#27412-a-LSW

2016 S.D. 10

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

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

      v.

JOSEPH ALLEN GOLLIHER-WEYER,              Defendant and Appellant.


                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE FIFTH JUDICIAL CIRCUIT
                    BROWN COUNTY, SOUTH DAKOTA

                                 ****

                  THE HONORABLE RICHARD A. SOMMERS
                               Judge

                                 ****

MARTY J. JACKLEY
Attorney General

GRANT FLYNN
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.


ADAM ALTMAN
Aberdeen, South Dakota                    Attorney for defendant
                                          and appellant.

                                 ****

                                          CONSIDERED ON BRIEFS
                                          ON JANUARY 11, 2016

                                          OPINION FILED 02/03/16
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WILBUR, Justice

[¶1.]        A jury convicted defendant of fourth-degree rape in violation of SDCL

22-22-1(5). Defendant appeals. He asserts that his trial counsel was ineffective for

her failure to understand the rules of evidence, namely SDCL 19-19-412.

Defendant also claims the circuit court erred when it concluded that defendant was

not entitled to a Rule 412 hearing because defendant did not file a motion for a

hearing 14 days before trial. Defendant contends the circuit court abused its

discretion when it restricted his cross-examination of the victim to questions related

to the victim’s sexual encounters with defendant. Lastly, defendant claims the

circuit court improperly considered his juvenile psychological records when it

sentenced defendant to fifteen years in the South Dakota State Penitentiary. We

affirm.

                                     Background

[¶2.]        In October 2013, A.A. invited Joseph Allen Golliher-Weyer (Weyer) to

watch television at a mutual friend’s house in Aberdeen, South Dakota. After

watching television with A.A. for some time, Weyer left the living room to go to a

bedroom. It is disputed whether Weyer went to the bedroom alone or with A.A.

Weyer claimed he entered the bedroom alone to sleep. One witness claimed A.A.

and Weyer entered the bedroom together. Regardless, A.A. later alleged that while

in the bedroom she and Weyer had sexual intercourse. At that time, Weyer was 18

years old and A.A. was 14 years old. Under SDCL 22-22-1(5) an act of sexual

penetration is rape “[i]f the victim is thirteen years of age, but less than sixteen

years of age, and the perpetrator is at least three years older than the victim.” A


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warrant issued for Weyer’s arrest on January 14, 2014, for his violation of SDCL 22-

22-1(5). Weyer denied that he had sexual intercourse with A.A. and requested a

jury trial.

[¶3.]         During the jury trial, Weyer’s counsel sought to introduce evidence

that A.A. had made prior false allegations of sexual intercourse with other

individuals. The State objected during defense counsel’s opening statement. The

court held a discussion outside the presence of the jury. The State argued that

SDCL 19-19-412 precludes the admission of evidence related to A.A.’s prior sexual

encounters and that the evidence does not meet the statutory exceptions. The State

also argued that Weyer cannot introduce evidence of A.A.’s prior sexual history

because he failed to request a hearing to determine admissibility 14 days prior to

trial. Counsel for Weyer responded that she did not need to request a hearing

because she sought to admit the evidence to impeach A.A., not to prove A.A.’s sexual

predisposition.

[¶4.]         The circuit court granted the State’s objection. It ruled “that it

appears that based on this case law there should have been some advanced notice

given if we’re going to talk about her sexual history.” According to the court, “both

the federal rule and this case law talk about the opportunity to have that hearing in

advance of trial” for the court “to conduct an in camera hearing and make a ruling

on [it] after the evidence of the other allegations would be presented, and the victim

would have a right to attend and be heard.” Because Weyer did not request a

hearing 14 days prior to trial, the court held that “based on that case and federal




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rule that you don’t have that opportunity to have that hearing at this point in time,

so that testimony would not be admissible[.]”

[¶5.]        A.A. testified at trial. During cross-examination, A.A. mentioned that

she listed the names of “everybody that I did” and corresponding dates in a school

agenda. Defense counsel asked A.A. about these other individuals, and the State

objected. The circuit court instructed defense counsel to limit the questions to

entries in the agenda implicating Weyer. Other witnesses testified at trial, and the

court prohibited Weyer from questioning those witnesses regarding whether A.A.

had prior sexual encounters with others.

