#26073-a-JKK

2012 S.D. 51

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

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

      v.

LEONARD ALAN TOOHEY,                       Defendant and Appellant.


                                  ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE FOURTH JUDICIAL CIRCUIT
                    BUTTE COUNTY, SOUTH DAKOTA

                                  ****

                    THE HONORABLE JOHN W. BASTIAN
                               Judge

                                  ****

MARTY J. JACKLEY
Attorney General

JOHN M. STROHMAN
Assistant Attorney General
Pierre, South Dakota                       Attorneys for plaintiff
                                           and appellee.


STACI L. REINDL
Spearfish, South Dakota                    Attorney for defendant
                                           and appellant.

                                  ****

                                           CONSIDERED ON BRIEFS
                                           ON JANUARY 9, 2012

                                           OPINION FILED 06/20/12
#26073

KONENKAMP, Justice

[¶1.]        A jury found Leonard Alan Toohey guilty of first degree rape of a child.

On appeal, he asserts that the child victim was not available for cross-examination

as required under the Confrontation Clause, that the circuit court abused its

discretion when it admitted evidence of other acts, and that there was insufficient

evidence to support proof of penetration.

                                   Background

[¶2.]        On June 9, 2010, C.M. and her daughter, K.M. (age ten), went to the

post office. K.M. decided to wait in the car while her mother went inside. In the

post office, C.M. ran into Toohey. He and his wife had been friends of C.M.’s family

for years, but had not been spending as much time together recently. C.M. and

Toohey exchanged small talk. Upon returning to her car, K.M. asked her mom why

she did not like Toohey anymore. C.M. explained that she did not like some of the

things Toohey, a military veteran, said in front of the children about the war. K.M.

said, “Mom, I hate him.” C.M. was shocked by her daughter’s statement and

questioned her. K.M. began crying. She asked her mother, “Do you remember

when we went fishing?” C.M. responded, “Yeah.” K.M. said, “Remember when me

and [Toohey] went to look for something for the fish?” C.M. remembered that

Toohey and K.M. had gone to an abandoned farmhouse to look for some rope to

string fish. K.M. said, “He kissed me and called me his secret girlfriend.” C.M.

said, “Is that it?” K.M. said, “No.” C.M. asked, “Well, what else happened?” K.M.

replied, “He had me pull down my shorts and my panties and he touched me down

there.”


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[¶3.]        C.M. called the sheriff’s office, and within a few days, K.M. was taken

to the Child Advocacy Center in Rapid City. There, Hollie Strand, a forensic

interviewer, conducted a videotaped interview of K.M. K.M. described Toohey’s

actions during the fishing trip much the same as she did to her mother. She would

not or could not give a name to her pudendum, but she agreed with Strand that it

could be called her “private.” On a diagram of a child, she pointed at the pudendum

and said that Toohey touched her there with his “finger.” When asked what it felt

like when Toohey touched her there, K.M. said “it hurt.” Strand asked, “do you

know how on our privates on us girls we have that line right there [pointing to the

pudendal area on the diagram], did [Toohey’s] hand do something with that line?”

When the child did not respond, Strand asked again, “[D]id [Toohey’s] hand do

something with that line?” K.M. then said, “[H]e put his finger there.” Strand

asked, “After [Toohey] bothered your private, did you notice anything when you

went potty?” K.M. replied, “It kind of hurt.”

[¶4.]        K.M. also described a later incident to Strand that happened when

Toohey came to her family’s home to help fix a car. K.M. asked Toohey to come into

a room to see her cat. In the room, Toohey kissed her on her mouth and told her

“not to tell anybody,” saying she was his “secret girlfriend.”

[¶5.]        Butte County Sherriff Fred Lamphere interviewed Toohey. The audio

of the interview was recorded and played for the jury. Toohey admitted to fishing

with K.M.’s family and to being alone with K.M. in a house together. He also

admitted to being at K.M.’s residence to help work on a car. But he denied that he




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touched K.M., kissed her, or called her his secret girlfriend during either time he

was with her.

