State v. Chamley

1997 SD 107, 568 N.W.2d 607, 1997 S.D. LEXIS 108

• Court: South Dakota Supreme Court
• Decided: August 20, 1997
• Docket: None
• Status: Published

Opinions

VONWALD, Circuit Judge.

[¶ 1.] Chamley appeals his conviction on one count of first degree rape, two counts of sexual contact with a child under sixteen and one count of indecent exposure. We reverse and remand for a new trial.

FACTS

[¶ 2.] On September 1, 1995, K.J. and her eight-year-old daughter, W.W., planned to invite some of W.W.’s friends to spend the night at their home. The children who eventually spent the night were S.Y., who was nine years old at the time, and C.R., who was then ten years old. Another girl, N.G., was also present during the evening, but did not spend the night. That same evening, Cham-ley came over to visit. Chamley, who was a Mend of K.J. and lived only a short distance away, was a frequent visitor and often played with the children.

[¶ 3.] At trial, W.W. and C.R. testified that while they were playing in the living room of K.J.’s home, Chamley exposed himself to them.¹ This conduct forms the basis of the indecent exposure charge. Later that evening, Chamley gave S.Y. and N.G. a “piggy back” ride from the house to a tent which was set up in the back yard. N.G. was on Chamley’s shoulders and S.Y. was on his back. S.Y. testified that during the course of the piggy back ride, Chamley put his fingers beneath her underwear and inside her vagina.² This conduct forms the basis of the first degree rape charge.

[¶ 4.] After Chamley arrived at the tent, he put the girls down. Then Chamley, N.G., S.Y., C.R., W.W. and K.J. entered the tent. Some time later, N.G. left the tent and went home. During the time the group was in the tent, K.J. would frequently leave the tent to retrieve items for the group from the house. W.W. testified that while K.J. was in the house on one of these occasions, Chamley touched her on her chest and her private parts. She also stated that his fingers went under her clothing.³ C.R. testified that on another of these occasions Chamley touched her chest, bottom and private area by putting his hand under her clothing.⁴ These incidents form the basis for the sexual contact charges.

[¶ 5.] Chamley was found guilty on all four charges and was sentenced to life imprisonment on the rape charge, twenty-five years imprisonment on each count of sexual contact and one year imprisonment on the indecent exposure charge. All sentences were to be served concurrently. This appeal ensued. Chamley raises four issues on appeal.

ISSUE 1

[¶ 6.] Did the trial court abuse its discretion in admitting “prior bad acts” evidence involving Chamley’s alleged sexual misconduct?

[¶ 7] Prior to trial, state filed its notice of intent to use 404(b) evidence alleging sexual acts or encounters involving Chamley and his ex-stepdaughter, A.L., beginning when she was six and continuing until she was fourteen.⁵ State offered the prior bad acts evidence to establish absence of mistake or accident and intent. The four instances of “prior bad acts” included: (1) an act in which Chamley is alleged to have masturbated in front of A.L. when she was six; (2) an act in which Chamley allegedly requested A.L. to pose nude for photographs when she was seven or eight; (3) an act in which Chamley allegedly had oral sexual contact and penetration upon A.L. when she was nine; and (4) an act in which Chamley touched A.L.’s breasts when she was fourteen. These four incidents took place from twelve to twenty years prior to the trial.⁶ After a hearing on the matter, the trial court granted state’s request to use the 404(b) evidence, stating that the probative value of the evidence substantially outweighed any prejudicial effect and that the evidence “establish[ed] a mirror image of the events charged in the present ease.” The decision to admit evidence at trial is a matter within the discretion of the trial court and is reviewed under an abuse of discretion standard. State v. Fowler, 1996 SD 78, ¶ 12, 552 N.W.2d 92, 94. Our test on review is not whether we would make a similar ruling, but rather whether a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion. State v. Barber, 1996 SD 96, ¶ 14, 552 N.W.2d 817, 820.

[¶ 8.] The trial court’s decision to admit the prior bad acts is governed by SDCL 19-12-5 (Fed.R.Evid. 404(b)). SDCL 19-12-5 states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

[¶ 9.] This statute establishes a general rule that evidence Of crimes or acts, other than the ones with which a defendant is charged, is inadmissible. SDCL 19-12-5; State v. Moeller, 1996 SD 60, ¶ 12, 548 N.W.2d 465, 471 (S.D.1996); In re R.S.S., 474 N.W.2d 743, 747 (S.D.1991). The reason for this rule is simple. There is a danger that the jury may use the prior bad acts to convict a defendant because they believe the defendant is a bad person. Moeller, 1996 SD 60 at ¶ 12, 548 N.W.2d at 471; In re R.S.S., 474 N.W.2d at 747. The jury may also believe that because the defendant committed a similar offense on another occasion he has a propensity to commit the offense charged. State v. Steele, 510 N.W.2d 661, 668 n. 8 (S.D.1994). Because of these dangers, courts must carefully consider requests to use prior bad acts evidence and must remain “ever vigilant” so as to ensure that the general rule excluding prior bad acts evidence is not swallowed up by the exceptions. Id. at 667.

