#28029-aff in pt & rev in pt-SLZ
2018 S.D. 21

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

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

      v.

JONATHAN CHARLES WILLS,                     Defendant and Appellant.


                                   ****

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

                                   ****

                     THE HONORABLE JON R. ERICKSON
                                Judge

                                   ****

MARTY J. JACKLEY
Attorney General

CULLEN P. MCNEECE
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellee.


AARON P. PILCHER
Rapid City, South Dakota                    Attorney for defendant
                                            and appellant.


                                   ****


                                            CONSIDERED ON BRIEFS
                                            JANUARY 8, 2018
                                            OPINION FILED 02/28/18
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ZINTER, Justice

[¶1.]        Jonathan Wills was convicted of first-degree rape and sexual contact

with a child under sixteen. He appeals, challenging the circuit court’s rulings (1)

permitting his impeachment with inconsistent statements he made to law

enforcement in a prior, unrelated criminal investigation, and (2) precluding his

expert witness from testifying about the methods used by the forensic interviewer

who interviewed the child. We affirm the impeachment ruling, reverse the expert

disqualification ruling, and remand for new trial.

                          Facts and Procedural History

[¶2.]        Wills lived with his girlfriend Lisa Trebelcock and Trebelcock’s three

children, E.G., A.G., and R.T. Shortly after Wills and Trebelcock’s relationship

ended, Trebelcock reported Wills for sexual abuse of E.G. Law enforcement

scheduled E.G. for a forensic interview at Child’s Voice, a child advocacy center.

[¶3.]        Robyn Niewenhuis, a social worker trained in the CornerHouse

protocol of forensic interviewing, conducted the interview. E.G. told Niewenhuis

that Wills had sexually abused her. E.G. stated that on multiple occasions, Wills

touched and rubbed the inside of her vaginal area. E.G. also stated that on another

occasion, Wills had her rub his penis until “white stuff” came out.

[¶4.]        Wills was indicted for first degree rape and sexual contact with a child

under sixteen. E.G. testified to the events at trial. The State also called

Niewenhuis as an expert witness on forensic interviews. Niewenhuis explained the

CornerHouse protocol for forensic interviewing of sexually abused children and how

she utilized her training when interviewing E.G. The jury was also shown a video


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of the interview. Niewenhuis testified that she saw no “red flags” in the child’s

description of the abuse.

[¶5.]        Wills called Dr. Sarah Flynn, a forensic psychiatrist, to point out a

number of alleged weaknesses in Niewenhuis’s interview. Dr. Flynn specialized in

several areas of psychiatry, including psychiatry relating to children and

adolescents. The circuit court, however, ruled that Dr. Flynn was not qualified to

give an expert opinion because she was not sufficiently familiar with the

CornerHouse protocol.

[¶6.]        Wills testified in his own defense. He denied ever touching E.G. He

also alleged that Trebelcock “set up” the allegations to obtain custody of the

children. On cross-examination, he also denied having an attraction to and sexual

curiosity about young girls:

             Q:     Are you attracted to younger girls?
             A:     No.
             Q:     Do you have a curiosity about them sexually?
             A:     No.
             Q:     Did you ever have a curiosity about them sexually?
             A:     No.

Following these denials, the State attempted to impeach Wills’s claims with

inconsistent statements he had made to law enforcement during a prior, unrelated

child pornography investigation. Wills objected, and the court held a hearing

outside the presence of the jury.

[¶7.]        The State argued that because Wills denied touching E.G. and because

he denied an attraction to and sexual curiosity about young girls, it could use the



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prior inconsistent statements to impeach Wills’s trial testimony.1 Although the

statements had been reported in a Division of Criminal Investigation report, the

agent who had prepared the report was not then available to testify. The State

informed the circuit court that it could produce an agent who was present at the

interview if Wills denied making the statements and if the State needed to prove

the statements in rebuttal. Wills argued the impeachment evidence was unduly

prejudicial because it would suggest to the jury that Wills had unlawfully possessed

child pornography even though the prior charges had been dismissed.2 The circuit

court ruled that Wills’s prior statements could be used to impeach his trial

testimony and that the probative value of the evidence was not substantially

outweighed by the risk of unfair prejudice.

[¶8.]         The jury returned, and the State resumed its cross-examination of

Wills. The State asked two foundational questions concerning the interview in

which Wills allegedly made the statements.

              Q:     What was the purpose of the interview. Why was [the
                     DCI agent] interviewing you?
              A:     I was accused of a crime so he was interviewing me.
              Q:     And that crime had something to do with child
                     pornography, didn’t it?
              A:     Yes.