[¶6.]        Toohey was indicted on one count of first degree rape in violation of

SDCL 22-22-1(1). The date of the offense was alleged to be “the spring or summer

of 2007,” three years before K.M. first reported the incident to her mother. The

State asked the court to allow admission of Toohey’s act of kissing K.M. at K.M.’s

house on the grounds that the kiss was relevant to prove motive, intent,

opportunity, and lack of mistake or accident. See SDCL 19-12-5 (Rule 404(b)).

Toohey responded that this subsequent act was insufficiently connected to the rape

charge and was not relevant to any material fact at issue. He further asserted that

any probative value of this evidence was substantially outweighed by the danger of

unfair prejudice. See SDCL 19-12-3 (Rule 403). The court found the subsequent act

admissible to prove intent, opportunity, and absence of mistake or accident, and not

unfairly prejudicial.

[¶7.]        K.M. testified at trial. When the State asked her specifically what

Toohey did to her, she often failed to respond, as can be seen in the following

excerpts from her direct examination:

             State: Can you kind of begin from where you start to feel
             uncomfortable? Or why you felt uncomfortable?
             K.M.: Because he had me pull down my shorts and everything.
             ...
             State: Okay. Where were you at when that happened?
             K.M.: By the table.
             State: By the table. Okay. You said he had - - Did he tell you to
             do that?
             K.M.: Yes.
             State: Okay. And after he told you to pull down your shorts,
             what happened?
             K.M.: He, um, --

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               ***
         State: Okay. So you’re standing by the table and he tells you to
         pull your shorts down, and then what happened?
         K.M.: I did.
         State: You did?
         K.M.: Uh-huh.
         State: Okay. And then what happened?
         K.M.: He had me pull down my underwear.
         State: Okay. And then did you do that, too?
         K.M.: (Nodding head.)
         State: Okay. And after he did that, what did you do?
         K.M.: He put me on the table.
         State: Okay. Were you sitting up or laying down?
         K.M.: At first I was sitting up.
         State: Okay. Then what happened?
         K.M.: He had me lay down. . . .
         State: When you were laying down, were your shorts up or
         down?
         K.M.: Down.
         State: And your underwear?
         K.M.: (Nodding head.)
         State: Down?
         K.M.: (Nodding head.) Yes.
         State: And where was [Toohey] when you were laying down?
         K.M.: In front of me.
         State: By the table?
         K.M.: Uh-huh.
         State: Okay. Do you remember if he said anything to you?
         K.M.: No.
         State: He didn’t say anything?
         K.M.: (Shaking head.) I don’t know. I don’t believe so.
         State: Did he do anything while you were laying down?
         K.M.: Yes.
         State: What did he do?
         K.M.: (No response.)
               ***
         State: Okay. On your way back fishing, did [Toohey] say
         anything to you?
         K.M.: Yes.
         State: What did he say?
         K.M.: He told me not to tell anybody.
         State: What else?
         K.M.: He said I was his secret girlfriend.
               ***

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#26073

         State: Can you kind of tell us where on your body? Did
         something happen to your body that you didn’t like?
         K.M.: (Witness crying, brief pause.)
               ***
         State: Okay. Do you remember what you told Hollie [Strand]
         happened at the house?
         K.M.: The same thing I told my mom.
         State: Same thing you told your mom?
         K.M.: (Nodding head.)
         State: What was that?
         K.M.: (Brief pause, witness crying.)
         State: What was that, [K.M.]?
         K.M.: (Witness crying. No response.)
         State: What did [Toohey] do?
         K.M.: (No response.)
         State: Do you think you’re going to be able to tell the jury what
         happened?
         K.M.: (No response.)
               ***
         State: Did [Toohey] do something - - What did [Toohey] do
         something with?
         K.M.: His hand.
         State: His hand?
         K.M.: (Nodding head.)
         State: What did he do with his hand?
         K.M.: (No response.)
               ***
         State: Okay. Can you tell us what [Toohey] did with his hand?
         K.M.: (No response.) . . .
         State: Can you tell us what [Toohey] did with his hand?
         K.M.: (No response.)
         State: Do you know what body part it was?
         K.M.: (Nodding head.)
         State: You do? . . .
         State: All right. Do you know what the body part, what it is,
         where it is?
         K.M.: Where it is.
         State: Huh?
         K.M.: I know where it is.
         State: You know where it is?
         K.M.: (Nodding head.)
         State: Do you have a name for it or have you ever heard it called
         anything before? Where is it? You said you know where it is.
         Where is it at?
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#26073