[¶ 10.] Before being admitted, prior bad acts evidence must pass a two-prong test: (1) the intended purpose for offering the other acts evidence must be relevant to some material issue in the case (Barber, 1996 SD 96 at ¶ 15, 552 N.W.2d at 820 (citations omitted)); and (2) the probative value of the evidence cannot be substantially outweighed by the danger of unfair prejudice. SDCL 19-12-3. The first inquiry concerns factual relevancy, whether the proffered evidence has any tendency to make the existence of any fact that is of consequence more probable or less probable than it would be without the evidence. SDCL 19-12-1 (Fed.R.Evid.401). The second inquiry is addressed to legal relevancy, whether the probative value of the proffered evidence substantially outweighs the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence. SDCL 19-12-3 (Fed.R.Evid. 403). In addition to considering this two-prong test, the trial court must also identify the specific exception under which the bad acts evidence is to be admitted. Barber, 1996 SD 96 at ¶ 15, 552 N.W.2d at 820. In the instant case, the trial court determined that the pri- or bad acts were relevant, ruled that the probative value of the prior bad acts evidence substantially outweighed the prejudicial effect of their admission and identified the specific exceptions under which the evidence was admitted.

Analysis

[¶ 11.] One of the purposes for which state offered the prior bad acts was to establish lack of mistake or accident. Cham-ley, however, has denied that he committed any of the charged acts. His defense at trial was not based on a mistaken or accidental touching. Thus, there was no need for state to introduce the prior bad acts to prove lack of mistake or accident. State must show some connection between the reason they offer the prior bad acts and either their or the defendant’s theory of the case.⁷ See, e.g., State v. Champagne, 422 N.W.2d 840, 843 (S.D.1988) (when identity of the defendant is not in issue, other acts evidence is not admissible under the common plan, design or scheme exception to identify defendant as perpetrator; such evidence can only be misused to establish propensity). If the situation were otherwise, state would be able to admit prior bad acts for no relevant or probative purpose. The prior bad acts were improperly admitted to show lack of mistake or accident.

[¶ 12.] The only other purpose for which state was allowed to use the prior bad acts was to show intent. When considering whether admission of prior bad acts is probative of intent, trial courts should compare, among other factors, the similarity between the prior bad acts and the crimes with which the defendant is charged. State v. Titus, 426 N.W.2d 578, 579-80 (S.D.1988); Moeller, 1996 SD 60 at ¶ 28, 548 N.W.2d at 475 (“In allowing bad acts evidence to prove ... specific intent, our cases have routinely focused on two important factors: (1) similar victims and (2) similar crimes” (citations omitted)). A prior bad act not similar in some important respect to the charged conduct is unlikely to be probative of whether the defendant intended to commit the charged crime. Moeller, 1996 SD 60 at ¶ 16, 548 N.W.2d at 472. The trial court in this case made such a comparison and concluded that the prior bad acts were a “mirror image” of the present charges.

[¶ 13.] The instances of prior bad acts included: (1) an act in which Chamley is alleged to have masturbated in front of A.L. when she was six; (2) an act in which Cham-ley allegedly requested A.L. to pose nude for photographs when she was seven or eight; (3) an act in which Chamley allegedly had oral sexual contact and penetration upon A.L. when she was nine; and (4) an act in which Chamley touched A.L.’s breasts when she was fourteen. Testimony from A.L. elicited at trial indicated that the first act occurred when Chamley was at home with A.L. while her mother, Chamley’s wife, was at work. A.L. testified that Chamley requested that she go to the bedroom with Chamley. When she did, Chamley disrobed and asked her to hold his penis. When A.L. refused, Chamley began to masturbate. She then left the room. The second act occurred when Chamley requested, on one occasion, to take photos of A.L. in the nude. A.L. refused to allow Chamley to photograph her. The third act occurred when A.L. was at home from school because she was ill. Chamley, who according to A.L. often walked around in the house naked, entered A.L.’s room. A.L. testified that Chamley removed her clothes, licked her vagina and then put his finger inside her vagina, moving it in and out. When Chamley stopped, he wiped A.L. with a.washcloth and said, “Don’t tell anyone or I will make it so that your mother does not love you.” The fourth act occurred on another occasion after Chamley entered A.L.’s room while she was sleeping. When A.L. awoke, she discovered that Chamley had his hand down the front of her blouse and underneath her bra.