1.      The State gave Wills advance notice that it planned to introduce this
        evidence if Wills chose to testify.

2.      The charges were ultimately dismissed because the age of the individuals
        depicted in the images could not be verified.

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Wills initially indicated he could not remember what was said in the interview. The

State then refreshed his recollection by showing him the agent’s report.3 After

reviewing the report, Wills testified that the agent’s account of the interview was

not accurate. The State and Wills then engaged in a colloquy in which Wills

explained his statements.

      Q:     You never used the words, which [the agent] used in quotation
             marks, had a curiosity?
      ....
      A:     Yeah, I see—it’s here underneath where you have it highlighted.
             It said using windows files sharing downloading pornography,
             his—he discovered some video files depicting bestiality. These
             that you have highlighted were in reference to our interview to
             the bestiality not in child pornography.
      Q:     Your curiosity you say was about bestiality?
      A:     Yes, sir. So these are completely out of context.
      Q:     And the next paragraph where he said Wills told me it was not
             his intention to create or distribute child pornography. His
             intent was to simply see—again, in quotation marks, what was
             out there—to see what was out there, end quotation mark. And
             you’re disputing that you ever made that statement?
      A:     That was no reference to child pornography at all.
      Q:     It was in reference to bestiality?
      A:     Yes, when he mentioned child pornography, I told him if there
             was any on the computer, I wasn’t aware of that. That’s what I
             told him.
      Q:     You agree that’s not what [the agent] says?
      A:     If he wrote that, then that’s what he said, then obviously that’s
             what he’s saying I said.

On redirect, Wills’s attorney did not ask any follow-up questions regarding Wills’s

prior statements.




3.    The report itself was not introduced into evidence.

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[¶9.]        On the next day of trial, the State announced that it would not call an

agent in rebuttal to further pursue the impeachment. The State explained that it

believed Wills had been properly impeached with prior inconsistent statements.

Wills objected and moved for a mistrial. He contended that the statements had only

been admitted on the condition that an agent would testify about the statements in

the report. The circuit court disagreed that it had only allowed conditional

impeachment, and it denied the motion.

[¶10.]       The jury found Wills guilty of both counts. He now appeals, and we

restate the issues as follows:

             1. Whether the circuit court erred in permitting Wills’s impeachment?

             2. Whether the State’s attempted impeachment constituted
                prosecutorial misconduct?

             3. Whether the circuit court erred in ruling that Wills’s expert did not
                meet the requirements to qualify as an expert witness under SDCL
                19-19-702?

                                     Decision

Impeachment

[¶11.]       Wills raises a number of arguments related to the State’s

impeachment. He first argues that the impeachment involved “the out-of-court

testimony of [the agent]” who was not available to testify. He contends that because

the State did not produce the agent to prove up the inconsistent statements, Wills

was denied his constitutional right to confront and cross-examine the witnesses

against him. Wills relies on language in State v. Johnson indicating that “[i]n

Crawford, the United States Supreme Court held that [the Confrontation Clause]

bars ‘admission of testimonial statements of a witness who did not appear at trial

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unless he was unavailable to testify, and the defendant had a prior opportunity for

cross-examination.’” State v. Johnson, 2009 S.D. 67, ¶ 18, 771 N.W.2d 360, 368

(quoting Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365, 158 L.

Ed. 2d 177 (2004)).

[¶12.]         However, Wills was not impeached by the out-of-court hearsay

statements of the interviewing agent.4 He was impeached with his own prior

statements under SDCL 19-19-613. Further, his prior statements suggested an

attraction to and sexual curiosity about young girls, a position that was inconsistent

with his testimony at trial. Because the prior statements were only introduced for

impeachment, they were not hearsay, i.e. statements introduced to prove that Wills

was attracted to and sexually curious about young girls. See SDCL 19-19-801(c)

(defining hearsay as an out-of-court statement used “to prove the truth of the

matter asserted in the statement”); see also United States v. Mergen, 543 Fed. Appx.


4.       Wills likens his case to Douglas v. Alabama, 380 U.S. 415, 85 S. Ct. 1074,
         13 L. Ed. 2d 934 (1965), where the Supreme Court ruled the defendant’s
         confrontation rights were violated when the prosecutor read an accomplice’s
         confession into evidence. However, Douglas is distinguishable. First, the
         accomplice’s confession, which implicated the defendant, was read to the jury
         after the accomplice refused to testify and refused to admit that the
         statements were his. Because the accomplice refused to testify, the
         defendant was unable to cross-examine him, and the Court concluded the
         statements would appear as substantive evidence. See id. at 419, 85 S. Ct.
         at 1077 (noting that although the statements “were not technically testimony,
         the [prosecutor’s] reading may well have been the equivalent in the jury’s
         mind of testimony that [the accomplice] in fact made the statement” and that
         the accomplice’s refusal to testify “created a situation in which the jury might
         improperly infer both that the statement had been made and that it was
         true”). Second, the statements implicating the defendant were made by
         another person. Here, however, the statements were made by Wills, and he
         admitted to making them. Also, Wills’s statements were not introduced as
         substantive evidence but instead were used to impeach his inconsistent trial
         testimony.