         K.M.: (No response.) . . .
               ***
         State: Do you remember how that made you feel?
         K.M.: Uncomfortable.
         State: Uncomfortable? Can you tell us what body part it was?
         Have you ever heard it called something before?
         K.M.: (Shaking head.)
         State: That you can - - It’s okay. In here you can say whatever
         word you want.
         K.M.: (Shrugging shoulders.)
         State: Okay? It’s okay.
         K.M.: (No response.)
               ***
         State: Okay. Have you ever heard a name for what body part it
         was? Have you ever heard a name for it?
         K.M.: (No response.) (Shaking head.)
         State: You can - - You can answer out loud. It’s kind of yes or
         no. Did you – Have you ever heard it called anything before?
         K.M.: No.
         State: No? When you told your mom, what did - - did you call it
         anything when you told your mom?
         K.M.: (Shaking head.)
         State: No? Do you remember what you said to her?
         K.M.: (Nodding head.)
         State: What did you say to her? . . . It’s okay. Same thing you
         told Hollie; right?
         K.M.: (Nodding head.)
         State: Okay. What did you say?
         K.M.: He touched me.
         State: He touched you?
         K.M.: (Nodding head.)
         State: Did you say where?
         K.M.: (Shaking head.)
         State: Do you remember - - Do you remember if that’s all you
         said? He touched you?
         K.M.: (Nodding head.)
         State: With his hand?
         K.M.: (Nodding head.)
         State: And earlier we said it wasn’t by your shirt.
         K.M.: (Shaking head.)
         State: Was it on your back side or your front side? . . . What
         side?
         K.M.: Front.


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[¶8.]        C.M. and Strand also testified. They repeated what K.M. had told

them. C.M. said that K.M. told her Toohey kissed her, called her his secret

girlfriend, and that he touched her “down there.” Strand testified about her

interview of K.M., and the video of the interview was played for the jury.

[¶9.]        At the close of the State’s case, Toohey moved for a judgment of

acquittal. He asserted that the State failed to present evidence of penetration

sufficient to sustain the rape charge. In response, the State contended that because

K.M. testified that Toohey touched her and “it hurt,” the jury could infer that

Toohey raped K.M. The court denied the motion, and the jury found Toohey guilty

of first degree rape. He was sentenced to twenty years in the penitentiary.

[¶10.]       Toohey appeals on grounds that (1) K.M. was unavailable for cross-

examination, and therefore, her hearsay statements were erroneously admitted; (2)

the court abused its discretion in admitting other act evidence; and (3) there was

insufficient evidence of penetration to sustain the first degree rape verdict.

[¶11.]       A circuit court’s evidentiary rulings are reviewed for an abuse of

discretion, including its decision to allow a witness to testify about certain hearsay

statements. State v. Carothers (Carothers II), 2006 S.D. 100, ¶¶ 11, 14, 724 N.W.2d

610, 616-17 (citation omitted). A court’s decision to admit other act evidence is

similarly reviewed for an abuse of discretion. State v. Wright, 1999 S.D. 50, ¶ 12,

593 N.W.2d 792, 797 (citation omitted). However, a claim of insufficient evidence to

sustain a guilty verdict is reviewed de novo. State v. Morse, 2008 S.D. 66, ¶ 10, 753

N.W.2d 915, 918 (citation omitted).




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               1. Confrontation and Witness Unavailability

[¶12.]         Toohey argues that although K.M. was physically present in court, she

was effectively unavailable as a witness; therefore, he was denied his right to

conduct a full and effective cross-examination. If K.M. was unavailable to testify,

her prior statements to her mother and Strand may have been inadmissible.

