#24986-a-DG

2010 SD 72

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                  * * * *

STATE OF SOUTH DAKOTA,                      Plaintiff and Appellee,

      v.

FARRELL DILLON,                             Defendant and Appellant.

                                  * * * *

                    APPEAL FROM THE CIRCUIT COURT
                   OF THE SEVENTH JUDICIAL CIRCUIT
                  PENNINGTON COUNTY, SOUTH DAKOTA

                                  * * * *

                       HONORABLE JANINE M. KERN
                                Judge

                                  * * * *

MARTY J. JACKLEY
Attorney General

SHERRI SUNDEM WALD
Deputy Attorney General
MEGHAN N. DILGES
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellee.
TIMOTHY J. RENSCH
Rensch Law Office
Rapid City, South Dakota                    Attorneys for defendant
                                            and appellant.

                                  * * * *
                                            ARGUED MAY 25, 2010

                                            OPINION FILED 08/25/10
#24986

GILBERTSON, Chief Justice

[¶1.]        Defendant was retried on two counts of first degree rape and three

counts of criminal pedophilia for sexual crimes against his daughter and her four

friends after his 1999 conviction was overturned on habeas review. Defendant was

found guilty by a jury and sentenced by the trial court to 125 years in the state

penitentiary. Defendant argues the trial court erred when it denied his motion for

acquittal for the first degree rape charges concerning his daughter, K.D., because

she recanted during cross-examination. He argues the trial court also erred when it

did not grant his motion for mistrial after the State’s psychiatric expert vouched for

the victims, and in the alternative because of a display of children’s shoes that was

briefly within the jury’s view while walking from the courtroom to the jury room.

Defendant also argues his right to Due Process was violated when the trial court

refused to admit into evidence cards and letters he wrote to K.D. after the charges

were filed. Finally, Defendant argues the trial court erred when it did not grant his

motion for retrial after it was discovered that the jury obtained and discussed

extrinsic information. We affirm on all issues.

                                       FACTS

[¶2.]        An overview of the factual history of this case is set forth in State v.

Dillon, 2001 SD 97, 632 NW2d 37 (hereinafter Dillon I). A condensed version of

those facts pertinent to the present appeal is presented below.

[¶3.]        On December 9, 1998, Farrell Dillon (Defendant), age forty at that

time, was charged with seven counts of first degree rape, two counts of third degree

rape, and five counts of criminal pedophilia based on the allegations of five child


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victims for the events of July 10, 1998, and September 11, 1998. The victims

included K.D., Defendant’s then seven-year-old daughter, and four of K.D.’s

girlfriends: seven-year-old L.R., eight-year-old N.R., eight-year-old S.R.B., and

eight-year-old T.T. The two counts of third degree rape were removed from an

amended information filed on August 17, 1999. In 1999, Defendant was tried on the

remaining twelve counts and was convicted on seven counts of first degree rape and

five counts of criminal pedophilia. He was acquitted on an additional charge

involving sexual contact with T.T. and two other charges involving L.R. for the

events of July 10, 1998. 1 Defendant was sentenced to 175 years in the State

Penitentiary.

[¶4.]         On appeal, this Court vacated three of the first degree rape convictions

based on the double jeopardy prohibition because the same acts of penetration were

used to support separate counts of first degree rape and counts of criminal

pedophilia. Dillon I, 2001 SD 97, ¶22, 632 NW2d at 46. On remand, the trial court

sentenced Defendant to 115 years on the remaining convictions. Defendant’s

subsequent state habeas corpus action alleging ineffective assistance of counsel was

denied by the trial court, but reversed by this Court. Dillon v. Weber, 2007 SD 81,

737 NW2d 420.

[¶5.]         The State gave timely notice of its intention to retry Defendant and

filed an Information with the following counts:

              Count 1      First Degree Rape       K.D.     July 10, 1998


1.      L.R. was unavailable to testify at the 1998 trial because of post traumatic
        stress disorder. However, L.R. testified at the second trial in 2008.


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              Count 2      First Degree Rape        K.D.     September 11, 1998
              Count 3      Criminal Pedophilia      S.R.B.   July 10, 1998
              Count 4      Criminal Pedophilia      L.R.     September 11, 1998
              Count 5      Criminal Pedophilia      N.R.     September 11, 1998 2

In a pretrial motion in limine, Defendant asked for preclusion of any reference to

the previous trial, sentencing, direct appeal, and habeas proceedings under SDCL

19-12-3 (Rule 403) without specifying what portion of the rule pertained to his

motion. 3 The State did not resist the motion, which was granted in its entirety by

the trial court.

