#27877-a-JMK

2017 S.D. 20

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                 ****
STATE OF SOUTH DAKOTA,                    Plaintiff and Appellee,

      v.

JOSHUA THOMAS SPANIOL,                    Defendant and Appellant.

                                 ****

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

                                 ****

                   THE HONORABLE ROBERT L. SPEARS
                               Judge

                                 ****


MARTY J. JACKLEY
Attorney General

CAROLINE SRSTKA
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.


TERRY J. SUTTON of
SUTTON LAW OFFICES, P.C.
Watertown, South Dakota                   Attorneys for defendant
                                          and appellant.



                                 ****
                                          CONSIDERED ON BRIEFS
                                          FEBRUARY 13, 2017
                                          OPINION FILED 05/03/17
#27877

KERN, Justice

[¶1.]        A jury convicted Joshua Spaniol of three counts of first-degree rape

and one count of sexual contact with a child under sixteen years of age. Spaniol

appeals, alleging the circuit court erred by finding the child competent to testify at

trial. After the child testified on direct examination, Spaniol contends the child

became unavailable because of her poor memory, depriving him of cross-

examination as required by the Confrontation Clause. He further contends the

circuit court erred by denying his pretrial motion to suppress his own statements to

law enforcement and by giving Instruction 11 to the jury. We affirm.

                                   BACKGROUND

[¶2.]        In early October 2014, H.S. (Mother) noticed her four-year-old

daughter, A.S., had a brown vaginal discharge. On October 6, Mother took A.S. to

see Doctor Rebecca Pengilly. Dr. Pengilly took a sample and sent it to a lab for

testing, expecting results in several days.

[¶3.]        On October 7, Joshua Spaniol, Mother’s husband and A.S.’s father, told

Mother that his penis was painful, inflamed, and he had a discharge. Spaniol went

to a clinic and saw Doctor Daniel Reifenberger on October 8. Because Spaniol

reported that he was in a monogamous sexual relationship, Dr. Reifenberger did not

check him for sexually transmitted diseases. Instead, he took a urine sample to

determine if Spaniol had a urinary tract infection. Pending the test results, Dr.

Reifenberger gave Spaniol a prescription for Cipro, an antibiotic, to be taken twice a

day for ten days. The test results revealed that Spaniol did not have a urinary tract

infection, although some type of an infection, sexually transmitted or otherwise,


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#27877

was present. Spaniol later tested negative for gonorrhea but only after he had

taken 10 doses of Cipro in the days preceding the test. Cipro is recognized as being

potentially effective in treating gonorrhea.

[¶4.]        By October 9, A.S.’s discharge worsened, and Mother took her to the

emergency room at a local hospital. Medical staff suspected a venereal disease and

alerted Child Protective Services (CPS) and the Watertown Police Department (PD)

of A.S.’s condition. Detective Ahmann responded and interviewed Mother at the

hospital. He called Spaniol at about 3:30 p.m. and asked him to come to the police

station for an interview. Spaniol drove himself to the station and spoke with

Detective Ahmann. The interview was brief and cordial, and Detective Ahmann

asked about A.S.’s symptoms and the family. Spaniol offered that he and A.S.

bathed together and that he had a genital rash but not a discharge like A.S. He left

the police station after the interview ended.

[¶5.]        On October 10, A.S.’s test results revealed she had gonorrhea. Dr.

Pengilly informed Detective Stahl and CPS of the results. When Detective Stahl

learned that A.S. tested positive for gonorrhea, he wrongly presumed that Spaniol

had also tested positive for the disease. He then called Mother and requested that

she and Spaniol come to the police station for interviews. They agreed and drove to

the police station together. Law enforcement interviewed Spaniol, and he made

numerous admissions, which resulted in his arrest at the end of the interview.

[¶6.]        On October 13, Mother took A.S. for an interview at Child’s Voice, an

advocacy center in Sioux Falls, South Dakota, for children who may have been

abused. A.S. participated in a recorded interview with forensic interviewer Robyn


                                          -2-
#27877

Niewenhuis. A.S. told Niewenhuis that her dad hurt her on more than one

occasion, and when asked where, she pointed to her vaginal area. She stated that

her dad used his finger, and when asked where his finger would go, she stated right

in her body, pointing to her vaginal area. A.S. is diagnosed with autism spectrum

disorder, which limits her ability to communicate.

[¶7.]        On November 14, 2014, a Codington County Grand Jury indicted

Spaniol on four counts of rape in the first degree in violation of SDCL 22-22-1(1)

and one count of sexual contact with a child under sixteen years of age in violation

of SDCL 22-22-7.

[¶8.]        Spaniol filed several pretrial motions. On January 14, 2015, Spaniol

filed a motion to suppress the statements he made to law enforcement on October

10, 2014. After a hearing, the circuit court issued findings of fact and conclusions of

law, denying Spaniol’s motion. On October 15, 2015, Spaniol filed a motion to

determine A.S.’s competency to testify at trial. At the time the motion was filed,

A.S. was five years old, and Spaniol alleged that because of her age and autism

diagnosis, she could be difficult to understand as her speech was delayed. The

circuit court held a hearing on A.S.’s competency on October 21, 2015, at which A.S.

testified. On January 5, 2016, the circuit court issued findings of fact and

conclusions of law, holding that A.S. was competent to testify. Specifically, the

circuit court found that “[a]lthough A.S. has several developmental delays and

limitations in her ability to communicate, A.S. has sufficient mental capacity to

observe and recollect, A.S. has an ability to communicate, and A.S. has some sense

of moral responsibility.”