[¶ 14.] A comparison of the prior bad acts with Chamley’s alleged indecent exposure indicates minimal similarity. Comparing A.L.’s testimony with the rape charge produces a like result. Indeed, only one of the prior bad acts is even remotely similar to the rape charge. The third prior bad act involved digital penetration, as did the rape charge. A fact that cannot be overlooked about the third prior bad act, however, is that it also involved both oral sex and a threat. In the instant case, Chamley is not alleged to have performed or attempted to perform oral sex on any of the young girls and there is no allegation that he ever threatened any of the girls. These important differences substantially decrease the probative value of the prior bad acts evidence with respect to the rape charge. The lack of similarity between these events convinces us that the danger of unfair prejudice substantially outweighs the probative value of the prior bad acts evidence. SDCL 19-12-3.

[¶ 15.] Finally, there is no similarity between the first three prior bad acts and the sexual contact charges. Chamley did not ask either girl to hold his penis, he did not masturbate in front of the girls, he did not ask to photograph them in the nude, he did not engage in oral sex with either girl and he did not commit digital penetration upon either W.W. or C.R. There is similarity between the fourth prior bad act and the sexual contact charges. If this prior bad act was the only one admitted, we would have been presented with a much closer question. Suffice it to say that Chamley was prejudiced by the admission of the prior bad acts. See, e.g., State v. Pedde, 334 N.W.2d 41, 43 (S.D.1983) (evidence of prior acts need not be that of an identical offense but only of similar involvement reasonably related to the offending conduct). Given the lack of similarity between the prior bad acts and the charged conduct, it was error for the trial court to allow the jury to hear the prior bad acts evidence. There can be no doubt that the cumulative prejudicial effect of the prior bad acts substantially outweighs the probative value and permitted the jury to draw the forbidden propensity inference. The prior bad acts involved vile conduct of a highly emotional nature which can fairly be said to have had the effect of inciting the jury to convict Chamley solely on the basis of his prior unproven despicable conduct.⁸

[¶ 16.] When considering whether to admit prior bad acts to prove intent, courts must consider more than just the similarity between the prior bad acts and the charged conduct. Trial courts should also consider the age of the prior bad acts. Titus, 426 N.W.2d at 580. Just as a prior bad act with few similarities to the charged crime may not justify the prejudice of its admission, a prior bad act which took place a significant time in the past is unlikely to be probative of whether the defendant intended to commit the charged crime. All of the prior bad acts which were admitted in this case were old.⁹ They occurred anywhere from twelve to twenty years prior to the trial date. Although SDCL 19-12-5 does not specifically refer to the age of the bad act as a factor in assessing admissibility, it is an important factor in determining whether the probative value of the act substantially outweighs the risk of unfair prejudice.¹⁰ State v. Christopherson, 482 N.W.2d 298, 302 (S.D.1992); Titus, 426 N.W.2d at 580. On the whole, the age of the prior bad acts and the lack of similarity significantly cuts into state’s argument regarding their admissibility. Although state offered the prior bad acts to demonstrate absence of mistake or accident and intent, it is simply not justified by and clearly against reason, and thus was an abuse of discretion, to hold that the value of the prior bad acts in this case substantially outweighs the risk of unfair prejudice.

ISSUE 2

[¶ 17.] Did the trial court err in denying Chamley’s motion to introduce the “McDonald’s” evidence?

The “McDonald’s” evidence

[¶ 18.] In an interview before trial, W.W. told Officer Kerry Hartnett that while she was at McDonald’s having lunch during a school field trip on December 20, 1995, Chamley was staring at her and blowing kisses at her. W.W. also said that when she and her partner for the field trip, L.G., got up to use the restroom, Chamley was standing there blocking the door. W.W. stated that Chamley said “I love you W.” and then touched her on the shoulder at that time. W.W. said that she then grabbed L.G.’s hand and that the two of them tried to ignore Chamley and walk past him. W.W. also stated that after she went back to her table, Chamley walked by the table a few times, sat down next to her, said “Hi, how are you doing?” or “How are you doing, W.?” and reached over and touched her butt. At some point in time, S.Y. went up to tell their teacher, Ms. Pena, that Chamley was in McDonald’s.

[¶ 19.] In another interview before trial, Ms. Pena told Officer Hartnett that S.Y. did talk to her about Chamley’s presence in McDonald’s. Ms. Pena had no idea who Cham-ley was at the time, but asked S.Y. where Chamley was. When S.Y. pointed Chamley out, Ms. Pena observed Chamley sitting on the opposite side of the restaurant from W.W. She did not see anyone sitting with Chamley when she looked over. Ms. Pena further stated that W.W. was sitting in an area on nearly the opposite side of the restaurant such that W.W. would not have been able to observe Chamley. When Ms. Pena looked over to where W.W. was sitting, Chamley was not sitting by W.W. Ms. Pena also said that while she was still talking to S.Y., she saw Chamley throw away a cup of coffee and walk out the restaurant door on the opposite side of where W.W. was sitting.

