized knowledge of syndromes and

psychological autopsies in cases involving suicide. Id. ¶¶ 40-42, 627 NW2d at 418-

19. We stated, “[i]n allowing experts with specialized knowledge to testify, courts

applying Daubert generally permit these experts to describe the symptoms or

behaviors of known victims, report the symptoms or behaviors observed in the


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victim in the present case, and give an opinion that the victim’s symptoms or

behaviors are ‘consistent with’ those of known victims.” Id. ¶ 42, 627 NW2d at 419.

Although Guthrie involved an opinion based on the known characteristics of suicide

victims, Guthrie did not adopt a “known characteristics of similar victims” test as

the sole foundation for all comparative opinions. On the contrary, Guthrie left the

foundational basis for expert opinion open, stating:

             The factual basis for an expert opinion is given wide latitude.
             Under SDCL 19-15-3 [(Rule 703)], experts may base their
             opinions on facts perceived by or made known to them at or
             before the hearing, if of a type reasonably relied on by experts in
             the field in forming opinions, and the facts or data need not be
             admissible in evidence.

Id. ¶ 34, n8, 627 NW2d at 416.

[¶22.]       Therefore, Guthrie should not be read to suggest that an accidental

discharge opinion may be based only on a comparison of the known characteristics

of accidental shootings. Such opinions may be based on any type of facts reasonably

relied on by experts in the field. Id. Logically, a comparison of the known

characteristics of individuals who are specially trained in the safe-handling of

firearms is probative in determining whether such an individual accidentally

discharged a firearm. This probative foundation is apparent, and we reject Huber’s

restrictive interpretation of Guthrie.

[¶23.]        Huber also argues foundational deficiency because Farnam offered no

study or empirical data supporting his “inconsistent with” a well-trained officer

opinion. However, studies or empirical research are not required in every case.

“Daubert and its progeny only ‘offer general guides for courts to consider in

assessing reliability[.]’” In re T.A., 2003 SD 56, ¶ 27, 663 NW2d 225, 234 (quoting

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Garland v. Rossknecht, 2001 SD 42, ¶ 11, 624 NW2d 700, 703). These factors

cannot be applied in all settings. “[T]he measure of intellectual rigor will vary by

the field of expertise and the way of demonstrating expertise will also vary.”

Burley, 2007 SD 82, ¶ 25, 737 NW2d at 406. In some instances, reliability must

focus simply on “‘knowledge and experience.’” In re T.A., 2003 SD 56, ¶ 27, 663

NW2d at 234 (quoting Garland, 2001 SD 42, ¶ 11, 624 NW2d at 703). Thus, as we

observed in Guthrie, even though an expert does not rely on empirical studies, an

expert with special expertise based on observation and experience may testify on

the “behaviors” of known individuals. 2001 SD 61, ¶ 42, 627 NW2d at 419.

[¶24.]       In this case, Farnam’s testimony was based on specialized expertise

gained in over thirty years of observation and experience with the behavior of

individuals who had received training in the safe-handling of firearms. Farnam’s

experience included military service, law enforcement service, and consulting

services provided as the president of a company providing firearms safety training.

He was also current on literature in the field, he was the author of four books on

firearms, he had completed the Glock Armorer’s safety course, he was a certified

law enforcement officer firearms instructor, he held membership in relevant

associations, and he had testified in one prior law enforcement officer’s firearm

discharge case. Farnam had also read the police reports, grand jury testimony,

witness statements, autopsy and forensic reports; and he had examined the scene

and Glock handgun. Farnam’s opinion was based on his specialized knowledge of

the behavior of individuals who had received extensive training in the safe handling




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of firearms. The circuit court did not abuse its discretion in finding there was a

reliable foundation for Farnam’s testimony.

Methodology

[¶25.]        Huber next challenges the circuit court’s assessment of Farnam’s

methodology. A circuit court may consider the following nonexclusive guidelines for

assessing an expert’s methodology:

              (1) whether the method is testable or falsifiable; (2) whether the
              method was subjected to peer review; (3) the known or potential
              error rate; (4) whether standards exist to control procedures for
              the method; (5) whether the method is generally accepted; (6)
              the relationship of the technique to methods that have been
              established as reliable; (7) the qualifications of the expert; and
              (8) the non-judicial uses to which the method has been put.

Guthrie, 2001 SD 61, ¶ 35, 627 NW2d at 416. Huber argues that had the circuit

court applied these factors to Farnam’s comparative methodology, the court would

have come to the conclusion that Farnam was only offering subjective argument.

See id. ¶ 36, 627 NW2d at 416-17 (noting that to be reliable, an expert’s opinion

must be “derived from the foundations of science rather than subjective belief”).

[¶26.]        As previously noted, however, Farnam’s opinion was based on a

comparative analysis of the facts of this case with his specialized knowledge of the

behavior of well-trained law enforcement officers. Therefore, Farnam’s analysis

was not mere subjective opinion. Although the circuit court did not analyze the

eight nonexclusive factors, most of those factors are applied to evaluate scientific

theories rather than a comparative analysis of human behavior. Additionally, this

Court has never required a circuit court to address the eight factors in every case,

and we do not do so now.


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[¶27.]       Huber next argues that Farnam’s methodology allowed him to make

“the inferences the jury was supposed to make for themselves” and Farnam’s

“opinion merely told the jury what to do.” We disagree. In Guthrie, we disapproved

of an unequivocal expert opinion on the ultimate issue that the victim “did not die

by suicide.” Id. ¶ 33, 627 NW2d at 415. In this case, Farnam did not testify that

Pam died as a result of an intentional shooting, and he did not opine on Huber’s

guilt or innocence. See State v. Moran, 2003 SD 14, ¶ 43, 657 NW2d 319, 329 (“An

expert can testify as to the ultimate issue ‘as long as the witness is not asked

whether the defendant is innocent or guilty.’” (citation omitted)). Farnam’s opinion

was limited to whether the facts of this case were inconsistent with the act of a well-

trained officer. This opinion did not invade the province of the jury.