                                          -3-
#27877

[¶9.]        Spaniol’s case proceeded to a jury trial from February 29 through

March 3, 2016. During the trial, the State introduced into evidence the recording of

A.S.’s interview at Child’s Voice and the Forensic Interview Summary.

Additionally, A.S., who was six at the time of trial, testified that her “daddy hurt

[her] potty” with his hand. A.S. was then subject to cross-examination. Due to

some of A.S.’s responses, Spaniol’s attorney asked the circuit court to declare A.S.

unavailable for cross-examination because of her lack of memory. The circuit court

denied this motion. At the close of the State’s case, Spaniol’s attorney moved to

dismiss Count IV of the indictment, one of the first-degree rape charges, which the

circuit court granted. During the settlement of the jury instructions, Spaniol’s

attorney objected to Instruction 11, which defined sexual penetration. The circuit

court overruled the objection and gave the instruction to the jury.

[¶10.]       On March 3, 2016, the jury convicted Spaniol on the four remaining

counts in the indictment. On May 18, 2016, the court sentenced Spaniol to three

consecutive twenty-year sentences for the first-degree rape convictions and to a

ten-year sentence for the sexual contact conviction to be served concurrently.

[¶11.]       Spaniol appeals his conviction, raising four issues:

             1.   Whether the circuit court abused its discretion by finding
                  A.S. competent to testify.

             2.   Whether the circuit court’s denial of Spaniol’s motion to
                  have A.S. declared unavailable for the purposes of cross-
                  examination violated his Sixth Amendment right to
                  confrontation.

             3.   Whether the circuit court erred in refusing to suppress
                  Spaniol’s statements to law enforcement.



                                          -4-
#27877

             4.    Whether the circuit court erred by giving jury Instruction
                   11.

                                      DECISION

             1.     Whether the circuit court abused its discretion by finding
                    A.S. competent to testify.

[¶12.]       A circuit court’s decision to find a witness competent to testify “will

only be reversed upon a showing of an abuse of discretion.” State v. Carothers

(Carothers II), 2006 S.D. 100, ¶ 11, 724 N.W.2d 610, 616. “An abuse of discretion ‘is

a fundamental error of judgment, a choice outside the range of permissible choices,

a decision, which, on full consideration, is arbitrary or unreasonable.’” Gartner v.

Temple, 2014 S.D. 74, ¶ 7, 855 N.W.2d 846, 850 (quoting Arneson v. Arneson,

2003 S.D. 125, ¶ 14, 670 N.W.2d 904, 910).

[¶13.]       “Every person is competent to be a witness unless otherwise provided

in this chapter.” SDCL 19-19-601. “There is no general rule regarding a child’s

inherent reliability nor is there any arbitrary age at which a child is deemed

competent to testify.” Carothers II, 2006 S.D. 100, ¶ 12, 724 N.W.2d at 616.

“Instead, the standard for determining whether a child is competent to testify is

whether she or he has ‘sufficient mental capacity to observe, recollect, and

communicate, and some sense of moral responsibility.’” Id. (quoting State v.

Anderson, 2000 S.D. 45, ¶ 23, 608 N.W.2d 644, 653). We have said that it is “[o]ur

preference to allow the child to testify in order for the jury to evaluate the child’s

credibility.” State v. Guthmiller, 2003 S.D. 83, ¶ 11, 667 N.W.2d 295, 301; see

Anderson, 2000 S.D. 45, ¶ 30, 608 N.W.2d at 654.




                                           -5-
#27877

[¶14.]       Spaniol argues that A.S.’s short responses combined with her young

age and developmental delays rendered her incompetent to testify. He reaches this

conclusion by pointing to A.S.’s answers to questions asked at the competency

hearing, which he contends were mostly one-word responses to the State’s leading

questions. A.S. also answered many questions with head nods or “I don’t know.”

[¶15.]       At the time of the competency hearing, A.S. was five years and eight

months old. In addition to the child’s testimony, the circuit court admitted and

reviewed a number of exhibits, including the video of A.S.’s interview at Child’s

Voice, medical progress notes, psychological and occupational therapy evaluations,

and a multidisciplinary evaluation report from the school. The circuit court noted

the medical records showed A.S. suffered from autism spectrum disorder, obsessive

compulsive disorder, and an anxiety disorder. The circuit court acknowledged that

these disorders limited A.S.’s ability to communicate at the hearing but concluded

that A.S. was competent to testify at trial.

[¶16.]       It is evident that A.S. had moments that may be indicative of

suggestibility or confusion. For example, near the end of the competency hearing,

the following exchange occurred on cross-examination:

             Q: You said that you had a dad, Josh; do you see him today?
             A: No.
             Q: You don’t see him at all; do you?
             A: (Inaudible.)
             Q: He is not here today; is he?
             A: (Inaudible.) Where is he?
             Q: And is that the truth or a lie?
             A: The truth.
             Q: The truth?
                                          -6-
#27877

             A: (Witness nods head.) (Inaudible.)
             Q: You don’t recall your dad living with you either; do you?
             A: Nope.
             Q: And you don’t recall being in a bathtub with your dad; do
             you?
             A: No.
             Q: And that’s the truth, isn’t it? You have to answer out loud.
             We are making a record, taking down what you said.
             A: Yeah.

Not only did A.S. indicate her father was not present, but she also

contradicted an earlier statement made on direct examination that she

previously lived with her father. Yet on redirect by the State, she identified

her father in the following exchange:

             Q: [A.S.], when the other attorney asked you some questions
             about your dad, you kept looking over that way at the guy in the
             blue shirt. Do you know who that is? Who is sitting over there
             in the blue shirt? You don’t know?
             A: Probably my dad.
             Q: Yeah.
             A: Do you know if it’s your dad?
             A: (Witness [n]ods head.)
             Q: Are you nodding yes you know it’s your dad?
             A: (Witness nods head.) Yeah. I thought he was over there,
             (inaudible) sit over there today.

