State v. Alidani

2000 SD 52, 609 N.W.2d 152, 2000 S.D. LEXIS 53
CourtSouth Dakota Supreme Court
DecidedApril 19, 2000
DocketNone
StatusPublished
Cited by19 cases

This text of 2000 SD 52 (State v. Alidani) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Alidani, 2000 SD 52, 609 N.W.2d 152, 2000 S.D. LEXIS 53 (S.D. 2000).

Opinions

GILBERTSON, Justice

[¶ 1.] Moyad Abdullah Alidani was convicted by a jury of violating SDCL 22-22-7, sexual contact with a minor. He appeals from this judgment of conviction raising issues primarily involving the child as a witness at his trial. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Alidani lived with his brother, Mansour Alidani, in an apartment in Sioux Falls. Roxanne Helm, her husband, and her children (victim and her younger brother) had lived in the apartment directly/above the Alidanis since August 1997. In October 1997, following an argument with her husband, Roxanne and her children moved into the Alidanis’ one-bedroom apartment after knowing the brothers approximately one month.

[¶ 3.] Roxanne soon developed a romantic relationship with Mansour. On or about November 1, 1997, the Alidani brothers, Roxanne, and her children moved into another apartment building in Sioux Falls. Alidani’s abuse of the victim took place in the living room and in Alida-ni’s bedroom when Roxanne allowed victim to stay alone with Alidani while she went to the grocery store and ran errands. Roxanne would later testify she left victim alone with Alidani in this manner once a week. The victim was then seven years old. Alidani was twenty-nine.

[¶ 4.] In April 1998, victim was visiting her step-grandmother [hereinafter Grandmother] when Grandmother noticed her continually scratching her vaginal area. Grandmother asked her if there was a problem and victim indicated she wanted to show Grandmother. Grandmother took victim into the bathroom and noted victim’s vaginal area was chapped and raw, “almost to the point of bleeding.” 1 Grandmother asked if someone had been touching her there and victim reluctantly told Grandmother that Alidani had. Victim hid behind the shower curtain and expressed that now her mother would be angry with her and would make her and Mansour move out and that Alidani would be angry with her and wouldn’t play with her anymore. Grandmother then called her son, victim’s step-father, into the bathroom and victim told him what she told her Grandmother. Victim’s claim was reported to the Department of Social Services. Victim was then moved out of the Alidani apartment. Roxanne and her son continued to reside with the Alidanis.

[¶ 5.] Alidani went to trial on the charge of sexual contact with a minor. He was found guilty and sentenced to serve fifteen years in the state penitentiary, with eight years suspended. Alidani appeals from the judgment of that conviction raising the following issues:

1. Whether the trial court abused its discretion in denying Alidani’s motion for mistrial based on the court’s statement to the victim in front of the jury that, “I know you are going to tell the truth.”
2. Whether the trial court abused its discretion in permitting the victim-witness assistant to sit by and hold victim’s hand during her testimony.
[155]*1553. Whether the trial court abused its discretion in overruling Alidani’s objections to victim’s statements and to State’s Exhibit 7.
4. Whether the trial court abused its discretion in permitting statements to be admitted under SDCL 19-16-38 as an exception to the hearsay rule.

ANALYSIS AND DECISION

[¶ 6.] 1. Whether the trial court abused its discretion in denying Alidani’s motion for mistrial based on the court’s statement to the victim in front of the jury that, “I know you are going to tell the truth.”

[¶ 7.] Victim testified in the State’s case-in-chief and was called by the State to testify on rebuttal. By this time, she had twice testified under oath - once at a pretrial hearing to determine her capacity for truthfulness and once at trial in the State’s case-in-chief. When she took the witness stand on rebuttal, the day after she had previously testified, she immediately stuck her hand in the air to take the oath again. The trial court did not deem it necessary to again render the oath to her. The trial court stated to the victim:

When you were here yesterday we gave you an oath to tell the truth, and remember, that just means that everything that you saw with your eyes and that you heard with your ea’’s.
Are you all set? You don’t have to do it again. I know you’re going to tell the truth.

The victim’s rebuttal testimony was not directed at the issue of the sexual contact but whether anyone had made any promises to her. Victim testified her mother had promised that if Alidani did not go to jail, Mansour would buy her “lots of toys.” There was no cross-examination or surre-buttal by the defense and no objection to the court’s comments.

[¶ 8.] The next morning, however, prior to submission of the case to the jury, Ali-dani moved for a mistrial based on these comments, stating the jury could interpret them as the court’s vouching for the truthfulness of the victim. The trial court denied the motion putting the previous day’s events in context of an eight-year-old child who was taking the witness stand for a second time in the trial and need not take another oath. The court indicated its comment was one it would make to any witness in terms of the court’s expectation that the witness will tell the truth, but particularly to a young child taking the stand again. The court stated it wanted this victim to know the courtroom was not an aggressive unpleasant place but one in which she should be comfortable. The court noted it did not believe its comments infringed on Alidani’s right to a fair trial.

[¶ 9.] The denial of a motion for mistrial will not be overturned unless there is an abuse of discretion. Motions for mistrial are within the discretion of the trial judge and will not be granted unless there is a showing of actual prejudice to the defendant. State v. Oster, 495 N.W.2d 305, 310 (S.D.1993), overruled on other grounds by State v. DeNoyer, 541 N.W.2d 725 (S.D.1995); State v. Bogenreif, 465 N.W.2d 777 (S.D.1991); State v. McDowell, 391 N.W.2d 661 (S.D.1986).

[¶ 10.] On appeal, Alidani argues that as no medical evidence was presented, this case relied primarily on credibility, pitting the victim’s word against his. Under these circumstances, according to Alidani, the court’s comments were especially harmful as the jury was charged with determining which witness was telling the truth. According to Alidani, the comments put the court’s stamp of authority on victim’s testimony.

[¶ 11.] The context of these comments must not be forgotten in the analysis of this issue. Victim had already testified in the State’s case-in-chief that the sexual contact had occurred. Anatomical drawings on which victim had indicated the places she had been touched by defendant had previously been entered as State’s ex-[156]*156Mbits, as had an explicit drawing made by the victim herself of defendant’s penis and testicles.

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State v. Alidani
2000 SD 52 (South Dakota Supreme Court, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
2000 SD 52, 609 N.W.2d 152, 2000 S.D. LEXIS 53, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-alidani-sd-2000.