[¶ 20.] L.G. stated that while she and W.W. were eating at McDonald’s, W.W. told her, “There’s that guy.” L.G. said that she was with W.W. virtually the entire time at McDonald’s and that she never observed Cham-ley sitting by W.W. L.G. also statéd that she and W.W. went to the bathroom together and that no one approached them, no one said, “I love you, W.” and no one blocked their way to the bathroom. Finally, L.G. said that she never saw Chamley wave or blow kisses at either her or W.W.

[¶21.] At trial, Chamley attempted to cross-examine W.W. regarding the McDonald’s incident and introduce the testimony of Ms. Pena and L.G. in an effort to impeach W.W, The trial court refused to allow Chamley to do either. Chamley’s theory was that W.W. lied about the McDonald’s incident and that she, S.Y. and C.R. lied about their allegations of sexual misconduct.¹¹ In addition to the testimony of Ms. Pena and L.G., which clearly indicated that there were inconsistencies in the testimony of W.W., S.Y. and C.R., other testimony elicited at trial indicated that W.W., S.Y. and C.R. decided to get together and tell K.J. something about Chamley. They decided to do this after K.J. questioned W.W. and N.G. regarding whether Chamley had ever touched them or done anything strange to them.¹² Thus, Chamley’s theory of the case finds support in the record.

[¶22.] The question raised by this issue is whether the trial court erred in denying Chamley’s request to cross-examine W.W. regarding her “McDonald’s” testimony and to introduce the testimony of Ms. Pena and L.G. in an effort to demonstrate that W.W. fabricated the McDonald’s accusations. Like the first issue, the trial court’s decision here is reviewed under an abuse of discretion standard. State v. Fowler, 1996 SD 78 at ¶ 12, 552 N.W.2d at 94.

[¶ 23.] The trial court refused to allow the prosecution to introduce W.W.’s testimony regarding the McDonald’s evidence, stating that it constituted improper character evidence. The court left it up to defense counsel whether it could be used to impeach W.W.’s credibility if that issue came up. When the defense did request that W.W.’s McDonald’s testimony be admitted at trial, the court refused to allow its admission, stating that it could be prejudicial to the defendant and that it was not probative of W.W.’s credibility.¹³ We hold that the trial court improperly denied the defense request to cross-examine W.W. regarding her McDonald’s testimony.

[¶ 24.] The testimony of W.W., Ms. Pena and L.G. concerning the McDonald’s incident was relevant because it went to the important issue of credibility. If the jury believed the testimony of Ms. Pena and L.G., and thus concluded that W.W. was being untruthful about the McDonald’s incident, then the jury might also have believed that if W.W. lied about the McDonald’s incident, she may also have lied about the allegations of sexual misconduct against Chamley. In short, the McDonald’s evidence supported Chamley’s theory that W.W. fabricated the allegations of sexual misconduct.

[¶ 25.] In many sex crime cases, credibility of the witnesses is of paramount importance. In fact, it may well be the most important factor the trier of fact considers because there is often no direct evidence implicating the defendant. Moreover, allegations of sexual misconduct are easy to allege and difficult to disprove. When this is the case, the jury’s decision to convict or acquit comes down to one person’s word against another’s. The victor of this credibility duel wins more than just vindication; the prize is a favorable verdict.

[¶ 26.] The trial court engaged in faulty analysis when it concluded that the McDonald’s testimony should have been excluded because it could have been prejudicial to Chamley. The fact that the testimony may have been prejudicial to Chamley, who was the proponent of the evidence, if the jury did not believe the version his witnesses offered, was not a proper reason to exclude the testimony. Parties are free to introduce evidence which may, if not believed, be harmful to their case. That is a tactical decision the likes of which must often be made in criminal trials.

[¶ 27.] The fact that the trial court refused to admit the McDonald’s evidence means that W.W.’s credibility was not, in the trial court’s view, sufficiently diminished by the testimony of Ms. Pena and L.G. to warrant its admission. In State v. Sieler, 397 N.W.2d 89, 92 (S.D.1986), this Court held that before the credibility of an alleged victim of sexual contact could be impeached with prior sex crime accusations, the defense had to prove that the prior accusations were demonstrably false. That same standard applies in this case. The fact that the allegation was subsequent and not prior, and the fact that the allegation is against the same individual and not another, are not enough to distinguish this situation from that in Sieler.