Likewise, on recross, she again identified her father, stating “[y]eah, that was

my dad. I saw him in blue shirt and, yup, it is my dad.”

[¶17.]       Upon review of the entire transcript, it is apparent that A.S. had

an imperfect memory and made contradictory statements. But the record

also reveals that she possessed the ability to observe, recollect facts from her

life, and to communicate. A.S. was able to identify her parents; her brother

                                          -7-
#27877

and her relation to him; her age and date of birth; that she attended

kindergarten and the name of her school; the names of several friends from

school; and she was able to name the number of fingers being held up by the

prosecutor on direct examination. Further, the State’s use of leading

questions and A.S.’s responses do not undermine the circuit court’s decision

because “‘[i]t is settled law that permitting the use of leading questions is

within the discretion of the trial court. This is a broad discretion when the

witness is a young person.’” State v. Weisenstein, 367 N.W.2d 201, 205

(S.D. 1985) (quoting State v. Brown, 285 N.W.2d 843, 845 (S.D. 1979)).

Indeed, the circuit court indicated it would give “both sides leeway” during

the examination of the child.

[¶18.]       Additionally, A.S. showed a sufficient sense of moral responsibility by

distinguishing truth from falsehood several times during her testimony. On direct

examination, the State and A.S. had the following exchange:

             Q: Okay. A.S. do you know the difference between a truth and a
                lie?
             A: (Witness nods head.)
             Q: Do you? Are you nodding yes that you know that?
             A: (Witness nods head.)
             Q: You do know what the difference is? Okay. We’ll pick
                something. What color is your shirt, this shirt?
             A: Pink.
             Q: It’s pink. Okay. If I said that your shirt was blue, would
                that be the truth or a lie?
             A: A lie.
             Q: Okay. Is it good to tell lies?
             A: (Witness shakes head no.)
             Q: You are shaking your head no?

                                          -8-
#27877

             A: Yup. (Inaudible.)

On cross-examination, defense counsel asked A.S. the following:

             Q: All right. If I told you it’s raining outside right now, would
             that be a truth or a lie?
             A: A lie.
             Q: Okay. If I told you my tie was green?
             A: That would be a lie.

A.S. said she knew the difference between a truth and a lie and correctly applied

the distinction while testifying. She also had “‘some sense of moral responsibility,’”

acknowledging that it was not good to lie. Carothers II, 2006 S.D. 100, ¶ 12,

724 N.W.2d at 616 (quoting Anderson, 2000 S.D. 45, ¶ 23, 608 N.W.2d at 653).

[¶19.]       “[A] decision upon the competency of a child to testify is one peculiarly

within the discretion of the trial judge because the evidence of intelligence, ability

to recall, relate and to appreciate the nature and obligations of an oath are not fully

portrayed by a bare record.” Garrard v. State, 335 So.2d 603, 603-04 (Fla. Dist. Ct.

App. 1976), cert. denied, 342 So.2d 1101 (Fla. 1977). For these reasons, the trial

court is “vested with wide discretion in determining competency and on appeal, its

ruling is accorded great weight[.]” Anderson, 2000 S.D. 45, ¶ 23, 608 N.W.2d at 653

(citing State v. Pace, 301 So.2d 323, 325 (La. 1974)). Based upon our review of the

record, the circuit court did not abuse its discretion when it found A.S. competent to

testify.

             2.     Whether the circuit court’s denial of Spaniol’s motion to
                    have A.S. declared unavailable for the purposes of cross-
                    examination violated his Sixth Amendment right to
                    confrontation.




                                          -9-
#27877

[¶20.]       Spaniol makes two arguments in support of his contention the circuit

court erred in denying his request to deem A.S. unavailable as a witness. First, he

contends A.S.’s “interview with Child’s voice (Exhibit 12) and the Forensic Interview

(Exhibit 11) should not have been admitted” because “she could not answer any

questions about her prior testimony at Child’s voice or at the competency hearing.”

Second, he claims that he was denied the ability to effectively cross-examine A.S. in

violation of the Sixth Amendment.

[¶21.]       Spaniol’s first claim of error regarding Exhibits 11 and 12 is waived

because he did not object to the admission of the exhibits at trial. See Bakker v.

Irvine, 519 N.W.2d 41, 46-47 (S.D. 1994); SDCL 19-19-103(a). However, we “may

take notice of a plain error affecting a substantial right, even if the claim of error

was not properly preserved.” SDCL 19-19-103(e). But Spaniol does not argue plain

error on appeal. “In exercising our appellate function, it is elemental that we

should limit our review to the arguments that are raised and briefed.” State v.

Mulligan, 2007 S.D. 67, ¶ 25, 736 N.W.2d 808, 818. Thus, we decline to address

whether the circuit court committed plain error.

[¶22.]       Spaniol did, however, preserve his broader Sixth Amendment

challenge to the circuit court’s refusal to declare A.S. unavailable during her

cross-examination at trial. Spaniol alleged that A.S., although physically present,

was effectively unavailable for cross-examination because of her lack of memory.

Accordingly, Spaniol argues that his alleged inability to cross-examine A.S. violated

his Sixth Amendment right “to be confronted with the witnesses against him.” U.S.

Const. amend. VI. In response, the State contends that Spaniol had the opportunity


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for an effective cross-examination, but his questions and manner of examination at

trial were confusing and impaired A.S.’s ability to answer.