[¶28.]       Huber finally challenges Farnam’s methodology, noting that Farnam

did not sit through the trial and listen to witnesses testify. Huber points out that

Farnam was unaware of Stephanie Huber’s trial testimony regarding Huber’s

activities immediately before the shooting. Huber also notes that Farnam admitted

he did not know in which hand or how Huber held the gun prior to the shooting.

Experts are not, however, limited to rendering opinions based on trial testimony.

They are entitled to rely on out-of-court evidence in forming their opinions. SDCL

19-15-3 (Rule 703). Further, Huber cross-examined Farnam regarding his

knowledge of the trial testimony. These alleged deficiencies went to the weight

rather than the admissibility of Farnam’s testimony. See Burley, 2007 SD 82, ¶ 24,

737 NW2d at 406 (stating any deficiencies in an expert’s opinion or qualifications




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can be tested through the adversary process at trial). We see no error in the court’s

assessment of Farnam’s methodology.

Findings Regarding the Reliability of Expert Conclusions

[¶29.]         Huber contends that the circuit court erred in failing to make findings

regarding the reliability of Farnam’s conclusions. As we recently observed,

however, “[i]n applying Daubert, ‘[t]he focus . . . must be solely on principles and

methodology, not on the conclusions that they generate.’” Lemler, 2009 SD 86, ¶ 25,

774 NW2d at 281 (citation omitted) (emphasis added). Therefore, the circuit court

was not required to enter findings on the reliability of Farnam’s ultimate

conclusions. For all of the foregoing reasons, the circuit court did not abuse its

discretion in admitting Farnam’s testimony.

                               2. Huber’s Expert Testimony

[¶30.]         Huber’s expert, Dr. Roger Enoka, was prepared to testify that well-

trained law enforcement officers unintentionally discharge their firearms. Dr.

Enoka’s expertise was in the areas of kinesiology, biomechanics, neurophysiology,

and neuromechanics. He described this expertise as “explaining human

movement,” including how the muscles contract and work within the body.

[¶31.]         In Huber’s written offer of proof and during the Daubert hearing, Dr.

Enoka proposed to testify that factually, accidental discharges can be caused by: (1)

sympathetic muscle contractions, (2) loss of balance, (3) the “startle effect,” and (4)

“reactive grip response.” 3 Huber’s written offer of proof and Dr. Enoka’s proposed



3.       Dr. Enoka described reactive grip response as an involuntary muscle action
         occurring when something a person is holding begins to slip out of that
                                                                   (continued . . .)
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testimony was not, however, limited to these four factual possibilities. Dr. Enoka

was also prepared to testify that, contrary to the State’s well-trained officer theory:

                   One study has shown that as many as 20% of well-trained
                    law enforcement officers will allow their finger to make
                    contact with the handgun’s trigger without the officer’s
                    knowledge;
                   Well-trained law enforcement officers unintentionally
                    discharge their weapons; and
                   Teaching law enforcement officers to keep their index
                    finger away from the trigger is not, itself, enough to
                    prevent incidents of unintentional discharge.

Regarding this generalized proffer, Dr. Enoka testified:

             Q: Based on your experience and the research that you’ve done,
             do you believe that [the] procedure of holding the finger outside
             the trigger guard until a decision to fire has been made, do you
             believe that procedure prevents all unintentional discharges of
             firearms?
             A: I do not.
             ....
             Q: Do you have an opinion as to whether well-trained law
             enforcement officers ever unintentionally discharge their
             weapons?
             A: Yes, I believe that they can.
             Q: And what do you base that opinion on?
             A: I base that on the number of cases that I’ve been involved in,
             in talking with law enforcement officers who’ve experienced this,
             the remorse that they express.

Following his proffer, Huber argued that Dr. Enoka’s testimony was relevant to his

defense, relevant to rebut the State’s trial theory, 4 and relevant to rebut Farnam’s


_________________________
(. . . continued)
         person’s hand, causing the person to strengthen his or her grip. Dr. Enoka
         indicated that bumping one’s arm while carrying a cup of coffee is a common
         example.

4.    The State’s theory is summarized in its final argument. The State argued
      that Huber:

                                                                   (continued . . .)
                                          -14-
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testimony. Counsel argued:

             It’s pretty obvious where [the State’s theory] is going. You
             know, [the State is suggesting Huber is] the most well-trained
             officer in South Dakota, we’re learning, the safest officer in
             South Dakota. The implication is if you’re both, if you’re a Glock
             Armorer, you do not have accidents. And it’s simply false and
             it’s misleading to the jury and they’re taking full advantage of it
             by bringing in these people to say, as this guy [Farnam] is going
             to testify, in my opinion, it’s highly unlikely it was an accident
             because he’s too well-trained. . . . This is simply fair rebuttal to
             this general proposition that they’re asserting he is guilty
             because he’s too well-trained to have had an accident. And we
             have a right here to defend.

[¶32.]       The circuit court found that Dr. Enoka was qualified and that his

testimony was reliable (calling it “good science”). However, the court found that Dr.

Enoka’s four factual possibilities were not relevant until there was evidence that

one of those possibilities occurred. Focusing on Dr. Enoka’s testimony regarding

four possible causes of accidental discharges, the court explained:

             The testimony that’s been presented is that these reactions
             occur in various different situations; a startling event, loss of
             balance, sympathetic response or reactive grip response.
             There’s no evidence in the testimony in the record that any of
             those things happened. About the best that could be said about

_________________________
(. . . continued)
               [H]ad an easy, clear shot at Pam’s head. Easy when you got a
               laser and also easy when you’ve got the training and experience
               and are as good a shot as Ken Huber is. . . . [H]e could
               accomplish it even being out of [Pam’s] line of sight. . . . [T]his
               wasn’t some happenstance shot that was some kind of accident.
               Ken Huber knew exactly where this bullet was going to go. . . .
               Ken’s an ex-marine where he was honored with the
               sharpshooter badge. . . . He was a Glock Armorer in 1993 and
               2006. And he took and successfully passed a forty-five hour
               police firearms instructor school in 2006. . . . The evidence is he
               was an excellent marksman and the evidence is he was an
               excellent safe gun handler.