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46, 49 (2d Cir. 2013) (“[P]rior inconsistent statements offered for impeachment are,

by definition, not hearsay.”). Indeed, the jury was instructed that it could consider

Wills’s prior statements to determine his credibility but not to prove any fact

contained in the statements. Because the Confrontation Clause only applies to

testimonial hearsay statements “made for the purpose of establishing or proving

some fact,” see Crawford, 541 U.S. at 51, 124 S. Ct. at 1364, Wills has no Crawford

claim here. The use of a defendant’s own prior statements to impeach does not

implicate the Confrontation Clause.

[¶13.]       Wills next argues the State’s failure to call the agent to testify and

prove up the prior statements was improper impeachment. We disagree. SDCL 19-

19-613 governs impeachment by prior inconsistent statements. To properly

impeach, the prior statement must be inconsistent with the witness’s current

testimony and it must not be on a collateral issue. See State v. Thomas, 381 N.W.2d

232, 238 (S.D. 1986). The examiner may ask the witness whether he or she made

the statement without disclosing its contents to the witness. SDCL 19-19-613(a).

However, the examiner must disclose its contents to the opposing party’s attorney

on request. Id. If the witness admits making the statement, no further foundation

is necessary. If the witness denies making the statement, the examiner is

permitted to prove that the witness made the inconsistent statement by extrinsic

evidence. SDCL 19-19-613(b); United States v. Marks, 816 F.2d 1207, 1210-11 (7th

Cir. 1987). However, the examiner is not obligated to introduce extrinsic evidence.

See Marks, 816 F.2d at 1211. The examiner may choose to rely only on the

witness’s explanation.


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[¶14.]       In this case, Wills denied touching E.G., and he testified that he was

neither attracted to young girls nor curious about young girls sexually. But in the

prior interview with the DCI agent, Wills had made statements indicating he had a

curiosity regarding child pornography. The circuit court determined the prior

statements were inconsistent with his current testimony, and Wills has not

appealed that determination. After initially claiming an inability to recall making

the statements, the State refreshed Wills’s recollection with the actual report. Wills

then admitted making statements but claimed that the statements in the report

were taken out of context: he claimed his interest was in bestiality rather than child

pornography. At that point, Wills’s own explanation of the statements provided a

foundation for the statements, and the State was not obligated to further prove the

statements by calling the agent who had heard the statements. Accordingly, the

State’s impeachment was proper.

[¶15.]       Wills next argues that the State’s impeachment included inadmissible

evidence of character within the meaning of SDCL 19-19-404(b). He also contends

the evidence of his interest in child pornography was unduly prejudicial. See SDCL

19-19-403. Wills contends the “young girls” depicted in the pornography case were

not sufficiently similar to E.G. to qualify for the Rule 404(b) identity exception

involving prior acts disclosing a modus operandi.

[¶16.]       We need not address this factual argument regarding identity because

impeachment by prior inconsistent statements is an additional, recognized

exception to SDCL 19-19-404(b)’s general limitation on the use of prior acts

evidence. See, e.g., United States v. Bell, 624 F.3d 803, 810-11 (7th Cir. 2010);


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United States v. Cerno, 529 F.3d 926, 936 (10th Cir. 2008); United States v. Gay,

967 F.2d 322, 328 (9th Cir. 1992); United States v. Stockton, 788 F.2d 210, 219 n.15

(4th Cir. 1986) (“Although impeachment of a witness is not among the ‘other

purposes’ explicitly listed in Rule 404(b) by way of example, that list is not

exhaustive, and impeachment qualifies as a permissible purpose for the

introduction of other crimes.”).

[¶17.]       The circuit court also determined that the probative value of the

evidence was not substantially outweighed by the danger of unfair prejudice. See

SDCL 19-19-403. The court acknowledged the potential prejudice from mentioning

the pornography allegations but concluded the evidence was highly probative of

Wills’s credibility once he testified he was not attracted to young girls. Considering

the nature of this case—which depended heavily on the credibility of the witnesses

and the weight given to their testimony—we cannot say that the court’s

determination was “a fundamental error of judgment, a choice outside the range of

permissible choices, [or] a decision, which, on full consideration, is arbitrary or

unreasonable.” State v. Birdshead, 2015 S.D. 77, ¶ 51, 871 N.W.2d 62, 79.