[¶23.]       We generally “review evidentiary rulings for abuse of discretion.”

State v. Crawford, 2007 S.D. 20, ¶ 13, 729 N.W.2d 346, 349. However, the issue

here—whether Spaniol’s Sixth Amendment right to confrontation was violated—is a

constitutional question, which we review de novo. State v. Carothers (Carothers I),

2005 S.D. 16, ¶ 7, 692 N.W.2d 544, 546; see also State v. Ball, 2004 S.D. 9, ¶ 16,

675 N.W.2d 197-98 (stating that a motion normally reviewed under an abuse of

discretion standard is instead reviewed do novo when the “sole issue” is whether a

constitutional violation occurred).

[¶24.]       The Confrontation Clause of the Sixth Amendment to the United

States Constitution, as applied to South Dakota through the Fourteenth

Amendment, requires that in all criminal cases, the defendant has the right “to be

confronted with the witnesses against him.” See also Crawford v. Washington,

541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); State v. Davis,

401 N.W.2d 721, 724 (S.D. 1987). The Confrontation Clause applies to witnesses

testifying at trial and to the admission of hearsay. Carothers II, 2006 S.D. 100,

¶ 16, 724 N.W.2d at 617. “This right is ‘generally satisfied when the defense is

given a full and fair opportunity to probe and expose a witness’ infirmities through

cross-examination, thereby calling to the attention of the factfinder the reasons for

giving scant weight to the witness’ testimony.’” Id. (quoting United States v.

Owens, 484 U.S. 554, 558, 108 S. Ct. 838, 841, 98 L. Ed. 2d 951 (1988)). “However,

when the witness is a young child, there are additional concerns in satisfying the


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Confrontation Clause because the child may simply be ‘too young and too frightened

to be subjected to a thorough direct or cross-examination’ as envisioned by the

Constitution.” Id. (quoting United States v. Spotted War Bonnet, 933 F.2d 1471,

1474 (8th Cir. 1991) (internal quotations omitted)).

[¶25.]       During A.S.’s cross-examination, Spaniol’s counsel attempted to

impeach A.S. using her prior testimony from the pretrial competency hearing.

Towards the end of this portion of the examination, the following colloquy occurred:

             Q: Okay. Before, before the individual and I went up and
                talked to the Judge, the man who is seated beside you with
                the black robe, I asked you whether you remember when you
                were in the princess chair last time, whether you were asked
                the question you said you told your mom that somebody
                hurted you; now do you remember being asked that question
                when you were in the princess chair last time you were in the
                princess chair? You don’t remember?
             A: No.
             Q: Do you remember that you answered that question by
                saying, yeah? Do you remember that, when you were in the
                princess chair last time?
             A: Maybe
             Q: But you don’t remember it today, right, whether you said
                that?
             A: Yeah, I don’t know it today.
             Q: Okay. Do you remember when you were in the princess
                chair last time you were asked the question, that wasn’t your
                dad, was it? That was immediately asked after the questions
                we’ve just asked. Do you remember being asked that
                question when you were in the princess chair the last time?
                Do you remember that?
             A: No, can’t remember it.
             Q: And do you remember that you answered that question when
                you were in the princess chair last time, you said nope? Do
                you remember that? You don’t remember, that’s okay.
             A: Nope, I can’t remember it.


                                         -12-
#27877

               Q: Do you remember when you were in the princess chair the
                  last time as well you were asked a question and there is a
                  little bit of words first, okay, because I asked another
                  question, the words first were listen, well, no, listen to my
                  question, listen to what I’m asking you. It wasn’t your dad
                  that hurted you; was it? Do you remember you were asked
                  that question? Do you remember that you were asked that
                  question?
               A: No.
               Q: Do you remember when you were in the princess chair last
                  time you were asked that question and you shook your head,
                  which means, no? Do you remember that?
               A: Can’t remember it. Losing my mind.

[¶26.]         After this testimony, Spaniol’s attorney asked for a recess. In

chambers, counsel asked the circuit court to declare A.S. unavailable for purposes of

cross-examination. If declared unavailable, counsel sought permission to introduce

A.S.’s testimony from the competency hearing in his case-in-chief by having a

reader play the role of A.S. and give A.S.’s answers from the witness stand in

response to the questions. Although A.S. did express some confusion and could not

remember certain facts, the circuit court denied the motion to find A.S. unavailable.

The circuit court stated that in its “opinion what we have here is a child witness

with developmental disabilities who is confused by the formation of [defense

counsel’s] questions.” To resolve the matter, the circuit court allowed Spaniol’s

counsel to read the prior questions from the competency hearing transcript to the

child verbatim and ask her if she recalled the question and her answers. A.S. could

not remember the answers she gave to the questions at the prior hearing. 1



1.       For example, after the recess, A.S. was asked this question about her prior
         testimony:
                                                                    (continued . . .)
                                           -13-
#27877

[¶27.]         At the conclusion of A.S.’s testimony, Spaniol’s attorney renewed his

motion to have A.S. declared unavailable. He argued that because the child could

not remember the prior questions and answers, he was unable to establish the

inconsistency for impeachment purposes. He again requested that the specific

questions and answers previously given be read to the jury using a reader to play

the part of A.S. The State objected. The parties eventually stipulated that Spaniol

could read several of A.S.’s prior questions and answers to the jury at the close of

Spaniol’s case-in-chief. Further, the parties agreed the jury would be advised the

statements could be considered as prior inconsistent statements made by A.S. under

oath at a prior proceeding. 2 Additionally, the circuit court gave the jury an

__________________
(. . . continued)
               Q: But you don’t remember previously talking, testifying when
               you, let me ask you this, you don’t remember previously saying
               from the witness chair when you were asked, you said you told
               your mom that somebody hurted you, you said, yeah, and then
               you said, you were asked the question, that wasn’t your dad; was
               it? And you said no. You don’t remember that; do you?
               A: No.