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              Dr. Enoka’s testimony is that sometimes things happen in kind
              of similar circumstances. And that’s not good enough to make it
              expert testimony to present to the jury.

The court indicated if Huber presented evidence that one of these four causes may

have occurred, Dr. Enoka’s testimony would then become relevant and admissible.

On appeal, Huber argues that all of Dr. Enoka’s testimony was not only relevant to

Huber’s defense, but also relevant to rebut the State’s evidence that well-trained

officers do not accidentally discharge firearms.

[¶33.]        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). SDCL 19-15-2 (Rule 702) provides that “[i]f scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the evidence or to

determine a fact in issue,” then an expert may testify on that issue. (Emphasis

added.) The Supreme Court has explained that under Rule 702, this fact-in-issue

aspect of relevancy “is whether expert testimony proffered in the case is sufficiently

tied to the facts of the case that it will aid the jury in resolving a factual dispute.”

Daubert, 509 US at 591, 113 SCt at 2796. In other words, the factual relevancy

question is dependent on whether there is a sufficient “fit” between the specific facts

of the case and proffered expert testimony. Id.

[¶34.]        In making its relevancy determination, the circuit court focused on the

factual fit for Dr. Enoka’s four possible causes of accidental discharges. The court

concluded there was no fit because there was no evidence suggesting that one of

those four possibilities occurred. We conclude that based on Huber’s proffer as a


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whole, the court misapplied this relevancy rule in two respects. First, it focused

exclusively on Dr. Enoka’s four possible causes to the exclusion of Dr. Enoka’s three

generalized opinions. Second, the court did not give consideration to the factual

relevancy of all Dr. Enoka’s testimony to rebut the State’s experts’ theory of the

case.

[¶35.]         The record reflects that a number of times immediately after the

incident Huber indicated that the shooting was an accident. Those statements,

together with the State’s well-trained officer evidence, made Dr. Enoka’s

generalized, non-fact specific testimony relevant. As previously noted, Dr. Enoka’s

proffer included non-fact-specific opinions that one study has shown as many as

20% of well-trained law enforcement officers allow their finger to make contact with

the handgun’s trigger without the officer’s knowledge; that well-trained law

enforcement officers do unintentionally discharge their firearms; and that teaching

law enforcement officers to keep their index finger away from the trigger does not

always prevent unintentional discharges. These non-fact specific opinions were

relevant to the accidental/intentional discharge issue. Moreover, Dr. Enoka’s four

fact-specific possible causes explained his opinion and rebutted Farnam’s opinion. 5



5.       It is also significant that Dr. Enoka would have responded to other State
         witnesses used to establish its theory that the shooting was inconsistent with
         an accidental discharge. The State called Seth Bradbury, a firearms expert,
         who testified that Huber’s gun had a five-pound trigger pull. Bradbury
         characterized the trigger force necessary to discharge such a gun as: “A five
         pound bag of sugar hanging on your finger. If you hung a five pound bag of
         sugar off your finger, that’s how hard you got to pull this thing in order to
         make it go off.” Dr. Enoka would have rebutted this analogy, explaining how
         five pounds of pressure is measured and opining that Bradbury’s analogy was
         misleading. Dr. Enoka would have also rebutted the inferences flowing from
                                                                      (continued . . .)
                                             -17-
#25116

Therefore, there was a factual fit making Dr. Enoka’s testimony relevant. The

circuit court misapplied the relevancy rule in not considering admission of Dr.

Enoka’s opinions for these purposes. As we stated in State v. Packed, 2007 SD 75, ¶

25, 736 NW2d 851, 859: “When a defendant’s theory ‘is supported by law and . . .

has some foundation in the evidence, however tenuous[,]’ the defendant has a right

to present it.” (Emphasis added) (citation omitted).

[¶36.]       The State contends that any error in refusing to admit Dr. Enoka’s

testimony was harmless and not prejudicial. The State notes that Huber was able

to place rebuttal testimony before the jury through the cross-examination of

Farnam. We believe that the exclusion of Dr. Enoka’s testimony was prejudicial

notwithstanding Huber’s ability to cross-examine Farnam.

[¶37.]       The criminally accused’s right to proffer a defense is fundamental. As

this Court noted in State v. Lamont, a defendant must be allowed to present his

theory and respond to the State’s case:

             When a defendant is denied the ability to respond to the State’s
             case against him, he is deprived of “his fundamental
             constitutional right to a fair opportunity to present a defense.”
             We cited in State v. Iron Necklace, 430 NW2d 66, 75 (SD 1988),
             notions of fundamental fairness require “that criminal
             defendants be afforded a meaningful opportunity to present a
             complete defense.” It is only fair that a defendant in a criminal
             trial be allowed to present his theory of the case.


_________________________
(. . . continued)
         the testimony of Taunya O’Connor, Art Aplan, Doug DeBoer and Terry
         Deuter. These witnesses testified about Huber’s firearms training and
         shooting skill. Dr. Enoka would have responded that in his twenty years
         studying unintentional discharges and consulting in civil lawsuits, he
         observed several examples of well-trained police officers, following all
         recommended safety rules, still unintentionally discharge their firearms.

                                          -18-
#25116

2001 SD 92, ¶ 16, 631 NW2d 603, 608-09 (citations omitted). Dr. Enoka would have

supported Huber’s accident theory and rebutted the State’s evidence regarding its

well-trained officer theory. Without Dr. Enoka, Huber had no witness to rebut the

State’s numerous witnesses and present a “complete defense.” See id. We believe

that in all probability the jury’s verdict was affected by Huber’s inability to have

any expert witness support his theory and rebut the State’s witnesses. See State v.