[¶ 28.] There can be no doubt that the testimony of W.W. and S.Y. was directly contradicted by defense testimony from Ms. Pena and L.G.¹⁴ While the trial court did not specifically rule on whether W.W.’s McDonald’s accusation was demonstrably false, which it should have done, the ruling denying the defense request to introduce the McDonald’s testimony had the effect of a ruling that this standard had not been met. Based on our examination of the record, we hold that it was error for the trial court to refuse to allow the defense to cross-examine W.W. regarding her McDonald’s testimony. The defense met its burden of proving the McDonald’s testimony demonstrably false and should have been allowed to question W.W. regarding the McDonald’s allegations.

[¶ 29.] If, on retrial, W.W. denies having fabricated the McDonald’s accusation, the defense may introduce extrinsic evidence in the form of testimony from Ms. Pena and L.G. in an effort to impeach W.W.’s credibility. See Clinebell v. Commonwealth, 235 Va. 319, 368 S.E.2d 263, 265-66 (1988) (providing citations and noting that a majority of jurisdictions hold that evidence of prior false accusations is admissible to impeach the complaining witness’ credibility or as substantive evidence tending to prove that the instant offense did not occur); see also State ex rel. Mazurek v. District Court of Fourth Judicial District, 277 Mont. 349, 922 P.2d 474, 480 (1996); Miller v. State, 105 Nev. 497, 779 P.2d 87, 89 (1989); State v. Barber, 13 Kan.App.2d 224, 766 P.2d 1288, 1290 (1989). We realize that it is generally true that extrinsic evidence cannot be used to impeach a witness. In State v. Byrum, 399 N.W.2d 334, 337-38 (S.D.1987), however, we recognized the doctrine of impeachment by contradiction and, based on SDCL 19-14-8 (Fed.R.Evid.607), allowed the introduction of extrinsic evidence to impeach the credibility of a witness.¹⁵ That same narrow exception finds appropriate application in this case.

[¶30.] Additionally, the common law doctrine against impeachment by collateral facts does not prevent impeachment here. First, as a preliminary matter, it is noteworthy that whether or not the “McDonald’s” testimony is considered collateral is determined by the prosecution. It could certainly have chosen to prosecute Chamley for the McDonald’s incident (i.e., the sexual contact when Chamley touched W.W.’s “butt”). If the prosecution would have charged Cham-ley, the defense would then have been allowed to present the testimony of Ms. Pena and L.G. to refute W.W.’s version of the events. Second, while the inconsistencies the defense sought to demonstrate may, in the most narrow interpretation of the word, be collateral to the issue of whether or not Chamley is guilty of the crimes with which he is charged, they can hardly be considered collateral under a more practical definition because of the importance of witness credibility in a case with little or no direct evidence. This is especially the case since, if believed, Chamley’s version has the potential to completely undermine W.W.’s credibility in the eyes of the jury.¹⁶

ISSUE 3

[If 31.] Was Chamley denied his Sixth Amendment right to self-representation?

[¶ 32.] Early in the proceedings, Chamley made statements indicating he did not desire court appointed counsel and wished to represent himself. In fact, Chamley represented himself at a bond hearing held on September 8, 1995, making objections and conducting a cross-examination of the state’s witness, even though an attorney from the public defender’s office sat next to him. At one point during that hearing, Chamley even stated, “She’s not my counsel and don’t you say she is my counsel....”

[¶ 33.] At a preliminary hearing held on September 28, 1995, the assistant public defender stated that she believed Chamley wanted to represent himself. Early in that hearing, Chamley demanded that the assistant public defender withdraw from the case and not represent him. The magistrate judge, however, did not address this problem. Rather, the judge stated that because of the nature of the charges, he was going to allow the assistant public defender to represent Chamley for purposes of the hearing. At that point, the following discussion took place:

Public Defender: Your Honor, if I could. When he initially made his initial appearance, he made it very clear he wanted to go pro se. In the interim, I have indicated to you that he wanted me to represent him. There has never been a record made of him saying he wanted that done. Today, for my purposes of — I need a more adequate record of whether or not he is desiring to go pro se or if he’s desiring to go with counsel. I need a more adequate record.

The Court: I think what he’s saying today is that he — he doesn’t want you as his attorney right now, is that correct, for purposes of this hearing?

The Defendant: I think that would be fair — pretty clear, Your Honor. That would be a very good statement.

The Court: All right. I understand that, but I’m not going to let you get out of the case. I’m going to have you proceed, counsel.

Public Defender: Well, Your Honor, I guess, this is — on that basis, it’s clear that he does not want to be represented by counsel. I don’t feel that I can infringe upon his right. He has every right case after ease as to represent himself and go pro se, and I do not feel that I can represent him. If he says he — says he does not want to be represented by me, then I cannot be forced upon him.

The Court: All right. Counsel, you’ve been appointed by this Court to represent Mr. Chamley. Are you telling me you’re not going to do that?

Public Defender: I’m not going to be asking any questions if — if Mr. Chamley does not want me to ask any questions.