[¶6.]        On October 28, 2015, the jury found Weyer guilty of fourth-degree

rape. Prior to sentencing, the court ordered that Weyer undergo a psychosexual

evaluation and a psychological evaluation. Prior to the examinations, Weyer

specifically refused to give the examiners consent to access information from his

juvenile criminal record and juvenile treatment facilities. The report from Weyer’s

psychological evaluation specifically referenced the records from Weyer’s juvenile

treatment facilities. At the sentencing hearing, Weyer objected to the court’s

consideration of the evaluator’s report. The court overruled Weyer’s objection. The

court sentenced Weyer to fifteen years in the state penitentiary with seven years

suspended.

[¶7.]        Weyer appeals, asserting the following issues:

             1.    Whether trial counsel was ineffective for not filing a
                   motion to introduce the victim’s past sexual behavior
                   pursuant to SDCL 19-19-412.




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              2.     Whether the circuit court erred when it denied defendant
                     a hearing pursuant to SDCL 19-19-412 once the trial had
                     commenced.

              3.     Whether the circuit court abused its discretion when it
                     limited defendant’s opportunity to impeach the victim
                     after she allegedly opened the door to her sexual history.

              4.     Whether the circuit court violated defendant’s rights
                     when it considered a presentence investigation report that
                     included defendant’s juvenile psychological records.

                                       Analysis

              1.     Ineffective Assistance of Counsel

[¶8.]         Weyer claims his trial counsel was ineffective because she did not

understand SDCL 19-19-412, failed to timely request a Rule 412 hearing, and relied

on a repealed statute as sole support for trial strategy.* According to Weyer, his

trial counsel’s ineffectiveness warrants our review on direct appeal because it

“destroyed” any chance that the adversarial process could function properly. To

prevail on his claim, Weyer must establish both that his trial counsel was

ineffective and that he was prejudiced as a result. See State v. Thomas, 2011 S.D.

15, ¶ 21, 796 N.W.2d 706, 713. Counsel is ineffective when a defendant shows “that

counsel’s representation fell below an objective standard of reasonableness.” Id.

Prejudice exists when there is “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” State

v. Hannemann, 2012 S.D. 79, ¶ 11, 823 N.W.2d 357, 360 (quoting Thomas, 2011

S.D. 15, ¶ 28, 796 N.W.2d at 715). “Absent exceptional circumstances, we will not




*       Weyer’s attorney on appeal is different than his trial counsel.

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address an ineffective assistance claim on direct appeal.” State v. Dillon, 2001 S.D.

97, ¶ 28, 632 N.W.2d 37, 48 (citing State v. Hays, 1999 S.D. 89, ¶ 14, 598 N.W.2d

200, 203). “We depart from this principle only when trial counsel was ‘so ineffective

and counsel’s representation “so casual” as to represent a “manifest usurpation” of

the defendant’s constitutional rights.’” Id.

[¶9.]        According to appellate counsel, Weyer’s trial counsel’s representation

manifestly usurped Weyer’s constitutional rights because counsel did not

understand SDCL 19-19-412 and “based her entire strategy on [this] glaring

mistake.” Based on the current record, we are unable to examine trial counsel’s

strategy or obtain a complete picture of counsel’s understanding of SDCL 19-19-412.

Did counsel seek to impeach witnesses or attempt to introduce evidence of prior

false accusations? We have said that “it is only through habeas corpus that a

sufficient record can be made to allow the appropriate review” by this Court. State

v. Petersen, 515 N.W.2d 687, 688 (S.D. 1994) (quoting State v. Jett, 474 N.W.2d 741,

743 (S.D. 1991)). This is because, through habeas, an attorney charged with

ineffectiveness can explain or defend actions and strategies. Thomas, 2011 S.D. 15,

¶ 23, 796 N.W.2d at 714. And this Court can obtain a “more complete picture of

what occurred[.]” Id. (quoting State v. Arabie, 2003 S.D. 57, ¶ 20, 663 N.W.2d 250,

256). Because the current record is insufficient to allow for an appropriate review,

we decline to address Weyer’s claim at this time. See State v. Schmidt, 2012 S.D.

77, ¶ 37, 825 N.W.2d 889, 899.