Michalek, 407 NW2d 815, 818 (SD 1987) (“‘Prejudicial error’ is error which in all

probability must have produced some [a]ffect upon the jury’s verdict and is harmful

to the substantial rights of the party assigning it.”). See also Packed, 2007 SD 75, ¶

27, 736 NW2d at 860 (“Those denied the ability to respond to the prosecution’s case

against them are effectively deprived of a ‘fundamental constitutional right to a fair

opportunity to present a defense.’” (citation omitted)). We conclude that the circuit

court misapplied the factual relevancy requirement of SDCL 19-15-2 (Rule 702).

The court’s exclusion of Dr. Enoka’s evidence was prejudicial error requiring a new

trial.

              3. Exclusion of Evidence of Another Accidental Discharge

[¶38.]       The State moved to preclude evidence of instances in which other law

enforcement officers accidentally discharged their firearms. The State argued that

such evidence was not relevant to the issues and more prejudicial than probative.

Huber argued that the evidence was relevant to rebut Farnam’s testimony and the

State’s well-trained officer theory. The circuit court disallowed the evidence under

SDCL 19-12-3 (Rule 403). The court found that the evidence was only peripherally




                                          -19-
#25116

relevant, and that the risk of confusion, delay, and misleading the jury

substantially outweighed its probative value.

[¶39.]        On appeal, Huber challenges the circuit court’s decision regarding one

instance involving an accidental discharge of an identical handgun. The accidental

discharge occurred in October 2006, on the boundary of Rapid City in Meade County

(hereinafter “the Meade County incident”). Deputy Wood, a Pennington County

deputy sheriff, was walking down a hallway of a home when he came upon a closed

door. Wood, who was left-handed, carried his handgun in his left hand. He

attempted to open the door by pushing it with a “ballistic shield” that he carried in

his right hand. When the attempt failed, he turned on the tactical light mounted on

the handgun, and at the same time he kicked the closed door. Deputy Wood stated

that his finger was in the register position off the trigger at the time he turned on

the tactical light. After kicking the door, Deputy Wood pushed against the door

with his shield. Wood claimed to have felt resistance that resulted in his grip

tightening, and he unintentionally discharged the handgun.

[¶40.]        Huber argues that the circuit court abused its discretion in disallowing

evidence of this incident because the court failed to consider the rebuttal value of

the evidence. Although this is an extremely close question, we cannot say that the

circuit court abused its discretion in excluding this evidence under SDCL 19-12-3

(Rule 403).

[¶41.]        The Meade County incident was not directly relevant to whether

Huber accidentally or intentionally shot Pam. Rather, the evidence was only

inferentially relevant in that on one occasion, under different circumstances, a law


                                         -20-
#25116

enforcement officer using an identical handgun accidentally discharged the firearm.

Although the State’s theory made this evidence circumstantially relevant, the

circuit court was concerned that the evidence would have caused the parties, during

the course of Huber’s trial, to engage in side litigation over the details of the Meade

County incident to determine its similarity and resulting degree of relevance.

Moreover, the State points out that this would have led to the prospect of admitting

other cases of accidental discharges requiring mini-trials on each incident. The

circuit court’s balancing of circumstantial relevancy against the undue delay and

confusion does not reflect an abuse of discretion.

[¶42.]       Huber also argues that the circuit court prohibited Huber from cross-

examining Farnam on examples of other accidental discharges by other well-trained

individuals. Our review of the record does not support this argument. Huber asked

Farnam on cross-examination:

             Q: You stay up on the literature, you stay up on the periodicals.
             How many times have you read or learned or known about well-
             trained law enforcement officers unintentionally discharging
             their Glocks?

             A: [S]tories are made up or stories are embellished to somehow
             fault the gun . . . stories circulate around. We have to be very
             cautious about the facts surrounding them. But sure, there are
             lots of incidents I’ve heard about.

             Q: You’ve heard about lots of incidents?

             A: Yes.




                                          -21-
#25116

This does not reflect a complete denial of cross-examination. We affirm the circuit

court’s exclusion of the Meade County incident. 6

4. Admission of Statements of the Decedent and Admission of Other Acts

[¶43.]         The State moved to admit approximately fifty out-of-court statements

Pam made to numerous witnesses. The statements included e-mails and other

written communications spanning most of the marriage. They disclosed the nature

of the relationship between Huber and Pam, Huber’s abuse and infidelity in the

marriage, Pam’s fear of Huber, and both parties’ intentions with regard to divorce,

separation and maintenance of their family. 7 The State argued that the statements

were admissible as state of mind declarations or as residual hearsay.




6.       The circuit court is free to reconsider its decision on remand in light of our
         discussion in Issue 2.

7.       The list of evidence in the State’s motion is substantial: twenty pages, single-
         spaced. The majority of the statements are e-mails between Pam and Cindy
         Erwin or Pam’s sisters. Some of the statements include the following:

         When Huber was the Chief of Police in Miller, Pam told her sister Nadine
         Stephenson that Pam was afraid of Huber. Pam asked Stephenson that if
         something ever happened to Pam, would Stephenson take care of her
         daughters. Pam also told Stephenson that Pam needed a “code” to call
         Stephenson. Pam said she would call Stephenson and say, “It’s Pam,” if
         Huber was hitting her. That way, Stephenson would know that Pam needed
         help.

         Pam e-mailed her sister Nancy Roth in June 2001, and indicated that she
         was afraid of Huber and that Huber hits her. In August 2005, Pam e-mailed
         Roth that:

                      It hasn’t always been bad. It’s just that the bad parts
                      have been really bad. It’s like he’s two different people. . .
                      . It’s the living together that has been our downfall.