Prosecutorial Misconduct

[¶18.]       Wills argues the State’s impeachment constituted prosecutorial

misconduct. Wills repeats his improper impeachment arguments. He also points

out that the child pornography charges were ultimately dismissed because of an

inability to prove the age of the individuals depicted in the images. He contends

that under the circumstances, the State should not have impeached without calling

an agent who was present at the interview to testify about the prior statements.


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Wills contends that impeachment under these circumstances was a dishonest act

reflecting an attempt to persuade by deception and reprehensible methods. Wills

acknowledges he did not raise this issue below and concedes that our review is

limited to plain error. See State v. Janis, 2016 S.D. 43, ¶ 21, 880 N.W.2d 76, 81.

[¶19.]       Wills has failed to demonstrate any error here. First, as we have

previously explained, Wills was not deprived of his confrontation rights. Second, he

has failed to identify evidence suggesting misconduct. There is no dispute that the

impeachment questions were based on actual statements Wills made in the prior

child pornography investigation. The dispute at trial was what Wills meant by

them. Further, the State did not promise it would call an agent to testify. Rather,

the State informed the court and defense counsel that it could call an agent to

testify if Wills denied making the statements and if it chose to present a rebuttal.

Ultimately, Wills admitted that the interview occurred but claimed the statements

were recorded out of context. Under these circumstances, the State had no

obligation to call a witness to further pursue or prove the inconsistent statements.

See supra ¶ 13. No further foundational evidence was necessary.

Expert Testimony

[¶20.]       At trial, the State called Niewenhuis as an expert witness.

Niewenhuis has a bachelor’s degree in human development and family studies, and

a master’s degree in social work. She completed a one-week-training course in the

CornerHouse protocol of forensic interviewing. The CornerHouse protocol is a

nationally recognized and research-based method for conducting forensic interviews

of children and adolescents. Niewenhuis, who had conducted more than 480


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forensic interviews, explained that forensic interviewing requires maintaining a

neutral position to get the child to tell the story in his or her own words.

Niewenhuis noted that interviewers try to use open-ended questions and avoid

leading or suggestive questions. In this case, Niewenhuis testified that she did not

“have any flags—red flags” about E.G.’s interview.

[¶21.]       Wills called Dr. Flynn to rebut this testimony and to critique some of

Niewenhuis’s questions in conducting her interview. Dr. Flynn completed

residencies in preliminary internal medicine and adult psychiatry, and she

completed fellowships in child and adolescent psychiatry and forensic psychiatry.

She is board certified in adult, child, and adolescent psychiatry, and she is employed

as a forensic psychiatrist at Avera Group University Psychiatry. Dr. Flynn testified

that she was trained according to the National Institute of Child Health and

Human Development (NICHD) method of forensic interviewing, which is also

research based and nationally recognized. She admitted that she had conducted

only one forensic interview in her career. But she explained that forensic

psychiatrists are trained to review interviews and give an opinion on the quality of

the interview rather than personally conduct interviews. She also admitted that

she had never conducted an interview using the CornerHouse protocol. However,

she stated that she was familiar with it based on research and literature she had

read.

[¶22.]       The State objected to Dr. Flynn’s proposed testimony. Outside the

presence of the jury, Dr. Flynn informed the court that she was prepared to testify

about certain issues with Niewenhuis’s interview of E.G. Specifically, she would


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testify that Niewenhuis asked questions repeatedly and in a way that suggested

bias. She also planned to explain that at one point in the interview, E.G. appeared

to attempt to recant a statement and that Niewenhuis failed to ask any follow-up

questions, which would impeach Niewenhuis’s “no red flag” testimony.

[¶23.]       The circuit court focused on Dr. Flynn’s lack of experience with the

CornerHouse protocol. Because that was the protocol Niewenhuis used, the court

characterized Dr. Flynn’s proposed critique of Niewenhuis’s interview as “rank

speculation” that was not sufficiently reliable to meet the standards set forth in

SDCL 19-19-702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,

113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).