Admission of “testimonial” hearsay statements against a criminal defendant

violates the Confrontation Clause of the Sixth Amendment if the declarant is

unavailable to testify at trial and the defendant had no previous opportunity to

cross-examine. Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158

L. Ed. 2d 177 (2004). “Crawford fundamentally changed Confrontation Clause

jurisprudence concerning hearsay.” State v. Carothers (Carothers I), 2005 S.D. 16, ¶

6, 692 N.W.2d 544, 546.

[¶13.]         Toohey is constitutionally guaranteed the right to confront the

witnesses against him. 1 See U.S. Const. amend. VI; Carothers I, 2005 S.D. 16, ¶ 8,

692 N.W.2d at 545. “[A] child victim’s statements during a forensic interview . . .

may be ‘testimonial’ under Crawford.” United States v. Charboneau, 613 F.3d 860,

861 (8th Cir. 2010) (citing Bobadilla v. Carlson, 575 F.3d 785, 791-93 (8th Cir.

2009)). But the United State Supreme Court’s holding in Crawford did not alter the




1.       Under certain conditions, a South Dakota statute allows admission of a
         child’s out-of-court statements “describing any act of sexual contact or rape.”
         SDCL 19-16-38. However, out-of-court “testimonial” statements are not
         admissible merely because they meet the requirements of this statute. The
         Sixth Amendment provides that “[i]n all criminal prosecutions, the accused
         shall enjoy the right . . . to be confronted with the witnesses against him.”
         U.S. Const. amend. VI. See also Crawford, 541 U.S. at 42, 124 S. Ct. at 1359.

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principle that the Confrontation Clause “is satisfied when the hearsay declarant[],

here the alleged child victim[], actually appear[s] in court and testif[ies] in person.”

Id. (citation omitted).

[¶14.]       A “troublesome issue” arises when a child witness is available to testify

but is too young to be subjected to cross-examination as contemplated in the

constitution. United States v. Nick, 604 F.2d 1199, 1202 (9th Cir. 1979).

“[A]dmission of a [witness’s] prior statements requires a ‘full and effective cross-

examination.’” Carothers II, 2006 S.D. 100, ¶ 16, 724 N.W.2d at 617 (quoting State

v. McKinney, 2005 S.D. 73, ¶ 21, 699 N.W.2d 471, 479 (quoting California v. Green,

399 U.S. 149, 159, 90 S. Ct. 1930, 1935, 26 L. Ed. 2d 489, 497 (1970))). Although

this right is generally satisfied when a defendant “is given a full and fair

opportunity to probe and expose [a witness’s] infirmities through cross-

examination,” Delaware v. Fensterer, 474 U.S. 15, 22, 106 S. Ct. 292, 295, 88 L. Ed.

2d 15 (1985), when a witness is young there can be additional confrontational

concerns if the child is “too young and too frightened to be subjected to a thorough

direct or cross-examination.” State v. McCafferty, 356 N.W.2d 159, 163 (S.D. 1984)

(quoting United States v. Iron Shell, 633 F.2d 77, 87 (8th Cir. 1980)). South Dakota

law defines unavailability as including a declarant who is “unable to be present or

testify” at the trial because of a “then-existing physical or mental illness or

infirmity.” SDCL 19-16-29(4). Thus, a witness’s unavailability can be premised on

mental limitations, as well as physical absence.

[¶15.]       While K.M. answered questions on all the surrounding particulars, she

did not answer many of the prosecutor’s questions on the details of the rape —


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especially on the essential element of penetration. This does not necessarily mean,

however, that she was unavailable for confrontation purposes. The “fact that a

witness’s testimony is unsatisfactory does not render the witness unavailable.”

State v. Biggs, 333 S.W.3d 472, 477 (Mo. 2011). The Confrontation Clause only

guarantees “an opportunity for effective cross-examination, not cross-examination

that is effective in whatever way, and to whatever extent, the defense might wish.”