                                                                      (continued . . .)
                                            -22-
#25116

_________________________
(. . . continued)
         Pam e-mailed Roth in January 2007 indicating that: “Things here are
         strained, they probably always will be. Sometimes I wonder if it’s worth it.
         Other times we get along fine. We’re having money crunch again but are
         trying to work together on it. I hate giving up control of my paycheck though,
         so I just bite my tongue and hand it over.” Pam later indicated: “And then
         there are days when I look at him and can tell his mind is off in [Cindy
         Erwin] land again. He always apologizes because he knows it’s over for her.
         But it’s really hard for me to watch because I know if she gave him a chance
         he’d be gone.”

      In an e-mail to her sisters in June 2001, Pam wrote, “Try to forget that he
      may have hit me[.]” In another e-mail to her sisters, dated June 24, 2005,
      Pam wrote:

                    We are to the point that I’ve told him this just isn’t
                    working anymore, he’s still sneaking around seeing
                    [Erwin] and people are starting to talk. I can’t keep up
                    the appearances anymore and pretend that everything is
                    okay. We can’t make it to fall and have a quiet split
                    anymore, so I’ve told him he needs to leave. I . . . spoke
                    with an attorney this morning to see what else I need to
                    think of.

      Pam also had substantial correspondence with Erwin. In a May 2005 e-mail,
      Pam wrote to Erwin stating “I wish he wouldn’t have told you how bad our
      fighting becomes. Neither one of us is proud of that and I had hoped to keep
      it just between us.” In a June 2005 e-mail to Erwin, Pam wrote: “I know how
      you two feel about each other and I know you’re not going to stay away from
      each other, you’ll keep stealing moments, so what’s the plan?” In an August
      2005 e-mail to Erwin, Pam wrote:

                    Monday afternoon, he head butted me in the nose and
                    then a minute later asked what’s wrong with me and
                    when I told him, he didn’t remember that he’d hit me. I
                    think that was the final straw. . . . I’m tired of physically
                    being hurt. . . . Tell him to stop threatening me that he’s
                    going to make the divorce so messy we lose everything. . .
                    . [I]f he’s going to keep making threats and tell me he’s
                    going to fight dirty, I have the backing of my family to
                    fight back. Does the patrol want an abusing, controlling
                    bully for an officer? Or one who openly cheats on his
                    wife?

                                                                    (continued . . .)

                                          -23-
#25116

[¶44.]         The State also moved to admit other acts evidence. This evidence

reflected Huber’s alleged emotional, verbal and physical abuse of Pam, as well as

his extramarital affairs. Family members and friends proffered evidence of:

Huber’s admissions of abuse, a cassette tape recording of an argument between

Huber and Pam in February 1997, 8 Pam’s written and oral statements regarding

the alleged abuse, and physical evidence of abuse.

[¶45.]         The circuit court addressed the motions together, ultimately allowing

both types of evidence. With respect to other acts evidence, the court ruled:



_________________________
(. . . continued)
         In a September 23, 2007 e-mail, after Joy’s ex-husband filed a
         protection order against Huber, Pam wrote to Erwin:

                      [Huber] is suffering serious depression over this. . . . This
                      is all a real mess. Adding to his depression is [that you
                      have sold] your house. He knows your [sic] leaving now
                      and that bothers him. A lot.

         And, on October 17, 2007, less than two weeks before the shooting,
         Pam e-mailed Erwin that Huber is “on Oxycodone for pain and
         Alprazolam to help him sleep. He’s been going through a lot of beer.
         The girls and I hate it. . . . He’s unemployed, worried about finding
         something else[.]”

         Finally, in an undated letter to Huber, Pam wrote: “Maybe I wanted
         you to know what it feels [like] when you throw things around and
         grab me by the neck[.] It really hurts when you start talking about
         divorce and taking the girls away. I don’t want that to happen, I really
         do believe that we can work things out and be a family.”

8.       The subject of this recorded argument concerned family finances. Prior to the
         recording, Pam apparently threw an object at Huber that struck him. Huber
         then turned the cassette recorder on and the argument continued. While
         recording, Huber told Pam that if things did not change, he might move to
         Miller and take their daughters with him. The tape also contains a
         discussion about physical violence between the two.

                                           -24-
#25116

             The first thing that the court has to determine is whether the
             State has met [its]burden of proving by a preponderance of the
             evidence that the evidence is relevant. . . . The court finds this
             evidence clearly is relevant. It does make what happened, the
             charge of murder, more or less likely. The next question then . .
             . should it be excluded because it either has unfair prejudice,
             confusion or waste of time? And I believe the defense has the
             responsibility of going forward with that evidence. And of
             course, we all know that the court has to, in each case, balance
             the probative value of the evidence and see if it’s significantly
             outweighed by unfair prejudice. The court is of the belief that
             past conduct is especially relevant in murder cases involving a
             domestic situation.

[¶46.]       With respect to hearsay, the court ruled: “[t]he question then becomes

do we let it in because the person making these statements is deceased?” After

noting that the proffered statements were non-testimonial, the court found that “all

of the statements proffered by the State fall within the state of mind hearsay [rule]

in SDCL 19-16-7 (Rule 803(3)).” The court orally stated that since the “testimony

and evidence [was] firmly rooted [as] an established exception to the hearsay rule,

the court [did] not need to address the particular guarantees of trustworthiness”

(which was necessary for the residual hearsay exception). The court later entered

separate findings of fact and conclusions of law granting both motions.

Hearsay - Pam’s Statements

[¶47.]       Hearsay is a declarant’s out-of-court statement offered to prove the

truth of the matter asserted. SDCL 19-16-1(3) (Rule 801(c)). Two hearsay rules

apply in this case: SDCL 19-16-7 (Rule 803(3)), regarding state of mind; and SDCL

19-16-35 (Rule 804(b)(6)), the residual hearsay exception. In reviewing this issue,

we “uphold the decision of the [circuit] court unless it is clear that the court abused




                                          -25-
#25116

its discretion in admitting the hearsay evidence.” State v. Davi, 504 NW2d 844, 849

(SD 1993).