The Court: What I’m going to do is, before you ask questions, I’m going to give you additional time to consult if you need to take a break before cross-examination to consult. That way, the right to confrontation and — all the questions Mr. Chamley wants will be asked if they are — if they’re wanted to be asked. All right.

When the time for cross-examination came, the public defender refused to ask any questions and again stated that Chamley had the right to proceed pro se.

[¶ 34.] Later, at Chamley’s arraignment, the trial court stated:

As far as I’m concerned, you’re entitled to represent yourself. You have a right to do that as a pro se litigant. Based on the fact that you’ve previously been an attorney who has not practiced for many years, your questions today, your statement that you haven’t read the statute as it related to one of the offenses, your general situation as it relates to procedure, failing to timely notify the State of any motions you want to present and have heard, which you’re entitled to do, sir, but it has to be done pursuant to notice of statute — I think is a very, very serious case which has severe adverse consequences to you facing up to life imprisonment.

For those reasons and given the past records, Ms. Thomas, you’re still, as far as I’m concerned, involved in this case as legal counsel for Mr. Chamley-

At the end of the arraignment, Chamley stated:

At this point I demand this counsel be dismissed. I demand I represent myself in every regard.... I don’t need them to be present when I appear before the Court. They don’t need to represent me. They haven’t yet. It appears to me that all that’s going to be is a delay in that regard. So what I’m saying to the Court now is that don’t consider them as my attorney. They are not my attorney. They never have been my attorney. They have never represented me. I never asked them to represent me.

[¶ 35.] This is not the first time, nor will it be the last, that a defendant has demanded that he represent himself in a South Dakota courtroom. We have previously had the opportunity to explain that criminal defendants have a constitutional right to be represented by counsel and a constitutional right to represent themselves in court. State v. Van Sickle, 411 N.W.2d 665, 666 (S.D.1987) (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). We have also stated that before an individual will be allowed to represent himself, the trial court must be satisfied that the individual has made a knowing, voluntary and intelligent waiver of his right to counsel. Id. Furthermore, a defendant’s request to represent himself must be unequivocal in nature. Id.

[¶36.] To ensure that the decision to proceed pro se is made knowingly and intelligently, the trial court must advise the defendant of the difficulties involved with self-representation. In Van Sickle, we noted that the following matters are important for the defendant’s consideration: (1) that “presenting a defense is not a simple matter of telling one’s story,” but requires adherence to various “technical rules” governing the conduct of a trial; (2) that a lawyer has substantial experience and training in trial procedure and that the prosecution will be represented by an experienced attorney; (3) that a person unfamiliar with legal procedures may allow the prosecutor an advantage by failing to make objections to inadmissible evidence, may not make effective use of such rights as the voir dire of jurors, and may make tactical decisions that produce unintended consequences; (4) that a defendant proceeding pro se will not be allowed to complain on appeal about the competency of his representation; and (5) that the effectiveness of his defense may well be diminished by his dual role as attorney and accused. Id. at 666-67 (citing R. LaFave, Criminal Procedure, § 11.5 (1984)). It is also important to note that so long as the defendant is competent to waive his right to counsel, the trial court need not concern itself with the defendant’s ability to represent himself. Godinez v. Moran, 509 U.S. 389, 399-400, 113 S.Ct. 2680, 2686-2687, 125 L.Ed.2d 321, 332-333 (1993) (citing Faretta, 422 U.S. at 834-36, 95 S.Ct. at 2540-41).

[¶ 37.] In the instant case, Chamley was adamant in his desire to proceed pro se. The magistrate court and the trial court recognized this and, despite a clear understanding that Chamley wished to proceed pro se, forced Chamley to accept representation by an attorney he did not wish to have. Unlike the situation in State v. Irvine, 1996 SD 43, 547 N.W.2d 177 (1996), where the defendant made his request to proceed pro se the day before trial, Chamley made his request known to the court early in the proceedings. Thus, it cannot be said that Chamley’s request to represent himself was interposed for the purpose of disrupting or delaying the trial. Id. at ¶ 18, 547 N.W.2d at 182 (citing Hamilton v. Groose, 28 F.3d 859, 861-62 (8th Cir.1994)) (a defendant’s request to represent himself may be denied where it is calculated to disrupt or delay the judicial process).