[¶6.]         As previously noted, the facts from the first trial are detailed in Dillon

I, 2001 SD 97, ¶¶2-10, 632 NW2d at 41-42. In May 2008 at the second trial, the

State called Dr. Leslie Fiferman, a clinical psychologist who had worked with

between 2,000 and 3,000 sexual abuse victims over twenty years of practice in the

military and as a private practitioner. Dr. Fiferman testified that he had no contact

with any of the victims, nor had he read any of the police reports in this case. He

was asked to testify generally about the characteristics of sexual abuse victims and

their ability to recall and recount their abuse experiences. Dr. Fiferman testified

that most sexual abuse victims suffer from post traumatic stress disorder as a




2.      The State also filed two additional counts of criminal pedophilia for the
        conduct against L.R. on July 10, 1998, and against T.T. on July 10, 1998.
        However, these charges were dismissed on motion by Defendant as he was
        acquitted of those charges during the first trial.

3.      SDCL 19-12-3 (Rule 403) provides: “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.”

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consequence of their experiences. He also testified that victims can experience

emotional regression as a consequence. Dr. Fiferman further testified that it is

common for victims to dissociate themselves from the experience as a self-defense

mechanism; dissociated victims’ minds can fail to capture the details of the events

that transpired, or may only store a portion of the events. He also gave background

on the dynamics of “grooming” of sexual abuse victims by a perpetrator, including

the shame and self-blame that a victim experiences as a consequence. As a final

characteristic, the following exchange occurred on direct examination:

             Q.    I just have one final area to discuss with you, and that –
                   and it’s kind of maybe combined in what you’ve testified
                   to so it could be brief. But just in a short synopsis, you’ve
                   seen certain behaviors of children that – have you seen
                   certain behaviors that would tell you that – potentially
                   lend credibility to the fact that kids have had this occur to
                   them?

             A.    Yes.

             Q.    Okay. Have you testified to those with this jury?

             A.    With this jury today, I believe I have. I missed out
                   probably one of the most important ones, and that is that
                   when somebody reports being sexually abused, in the
                   majority of cases, that’s the truth. That’s the one.

(Emphasis added). Defendant moved for a mistrial contending that Dr. Fiferman’s

testimony invaded the province of the jury. A brief hearing was held on the motion

outside the presence of the jury. Defendant’s motion for mistrial was denied.

[¶7.]        Defendant was able, however, to object in the jury’s presence to the

last statement in Dr. Fiferman’s testimony as being without foundation and beyond

the scope of Dr. Fiferman’s expertise. The trial court sustained the objection and

instructed the jury to disregard that portion of his testimony. The trial court

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further instructed that at the conclusion of the case the jury, as the exclusive trier

of fact, would determine from all the evidence, excluding Dr. Fiferman’s last

statement, the veracity of each witness.

[¶8.]        The State then called the victims, beginning with K.D., to testify to the

events of July 10, 1998, and September 11, 1998. After K.D. testified, the

recordings of her prior interviews with police were played for the jury. After each

victim testified live, the relevant interviews for each witness were played for the

jury. Based on the physical appearance of the victims and the ages each gave on

the videotapes versus on the witness stand, it became obvious to the jury that the

allegations happened approximately ten years prior to trial.

[¶9.]        During K.D.’s direct testimony in 2008, she testified that on the night

of her birthday party, Defendant tried to lick her “private parts,” however K.D.

closed her legs. K.D. testified that she could not remember what her father did

next. When asked if her father tried to touch K.D. in any other sexual manner that

night, K.D. replied “I don’t remember.” On cross-examination K.D. testified as

follows:

             Q.     Ma’am, is it your position here today that your father did more
                    than touch your vagina with his penis?

             A.     What do you mean?

             Q.     Okay. What did your father do with his penis to your vagina?

             A.     He didn’t do anything with his penis with my vagina.

             ...

             Q.     Okay. His penis did not go in your vagina?

             A.     Yes.

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               Q.    And that’s what you told Detective Fox long ago, correct?

               A.    Yeah.

               Q.    Okay. So there was never a point in time when your father’s
                     penis went inside your vagina; is that correct?

               A.    Yeah.

[¶10.]         The other victims testified with some discrepancies between their prior

testimony and police interviews concerning the details of whether the molestations

happened in Defendant’s bedroom, or K.D.’s bedroom, and the details of who

removed their clothing. However, each victim was able to articulate the acts that

were perpetrated by Defendant upon the girls.

[¶11.]         On the third day of trial, Detective Fox testified. Following her live

testimony, the jury heard a portion of the audiotaped interview of K.D. with

Detective Fox and Horan, a Department of Social Services (DSS) employee. After

hearing a portion of the tape, the trial court recessed the jury for a few minutes.