[¶48.]        “A statement of the declarant’s then existing state of mind, emotion,

sensation, or physical condition, such as intent, plan, motive, design, mental feeling,

pain, and bodily health[ ]” is not hearsay. SDCL 19-16-7 (Rule 803(3)). The party

seeking admission must show: (1) the statements are contemporaneous with the

mental state sought to be proven; (2) there exists no circumstances suggesting a

motive for the declarant to fabricate or misrepresent her thoughts; and (3) the

declarant’s state of mind must be relevant to the issues of the case. 2 Jack B.

Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence, § 803.05[2][a]

(Joseph M. McLaughlin, ed., Matthew Bender 2d ed. 2009).

[¶49.]       Huber argues that Pam’s statements were not evidence of her “then

existing state of mind,” but rather Pam’s narrative of the state of the marriage over

several years. See State v. Lathan, 138 NCApp 234, 240, 530 SE2d 615, 621 (2000)

(“[W]here a statement was made in isolation, unaccompanied by a description of

emotion, courts have tended to find that hearsay testimony relating that statement

falls outside the scope of Rule 803(3). Conversely, where the witness described the

victim’s demeanor or attitude when making the statement, the courts have tended

to admit the testimony pursuant to 803(3).”). The State argues that Pam’s

statements were admissible because they reflected her contemporaneous mental,

physical, or emotional condition as it related to (1) her relationship with Huber; (2)

her fear of Huber; (3) Huber’s physical abuse of Pam; and (4) both parties’

intentions regarding divorce or separation.


                                         -26-
#25116

[¶50.]         The State proffered over fifty state-of-mind statements, many of which

were actually several statements contained in lengthy e-mails. In its findings of

fact and conclusions of law, the court stated that it considered each statement

individually, but the court’s findings do not provide a basis for review of each

statement under the state of mind hearsay rule. 9 Rather, the court merely

concluded that “all of the statements fall within the hearsay exception set forth in

SDCL 19-16-7[.]” Our review of the State’s motion indicates that not all of Pam’s

proffered statements reflected her contemporaneous emotional or mental condition.

We therefore consider the admissibility of Pam’s statements under the residual

hearsay exception. 10



9.       Notable exceptions are that in its findings of fact and conclusions of law, the
         circuit court allowed some statements (¶¶ 4 and 20 of the State’s motion to
         admit Pam’s statements and Exhibit 1 attached to the State’s motion to
         introduce other acts) as excited utterances, SDCL 19-16-6 (Rule 803(2)). The
         court allowed other statements (¶¶ 16, 38-41 of the State’s motion to admit
         Pam’s statements) finding that they pertained to financial or contractual
         matters between Huber and Pam, as well as business transactions pertaining
         to their workplace, and that they were not hearsay because they were not
         offered to prove the truth of the matter asserted. Finally, the court concluded
         that “any [of Huber’s statements] which are included within [Pam’s] proffered
         statements are not hearsay and are therefore admissible [as an admission by
         a party opponent] pursuant to SDCL 19-16-3(1) [Rule 801(d)(2)(1)].” With
         regard to admission under the state of mind exception, however, the court did
         not address individual statements.

10.      Huber argues that Pam’s statements regarding her state of mind were not
         relevant to the issue in the case; i.e., whether Huber’s shooting was
         accidental. We disagree. In State v. Aesoph, 2002 SD 71, ¶ 41, 647 NW2d
         743, 757, we observed that “[i]t is well understood that a murder victim’s
         statements regarding fear of the accused, are admissible to rebut a
         defendant’s claim of accidental death.” The nature of the relationship is
         relevant to whether the shooting was intentional or accidental because
         “[d]omestic abuse often has a history highly relevant to the truth-finding
         process.” State v. Laible, 1999 SD 58, ¶ 21, 594 NW2d 328, 335. “When an
                                                                      (continued . . .)
                                             -27-
#25116

The Residual Exception

[¶51.]       In its oral decision, the court did not rule that Pam’s statements were

admissible under the residual hearsay exception. The State, however, proposed

findings and conclusions, which the court ultimately adopted, finding that the

statements were admissible under this exception. Huber did not object to these

findings or conclusions, which in most instances precludes appellate review.

Nevertheless, Huber now argues that the circuit court should be bound to its limited

oral decision from the bench. We rejected this argument in Feldhaus v. Schreiner,

2002 SD 65, ¶ 13, 646 NW2d 753, 756, noting that:

             SDCL 15-6-52(a) is designed to give each of the parties one last
             opportunity to convince the court of its position. Irrevocably
             binding the court to any position it considers during trial would
             defeat this purpose . . . and render [the statute] meaningless.

Therefore, the circuit court was not bound to its oral decision, and it was authorized

to adopt findings regarding the residual hearsay exception. We now review those


_________________________
(. . . continued)
         accused had a close relationship with the victim, prior aggression, threats or
         abusive treatment of the same victim by the same perpetrator are admissible
         when offered on relevant” issues such as motive. Id. “The rationale for
         admissibility is that an accused’s past conduct in a familial context tends to
         explain later interactions between the same persons.” Id. Thus, a statement
         that “describes the emotional, physical, and verbal abusive acts by the
         defendant towards the victim and his controlling nature is relevant to show .
         . . the state of mind of both the victim and the Defendant.” Aesoph, 2002 SD
         71, ¶ 40, 647 NW2d at 756-57. Moreover, “[t]he victim’s statement indicating
         the parties were separated or separating ‘[bears] directly on the relationship
         between the victim and defendant at the time of the killing and [is therefore]
         relevant to show [the defendant’s] motive [state of mind] for the killing.’”
         State v. Murillo, 349 NC 573, 586-87, 509 SE2d 752, 760 (1998) (citation
         omitted). Therefore, the statements were relevant and on remand, the circuit
         court may reevaluate whether the statements reflected contemporaneous
         statements of mental state.

                                         -28-
#25116

findings to determine whether Pam’s statements were admissible under the

residual hearsay exception.