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             2.     Denial of a Hearing under SDCL 19-19-412

[¶10.]       According to Weyer, “[o]nce it became clear that defense counsel

intended to introduce evidence of A.A. lying about past instances of sexual behavior,

the [c]ourt should have allowed the in camera Rule 412 hearing, despite the lack of

14 days [sic] advance notice.” In Weyer’s view, the circuit court erred as a matter of

law when it interpreted SDCL 19-19-412 to mean that 14 days’ advance notice is an

absolute prerequisite to a Rule 412 hearing, when in fact the statute provides the

court discretion to determine whether good cause requires a different time for filing,

including filing during trial.

[¶11.]       In response, the State avers that the circuit “court was familiar with

the rule and recognized that the rule allows for a hearing during trial for good

cause.” It then claims that the “court determined Defendant did not demonstrate

good cause to warrant a Rule 412 hearing be held during trial.” The State’s reading

of the court’s ruling cannot be supported. In fact, a review of the court’s ruling

reveals that the court believed it did not have discretion to hold a Rule 412 hearing

absent a motion filed 14 days before trial. It interpreted SDCL 19-19-412 to require

an “opportunity to have a hearing in advance of trial.” Then, according to the court,

because “we can’t do that at this point in time,” it denied Weyer the opportunity to

have a Rule 412 hearing.

[¶12.]       We review issues of statutory interpretation de novo. State v. Moran,

2015 S.D. 14, ¶ 10, 862 N.W.2d 107, 110. At the time of Weyer’s trial, SDCL 19-19-

412 provided in part:

             (1) A party intending to offer evidence under subdivision (b)
             must:

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                    (A) file a written motion at least 14 days before trial
                    specifically describing the evidence and stating the
                    purpose for which it is offered unless the court, for good
                    cause requires a different time for filing or permits filing
                    during trial; and

                    (B) serve the motion on all parties.

(Emphasis added.) The circuit court erred when it interpreted SDCL 19-19-412 to

mean that, absent notice 14 days before trial, Weyer could not have a hearing. But

the court’s error does not automatically necessitate reversal or a new trial. To

require reversal the error must be prejudicial. State v. Fool Bull, 2008 S.D. 11,

¶ 23, 745 N.W.2d 380, 388; State v. Latham, 519 N.W.2d 68, 71 (S.D. 1994),

overruled on other grounds by State v. Giroux, 2004 S.D. 24, 676 N.W.2d 139; SDCL

23A-44-14. “Prejudice, sufficient to require relief, must ‘in all probability’ have

‘produced some effect upon the final result and affected rights of the party assigning

it.’” State v. Reay, 2009 S.D. 10, ¶ 46, 762 N.W.2d 356, 369 (quoting State v. Krebs,

2006 S.D. 43, ¶ 19, 714 N.W.2d 91, 99).

[¶13.]       From our review, Weyer has not met his burden of proving prejudicial

error. See Fool Bull, 2008 S.D. 11, ¶ 23, 745 N.W.2d at 388 (actual showing of

prejudice required); State v. Guthmiller, 2003 S.D. 83, ¶ 28, 667 N.W.2d 295, 305.

He presents no evidence that, had the hearing been granted, A.A.’s prior sexual

history would have been admitted. At trial, Weyer did not seek to admit A.A.’s prior

sexual behavior “to prove that a person other than the accused was the source of

semen, injury or other physical evidence” or to prove consent. See SDCL 19-19-

412(b)(1)(A), (B). Nor has Weyer established that the evidence he sought to admit

was relevant and material to a fact issue in the case. See State v. Pugh, 2002 S.D.


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16, ¶ 14, 640 N.W.2d 79, 83-84. Weyer merely claims the evidence is relevant to

establish that A.A. lied about having sexual intercourse with Weyer because A.A.

lied about previous sexual encounters. Yet, beyond allegations of mere denial, there

is no evidence that A.A.’s previous sexual encounters did not occur. We have said

that evidence related to a victim’s prior sexual allegations are relevant and

admissible only if the prior sexual allegations are “demonstrably false.” Guthmiller,

2003 S.D. 83, ¶ 28, 667 N.W.2d at 305. Arguably false is insufficient. Dillon, 2001

S.D. 97, ¶ 26, 632 N.W.2d at 47. And proof that the prior allegations are

demonstrably false requires more than mere denial of the accusations. Id.; State v.

Most, 2012 S.D. 46, ¶ 25, 815 N.W.2d 560, 567.