After the jury left the courtroom, the jurors walked through a hallway and into the

jury room. The trial judge soon followed that same hallway to reach judge’s

chambers and discovered a display of children’s shoes, including shoes for both girls

and boys, in the hallway traveled by the jury. The trial judge asked the bailiff to

remove the display and then determine the source and purpose of the shoes. It was

determined that the display was part of a CASA presentation being held in the

courthouse. 4 Neither the trial judge, bailiff, nor the State were aware of the display



4.       The Court Appointed Special Advocates (CASA) for Children program
         provides volunteers who are appointed by judges to advocate for abused and
         neglected children in the legal system until a safe and permanent home is
                                                              (continued . . .)
                                            -6-
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or had a role in its placement. 5 The trial court brought the shoe display to the

attention of the parties after the lunch break and explained the context. The trial

court explained the admonishment it was planning to give to the jury:

               After the recess during the testimony of Sue Fox, when you left
               the courtroom and traveled down the hallway, you traveled past
               several sets of children’s shoes that were placed there without
               the Court or the bailiffs’ knowledge by the CASA program as a
               demonstration for a presentation they were giving. They should
               not have been placed in the area where you would walk. You
               must disregard their presence and must not allow this to have
               any effect upon you in any fashion as you consider this case.

Defendant moved for a mistrial; the State resisted. The trial court denied

Defendant’s motion.

[¶12.]         During the defense portion of the trial, Defendant testified on his own

behalf. During his direct examination, Defendant offered as exhibits letters and

holiday cards he wrote to his daughter, K.D., after the allegations were first made

and she was removed from his care by DSS. Defendant argued that the letters and

cards corroborated his in-court testimony. The writings contained statements to the

effect that Defendant loved K.D. and that he was fighting to get her back.

Defendant offered them to show his state of mind and not for the truth of the matter

asserted. Defendant claimed the writings were exculpatory in nature and

supported his theory of defense. The State objected on the basis that the writings


________________________
(. . . continued)
         found in foster care or a group home.
         http://www.casaforchildren.org/site/c.mtJSJ7MPIsE/b.5301303/k.3DEC/The_
         CASA_Story__CASA_for_Children.htm (last visited August 13, 2010).

5.       The State’s Attorney and Defendant’s counsel did not personally see the
         display before it was removed by the bailiffs.

                                           -7-
#24986

were hearsay, irrelevant, and self-serving. The trial court sustained the State’s

objection on the basis that the writings were hearsay.

[¶13.]       The jury deliberated for five to six hours before returning a verdict of

guilty. On July 7, 2008, Defendant filed a Motion for New Trial based on juror

misconduct that introduced extrinsic information into the jury room during

deliberations. Defendant alleged that the following information was brought into

the jury room (1) that Defendant had been in prison for the ten years preceding the

trial, (2) that another trial had taken place ten years earlier and that a new trial

had been granted because Defendant received incompetent legal representation

during the 1999 trial.

[¶14.]       Eleven of the jurors submitted affidavits for the trial court’s

consideration. However, all references to intrinsic information as to how the

comments affected the jurors were stricken and not considered by the trial court. A

hearing on the motion was held at which all twelve jurors testified.

[¶15.]       Juror “C” testified that before deliberations started a male juror had

entered the jury room and exclaimed in a loud voice something to the effect “you

know why it’s been ten years don’t you? It’s because he’s been in the pen.” Juror

“C” testified he could not recall the male juror’s name, but that he was employed as

a truck dispatcher.

[¶16.]       Juror “N” was identified as the male juror employed as a truck

dispatcher. Juror “N” testified at the hearing that he did not hear any discussion by

the jury that Defendant had been in prison for ten years prior to the trial. He also

testified that he did not hear any comments that a second trial was required due to


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the incompetent representation of Defendant’s first trial attorney. On cross-

examination, Juror “N” was asked if he had made the statements. He replied “No.”

He was then asked “Did you know that he had been in prison or jail for ten years

during the course of the deliberations?” Juror “N” again testified “No.”

[¶17.]       Juror “M” testified she signed an affidavit stating she remembered

someone making the statement that Defendant’s first trial attorney had been

incompetent. It was not until a few weeks after she signed her affidavit that Juror

“M” remembered that she was the source of the information. Juror “M” testified

that she obtained the information while out in public when she was scheduling an

appointment and made the statement that she could not attend a specific date and

time due to jury duty. The woman to whom Juror “M” was speaking asked if Juror

“M” was serving on the Dillon trial. Juror “M” did not respond to the inquiry, but

before she could leave the conversation the woman with whom she was speaking

stated that “he had an incompetent attorney.” Juror “M” did not respond. At the

hearing, Juror “M” could not recall the woman’s name or where the conversation

had taken place. Juror “M,” however, recalled she told her fellow jurors of the

incompetent 1999 trial attorney at the point in time when the jurors were trying to

establish why it had taken ten years for the matter to come to trial.