2.       Defense counsel read this statement to the jury:
               The following pursuant to stipulation of the party may be considered
               as prior inconsistent statements of [A.S.]: [A.S.] in a previous
               proceeding was asked the question, you said that you had a dad, Josh.
               Do you see him today? And [A.S.’s] answer was no.
               And then [A.S.] was asked the question, you don’t recall your dad
               living with you either; do you? To which [A.S.] answered, no. And
               [A.S.] was asked the question, and you don’t recall being in a bathtub
               with your dad; do you? To which [A.S.] answered, no.
               And then the following statements as well may be considered by the
               jury as prior inconsistent statements: [A.S.] was asked the question,
               you said you told your mom that somebody hurted you? To which
               [A.S.] answered, yeah. And [A.S.] was then asked the question, that
               wasn’t your dad; was it? To which [A.S.] answered, nope. And with
                                                                    (continued . . .)
                                            -14-
#27877

instruction regarding the proper manner in which to evaluate prior inconsistent

statements.

[¶28.]        Initially, it is worth noting that the questions Spaniol’s attorney asked

A.S. would be difficult for an adult witness to decipher, much less a six-year-old

child with autism. The questions were lengthy, complex, and compound. Further,

the stop-and-start nature of these questions strongly suggests that the form of

Spaniol’s attorney’s questions were confusing to the witness.

[¶29.]        “An individual is only guaranteed ‘an opportunity for effective

cross-examination, not cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.’” Milstead v. Smith, 2016 S.D. 55, ¶ 13,

883 N.W.2d 711, 717 (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 53,

107 S. Ct. 989, 999, 94 L. Ed. 2d 40 (1987)). Spaniol had an opportunity to

effectively cross-examine A.S. At trial, A.S. was unable to provide as much detail as

she did in the interview at Child’s Voice. But she did testify on direct examination

that her “daddy hurted her potty,” and on cross-examination, when asked, “[y]our

daddy didn’t hurt you did he?” she responded “[y]eah, he did.” And again, when

asked, “[h]e didn’t hurt you with his potty did he?” she responded, “[y]eah, he did.”

These statements were contradicted by other testimony and impeached by A.S.’s

prior statements. Additionally, Spaniol’s attorney repeatedly got A.S. to admit to a

lack of memory or that certain events never happened. A.S.’s testimony and the


__________________
(. . . continued)
               those, [A.S.] was also asked the following question: It wasn’t your dad
               that hurted you; was it? And [A.S.] did not answer verbally, but shook
               her head to which the response was indicating no.

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rigorous cross-examination allowed “the jury to evaluate the child’s credibility.”

Guthmiller, 2003 S.D. 83, ¶ 11, 667 N.W.2d at 301.

[¶30.]       A.S.’s partial lapses in memory are not constitutionally fatal because

the right to “confrontation ‘includes no guarantee that every witness called by the

prosecution will refrain from giving testimony that is marred by forgetfulness,

confusion, or evasion.’” State v. Toohey, 2012 S.D. 51, ¶ 15, 816 N.W.2d 120, 128

(quoting Delaware v. Fensterer, 474 U.S. 15, 21-22, 106 S. Ct. 292, 295,

88 L. Ed. 2d 15 (1985)); see also Carothers II, 2006 S.D. 100, ¶ 18, 724 N.W.2d at

618 (holding that a child witness was available even though “she may not have been

able to repeat exactly what she told” doctors and law enforcement because “she did

remember speaking to them and telling . . . ‘the truth’”).

[¶31.]       In State v. Toohey, we held that a child witness who struggled to

answer questions on cross-examination was sufficiently available to satisfy the

Confrontation Clause. 2012 S.D. 51, ¶ 18, 816 N.W.2d at 129. In so holding, we

made the following observation about the United States Supreme Court’s

interpretation of the Confrontation Clause in Crawford v. Washington:

             The Crawford decision spoke in almost categorical terms: “when
             the declarant appears for cross-examination at trial, the
             Confrontation Clause places no constraints at all on the use of
             his prior statements.” Several courts have taken this to mean
             that even a witness with no memory of the events in question is
             nevertheless present and available for cross-examination under
             Crawford.

Id. ¶ 16, 816 N.W.2d at 128 (listing courts interpreting Crawford as such) (quoting

Crawford, 541 U.S. at 59 n.9, 124 S. Ct. at 1369 n.9). Thus, the mere fact that A.S.

appeared at trial and listened to defense counsel’s questions suggests that the


                                         -16-
#27877

Confrontation Clause does not bar her statements, despite her inability to perfectly

recollect the past. But like the child witness in Toohey, A.S. “did more than simply

appear in court.” Id. ¶ 17. During cross-examination, A.S. recalled the past and

spoke about specific events and places. Although A.S.’s memory and

communication were imperfect, they were not constitutionally deficient.

[¶32.]       Because A.S. was available for cross-examination, Spaniol’s Sixth

Amendment right to confrontation was not violated.

             3.    Whether the circuit court erred in refusing to suppress
                   Spaniol’s statements to law enforcement.

[¶33.]       Spaniol contends that the circuit court erred in denying his motion to

suppress the statements he made to law enforcement on October 10, 2014. Spaniol

argues that each segment of the October 10 interview was custodial and the police

erred by not advising him of his Miranda rights at the beginning of the interview.