             3.     Limited Cross-Examination of A.A.

[¶14.]       During Weyer’s cross-examination of A.A., A.A. mentioned that she

recorded the names and dates of her past sexual encounters in a school agenda.

Weyer attempted to elicit from A.A. the names and dates documenting A.A.’s sexual

encounters with males other than Weyer. In response to the State’s objection, the

circuit court limited Weyer’s questions to entries in the school agenda related to

Weyer. Weyer claims the court abused its discretion when it limited his cross-

examination because A.A. opened the door “to her past sexual behavior, including

any false allegations about having sex, when she claimed that, in her school agenda,

she ‘wrote down everybody that I did.’”

[¶15.]       “Courts have discretion to allow an ordinarily inadmissible inquiry

when an adversary ‘opens the door’ to that line of inquiry.” State v. Buchholtz, 2013

S.D. 96, ¶ 12, 841 N.W.2d 449, 454 (citing Veith v. O’Brien, 2007 S.D. 88, ¶ 27, 739


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N.W.2d 15, 24 (citations omitted); State v. Letcher, 1996 S.D. 88, ¶¶ 25-26, 552

N.W.2d 402, 406-07 (citations omitted)). We presume the court’s evidentiary

rulings are correct and review only for an abuse of discretion. State v. Hauge, 2013

S.D. 26, ¶ 24, 829 N.W.2d 145, 152. A.A.’s statement that she documented her

previous sexual encounters, including her encounter with Weyer, did not open the

door to Weyer’s questions concerning A.A.’s prior sexual encounters with males

other than Weyer. By making the statement, A.A. did not suggest that she lied

about prior sexual encounters, or that because she had sex with others, she did not

have sex with Weyer. The circuit court did not abuse its discretion when it limited

Weyer’s cross-examination of A.A. to entries related to Weyer.

             4.    Juvenile Psychological Records

[¶16.]       Prior to sentencing, the circuit court ordered that Weyer undergo a

psychosexual evaluation. The evaluator concluded that Weyer “could be a

psychopath.” In response, the court ordered that Weyer undergo additional

psychological testing. Prior to the psychosexual evaluation and psychological

evaluation, Weyer intentionally refused to grant the examiners access to his

juvenile criminal history and juvenile psychological records. Dr. Pribyl conducted

Weyer’s psychological evaluation. He specifically relied on Weyer’s juvenile

psychological records in making his assessment and declared such in his report to

the sentencing court.

[¶17.]       On appeal, Weyer argues that his “actions as a juvenile should not

affect his sentencing for crimes committed as an adult.” He contends that his

sentence is invalid because the court considered his juvenile psychological records


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via Dr. Pribyl’s report. Yet Weyer directs us to no law denying a sentencing court

authority to consider his juvenile psychological records when fashioning an

appropriate sentence. See State v. Pellegrino, 1998 S.D. 39, ¶ 22, 577 N.W.2d 590,

599 (failure to cite authority waives the issue). It is well established that “[a]n

appropriate sentence requires that the sentencing court ‘acquire a thorough

acquaintance with the character and history of the person before it. This study

should examine a defendant’s general moral character, mentality, habits, social

environment, tendencies, age, aversion or inclination to commit crime, life, family,

occupation, and previous criminal record.’” State v. Craig, 2014 S.D. 43, ¶ 29, 850

N.W.2d 828, 837 (quoting State v. Hinger, 1999 S.D. 91, ¶ 21, 600 N.W.2d 542, 548).

Further, under SDCL 22-22-1.3, a report following a psychosexual evaluation shall

include: “the offender’s sexual history; an identification of precursor activities to

sexual offending; intellectual, adaptive and academic functioning; social and

emotional functioning; previous legal history; previous treatment history; victim

selection and age; risk to the community; and treatment options recommended.”

See SDCL 26-7A-106 (supporting that the court can consider Weyer’s prior

adjudications, dispositions, and evidence given in his prior juvenile proceedings “for

sentencing purposes”).

[¶18.]       Certainly, Weyer’s juvenile psychological records could reflect on his

sexual history, his precursor activities to sexual offending, his intellectual,

adaptive, and academic functioning, and his social and emotional functioning. The

records relate to his previous treatment history and would necessarily assist in

determining his risk to the community. The sentencing court did not err when it


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considered Weyer’s juvenile psychological records to determine an appropriate

sentence.

[¶19.]       Affirmed.

[¶20.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,

Justices, concur.




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