State v. Ondricek

535 N.W.2d 872, 1995 S.D. LEXIS 96, 1995 WL 455526
CourtSouth Dakota Supreme Court
DecidedAugust 2, 1995
Docket18788
StatusPublished
Cited by38 cases

This text of 535 N.W.2d 872 (State v. Ondricek) 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. Ondricek, 535 N.W.2d 872, 1995 S.D. LEXIS 96, 1995 WL 455526 (S.D. 1995).

Opinions

[873]*873MILLER, Chief Justice (on reassignment).

Myron J. Ondricek was charged with three counts of sexual contact and one count of rape. He was convicted on one count of sexual contact with a minor — his niece. The trial court allowed the State, in its case-in-ehief, to present evidence of prior bad acts of sexual contact and rape with other nieces, which acts occurred approximately twenty years earlier. We affirm.

FACTS

The prosecutor filed a motion to introduce prior bad acts testimony from D.P. and L.P., two of Ondrieek’s nieces. D.P. testified that when she was six (around 1972) Ondricek had asked her to go skinny dipping but that she felt uncomfortable after she stripped to her panties. At family gatherings, she recalled that Ondricek massaged her around her sides and below her waist, making her very uncomfortable. When D.P. was twelve (around 1978) she stayed overnight with Ondricek and his wife in a tent. He fondled her breasts until she moved over to the other side of the tent.

L.P. testified that Ondricek took her “skinny dipping” when she was four. He made her touch his penis and attempted to sexually penetrate her. He rubbed her vagina on another occasion when she fell off a sled and hurt her groin area. She testified that he raped her in 1974, when she was eight, while taking her fishing and later, in 1976, he rubbed her breasts and placed her hand on his penis.

Ondricek moved to suppress this testimony. After a pretrial hearing, the trial court held the testimony admissible. The court concluded that the prior bad acts, if believed by the jury, would establish “a plan or common scheme on the part of defendant to develop situations which would allow him to have sexual contact with his nieces and to prove the intent required for the offense of sexual contact with a minor.” The court also concluded that the probative value was not substantially outweighed by its prejudicial effect. The trial court instructed the jury that the other acts evidence could only be used as proof of intent or common scheme.

The jury returned verdicts of not guilty on all counts except Count 2, sexual contact with E.P., a child under sixteen. Ondricek was sentenced to ten years in the South Dakota Penitentiary and ordered to pay the cost of counselling for the victim.

DECISION

Was the prior bad acts evidence admissible to prove intent or common scheme?

The admission of other acts testimony is governed by SDCL 19-12-5, which provides:

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.

Under SDCL 19-12-5, the trial court must follow a two-step analysis when ruling on the admissibility of other acts evidence:

1. Whether the intended purpose for offering the other acts evidence is relevant to some material issue in the case (factual inquiry), and
2. Whether the probative value of the evidence is substantially outweighed by its prejudicial effect (legal inquiry).

State v. Steele, 510 N.W.2d 661, 667 (S.D.1994). Here, the trial court determined that the evidence was admissible as proof of a common scheme or plan and as proof of intent. We review the trial court’s decision to admit such evidence under the abuse of discretion standard. Id.

Prior bad act evidence is not admissible to show that, since a defendant committed a similar offense on another occasion, he has a propensity to commit the offense charged. SDCL 19-12-5; Steele, 510 N.W.2d at 668 n. 8; 2 J. Weinstein & M. Berger, Weinstein’s Evidence, ¶ 404[04] at 404-26 (1994).

In this case, the trial court followed all proper procedural steps and then admitted evidence of prior sexual contact with minors as proof of a common scheme or plan and as proof of intent. The trial court properly admitted the evidence under both the intent and plan exceptions.

[874]*8741. Intent.

Ondricek argues that a defendant’s complete denial of any wrongdoing negates the prosecution’s need to offer evidence of intent. Ondricek would have the trial court defer such evidence until a defendant places intent in dispute or unless intent is clearly in dispute from the outset. Under this rationale, intent is only disputed when, for example, a defendant admits the physical contact with a minor but asserts the contact was inadvertent or by mistake.