[¶52.]       The residual hearsay exception provides in part:

             A statement not specifically covered by any of §§ 19-16-30 to 19-
             16-34, inclusive, but having equivalent circumstantial
             guarantees of trustworthiness, is not excluded by § 19-16-4 if the
             declarant is unavailable as a witness and if the court determines
             that

             (1)    the statement is offered as evidence of a material fact;
             (2)    the statement is more probative on the point for which it
                    is offered than any other evidence which the proponent
                    can procure through reasonable efforts; and
             (3)    the general purposes of these rules and the interests of
                    justice will best be served by admission of the statement
                    into evidence.

SDCL 19-16-35 (Rule 804(b)(6)). “The primary requirement of SDCL 19-16-35

[(Rule 804(b)(6)] is that the declarant be unavailable to testify at trial.” Davi, 504

NW2d at 849. In addition to the other statutory requirements, and to establish that

the statements bear the appropriate guarantee of trustworthiness, a circuit court

should consider (1) the written or oral nature of the evidence, (2) the character of

the statements, (3) the relationship between the declarant and the witness, (4) the

declarant’s motivation, and (5) the circumstances under which the statements were

made. Id.

[¶53.]       In its findings, the court noted: (1) Pam was not available to testify

against Huber, (2) the majority of the statements were in written form, (3) her

statements provided private insights into the history of the marriage, (4) her

statements were made to people that she trusted or with women with whom Huber

was having an affair, (5) her motivation for her statements concerned her struggle


                                          -29-
#25116

with handling issues in their marriage, (6) her statements were relevant to Huber’s

intent and motive and also to rebut Huber’s claim that the shooting was accidental,

and (7) her statements were more probative for the points for which they were

offered than any other evidence that could be obtained through reasonable efforts.

We find no error in the court’s alternative ground for admission of the statements. 11

[¶54.]         Huber finally argues that the volume of material introduced resulted

in unfair prejudice. Although voluminous, most of Pam’s statements reflected the

nature of her relationship with Huber, which was highly probative in establishing

Huber’s motive, intent, and lack of accident with respect to the shooting. Further,

evidence is not prejudicial “merely because its legitimate probative force damages

the defendant’s case.” State v. Bunger, 2001 SD 116, ¶ 13, 633 NW2d 606, 610. The

circuit court did not abuse its discretion in admitting Pam’s statements under SDCL

19-16-35 (Rule 804(b)(6)).

Other Acts

[¶55.]          We now turn to Huber’s last argument that the court erred in

admitting evidence of his prior acts.12 “In reviewing a trial court’s decision to admit



11.      We also note that Huber did not argue to this Court that Pam’s statements
         do not qualify under the residual hearsay rule. Rather, Huber’s only
         argument on appeal is that the circuit court should be bound to its oral
         decision from the bench.

12.      Similar to the State’s motion to admit Pam’s statements, this motion is
         lengthy: fifty pages, including exhibits. This motion also contains
         several e-mails between Pam and Erwin regarding Huber’s affair with
         Erwin and Huber’s abuse of Pam.

         In an e-mail from Huber to Pam dated June 1, 2005, Huber stated, “I
         know I’ve hurt you both physically and mentally, I’m sorry for that.”
                                                                   (continued . . .)
                                          -30-
#25116

other acts evidence this Court will not overrule the trial court’s decision unless

there is an abuse of discretion.” State v. Jolley, 2003 SD 5, ¶ 5, 656 NW2d 305, 307

(citations omitted). “‘Upon review . . . we must be careful not to substitute our

reasoning for that of the trial court.’ Thus, the question is not whether, had we

been the trial judge, would we have admitted the prior . . . acts evidence but

whether the trial court sitting in this case abused its discretion by doing so.” State

v. Janklow, 2005 SD 25, ¶ 31, 693 NW2d 685, 697 (citation omitted).

[¶56.]         SDCL 19-12-5 (Rule 404(b)) 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

_________________________
(. . . continued)

         A clinical note regarding Huber’s October 3, 2006 visit to the VA
         hospital states: “[Huber] complains that he has been losing his temper
         more regularly. . . . He describes times in which he has been
         physically violent towards those around him, including . . . his wife[.]”

         Cathy Kerr, who worked at a local bank, stated that in March 2007,
         Kerr noticed Pam had a black eye when she came into the bank. Pam
         told Kerr that Huber was handing her some boxes from a rafter when
         a box slipped and struck her in the eye.

         Mary Knox, a friend of Pam’s, stated that she saw Pam with a black eye in
         March 2007. Pam told Knox that she slipped and struck a door knob. Knox
         also testified that she saw Pam with a second black eye, but could not recall
         the timeframe.

         LaNett Genzler, a friend of Pam’s, stated that she saw Pam with a
         black eye in 2006 and the fall of 2007.

         Hubers’ neighbor, Brenda Shore, stated that she saw Pam with a black eye in
         2007. Shore also stated Huber once called Pam a “dumb bitch” and had, in
         other instances, yelled at Pam. Patty Mills, another neighbor, stated that
         while putting up Christmas lights in November 2002, Huber called Pam
         “every name in the book and [swore] at her.”

                                           -31-
#25116

             purposes, such as proof of motive, opportunity, intent,
             preparation, plan, knowledge, identity, or absence of mistake or
             accident.

“To determine the admissibility of other acts evidence, the court must . . .

determine: (1) whether the intended purpose is relevant to some material issue in

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

outweighed by its prejudicial effect.” Janklow, 2005 SD 25, ¶ 34, 693 NW2d at 697.

The other acts rule is one of “inclusion, not exclusion. Relevant other acts evidence

[is] admissible for [any] purpose [ ] other than proving the character of the

defendant or his propensity to act in conformity therewith.” Id. ¶ 33, 693 NW2d at

697.

[¶57.]       The circuit court determined that the other acts evidence was relevant

in that “it does make what happened, the charge of murder, more or less likely.”