Officers read Spaniol the Miranda warnings during the final portion of the

interview but only after he made numerous incriminating statements. As a further

ground for suppression, Spaniol claims that due to police coercion, “his will was

overborne and his statements were not voluntary” in violation of the Due Process

Clause of the Fourteenth Amendment to the United States Constitution.

[¶34.]       “We review a circuit court’s factual determination regarding the

circumstances surrounding the interrogation ‘under the clearly erroneous

standard.’” State v. Deal, 2015 S.D. 51, ¶ 14, 866 N.W.2d 141, 146 (quoting State v.

Bowker, 2008 S.D. 61, ¶ 27, 754 N.W.2d 56, 65). But the legal determination—

whether a Miranda violation occurred—is “‘a question of law’ reviewed de novo.” Id.

(quoting Bowker, 2008 S.D. 61, ¶ 27, 754 N.W.2d at 65).

                                         -17-
#27877

[¶35.]       “‘The Fifth Amendment right against self-incrimination is implicated

whenever an individual is subject to custodial interrogation by law enforcement.’”

State v. Walth, 2011 S.D. 77, ¶ 10, 806 N.W.2d 623, 625 (quoting Bowker,

2008 S.D. 61, ¶ 26, 754 N.W.2d at 64). “An individual is subject to custodial

interrogation if he is ‘deprived of his freedom of action in any significant way.’” Id.

(quoting State v. Hamm, 89 S.D. 507, 514, 234 N.W.2d 60, 64 (1975)). To determine

whether such deprivation requiring a Miranda warning has occurred, we use “[a]

two-part test . . . to determine whether an individual is in custody at the time of

questioning”:

             First, what were the circumstances surrounding the
             interrogation; and second, given those circumstances, would a
             reasonable person have felt he or she was not at liberty to
             terminate the interrogation and leave. Once the scene is set and
             the players’ lines and actions are reconstructed, the court must
             apply an objective test to resolve the ultimate inquiry: was there
             a formal arrest or restraint on freedom of movement of the
             degree associated with a formal arrest.

Id. ¶ 12, 806 N.W.2d at 626 (quoting State v. Wright, 2009 S.D. 51, ¶ 19, 768

N.W.2d 512, 520). Like the Confrontation Clause, this right applies to South

Dakota through the Fourteenth Amendment. See State v. Connors, 149 N.W.2d 65,

68 (S.D. 1967).

[¶36.]       The facts as found by the circuit court reveal that on October 10, 2014,

Sergeant Stahl called Mother shortly before 6 p.m., requesting she and Spaniol

come to the Watertown Police Department for further interviews. Spaniol and

Mother drove to the police station, arriving at about 6:10 p.m. Upon arrival, police

officers escorted them to separate interview rooms. Spaniol’s room was “small,

cramped, and austere in nature.” In the hallway before entering the room, police

                                          -18-
#27877

officers told Spaniol that he was not under arrest and not in custody. Sergeant

Stahl and Special Agent (SA) Corey from the Division of Criminal Investigation

(DCI) interviewed Spaniol three times over the next two hours.

[¶37.]        Sergeant Stahl conducted the first segment of the interview, which

lasted about thirty minutes. He did not read Spaniol the Miranda warnings.

Sergeant Stahl asked Spaniol why he thought he was called down for a second

interview. Spaniol speculated that it was because he previously bathed with A.S.

He eventually admitted to contact between his penis and A.S.’s vagina while they

were bathing, but he insisted it was accidental. Sergeant Stahl ended the

interview, and Spaniol sat alone for several minutes.

[¶38.]        SA Corey then entered and began the second segment of the interview,

which lasted about nineteen minutes. SA Corey started by introducing himself to

Spaniol and telling him that he wanted to discuss certain things he said to Sergeant

Stahl. He first asked Spaniol if Sergeant Stahl had treated him okay and with

respect. Spaniol responded “yes.” SA Corey then confirmed that prior to beginning

the interview, while walking down the hallway to the interview room, Spaniol was

told he was not under arrest and not in custody. SA Corey also told Spaniol “that

the door was closed for privacy and that if at any time he felt uncomfortable, he was

free to leave.”

[¶39.]        Spaniol repeated his story that A.S. slipped in the bathtub while

bathing and fell on his “semi-erect penis, causing penetration.” SA Corey then

accused Spaniol of being dishonest and giving A.S. gonorrhea. SA Corey mistakenly

believed that Spaniol had tested positive for gonorrhea. Spaniol eventually


                                         -19-
#27877

admitted to penetrating A.S. with the tip of his penis on two occasions, “rubbing his

penis on the labia of A.S.’s vagina, and placing his penis in her vagina after

ejaculating.” SA Corey asked if this had happened more than three times and

Spaniol responded, “[y]es.” SA Corey said that he would tell Sergeant Stahl that he

was being honest now and left the interview room.

[¶40.]       Sergeant Stahl reentered the room and asked who should tell Mother

what he had done. Spaniol indicated that he would like to tell Mother himself.

Sergeant Stahl left the room and about a minute later, Mother entered. Spaniol

told her that he had “messed around” with A.S. and rubbed his penis on her.

Mother became emotional, and Spaniol became despondent. An officer removed her

from the room shortly afterwards, and Spaniol remained in the room alone. Officers

brought Spaniol a bottle of water.

[¶41.]       Sergeant Stahl reentered the room about twenty-two minutes later.