United States v. Owens, 484 U.S. 554, 559, 108 S. Ct. 838, 842, 98 L. Ed. 2d 951

(1988) (quoting Kentucky v. Stincer, 482 U.S. 730, 739, 107 S. Ct. 2658, 2664, 96 L.

Ed. 2d 631 (1987)) (additional citations omitted). Indeed, confrontation “includes no

guarantee that every witness called by the prosecution will refrain from giving

testimony that is marred by forgetfulness, confusion, or evasion.” Fensterer, 474

U.S. at 21-22, 106 S. Ct. at 295. A child’s inability to answer questions about

penetration, by itself, does not render her unavailable for confrontation purposes.

State v. Bishop, 816 P.2d 738, 743 (Wash. 1991).

[¶16.]       The Crawford decision spoke in almost categorical terms: “when the

declarant appears for cross-examination at trial, the Confrontation Clause places no

constraints at all on the use of his prior testimonial statements.” 541 U.S. at 59 n.9,

124 S. Ct. at 1369 n.9. Several courts have taken this to mean that even a witness

with no memory of the events in question is nevertheless present and available for

cross-examination under Crawford. State v. Pierre, 890 A.2d 474, 499-500 (Conn.

2006); State v. Gorman, 854 A.2d 1164, 1177 (Me. 2004); State v. Holliday, 745




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N.W.2d 556, 567-68 (Minn. 2008); Biggs, 333 S.W.3d at 477-78; State v. Legere, 958

A.2d 969, 977-78 (N.H. 2008). 2

[¶17.]         Here, K.M. did more than simply appear in court. She was able to

testify about when and where the incidents with Toohey took place, the details

leading up to the rape, and what was said. On cross-examination, defense counsel

asked K.M. about her family circumstances, her age, her school activities, her

knowledge of the various people involved, her acquaintance with Toohey and his

wife, the abandoned farmhouse where the rape occurred, the clothing she wore, and

the others she spoke with about the rape. K.M. responded to every question.

Toohey’s counsel chose not to ask questions about penetration.

[¶18.]         Toohey does not challenge the circuit court’s finding of K.M.’s

competency. Competency signifies more than simply appearing in court. It means

the witness (1) can distinguish truth from falsehood; (2) has the capacity to observe,

recollect, and communicate information; and (3) is willing to swear an oath or make

some other affirmative assurance that he or she will tell the truth. SDCL 19-14-3

(Rule 603); Carothers II, 2006 S.D. 100, ¶ 12, 724 N.W.2d at 616; State v.

Guthmiller, 2003 S.D. 83, ¶ 12, 667 N.W.2d 295, 301. We conclude that K.M. was

available for cross-examination, and thus Toohey was not denied cross-examination




2.       But see SDCL 19-16-29(3) (Rule 804(a)) (“lack of memory of the subject
         matter of his statement” renders witness unavailable). Yet memory loss may
         not render a witness “unavailable” in the constitutional sense. Owens, 484
         U.S. at 557-60, 108 S. Ct. at 841-42.

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under the Confrontation Clause. Therefore, the trial court did not err in admitting

the child’s prior hearsay statements. 3

               2. Other Act Evidence

[¶19.]         Toohey next argues that the circuit court erred when it admitted

evidence that he kissed K.M. at K.M.’s house months after the rape. He maintains

that the other act evidence does not in any way make the existence of an admissible

fact, i.e., the rape, more or less probable. The State, on the other hand, contends

that the evidence was relevant to prove intent and lack of mistake or accident

because Toohey, as the circuit court found, said during his law enforcement

interview that if any touching happened it was accidental or unintentional.

[¶20.]         SDCL 19-12-5 (Rule 404(b)) permits the admission of “[e]vidence of

other crimes, wrongs, or acts” to prove “motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident.” The other act

evidence must be relevant to a material issue in the case, and “the probative value

of the evidence [must not be] substantially outweighed by its prejudicial effect.”

Wright, 1999 S.D. 50, ¶ 17, 593 N.W.2d at 800. Other act evidence does not have to

be a prior act to be admissible under SDCL 19-12-5 (Rule 404(b)).