With regard to abuse, the court correctly observed that “the evidence of past abusive

conduct in a domestic situation is highly relevant in murder cases.” See State v.

Laible, 1999 SD 58, 594 NW2d 328; State v. Kerkhove, 423 NW2d 160 (1988); Davi,

504 NW2d 844. With respect to the marital relationship, the jury was entitled to a

picture of the nature of the Hubers’ marriage. As we have previously stated, “[a]

[d]efendant [is] certainly not entitled to have the jury decide his case on a pretense

that his behavior and feelings toward [the victim] [are] nothing but routinely warm

and affectionate.” Laible, 1999 SD 58, ¶ 23, 594 NW2d at 335. The court concluded

that all of the evidence was relevant to explain both Pam’s and Huber’s state of

mind, and to prove Huber’s motive, intent, and absence of accident. We agree.




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[¶58.]       Huber, however, argues that the evidence of abuse and extramarital

affairs was not relevant as it was not closely connected in time to Pam’s death. The

circuit court observed that “the [ ] remoteness is not particularly significant . . .

because we’re talking about an entire eighteen years together.” The court

explained:

             Remoteness is not significant when considering the relevance of
             such evidence in a murder case involving a domestic situation.
             Events occurring during the entire span of the marriage are
             relevant to establishing the relationship between the parties
             which is material to [Huber’s] motive and intent, and specifically
             whether the shooting in question was accidental or intentional.
             Evidence of extramarital affairs [has] also been found to be
             relevant to prove a defendant’s motive and intent in murder
             cases. See State v. Andriano, 161 P3d 540 (Ariz 2007); People v.
             Houston, 29 CalRptr3d 818, 841 (CalCtApp 2005); State v.
             Rhodes, 627 NW2d 74 (Minn 2001); Commonwealth v. Demarco,
             830 NE2d 1068 (Mass 2005); Andrew v. State, 164 P3d 176
             (OklaCrimApp 2007); State v. DiBartolo, 2000 WL 968474
             (WashCtApp 2000).

The court further found the marital affairs were relevant because “[t]he possibility

that these affairs would be utilized by Pam in a divorce action had numerous

potential adverse consequences for [Huber].” Finally, regarding Huber’s “attempted

affair” with Tiffany Joy, the court found the evidence relevant as it explained the

loss of Huber’s job in Miller, which further explained Huber’s depression and

behavioral changes that bore directly on his state of mind at the time of the

shooting. We see no abuse of discretion in the court’s relevancy determination.

Courts consistently allow such evidence spanning the entire marriage in order to

show malice, intent, and ill will toward the victim. Murillo, 349 NC at 591, 509

SE2d at 763. The circuit court did not err in finding Huber’s other acts relevant.



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[¶59.]       “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.” SDCL 19-12-3 (Rule 403). However,

once a circuit court finds other acts evidence relevant, “the balance tips

emphatically in favor of admission[.]” Janklow, 2005 SD ¶ 38, 693 NW2d at 698.

The party who objects to the admission of the other acts evidence bears “the burden

of establishing that the trial concerns expressed in [SDCL 19-12-3] [(Rule 403)]

substantially outweighs the probative value of the evidence.” Id. Mere damage to a

defendant’s position is not a basis for exclusion:

             To exclude relevant evidence because it might also raise the
             forbidden character inference ignores the reality that “[a]lmost
             any bad act evidence simultaneously condemns by besmirching
             character and by showing one or more of ‘motive, opportunity,
             intent, preparation, plan, knowledge, identity, or absence of
             mistake or accident,’ not to mention the ‘other purposes’ of
             which this list is meant to be illustrative.”

State v. Wright, 1999 SD 50, ¶ 15, 593 NW2d 792, 799 (citation omitted).

[¶60.]       Huber argues that the other acts evidence was substantially more

prejudicial than probative. We disagree. As the circuit court concluded, “the

totality of the evidence, including the fact that several stressful events were going

on in [Huber’s] life immediately preceding Pam’s shooting, increase[d] the probative

value of this evidence to prove [Huber’s] motive, intent and absence of accident.”

We also agree with the court’s conclusion that “any concerns of unfair prejudice,

confusion, or delay [were] substantially outweighed by the highly probative nature

of the proffered evidence.” Further, the fact that the other acts evidence is


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damaging does not render the evidence substantially more prejudicial than

probative. Finally, the circuit court gave the appropriate, precisely tailored

cautionary instruction before admitting the other acts evidence. 13 We agree that

Huber failed to establish that any prejudice from this evidence substantially

outweighed its probative value. The circuit court did not abuse its discretion in

admitting the other acts evidence.

                                       Conclusion

[¶61.]         We find no abuse of discretion in the circuit court’s: admission of the

State’s expert’s opinions; exclusion of the Meade County incident; admission of

Pam’s out-of-court statements under the residual hearsay exception; and, admission

of Huber’s other acts. However, the circuit court erred in excluding Dr. Enoka’s

testimony to rebut the State’s case and to support Huber’s accidental discharge

defense.

[¶62.]         Reversed and remanded for a new trial.




13.      The court instructed:

               Ladies and gentlemen, you’re about to hear evidence that the
               Defendant may have previously abused his wife. Although such
               evidence is allowed for some purposes, you may not use this
               evidence to decide whether the Defendant carried out the
               physical acts involved in the crime charged. You may only
               consider the evidence to determine motive, intent, or absence of
               accident. Before determining whether you consider this
               evidence, you must first determine if a preponderance of the
               evidence establishes that the Defendant committed the other
               acts alleged. You are not required to consider this evidence and
               whether you do so or not is a matter within your exclusive
               province.

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[¶63.]          GILBERTSON, Chief Justice and KONENKAMP, Justice and

MYREN, Circuit Court Judge, and MILLER, Retired Justice, concur.

[¶64.]          MYREN, Circuit Court Judge, sitting for SEVERSON, Justice,

disqualified, and MILLER, Retired Justice, sitting for MEIERHENRY, Justice,

disqualified.




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