[¶18.]       The trial court heard all the testimony, reviewed affidavits, briefs, and

heard oral arguments on the motion. It found that extrinsic information had come

into the jury room via Juror “M” and was heard to some degree by seven of the

jurors. Four of the jurors heard little if anything. The trial court also found the

information was mentioned very briefly and not given extensive consideration by


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the jury. It did not make a specific finding regarding the testimony from Juror “C”

that a male juror employed as a truck dispatcher had loudly proclaimed that

Defendant had been in prison for ten years.

[¶19.]       The trial court concluded that the misconduct was not prejudicial

because there was substantial evidence of guilt introduced during the five-day trial.

It further concluded there was no significant possibility that Defendant was

prejudiced in light of the jury instructions, the testimony of the jurors, and the

admitted portions of the jurors’ affidavits. The trial court denied Defendant’s

motion for a new trial.

[¶20.]       Defendant was subsequently sentenced to twenty five years on each

count to be served consecutively for a total of 125 years. Defendant appeals raising

the following issues:

             1. Whether the trial court erred in denying Defendant’s Motion for
                Judgment of Acquittal, when K.D. denied Defendant’s penis went
                inside her vagina.

             2. Whether the trial court erred in refusing to grant a mistrial after
                the State’s psychiatric expert, when giving testimony about
                characteristics of child sexual abuse victims, testified that when a
                report of sexual abuse occurs in a majority of cases the victim is
                being truthful.

             3. Whether the trial court erred in refusing to grant a mistrial when
                the jury walked through a hallway containing a CASA sponsored
                display of children’s shoes that was unrelated to the trial.

             4. Whether the trial court violated Defendant’s right to due process
                and a fair trial when it denied admission of letters and cards
                written by Defendant to his daughter that corroborated his
                testimony.

             5. Whether the trial court abused its discretion in refusing to grant a
                new trial, when it was alleged jurors brought extrinsic information
                into the jury room that Defendant had been in prison for the past

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                    ten years and that he had secured a new trial due to the
                    incompetent representation provided by his 1999 trial attorney.

                              ANALYSIS AND DECISION

[¶21.]         1.      Whether the trial court erred in denying Defendant’s
                       Motion for Judgment of Acquittal, when K.D. denied
                       Defendant’s penis went inside her vagina.

[¶22.]         Defendant argues on appeal that his convictions on two counts of rape,

Count 1 and Count 2, involving K.D. must be reversed on appeal because K.D.

recanted on the stand when she testified on cross-examination that Defendant’s

penis did not go inside her vagina. 6 However, the State points to the substantial

testimony in the record by K.D. that Defendant touched her vaginal area with his

penis, which included her two videotaped interviews with Detective Fox and Horan

a few weeks after the General Beadle School party incident on September 11, 1998.

Horan also testified that K.D. told her after the second interview that Defendant

had touched her and “it hurt.” As has been factually set forth in Dillon I, there was

substantial evidence from the other victims as to the penetration of K.D. Finally,

Dr. Strong, the physician who examined K.D., testified that K.D. told him that her

father had hurt her in her private area.




6.       The question about vaginal entry does not comport with our statutory
         definition of penetration. SDCL 22-22-2 defines “penetration” as “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.” We have 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. State v. Packed, 2007 SD 75,
         ¶32, 736 NW2d 851, 861.

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[¶23.]       A trial court’s denial of a motion for judgment of acquittal presents a

question of law for review under the de novo standard. State v. Packed, 2007 SD

75, ¶17, 736 NW2d 851, 856 (quoting State v. Disanto, 2004 SD 112, ¶14, 688 NW2d

201, 206). The relevant question is whether the “evidence was sufficient to sustain

the convictions.” State v. Adamson, 2007 SD 99, ¶17, 738 NW2d 919, 924 (quoting

State v. Running Bird, 2002 SD 86, ¶19, 649 NW2d 609, 613). We consider the

evidence in a light most favorable to the verdict when considering the sufficiency of

the evidence on appeal. Id. We will not set aside a guilty verdict on appeal “if the

State’s evidence and all favorable inferences that can be drawn therefrom support a

rational theory of guilt. We do not resolve conflicts in the evidence, pass on the

credibility of the witnesses, determine the plausibility of an explanation, or weigh

the evidence.” Id.

[¶24.]       Citing Parsons v. Dacy, 502 NW2d 108 (SD 1993), Defendant argues

that the State’s case cannot rise above K.D’s testimony. That misconstrues our

rule. We have held that a party to an action cannot claim a better version of the

facts than to which the party testified. Id. at 111. However, here K.D. was not the

party in opposition to the Defendant, the State was.

[¶25.]       There was sufficient evidence in the record to support the rape

allegation as to some degree of penetration. Thus, the trial court did not err when it

denied Defendant’s motion for judgment of acquittal.