[¶21.]         The evidence of Toohey kissing K.M. months after the rape was

relevant to show his lascivious interest in her. And we cannot say the court abused

its discretion in finding that the probative value of the evidence was not




3.       Because of our ruling that K.M. was available for cross-examination in accord
         with the Confrontation Clause, we need not decide whether K.M.’s prior
         statements were “testimonial.”

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substantially outweighed by its prejudicial effect. Furthermore, the court gave a

proper limiting instruction to the jury on how to consider this evidence. Thus we

affirm admission of the testimony of Toohey’s subsequent kiss and “secret

girlfriend” remark to K.M.

             3. Sufficiency of Proof of Penetration

[¶22.]       Toohey argues that there was insufficient evidence of penetration to

sustain the rape verdict. Sexual penetration is defined as “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.” SDCL 22-22-2. We have interpreted this definition to mean

that evidence of vulvar or labial penetration, however slight, is sufficient to prove

penetration of the female genital opening. State v. Packed, 2007 S.D. 75, ¶ 32, 736

N.W.2d 851, 861 (citations omitted). Penetration can be inferred from

circumstantial evidence and need not be proved by medical evidence. Spurlock v.

State, 675 N.E.2d 312, 315 (Ind. 1996); see also State v. Floody, 481 N.W.2d 242, 259

(S.D. 1992) (Henderson, J., concurring). Indeed, there is no requirement of having

direct physical evidence to support each element of an offense: elements may be

inferred from other evidence indirectly proving the element at issue. Coleman v.

Johnson, ___ U.S. ___, ___, 132 S. Ct. 2060, 2064, ___ L. Ed. 2d ___ (2012) (per

curiam). In cases involving child victims, a child’s limited understanding of her

exact anatomical features does not negate the child’s ability to provide

circumstantial evidence that penetration occurred. United States v. St. John, 851

F.2d 1096, 1099 (8th Cir. 1988). Yet a conviction cannot be sustained on mere




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suspicion or possibility of guilt. United States v. Plenty Arrows, 946 F.2d 62, 65 (8th

Cir. 1991).

[¶23.]        When K.M. testified, she was ten years old. Children of that age often

lack the vocabulary to specifically describe an act of sexual penetration, but “the

victim need not go into sordid detail to effectively establish that penetration

occurred during the course of a sexual assault.” See Wilson v. State, 752 A.2d 1250,

1256 (Md. Ct. App. 2000) (citation omitted). Through her trial testimony and her

statements to her mother and Strand, K.M. was able to give many details

surrounding the rape. She and Toohey were alone in a farmhouse. She was

standing by a table. Toohey had her pull her shorts and underwear down. He then

placed her on a table and told her to lie down. While she was lying on the table,

undressed from the waist down, Toohey “touched” her “front” (pudendal area) and

“it hurt.” Other courts have examined similar facts.

[¶24.]        Those courts finding insufficient proof of penetration in these

circumstances emphasize the absence of any evidence other than touching, with no

experience of pain. For example, in State v. Hicks, 352 S.E.2d 424, 427-28 (N.C.

1987), the victim only said that the defendant put his penis in the back of her. In

Plenty Arrows, 946 F.2d at 65, the court held insufficient the victim’s testimony that

the defendant touched her “from my back of my behind.” In State v. Johnson, 512

S.E.2d 795, 799 (S.C. 1999), the victim said the defendant “touched me” and “[i]t

made me feel bad.” In Moore v. Commonwealth, 491 S.E.2d 739, 742 (Va. 1997), the

victim’s testimony was that the defendant rubbed his penis “on” her vagina, but the

prosecutor elicited no further details. And in one case, the expressed lack of pain


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from the touching was deemed significant. In State v. Torres, 464 P.2d 953, 955

(Ariz. 1970), the court held “[t]here was no proof of even the slightest penetration,”

when the victim specifically testified on cross-examination that what was done to

her did not hurt.