[¶24.]       Admissibility of expert testimony is governed by SDCL 19-19-702,

which provides:

             A witness who is qualified as an expert by knowledge, skill,
             experience, training, or education may testify in the form of an
             opinion or otherwise if:
             (a) The expert’s scientific, technical, or other specialized
                 knowledge will help the trier of fact to understand the
                 evidence or to determine a fact in issue;
             (b) The testimony is based on sufficient facts or data;
             (c) The testimony is the product of reliable principles or
                 methods; and
             (d) The expert has reliably applied the principles and methods to
                 the facts of the case.

“Whether a witness is qualified as an expert can only be determined by comparing

the area in which the witness has superior knowledge, skill, experience, or




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education with the subject matter of the witness’s testimony.” State v. Fisher,

2011 S.D. 74, ¶ 41, 805 N.W.2d 571, 580.5

[¶25.]         A comparison of that evidence in this case reflects that the circuit court

misapplied the Daubert standards. Dr. Flynn was clearly qualified as an expert and

her proposed testimony was sufficiently reliable. She had extensive education,

training, knowledge, and experience in child psychiatry and forensic interviewing.

She was trained in forensic interviewing and agreed with Niewenhuis on general

principles such as being neutral and avoiding leading or suggestive questions.

Although she acknowledged a lack of detailed familiarity with the CornerHouse

protocol, she preferred a different nationally recognized protocol (the NICHD

protocol) because in her opinion, it was supported by more research. Moreover, she

explained that her objections involved Niewenhuis’s purported violation of common

principles and methods such as avoiding leading questions. Dr. Flynn’s proposed

testimony was limited to critiquing specific issues regarding the methods and

procedures used by Niewenhuis under these generally accepted principles of

forensic interviewing.

[¶26.]         The Daubert question here did not involve Dr. Flynn’s lack of expertise

or an attempt to speculatively apply the CornerHouse protocols. Both witnesses

were qualified experts, and both agreed with the basic principles of child forensic

interviewing. The dispute focused on the experts’ conflicting opinions regarding

application of those common, accepted principles to the facts of this case. “When



5.       We review the decision to admit or deny expert testimony for an abuse of
         discretion. State v. Lemler, 2009 S.D. 86, ¶ 18, 774 N.W.2d 272, 278.

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opposing experts [have] contradictory opinions on the reliability or validity of a

conclusion, the issue of reliability becomes a question for the jury.” State v. Guthrie,

2001 S.D. 61, ¶ 38, 627 N.W.2d 401, 417. “Vigorous cross-examination, presentation

of contrary evidence, and careful instruction on the burden of proof are the

traditional and appropriate means of attacking shaky but admissible evidence.”

Daubert, 509 U.S. at 596, 113 S. Ct. at 2798. Further, Dr. Flynn’s lack of

familiarity with the CornerHouse protocol and lack of personal experience

conducting forensic interviews “may bear on the weight of her testimony, but it [did]

not render her testimony inadmissible.”6 See Fisher, 2011 S.D. 74, ¶ 44,

805 N.W.2d at 580; State v. Colburn, 366 P.3d 258, 262 (Mont. 2016) (concluding

that the trial court “too narrowly conceived the subject matter” when it disqualified

an expert witness who did not rely on the specific interview protocol used in a

forensic interview).

[¶27.]         The record in this case establishes that Dr. Flynn was qualified as an

expert in child forensic interviews. The record also reflects that Dr. Flynn’s

specialized knowledge in interviewing children could help the jury evaluate E.G.’s

interview; her proposed testimony was based on the specific facts of this case; her

proposed testimony was based on reliable principles and methods that both experts

shared; and her proposed testimony would apply those accepted principles and

methods to the facts of this case. See SDCL 19-19-702. The circuit court misapplied


6.       It also appears that the circuit court was concerned that Dr. Flynn’s
         testimony would reflect on E.G.’s truthfulness. However, Dr. Flynn
         specifically assured the court that her opinion was limited only to the quality
         of the interview itself under generally accepted methods for conducting
         forensic interviews, not whether E.G. was telling the truth.

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SDCL 19-19-702 when it excluded Dr. Flynn’s testimony because she preferred a

different generally accepted protocol than the one used by Niewenhuis. Considering

the nature of this case, which is dependent on the weight to be given to witness

testimony and expert opinions, the exclusion of this evidence was sufficiently

prejudicial to entitle Wills to a new trial. See State v. Huber, 2010 S.D. 63, ¶ 37,

789 N.W.2d 283, 295.

                                     Conclusion

[¶28.]        The circuit court did not err in permitting the State to impeach Wills

with his prior inconsistent statements. However, the court did err in excluding Dr.

Flynn’s testimony. We reverse and remand for a new trial.

[¶29.]       GILBERTSON, Chief Justice, and SEVERSON, KERN, and JENSEN,

Justices, concur.




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