[¶26.]       2.      Whether the trial court erred in refusing to grant a
                     mistrial after the State’s psychiatric expert, when giving
                     testimony about characteristics of child sexual abuse
                     victims, testified that when a report of sexual abuse
                     occurs in a majority of cases the victim is being truthful.


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[¶27.]       Defendant next argues it was error for the trial court to deny his

motion for mistrial after Dr. Fiferman’s testimony concerning the general

characteristics of a sexually abused victim, which included the statement “when

somebody reports being sexually abused, in the majority of cases, that’s the truth.”

Defendant argues on appeal that this was improper vouching and bolstering of the

child victims’ testimony. The State argues that Dr. Fiferman’s testimony did not

invade the province of the jury because it was a generalized explanation of a

sexually abused child’s capacity to testify and was not improper vouching or

bolstering. Even if it were improper vouching or bolstering, the State further

argues that Defendant is unable to show prejudice because of the limiting

instruction given by the trial court.

[¶28.]       We review the denial of a motion for mistrial under the abuse of

discretion standard. State v. Fool Bull, 2009 SD 36, ¶34, 766 NW2d 159, 167 (citing

State v. Fool Bull, 2008 SD 11, ¶10, 745 NW2d 380, 385)). We will affirm a trial

court’s denial of a mistrial unless we find abuse of discretion resulting in clear

prejudice. Id. “Error is prejudicial when, in all probability . . . it produced some

effect upon the final result and affected rights of the party assigning it.” Id. (quoting

Fool Bull, 2008 SD 11, ¶10, 745 NW2d at 385). We also use the abuse of discretion

standard to review the trial court’s evidentiary rulings. State v. Goodroad, 1997 SD

46, ¶8, 563 NW2d 126, 129 (citing State v. Oster, 495 NW2d 305, 309 (SD 1993)).

“An abuse of discretion refers to a discretion exercised to an end or purpose not

justified by, and clearly against reason and evidence.” State v. Henry, 1996 SD 108,

¶10, 554 NW2d 472, 473 (quoting State v. Moriarty, 501 NW2d 352, 355 (SD 1993)).


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However, we also presume that juries understand and abide by curative

instructions. State v. Maves, 358 NW2d 805, 809 (SD 1984) (citing State v. No

Heart, 353 NW2d 43 (SD 1984); State v. Reddington, 80 SD 390, 125 NW2d 58

(1963)).

[¶29.]       In the case at bar, Dr. Fiferman testified about the characteristics of

sexually abused adults and children. Defendant objected and the trial court

admonished the jury to disregard the statement in question. We presume the jury

followed the instructions as given and disregarded Dr. Fiferman’s one-line

statement regarding the truthfulness of a majority of sexual abuse claims. See id.

The trial court did not abuse its discretion when it gave the curative instruction

rather than granting Defendant’s motion for mistrial.

[¶30.]       3.     Whether the trial court erred in refusing to grant a
                    mistrial when the jury walked through a hallway
                    containing a CASA sponsored display of children’s shoes
                    that was unrelated to the trial.

[¶31.]       Defendant argues that the CASA display of children’s shoes in the

hallway through which the jury passed, along with the other claimed errors,

warrants retrial. Without citing any specific authority, Defendant argues that the

shoe display in all probability produced some effect upon the jury’s verdict.

Defendant argues that “baby shoes” in the hallway combined with Dr. Fiferman’s

testimony could have changed the outcome of the entire proceeding. The State

argues that the trial court’s denial of Defendant’s motion for mistrial was within its

discretion and that Defendant is unable to show prejudice. It also argues

Defendant is unable to support this argument given the lack of error in admitting



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Dr. Fiferman’s testimony and the trial court’s admonishment to the jury to

disregard the shoe display.

[¶32.]       As noted above, the standard of review for a mistrial is abuse of

discretion. Supra ¶28. This Court will affirm the trial court’s denial of a motion for

mistrial unless we find abuse of discretion resulting in clear prejudice. Fool Bull,

2009 SD 36, ¶33, 766 NW2d at 167. As this Court has noted before in the context of

a denial for a motion for change of venue, a “[d]efendant is entitled to a trial by an

impartial jury. Art VI, § 7, SDConst. Not only should the minds of the jurors be

without bias or prejudice, but they should be removed from the bias, prejudice and

excitement of others.” State v. Belt, 79 SD 324, 328, 111 NW2d 588, 590 (1961)

(citing State v. Demerly, 56 SD 65, 227 NW 463 (1929); State v. Meservey, 53 SD

60, 220 NW 139 (1928)).

[¶33.]       Defendant argues the children’s shoe display biased or prejudiced the

jury in some manner by eliciting sympathy and emotions for the victims. However,

the display was not symbolic of child sexual abuse, or specific to female victims.