[1138.] A review of the record reveals that Chamley was difficult to deal with at times.¹⁷ He did, however, unequivocally demand to represent himself. By doing so, Chamley asserted a constitutional right which the trial court was not free to deny.¹⁸

[¶ 39.] The true error with respect to this issue is not that the pitfalls of self-representation were not explained to Cham-ley. Rather, it is that an attorney was forced upon Chamley when he desired to represent himself. As we noted in Van Sickle, it is not necessarily reversible error to fail to explain the pitfalls of self-representation to a defendant when the circumstances indicate the defendant understood the hazards of self-representation. 411 N.W.2d at 667. Here, it is likely that Chamley was cognizant of these hazards. He had been a licensed attorney and has had experience with the criminal justice system above and beyond the representation of clients. See, e.g., Matter of Chamley, 349 N.W.2d 56 (S.D.1984). If fact, Chamley was at the center of another South Dakota Supreme Court case in which the failure of a trial court to explain the pitfalls of self-representation was an issue. See State v. Chamley, 310 N.W.2d 153 (S.D.1981). In this case, the court should have followed up Chamley’s request with an explanation of the pitfalls of self-representation and then determined whether, in light of that information, Chamley still desired to represent himself. If Chamley persisted in his desire to represent himself, he should have been allowed to do so.

[¶ 40.] On remand, Chamley will have the opportunity to resist the charges leveled against him. In the event Chamley chooses to represent himself, also on trial will be the truth of the proverb “He that is his own lawyer has a fool for a client.” If this is what he so desires, however, Chamley has a constitutional right to proceed pro se, even if the consequences of his choice prove to be deleterious to his case. As the Supreme Court’ aptly stated in Faretta, it is the defendant who will bear the consequences of a conviction in such a case. 422 U.S. 806, 834, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562. This is, after all, why the pitfalls of self-representation must be explained to an individual intent on self-representation.

ISSUE 4

[¶41.] Should Chamley have been allowed to recuse Judge Davis?

[¶ 42.] The fourth issue Chamley has presented for review is whether he should have been allowed to recuse Judge Davis. SDCL 15-12-21 allows a party to file an affidavit for a change of judge. Nevertheless, SDCL 15-12-24 states, in pertinent part, that “[t]he submission to a judge or magistrate of argument or proof in support of a motion ... is a waiver of the right thereafter to file an affidavit for change of judge....” Prior to seeking Judge Davis’ recusal, Chamley submitted motions and attempted to argue the merits of those motions to Judge Davis. This constitutes waiver of Chamley’s right to seek recusal. Thus, Chamley was precluded from recusing Judge Davis.

[¶ 43.] The judgment of the trial court is reversed and we remand for a new

trial.

[¶ 44.] SABERS and AMUNDSON, JJ., concur. [¶ 45.] GILBERTSON, J., and STEELE, C.J., dissent in part and concur in part. [¶ 46.] VONWALD, Circuit Judge, for MILLER, C.J., disqualified. [¶ 47.] STEELE, Circuit Judge, for KONENKAMP, J., disqualified.

1 . C.R. testified that after Chamley exposed himself, she and W.W. ran to K.J., who was in the kitchen. Neither girl told K.J. of the incident, however. On cross-examination, C.R. admitted that she had previously stated that Chamley exposed himself not in the house, but in the tent and that the only thing she saw in the house was Chamley rubbing W.W.’s leg.

2 . At the same time Chamley was giving N.G. and S.Y. a piggy back ride, C.R. gave W.W. a piggy back ride. K.J. followed behind the group. Despite their proximity to Chamley and S.Y., C.R., W.W. and K.J. did not witness Chamley engage in this conduct. Furthermore, S.Y. did not tell K.J. about this incident.

3 . W.W. also stated that she observed Chamley kiss C.R. on the neck. C.R. testified that Cham-ley had not kissed her on the neck as W.W. had said. Additionally, in a previous statement, W.W. claimed to have observed S.Y. slap Cham-ley on the hand in response to him rubbing S.Y. on the leg while in the tent. S.Y. was impeached on cross-examination with an earlier statement wherein she admitted that Chamley had never touched her while in the tent. In addition, she never testified to having slapped Chamley.

4 . C.R. was confronted on cross-examination by a previous statement to the police wherein she denied having been touched by Chamley.

5 . A.L. was twenty-six years of age at the time of trial. Thus, even the most recent prior bad act was well over ten years old.

6 . The record indicates that all four of the prior bad acts originally came to light at the same time. Because the statute of limitations on the first three had expired by the time the acts came to light, Chamley could not be prosecuted on those charges. Nevertheless, Chamley maintains that those acts never occurred. Chamley admitted to the fourth prior bad act, which resulted in a guilty plea.

7 . As we recently held in State v. Ondricek, 535 N.W.2d 872, 874 (S.D.1995), where specific intent is an element of an offense, proof of similar acts may be admitted so that state may carry its burden, even if the defense to the charge is a complete denial. State v. Klein, 444 N.W.2d 16, 19 (S.D.1989).

8 . The dissent suggests that the majority has abandoned the abuse of discretion standard of review in overturning the trial court's decision admitting the prior bad acts evidence. However this is not the first time we have determined over a comparable dissent that prior bad acts were improperly admitted under SDCL 19-12-5. In Moeller, 1996 SD 60, 548 N.W.2d 465, for example, we held it was an abuse of discretion to allow prior bad acts evidence to show common method, plan or scheme, intent, identity and motive, in part because of the lack of similarities between the other acts evidence and the alleged crime.