He read Spaniol his Miranda rights from a card. Spaniol initialed the card and

indicated that he understood and wished to waive his Miranda rights. Spaniol

continued to speak with Sergeant Stahl and admitted to penetrating A.S. on four

occasions. This final segment of the interview lasted for about twelve minutes. In

total, Spaniol was questioned for approximately two hours.

[¶42.]       Now that the scene is set, we apply an objective test to determine

whether there was a “‘formal arrest or restraint on freedom of movement of the

degree associated with a formal arrest.’” Walth, 2011 S.D. 77, ¶ 12, 806 N.W.2d at

626 (quoting Wright, 2009 S.D. 51, ¶ 19, 768 N.W.2d at 520). Spaniol voluntarily

came to the police station, and he was told in the hallway before the interview


                                         -20-
#27877

began that he was not under arrest. “[A] defendant’s acceptance of an officer’s

invitation to go to a police station and speak with the police” does not constitute

custodial interrogation. Id. ¶ 16, 806 N.W.2d at 626. Although the interview took

place behind a closed door in a small room at a police station, this is not dispositive

as “‘a closed, or even locked door does not, in and of itself, create a custodial

interrogation.’” Id., 806 N.W.2d at 626-27 (quoting State v. Thompson,

1997 S.D. 15, ¶ 28, 560 N.W.2d 535, 541). Spaniol was also told during the October

9 interview and again on the 10th that the door was shut in the interview rooms for

privacy. Meanwhile, the fact that the police questioning on October 10 was more

focused and intense than the questioning the day before does not create a custodial

environment. “‘Even a clear statement from an officer that the person under

interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for

some suspects are free to come and go until the police decide to make an arrest.’”

Id. ¶ 15, 806 N.W.2d at 626 (quoting Thompson, 1997 S.D. 15, ¶ 25, 560 N.W.2d at

540). At least in the first two segments of the interview on October 10, “‘there is ‘no

indication that [Spaniol] was coerced into making any statements through the

‘inherently compelling pressures’ of a custodial setting.’” Wright, 2009 S.D. 51,

¶ 26, 768 N.W.2d at 522 (quoting State v. Johnson, 2007 S.D. 86, ¶ 28,

739 N.W.2d 1, 10). Spaniol’s freedom of movement was not restrained to the degree

associated with a formal arrest. Thus, Miranda warnings were not required in

either the first or second segments of the interview.

[¶43.]       Sergeant Stahl read Spaniol the Miranda warnings before the third

segment of the interview, and Spaniol waived his Miranda rights. The introduction


                                           -21-
#27877

of Miranda warnings after an interview with law enforcement has already

commenced raises special concerns about the efficacy of the warnings. Whether

Spaniol’s waiver was effective depends on “whether it would be reasonable to find

that in these circumstances the warnings could function ‘effectively’ as Miranda

requires.” Missouri v. Seibert, 542 U.S. 600, 611-12, 124 S. Ct. 2601, 2610,

159 L. Ed. 2d 643 (2004); see McDonough v. Weber, 2015 S.D. 1, ¶ 28,

859 N.W.2d 26, 39. In Seibert, the Supreme Court of the United States condemned

a two-step police tactic where a confession is obtained without Miranda warnings in

a custodial setting, and then the police give a “midstream recitation of the

[Miranda] warnings” and go over the same questions to elicit the same answers.

Seibert, 542 U.S. at 604, 124 S. Ct. at 2605. A “statement repeated after a warning

in such circumstances is inadmissible.” Id.

[¶44.]       But there is nothing in this record to suggest law enforcement willfully

employed a “two-phase interview technique” which would render the Miranda

warnings ineffective. McDonough, 2015 S.D. 1, ¶ 28, 859 N.W.2d at 39. Further,

simply because Spaniol made incriminating statements in his first two interviews,

it does not follow that the Miranda warnings and waiver before the third interview

were per se ineffective. The “failure to administer [Miranda] warnings,

unaccompanied by any actual coercion or other circumstances calculated to

undermine the suspect’s ability to exercise his free will, [does not] so taint[] the

investigatory process that a subsequent voluntary and informed waiver is

ineffective for some indeterminate period.” Oregon v. Elstad, 470 U.S. 298, 309, 105

S. Ct. 1285, 1294, 84 L. Ed. 2d 222 (1985); see Satter v. Solem, 434 N.W.2d 725, 728


                                          -22-
#27877

(S.D. 1989). Because neither of the first two segments of Spaniol’s interview were

custodial or unduly coercive, Spaniol’s waiver of his Fifth Amendment right before

the third segment was constitutionally effective.

[¶45.]       Spaniol also alleges that the statements made during his interview

were involuntary in violation of the Due Process Clause of the Fourteenth

Amendment. Spaniol bases this claim on the fact that the police misled him about

having gonorrhea, only read him the Miranda warnings an hour and twenty

minutes into the interview, and kept the interview room door shut at all times.

[¶46.]       “‘Ultimately, the voluntariness of a confession depends on the absence

of police overreaching . . . . Confessions are not deemed voluntary if, in light of the

totality of the circumstances, law enforcement officers have overborne the

defendant’s will.’” State v. Johnson, 2015 S.D. 7, ¶ 24, 860 N.W.2d 235, 245

(quoting Wright, 2009 S.D. 51, ¶ 32, 768 N.W.2d at 524). The State bears the

burden to establish that Spaniol’s statements were voluntary by a preponderance of

the evidence. Id. “To determine whether Defendant’s will was overborne, we look

at multiple factors, including”:

             (1) the conduct of law enforcement officials in creating pressure
             and (2) the suspect’s capacity to resist that pressure. On the
             latter factor, we examine such concerns as the defendant’s age;
             level of education and intelligence; the presence or absence of
             any advice to the defendant on constitutional rights; the length
             of detention; the repeated and prolonged nature of the
             questioning; the use of psychological pressure or physical
             punishment, such as deprivation of food or sleep; and the
             defendant’s prior experience with law enforcement officers and
             the courts. Finally, deception or misrepresentation by the officer
             receiving the statement may also be factors for the trial court to
             consider; however, the police may use some psychological tactics
             in interrogating a suspect.