The display contained the shoes of both girls and boys and was not tied to the trial

in any manner. Furthermore, Defendant does not point to any of the jurors as

having children or connecting to the symbolism, only to his own emotional

connection to the shoes of his children.

[¶34.]       The shoe display did not encourage or display a message that

Defendant should be found guilty. Lacking any inflammatory message specific to

Defendant’s trial, the display was not inherently prejudicial. See People v.

Pendelton, 185 IllApp3d 768, 774, 542 NE2d 386, 389-390 (IllAppCt 1989) (holding


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the word “guilty” written on the inside locker of a men’s restroom used by eight of

the jurors during deliberations did not contain a reference to Pendelton and was not

inflammatory as was the case in People v. Jones, 105 Ill2d 342, 475 NE2d 832, 837

(1985), where black racist literature was found in the jury room during the

deliberations of an all white jury in the criminal trial of a black defendant and three

jurors admitted to reading the material). Finally, any effect upon the jury was

addressed by the trial court when it admonished the jury that the display was a

CASA event wholly unconnected to the trial and was to be disregarded and not

considered in any fashion for purposes of Defendant’s case.

[¶35.]       4.     Whether the trial court violated Defendant’s right to due
                    process and a fair trial when it denied admission of
                    letters and cards written by Defendant to his daughter
                    that corroborated his testimony.

[¶36.]       Defendant argues the trial court erred when it refused to admit into

evidence the letters and cards he wrote and sent in 1998 to K.D. through DSS. He

argues the writings were offered under SDCL 19-16-7 (Rule 803(3)) to show

Defendant’s state of mind that he loved his daughter and wanted to regain custody

of K.D. and not for the truth of the matter asserted. Defendant also argues that the

writings were exculpatory evidence that supported his theory of defense. The

refusal of the writings, Defendant argues, prevented him from fully defending his

case. The State argues that the writings were not relevant to the facts in issue

because they would not assist the jury in determining if Defendant had sexual

contact with K.D. or her friends on the nights in question. The State also argues

the writings were hearsay under SDCL 19-16-1(3) (Rule 801(c)) and were being

offered to prove the truth of the matter asserted.

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[¶37.]       The standard of review for evidentiary decisions made by the trial

court is abuse of discretion. Supra ¶28. A misapplication of the rules of evidence is

by definition an abuse of discretion. State v. Guthrie, 2001 SD 61, ¶30, 627 NW2d

401, 415 (citing Koon v. United States, 518 US 81, 100, 116 SCt 2035, 2047, 135

LEd2d 392 (1996)). A trial court does not abuse its discretion when it merely allows

or refuses questionable evidence. Id.

[¶38.]       The trial court ruled the writings were hearsay within the meaning of

SDCL 19-16-1(3) (Rule 801(c)), which provides: “‘Hearsay’ is a statement, other

than one made by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” “Hearsay is not admissible

except as provided by law or by chapters 19-9 to 19-18, inclusive, or by other rules

prescribed by the Supreme Court.” SDCL 19-16-4 (Rule 802).

[¶39.]       Defendant argues that the writings were not offered for the truth of

the matter asserted, but rather to show his state of mind under SDCL 19-16-7 (Rule

803(3)) at the time the letters and cards were written. However, Defendant also

concedes that the purpose of the writings was to “show what he said at the time so

the jury could decide for themselves if these sentiments of love and fatherly advice

contained in the cards and letters corroborated his defense.” In essence, Defendant

concedes in his brief that the writings were being offered to prove the truth of the

matter asserted in the letters and cards, that Defendant loved and cared for his

daughter despite the accusations. The letters and cards contain statements to that

effect, that Defendant loved K.D., did not abandon her, and he was working to

regain custody.


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[¶40.]       Even if the writings were being offered for a proper evidentiary

purpose, the statements therein do not meet the requirements for admission under

the state of mind hearsay exception in SDCL 19-16-7 (Rule 803(3)). Under the state

of mind rule, “[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 his thoughts; and (3) the

declarant’s state of mind must be relevant to the issues of the case. 5 Jack B.

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

ed. 2002).

[¶41.]       In this case, the conditions for admission of the state-of-mind evidence

were not satisfied. These written statements were made by Defendant with the

awareness that DSS case workers would read them prior to the cards being

forwarded to K.D. As such, that knowledge suggests a motive for Defendant to

misrepresent his thoughts.

[¶42.]       Finally, Defendant’s statements were not relevant to the issues in the

case. Defendant’s state of mind after his arrest was not relevant to the charges of

rape and sexual contact with a minor. See United States v. Wilder, 597 F3d 936,

942 (8thCir 2010) (holding a defendant’s state of mind after his arrest and while

seated in a police car were not relevant to the charges related to conspiracy to

distribute cocaine); United States v. Udey, 748 F2d 1231, 1243 (8thCir 1984)


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(holding evidence of defendant’s state of mind or emotion on June 5, 1983, were not

relevant to the charges which concerned the events of June 3, 1983).