9 . The fourth prior bad act state requested to introduce resulted in a guilty plea and conviction over ten years prior to trial. The fact that Cham-ley was convicted, however, did not mean that state was confined to the strictures of SDCL 19-14-12 (Fed.R.Evid. 609(a)) and 19-14-13 (Fed. R.Evid. 609(b)) when using that evidence. SDCL 19-12-5 expressly allows courts to admit evidence of other “crimes ” for the purposes enumerated in that statute. In other words, the prosecution is not limited to just presenting evidence that a defendant has been convicted of a crime if he takes the stand. The prosecution may also introduce testimony regarding the crime for any purpose within the ambit of SDCL 19-12-5 if it sustains its burden under the statute. Moreover, the prosecution may introduce this as circumstantial evidence in its case-in-chief. This is what state did in the instant case.

10 . Age of prior convictions is of central importance when ruling on admissibility under SDCL 19-14-12. In fact, under SDCL 19-14-13 (Fed. R.Evid. 609(b)), it is so important that if the prosecution wishes to introduce evidence of a conviction more than ten years old, it must notify the defense in writing of its intention to use such evidence and prove "that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” Although we have chosen not to set a specific time limitation when determining whether bad acts are too remote, Ondricek, 535 N.W.2d at 877, we can discern no reason why age of a prior bad act should warrant any less scrutiny, especially in light of the fact that a prior bad act concerns alleged conduct which someone believes may have occurred, whereas a prior conviction involves conduct which has been proven beyond a reasonable doubt to have occurred.

11 .In addition to impeaching W.W., the "McDonald’s” testimony also went to impeach S.Y.'s testimony since S.Y. said that Ms. Pena told her to move to a different table after she pointed out Chamley. S.Y. said that Chamley nevertheless continued to stare and smile at her. Ms. Pena testified that she did not have S.Y. move after Chamley left. Ms. Pena also testified that S.Y. stated, "I don't have to move now” after Cham-ley left.

12 . KJ. was asked by either the Box Elder Chief of Police or a Box Elder police officer at the Police Chief’s request to question W.W. because of Chamley’s criminal record and the fact that Chamley was a convicted sex offender. When she was questioned by K.J., W.W. stated that she had not been touched by Chamley.

13 . The defense then appropriately made an offer of proof regarding the testimony.

14 . The testimony of Ms. Pena was taken at a bond hearing in which state attempted to have Chamley's bond revoked as a result of W.W.'s allegations. Chamley’s bond was not revoked after the bond hearing. Whether this was due to the inconsistencies contained in the "McDonald’s” evidence or from the trial court’s concern that the bond conditions were not fully explained to Chamley is unclear from the record. L.G.'s testimony was taken in an offer of proof at trial.

15 . SDCL 19-14-8 states: “The credibility of a witness may be attacked by any party, including the parly calling him.” The issue of credibility is a matter which may be inquired into on cross examination. SDCL 19-14-19 ("Cross-examination should be limited to ... matters affecting the credibility of witnesses”). Credibility is defined as "that quality in a witness which renders his evidence worthy of belief.” Black’s Law Dictionary 366 (6th ed.1990). Some courts have also based a defendant’s right to bring forward evidence of prior false accusations of sexual abuse in the confrontation clause. See, e.g., Barber, 766 P.2d at 1289.

16 . As McCormick has stated, "to prove untrue some fact recited by the witness that if he were really there and saw what he claims to have seen, he could not have been mistaken about, is a convincing kind of impeachment that the courts must make place for.... To disprove such a fact is to pull the linchpin of the story.” C. McCormick, Evidence § 47, at 111-12 (3d ed. 1984).

17 . The trial court may have been concerned that Chamley would engage in disruptive behavior at trial. We agree that this may be a concern in some cases, but note that trial courts are afforded broad discretion in dealing with such matters when they come up during trial. See State v. Weatherford, 416 N.W.2d 47 (S.D.1987); State v. Means, 268 N.W.2d 802 (S.D.1978).

18 . The denial of Chamley's assertion of his Sixth Amendment right to self-representation is not subject to prejudicial error analysis. To hold otherwise would do little to protect a defendant’s constitutional right to self-representation since it would rarely be prejudicial to appoint a licensed attorney to represent a defendant. This is in accord with decisions in other states. See, e.g., State v. DuPaul, 527 N.W.2d 238 (N.D.1995); Van Riper v. State, 882 P.2d 230 (Wyo.1994); Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326 (1995); Young v. State, 98 Nev. 467, 653 P.2d 153 (1982).