[¶25.]         In contrast, where the victim experienced some pain from the genital

touching, several courts have concluded that sufficient evidence of penetration was

shown. 4 In State v. Mathis, 340 S.E.2d 538, 540-41 (S.C. 1986), a six year old

testified that the defendant touched her with his penis, but could not remember

whether he had put it inside her body. Yet she said it hurt. The court found this

sufficient evidence of some “intrusion, however slight.” Id. at 541. Likewise, in

Swain v. State, 629 So. 2d 699, 701 (Ala. 1993), the court ruled that “the victim’s

testimony that Swain had ‘stuck’ his penis between her legs and that it hurt [was]



4.       The dissent cites Atteberry v. State, 991 N.E.2d 601 (Ind. Ct. App. 2009) as
         factually similar. But this is unsupported for multiple reasons. First, in our
         case, the victim testified, while in Atteberry, the victim was deceased.
         Second, South Dakota defines sexual penetration as “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.” SDCL 22-22-2. Indiana’s rape statute
         requires proof of penetration of the “female sex organ by the male sex organ.”
         Ind. Code § 35-42-4-1(a). Third, in Atteberry, the defendant was convicted for
         rape of the female sex organ (vagina) solely on proof of trauma to the anus
         and evidence of semen in the victim’s underwear. Both the facts and the law
         here are completely different.

         The dissent also contends that Goolsby v. State presents similar facts and
         holds that evidence of penetration is insufficient on testimony of pain. 517
         N.E.2d 54 (Ind. 1987). How Goolsby is factually similar is unclear. Once
         again, Indiana defines rape differently than South Dakota. Goolsby involved
         an unconscious adult victim, who had consensual intercourse within forty-
         eight hours before her attack, and who could not testify to the specifics of her
         attack. Rather, she said that she “may have been raped” because she felt
         tenderness in her vaginal area.

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sufficient evidence from which the jury could have inferred that Swain had actually

penetrated the victim’s labia pudendum.” In State v. Kincaid, 124 P. 684, 686

(Wash. 1912), the twelve-year-old victim testified: “The last time I think he did do

something the last time, but I do not know. He hurt me a little, quite a little, the

last time.” The court concluded: “the repeated efforts of the defendant and the pain

of the prosecuting witness, if the jury believed the testimony, were facts from which

penetration to some extent would almost necessarily be inferred.” Id.

[¶26.]         While these cases are not controlling, they highlight the fact that on a

claim of insufficiency of the evidence, we must view all the evidence in a light most

favorable to the verdict and determine whether that verdict “was so insupportable

as to fall below the threshold of bare rationality.” 5 Coleman, ___ U.S. at ___, 132 S.

Ct. at 2065; Morse, 2008 S.D. 66, ¶ 10, 753 N.W.2d at 918 (citation omitted). The

essential elements of rape do not require direct evidence of penetration. Rather, a

rape conviction is sustainable when there is circumstantial evidence of “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.” See SDCL 22-22-2. Here, the child victim

indicated that Toohey’s “touch” was in her pudendal area, and it caused her pain.

[¶27.]         It is important to remember that our analysis does not require us to

ask ourselves whether we “believe[] that the evidence at the trial established guilt

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,




5.       This “deferential standard” does not permit appellate courts to perform a
         “fine-grained factual parsing” of the evidence to “unduly impinge[] on the
         jury’s role as factfinder.” Coleman, ___ U.S. at ___, 132 S. Ct. at 2064.

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2789, 61 L. Ed. 2d 560 (1979) (citation omitted). It is the jury’s responsibility, not

ours, “to decide what conclusions should be drawn from evidence admitted at trial.”

Coleman, ___ U.S. at ___, 132 S. Ct. at 2062 (quoting Cavazos v. Smith, ___ U.S.

___, ___, 132 S. Ct. 2, 4, 181 L. Ed. 2d 381 (2011) (per curiam)). Our duty is to

determine “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Id. at ___, 132 S. Ct. at 2064 (citation omitted).

From this evidence, we conclude that rational jurors could find proof of penetration

beyond a reasonable doubt.

[¶28.]       Affirmed.

[¶29.]       GILBERTSON, Chief Justice, and ZINTER and WILBUR, Justices,

concur.