[¶43.]       Defendant’s contention that he was denied due process when the

letters were not admitted also fails. Defendant was able to testify to the same

sentiments and feelings while on the witness stand as those presented in the

writings. He was also able to present his theory of his defense that Defendant was

a good father, that the victims were not truthful, and that the police and forensic

interviews tainted the victims’ testimony. The trial court’s refusal of the writing did

not impede Defendant’s ability to argue his theory of defense.

[¶44.]       5.     Whether the trial court abused its discretion in refusing
                    to grant a new trial, when it was alleged jurors brought
                    extrinsic information into the jury room that Defendant
                    had been in prison for the past ten years and that he had
                    secured a new trial due to the incompetent
                    representation provided by his 1999 trial attorney.

[¶45.]       Defendant’s final issue on appeal is that the trial court erred when it

denied his motion for new trial based on juror misconduct. The trial court found

that extrinsic information was brought into the jury room by Juror “M” who

commented that a second trial had been required after Defendant’s first attorney

had been determined incompetent. The trial court also entered a finding that at

least one juror heard a comment made by another juror that Defendant had been in

prison for the ten years prior to the second trial. It did so without identifying the

specific juror alleged to have made the comment about Defendant’s ten years in

prison. The trial court also entered a finding that prejudice was presumed due to

the introduction of extrinsic information. The trial court applied the first and



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second tests in State v. Wilkins, 536 NW2d 97 (SD 1995), and concluded that the

State overcame the rebuttable presumption of prejudice.

[¶46.]       Defendant argues that the introduction of extrinsic information that he

had been in prison for ten years prior to trial and that a retrial was granted due to

the incompetent representation of his 1999 trial attorney prejudiced his right to a

fair and impartial jury. He further argues the trial court erred when it failed to

make a specific finding as to the male juror’s alleged comment that Defendant had

been in prison for ten years prior to trial. Defendant also argues the trial court

erred when it did not use the objective standard from Wilkins, 536 NW2d at 100, to

ascertain “the likelihood that the influence would have upon a typical juror.”

[¶47.]       The State argues that the fact the jury became aware of the reason for

the prior trial cannot support a finding of prejudice because the trial court

specifically instructed the jury to disregard that information in rendering its

verdict. It further argues that the jury became aware of the 1999 trial during the

2008 trial when references were made to the prior testimony of witnesses. As such,

the State argues the fact a prior trial was held was not extrinsic information as the

fact of a prior trial was made known to the jury through in-court testimony.

[¶48.]       With regard to the introduction of extrinsic information that

Defendant’s 1999 trial attorney was incompetent and that was the reason for a new

trial, the State argues that once the jury knew of the first trial, learning the reason

a second trial was required did not result in prejudice. Finally, with regard to

extrinsic information that Defendant had served ten years in prison at the time of




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the trial, the State argues that it overcame the presumption of prejudice through

the introduction of overwhelming evidence of Defendant’s guilt.

[¶49.]       The clearly erroneous standard is used when reviewing a trial court’s

factual findings on juror misconduct. Wilkins, 536 NW2d at 99 (citing Shamburger

v. Behrens, 418 NW2d 299, 303 (SD 1988)). We will reverse a trial court’s finding of

fact under the clearly erroneous standard only if after reviewing all of the evidence

we are left with a definite and firm conviction that a mistake has been made. Id.

(quoting State v. Almond, 511 NW2d 572, 574 (SD 1994)). “We will uphold the trial

court’s resolution of the facts unless, upon our viewing of the evidence in a light

most favorable to the trial court’s finding, we are convinced the finding was clearly

erroneous under this definition.” Id.

[¶50.]       We use the abuse of discretion standard of review to determine

whether a trial court erred in its denial of a motion for new trial based upon a claim

of juror misconduct. State v. Johnson, 2001 SD 80, ¶9, 630 NW2d 79, 82 (citing

State v. Alidani, 2000 SD 52, ¶9, 609 NW2d 152, 155). In criminal prosecutions, a

rebuttable presumption of prejudice exists when extrinsic information is introduced

into jury deliberations. Id. ¶10, 630 NW2d at 82 (citing Wilkins, 536 NW2d at 99).