                                          -23-
#27877

Id. (quoting State v. Cottier, 2008 S.D. 79, ¶ 19, 775 N.W.2d 120, 129).

[¶47.]       “Many of the same factors and circumstances [that led] to our

determination” that the first two portions of Spaniol’s interview were non-custodial

“inform our analysis of voluntariness.” Id. The circuit court found that Spaniol is of

at least average intelligence and completed high school and some college. Law

enforcement did not use force or threats of force to coerce Spaniol’s statements.

Sergeant Stahl and SA Corey treated Spaniol with respect, and law enforcement

communicated to Spaniol that he was not under arrest and that the door to the

interview room was shut for privacy. The interview was relatively short, lasting

only two hours, and law enforcement did not deprive Spaniol of food, water, sleep, or

other comforts. Finally, the erroneous but apparent good faith use of Spaniol’s

alleged gonorrhea diagnosis does not render his confessions involuntary because

even if it was intentional, “the police may use some psychological tactics in

interrogating a suspect.” Id. From our review of the record, it is apparent that the

State met its burden to show by a preponderance of the evidence that all of

Spaniol’s statements during the interview on October 10, 2014, were voluntary.

The circuit court did not err by denying the motion to suppress.

             4.     Whether the circuit court erred by giving jury Instruction 11.

[¶48.]       Spaniol argues the circuit court erred by overruling his objection to the

last sentence of Instruction 11. This instruction, which mirrors Pattern Criminal

Instruction 3-3-15, reads:

             “Sexual penetration” means an act, however slight, of sexual
             intercourse, cunnilingus, fellatio, anal intercourse, or any
             intrusion, however slight, of any part of the body or of any object
             into the genital or anal openings of another person’s body.

                                         -24-
#27877

             Genital penetration does not require proof of vaginal
             penetration. It includes penetration of the exterior of the labia
             majora.

Spaniol claims that while “Jury Instruction 11 is a correct statement of law, it

places undue emphasis on the form of rape alleged here, based on extra-

jurisdictional cases.” Pattern Criminal Instruction 3-3-15 cites State v. Packed as

its basis, which in turn cites several cases from other states for the proposition that

slight penetration of the exterior of the labia majora is sufficient for “sexual

penetration.” 2007 S.D. 75, ¶ 32, 736 N.W.2d 851. Spaniol claims that if the South

Dakota Legislature wanted to emphasize that “genital penetration does not require

proof of vaginal penetration . . . it could amend” the statutory definition of “sexual

penetration” found in SDCL 22-22-2 to include this language. Accordingly, Spaniol

believes Instruction 11 prejudiced him by taking the “determination [of what

penetration, if any, occurred] out of the jury’s hands.”

[¶49.]       “‘A trial court has discretion in the wording and arrangement of its

jury instructions, and therefore we generally review a trial court’s decision to grant

or deny a particular instruction under the abuse of discretion standard.’” State v.

Whistler, 2014 S.D. 58, ¶ 13, 851 N.W.2d 905, 910 (quoting State v. Hauge,

2013 S.D. 26, ¶ 17, 829 N.W.2d 145, 150). “If the trial court finds an issue is

competently supported by the record, then the court is justified in giving the

instruction.” State v. Aesoph, 2002 S.D. 71, ¶ 47, 647 N.W.2d 743, 759. Further, for

an abuse of discretion “[t]o constitute reversible error, an instruction must be shown

to be both erroneous and prejudicial, such that ‘in all probability [it] produced some

effect upon the verdict and [was] harmful to the substantial rights of a party.’”


                                          -25-
#27877

Whistler, 2014 S.D. 58, ¶ 13, 851 N.W.2d at 910 (quoting Cottier, 2008 S.D. 79, ¶ 7,

755 N.W.2d at 125).

[¶50.]       At trial, the State’s expert, Doctor Free, testified regarding the

anatomy of the female genitalia and what type of contact would constitute labial or

vulva coitus. A.S. testified regarding the abuse, and Spaniol admitted penetrating

the child’s vagina. In State v. Packed, we held that “when the State presents

evidence of vulval or labial penetration, however slight, this act, if believed by the

jury to have occurred, is sufficient to establish penetration of the genital opening.”

2007 S.D. 75, ¶ 32, 736 N.W.2d at 861. Not only is Instruction 11 a correct

statement of law, but from our review of the record, there was substantial evidence

of sexual penetration in all of the forms defined in Instruction 11 sufficient to

warrant the instruction. Further, Spaniol has failed to show that Instruction 11

affected the verdict and harmed his substantial rights.

                                    CONCLUSION

[¶51.]       The circuit court did not abuse its discretion when it found A.S.

competent to testify. The circuit court also did not violate Spaniol’s Sixth

Amendment right to confront the witnesses against him by refusing to declare A.S.

unavailable for the purposes of cross-examination. Neither did the circuit court err

by refusing to suppress Spaniol’s statements to law enforcement under the Fifth

and Fourteenth Amendments. Finally, the circuit court did not abuse its discretion

by presenting jury Instruction 11 as written. Affirmed.

[¶52.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON and

WILBUR, Justices, concur.


                                          -26-