Imposing this stringent “in dispute” standard would require overruling settled South Dakota case law. In State v. Champagne, 422 N.W.2d 840 (S.D.1988), this Court held “where specific intent is an element of an offense, proof of similar acts may be admitted to carry that burden even if the defense to the charge is a complete denial.” Id. at 843 (citing State v. Means, 363 N.W.2d 565, 568 (S.D.1985)). In Champagne, we expressly considered and rejected the viewpoint put forward by Ondricek. Id. We reasoned the question of intent is always in issue in the case of sexual contact with a child, because an element of the offense charged is the specific intent to arouse or produce sexual gratification. Id. at 843-44; SDCL 22-22-7; SDCL 22-22-7.1. Consequently, “[ejxtrinsic evidence of intent is admissible in order for the state to meet its burden under a specific intent crime.” Champagne, 422 N.W.2d at 844.

In a line of subsequent cases, we have reaffirmed this rule. In State v. Klein, 444 N.W.2d 16, 19 (S.D.1989), we wrote: “[Wjhere specific intent is an element of an offense, proof of similar acts may be admitted so that the State may carry its burden even if the defense to the charge is a complete denial.” Similarly, in State v. Basket, 468 N.W.2d 413, 416 (S.D.1991), this Court opined: “Because the State must prove the touching was done with the intent to arouse or produce sexual gratification, the offense of sexual contact with a minor is a specific intent crime, and evidence of such intent may be proved by other acts evidence.” Finally, in State v. Christopherson, 482 N.W.2d 298, 302 (S.D.1992), we held that bad acts evidence was admissible to prove intent where the defendant was accused of sexual contact with a minor, a specific intent crime.

We are aware of case law from the Second, Eighth, and Ninth Circuit Courts of Appeals that conflicts with our holdings. These cases stand for the proposition that if a defendant denies the act occurred, then intent is not in dispute and other acts evidence may not be admitted under the intent exception. United States v. Jenkins, 7 F.3d 803, 806-07 (8th Cir.1993); United States v. Figueroa,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Guzman
982 N.W.2d 875 (South Dakota Supreme Court, 2022)
State v. Boe
2014 SD 29 (South Dakota Supreme Court, 2014)
State v. Medicine Eagle
2013 SD 60 (South Dakota Supreme Court, 2013)
State v. Most
2012 S.D. 46 (South Dakota Supreme Court, 2012)
State v. Armstrong
2010 S.D. 94 (South Dakota Supreme Court, 2010)
State v. Fisher
2010 SD 44 (South Dakota Supreme Court, 2010)
State v. Big Crow
2009 SD 87 (South Dakota Supreme Court, 2009)
State v. Lassiter
2005 SD 8 (South Dakota Supreme Court, 2005)
State v. Jones
2002 SD 153 (South Dakota Supreme Court, 2002)
State v. Walton
1999 SD 80 (South Dakota Supreme Court, 1999)
State v. Smith
1999 SD 83 (South Dakota Supreme Court, 1999)
State v. Wright
1999 SD 50 (South Dakota Supreme Court, 1999)
State v. Steichen
1998 SD 126 (South Dakota Supreme Court, 1998)
State v. Osier
1997 ND 170 (North Dakota Supreme Court, 1997)
State v. Chamley
1997 SD 107 (South Dakota Supreme Court, 1997)
State v. Loftus
1997 SD 94 (South Dakota Supreme Court, 1997)
State v. Moeller
1996 SD 60 (South Dakota Supreme Court, 1996)
State v. White
538 N.W.2d 237 (South Dakota Supreme Court, 1995)
State v. Ondricek
535 N.W.2d 872 (South Dakota Supreme Court, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
535 N.W.2d 872, 1995 S.D. LEXIS 96, 1995 WL 455526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ondricek-sd-1995.