The trial court is precluded from inquiring into the subjective effect the extrinsic

information had upon a juror. Wilkins, 536 NW2d at 99 (quoting Buchholz v. State,

366 NW2d 834, 838 (SD 1985). The trial court is permitted, however, to question

jurors to determine whether the extrinsic information had no effect upon them. Id.

at 100 (citing Port Terminal & Warehousing Co. v. John S. James Co., 92 FRD 100,

109 (SDGa 1981)). We review the matter while recognizing that the trial court had


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the advantage of being present during the trial and was in the best position to

determine whether extrinsic material prejudiced the jury. Id. (quoting Shamburger,

418 NW2d at 302-3)).

[¶51.]       The rebuttable presumption of prejudice in a criminal trial may be

overcome in one of three ways. First, it may be overcome “[b]y showing the

information was harmless in view of all the evidence of guilt.” Wilkins, 536 NW2d

at 99-100 (citing Sher v. Stoughton, 666 F2d 791, 793 (2dCir 1981)). Second, it may

be overcome if the trial court determines that “there was no significant possibility

that the defendant was prejudiced.” Id. at 100. (citing United States v. McKinney,

429 F2d 1019 (5thCir 1970), cert. denied, 401 US 922, 91 SCt 910, 27 LEd2d 825

(1971)). Finally, under the third option the rebuttable presumption may be

overcome by a “showing that the nature of the extra-record evidence could not have

had or had a minimal effect upon the jury.” Id. (citing United States ex rel. Owen v.

McMann, 435 F2d 813 (2ndCir 1970)). Only under the third option does “the trial

judge . . . invoke an objective standard, that of ascertaining ‘the likelihood that the

influence would have upon a typical juror.’” Id. (quoting Buchholz, 366 NW2d at

840).

[¶52.]       Defendant argues the trial court erred when it did not find on the

record that Juror “N,” the truck dispatcher, said in a loud voice at the start of

deliberations that Defendant had been in prison for the past ten years. However,

only Juror “C” testified that Juror “N” made this comment. Juror “N” testified that

he did not recall making the comment or anyone else doing so. Juror “N” also




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testified that he was not aware Defendant had been in prison or jail for ten years at

the time of the deliberations.

[¶53.]       Even if this Court were to find the trial court erred when it failed to

make a finding of fact specific to Juror “N,” such an error is not prejudicial. The

trial court found extrinsic information regarding the ten years Defendant had been

in prison prior to trial came before the jury. It then addressed the rebuttable

presumption of prejudice. The source of the extrinsic information was not necessary

to determining whether Defendant was prejudiced by it.

[¶54.]       The trial court found that extrinsic information that Defendant had

spent the past ten years in prison and that his first trial attorney provided

incompetent representation came before the jury. It then addressed the

presumption of prejudice. The trial court’s first rationale for overcoming the

rebuttable presumption of prejudice was that there was substantial evidence of

guilt presented such that the extrinsic information was harmless. As the trial court

noted in its oral decision, this was a five-day trial during which the victims,

Detective Fox, Horan, and Dr. Strong were vigorously cross-examined. There was

substantial evidence of Defendant’s guilt, although some of it was contradicted

during cross-examination. The jury was able to hear all the inconsistencies in the

testimony, yet still returned a verdict of guilty.

[¶55.]       The trial court’s second rationale for concluding that the presumed

prejudice was overcome by the State was that there was no significant possibility

that Defendant was prejudiced by the jury learning the reason for the second trial




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was the incompetence of his first attorney. The trial court also noted that it gave a

limiting instruction to the jury, Instruction No. 28, which provided:

               You have heard evidence that there was a previous trial of the
               defendant for the crimes charged here. Keep in mind however
               that you must decide this case solely on the evidence presented
               to you in this trial. You must not consider the fact of a previous
               trial in any way when you decide if the government has proved
               beyond a reasonable doubt its case against the defendant here.

It did so after references in cross-examination to prior proceedings and transcripts

at the second trial made it apparent to the jury that a previous trial had taken

place. The trial court concluded the State overcame the rebuttable presumption of

prejudice in light of Instruction No. 28, and the complete lack of any evidence

presented at the hearing that the jury speculated on the outcome or the significance

of the prior trial. 7

[¶56.]         We do not find the trial court abused its discretion when it found that

the State carried its burden on the rebuttable presumption of prejudice. The trial

court was able to observe the witnesses and hear all the testimony live. We will not

second guess on appeal the trial court’s conclusion that there was substantial

evidence in the record sufficient to overcome the presumption of prejudice.

[¶57.]         Affirmed.

[¶58.]         ZINTER, MEIERHENRY, and SEVERSON, Justices, and,

HOUWMAN, Circuit Court Judge, concur.




7.       Defendant’s argument that the trial court erred by not employing the
         objective juror standard is also without merit. The trial court did not utilize
         the third option under Wilkins. See supra ¶51. Hence, the objective juror
         standard was not required.

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[¶59.]          HOUWMAN, Circuit Court Judge, sitting for KONENKAMP, Justice,

disqualified.




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