[¶30.]       SEVERSON, Justice, dissents.



SEVERSON, Justice (dissenting).

[¶31.]       I respectfully dissent. “Our review of the sufficiency of the evidence is

de novo.” State v. Plenty Horse, 2007 S.D. 114, ¶ 5, 741 N.W.2d 763, 764 (quoting

State v. Tofani, 2006 S.D. 63, ¶ 35, 719 N.W.2d 391, 400). When reviewing a claim

of insufficiency of the evidence, the question is “whether, after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” People ex rel.

W.T.M., 2010 S.D. 45, ¶ 15, 785 N.W. 264, 267 (quoting In re J.H., 2008 S.D. 88, ¶

13, 756 N.W.2d 549, 551-52). Sexual penetration is an essential element of the


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crime of rape. SDCL 22-22-1. Sexual penetration is “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.” SDCL 22-22-2. As the majority notes, penetration can be inferred

from circumstantial evidence. Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996).

However, this Court cannot uphold a conviction that is “based on a mere suspicion

or possibility of guilt.” United States v. Plenty Arrows, 946 F.2d 62, 65 (8th Cir.

1991) (quoting United States v. Robinson, 782 F.2d 128, 129 (8th Cir. 1986)).

[¶32.]       In this case, there is no direct evidence indicating that sexual

penetration occurred. The majority opinion concludes that K.M.’s testimony Toohey

touched her “front,” and the evidence that K.M. told the forensic interviewer that

the touch “hurt,” is sufficient circumstantial evidence of penetration to permit the

jury to find beyond a reasonable doubt that Toohey was guilty of rape. Majority

Opinion ¶ 26. I disagree.

[¶33.]       The cases cited in the majority opinion are factually distinguishable

from this case. See Majority Opinion ¶¶ 24-25. While the examination of those

factually distinguishable cases may be helpful in our analysis, they are not

controlling. Indeed, other courts presented with facts analogous to this case have

held that the evidence of penetration was insufficient to support a conviction of

rape. See, e.g., Atteberry v. State, 911 N.E.2d 601, 611 (Ind. Ct. App. 2009)

(overturning a conviction of rape because evidence of trauma to the victim’s anus

and the presence of semen stains in her underwear was insufficient evidence that

the defendant penetrated the victim’s sex organ with his penis, as required under

the applicable Indiana statute); Goolsby v. State, 517 N.E.2d 54, 58 (Ind. 1987)


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(holding that a victim’s testimony that her vaginal area felt tender when she awoke

after being knocked unconscious during an attack was insufficient evidence of

penetration to support a conviction of rape). Ultimately, we must examine K.M.’s

testimony at trial and her statements to the forensic interviewer to determine

whether this evidence supports the jury’s finding of guilt beyond a reasonable

doubt. Even viewing this evidence in a light most favorable to the State, I believe it

is subject to too much speculation and conjecture to support such a finding. See

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)

(noting that, when determining whether the evidence at trial was sufficient to

support a criminal conviction, “the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt”).

[¶34.]       The State elected to charge Toohey with rape in the first degree, rather

than a crime that did not require proof of penetration. The State was thus required

to present substantial evidence of sexual penetration to sustain a conviction. Plenty

Horse, 2007 S.D. 114, ¶ 5, 741 N.W.2d at 765 (quoting Tofani, 2006 S.D. 63, ¶ 35,

719 N.W.2d at 400). While K.M.’s testimony that Toohey touched her “front” and “it

hurt” would support a finding that Toohey made external contact with K.M.’s

genitalia, the testimony is legally insufficient to support a conviction of rape in the

first degree because it did not provide the jury with a reasonable basis to infer,

beyond a reasonable doubt, that penetration occurred. Based on the evidence

admitted at trial, the jury’s finding that Toohey sexually penetrated K.M. could only

be based on speculation. It could not logically be based on reasonable inferences


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that would support a finding of guilt beyond a reasonable doubt. Accordingly, I

would hold that as a matter of law the evidence was insufficient to support a

conviction of rape in the first degree.




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