State v. Olesen

443 N.W.2d 8, 1989 S.D. LEXIS 130, 1989 WL 79587

• Court: South Dakota Supreme Court
• Decided: July 19, 1989
• Docket: 16426
• Status: Published

Opinions

WUEST, Chief Justice.

Jerry Lee Olesen appeals from judgments of conviction for second degree rape, sexual contact with a child under the age of 16, and third degree rape. We affirm.

FACTS

In October and December of 1979, Oles-en had sexual intercourse with his 14 year old daughter Lisa. Then in May of 1985, Lisa saw Olesen molesting her younger sisters, Liza and Alta, by rubbing their vaginas with his fingers. Liza was five years old and Alta was three years old at the time.

Olesen was indicted by a Haakon County grand jury on two counts of second degree rape, two counts of sexual contact with a child under the age of 16, one count of third degree rape, and one count of tampering with a witness. During the trial a doctor testified as to the statements given to him by five year old Liza during a medical examination. This examination occurred about eight months after Olesen allegedly molested Liza. Defense counsel objected to the doctor’s testimony since it was hearsay, but the objections were overruled by the trial court. The doctor also testified that during the examination he found an injury to Liza’s hymenal ring and a larger than normal vaginal opening. He concluded that sexual abuse had occurred.

The jury found Olesen guilty on all counts except the one count of tampering with a witness. The trial court sentenced Olesen to five consecutive three year terms in the penitentiary.

ISSUE

Did the trial court abuse its discretion by allowing the doctor to testify about the statements given to him by five year old Liza during a medical examination?

DECISION

SDCL 19-16-8 (Rule 803(4)) contains an exception to the hearsay rule for statements given to aid medical diagnosis and treatment:

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external source thereof are not excluded by § 19-16-4 in so far as reasonably pertinent to diagnosis or treatment, even though the declarant is available as a witness.

Olesen argues that there is no possible diagnosis or treatment that could have been performed on the child eight months after the incident of touching her vagina. He contends that the examination was done for the purpose of obtaining evidence for the state, rather than for any diagnosis or treatment. Consequently, he concludes that the statements made by Liza should not have been admitted under SDCL 19-16-8.

When reviewing the admission of evidence, this court will not disturb the decision of the trial court unless there is a clear showing of an abuse of discretion. State v. Bawdon, 386 N.W.2d 484 (S.D.1986). A doctor’s testimony concerning a child’s statements during a medical examination is admissible under SDCL 19-16-8 when the statements were primarily concerned with what happened to the child, rather than who committed the assault. Id.; State v. Garza, 337 N.W.2d 823 (S.D.1983). See also United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981).

Here, the doctor testified as follows:

I asked her [Liza] if she had ever been hurt around her bottom, and she replied that her daddy had hurt her. I then asked her where and she pointed to the vaginal area. I then asked if someone had, if her father had put his fingers in her and she nodded affirmatively. I then asked if it hurt and she again indicated affirmatively that it had hurt. I then asked her if she knew what a male organ was, what a penis was, and she indicated she knew the difference between female and male and nodded that she knew what the male organ was. I think I referred to it as a male thing. She indicated she knew where that was located. I asked her if she had, if he had placed that in her and she indicated affirmatively again. I went back through the questions a number of times to see that she didn’t change her indications. She did not elaborate in detail, it was just, she did say that she had been hurt and when asked about the area, indicated that her vaginal area and nodded as I asked the questions.

A careful analysis of this testimony reveals that the doctor’s questions were primarily directed toward the existence and location of any pain suffered by the child, and not with the identity of the alleged molester. Likewise, the child’s answers emphasized what happened to her and were primarily concerned with “the inception or general character of the cause or external source” of the pain, which is clearly admissible under SDCL 19-16-8 and our prior case law. Therefore, we conclude that the trial court did not abuse its discretion by allowing the doctor’s testimony.

Olesen’s argument that diagnosis and treatment of Liza could not have been performed after a lapse of eight months is totally without merit, since the doctor found physical injury to Liza even after the eight month lapse. Furthermore, this court has recently upheld testimony of a doctor pursuant to SDCL 19-16-8 despite a lapse of two years from the date of the alleged child abuse to the date of the medical examination. Matter of S.W., 428 N.W.2d 521 (S.D.1988).

Affirmed.

MORGAN, J., concurs. HENDERSON, J., concurs specially. MILLER, J., concurs in result. SABERS, J., dissents.