State v. Woodfork

454 N.W.2d 332, 1990 S.D. LEXIS 44, 1990 WL 41216

• Court: South Dakota Supreme Court
• Decided: April 11, 1990
• Docket: 16457
• Status: Published

Opinions

WUEST, Chief Justice.

Don B. Woodfork (Woodfork) appeals from a judgment of conviction for first degree rape. We affirm.

On the evening of April 18, 1988, the victim of the rape (victim) went with friends to the Reunion Bar in Rapid City. There she met Woodfork with a man named Ed Sapp (Sapp). Prior to this evening, the victim had dated Sapp. The victim approached Sapp and began visiting with him. At some point during the evening the victim’s friends left the Reunion Bar. Sapp and the victim then decided they would go to Ellsworth Air Force Base to get Sapp’s ear. Sapp asked Woodfork for a ride to his car and Woodfork agreed. Shortly thereafter, Woodfork, accompanied by a woman named Margretta Kellum (Kel-lum), left the Reunion Bar with Sapp and the victim.

The victim, Sapp, Woodfork and Kellum did not go directly to the Air Force Base. Instead, they attended a party. Before attending this party, the four stopped at a convenience store where the victim purchased some cigarettes and shoplifted a pack of condoms at the request of Sapp. After attending the party, the four went to Kellum’s house. Time passed and the victim eventually decided to spend the night at Kellum’s house. Woodfork and Kellum went up to the second floor of the house, and the victim undressed and went to bed. Shortly thereafter, the victim began to worry about staying the night at Kellum’s because she had to work the next morning. She then got out of bed, dressed, and attempted to find a ride home. Sapp and Woodfork offered to give the victim a ride home and she accepted.

Woodfork, who was driving the car, did not take the victim to her home, but instead went to Canyon Lake Park. According to the victim, Woodfork stopped the car at the park and pulled her out of the car. Wood-fork then struck the victim and led her to a picnic shelter where he directed the victim to remove her clothing. The victim refused and Woodfork struck her again, giving her a bloody nose. Woodfork then removed the victim’s clothing. At that time, Wood-fork and Sapp began to search through the victim’s clothing. The victim tried to escape at that time but she was tackled by Woodfork not far from the shelter. Wood-fork then took the victim back to the shelter. According to the victim, Woodfork forced himself upon her and had intercourse with her.

After having intercourse with the victim, Woodfork began to leave when the victim asked him where her clothes were. He told the victim he would retrieve her clothes and instructed her to stay in the shelter. He never returned. Woodfork threw her clothes in a nearby pond and then left the park with Sapp. The victim, unable to find her clothes, went to a nearby convenience store where the police were contacted and an ambulance summoned. On the basis of these facts, Woodfork was later charged and convicted of first degree rape.

Woodfork raises several issues on appeal. We address them separately without listing them. Woodfork first contends the trial court erred in refusing to grant his requested instruction relating to the issue of consent. The record reflects that Wood-fork requested that the jury be given the following instruction:

It is a defense to a charge of rape that the defendant entertained a reasonable and good faith belief that the female person voluntarily consented to engage in sexual intercourse. If from all the evidence you have reasonable doubt whether the defendant reasonably and in good faith believed she voluntarily consented to engage in sexual intercourse you must give the defendant the benefit of the doubt and find him not guilty.

This instruction is similar to the requested instruction denied by the trial court in State v. Faehnrich, 359 N.W.2d 895 (S.D.1984) which we labeled as a “mistake of fact” instruction in upholding the trial court. Although the trial court refused to give the jury this instruction, the record reflects that the following instruction was given to the jury:

An act is not a crime when committed or omitted under an ignorance or mistake of fact which disproves any criminal intent. Where a person honestly and reasonably believes certain facts, and acts or fails to act based upon a belief in those facts, which, if true, would not result in the commission of a crime, the person is not guilty.

In addition to this instruction which similarly addresses the issue of “mistake of fact,” several other instructions were given to the jury which indicated that Woodfork’s guilt must be established beyond a reasonable doubt before the jury could find him guilty of rape. In spite of these instructions which were given to the jury, Woodfork contends that the trial court committed reversible error in refusing to give the jury his requested instruction. We disagree.

It is well-settled in South Dakota that it is not error for a trial court to refuse to amplify instructions given which substantially cover the principle embodied in the requested instruction. Wheeldon v. Madison, 374 N.W.2d 367, 372 (S.D.1985); Jahnig v. Coisman, 283 N.W.2d 557, 560 (S.D.1979). It is also well settled that jury instructions must be considered as a whole in determining if error was committed in giving or refusing to give certain instructions. Runge v. Prairie States Ins. of Sioux Falls, 393 N.W.2d 538, 540-541 (S.D.1986); Wheeldon, supra. In the present case, we believe the instructions given to the jury, when considered as a whole, substantially cover the principle embodied in Woodfork’s requested instruction.

The “mistake of fact” instruction which was given to the jury and the instructions concerning the “reasonable doubt” standard, when read as a whole, indicate that if the jury should entertain a reasonable doubt as to whether Woodfork reasonably believed the victim consented to intercourse, then Woodfork should be found not guilty. This is precisely the principle embodied in Woodfork’s requested instruction. It is clear then that Woodfork’s requested instruction would only serve to amplify the instructions which were given to the jury. Therefore, we find no error in the trial court’s refusal to grant Woodfork’s requested instruction.

We next address Woodfork’s contention that the trial court erred in excluding evidence relating to the victim’s theft of condoms at the convenience store before the rape took place. Prior to trial, the State submitted a Motion in Limine arguing the trial court should refuse to allow evidence regarding the shoplifting of the condoms by the victim. The State argued this “shoplifting” evidence was not relevant to any issues relating to the charge of first-degree rape against Woodfork. Woodfork countered by arguing the “shoplifting” evidence was relevant to the victim’s character for truthfulness, and hence was admissible under SDCL 19-14-10.¹ Woodfork also argued such evidence was relevant upon the issue of consent, and hence was admissible under SDCL 19-12-5 for the purposes of proving motive, preparation and plan.² The trial court, having reviewed the briefs of each party relating to these issues, subsequently granted the State’s Motion in Limine. Although the trial court prohibited Woodfork from submitting evidence to the effect the victim had “shoplifted” the condoms, it did allow Woodfork to present evidence to the effect that she had “obtained” the condoms at the convenience store. On appeal, Woodfork contends that the trial court erred in refusing to allow the “shoplifting” evidence under both SDCL 19-14-10 and SDCL 19-12-5. Wood-fork also alleges that the trial court erred in failing to balance the probative value and prejudicial effects of such evidence on the record, as provided in State v. Eagle Hawk, 411 N.W.2d 120, 126 (S.D.1987).

We first address Woodfork’s argument regarding the admissibility of the “shoplifting” evidence under SDCL 19 — 14— 10. In addressing this argument, we first note that the admission of testimony involves two inquiries: first, whether the evidence is relevant and, second, if relevant, whether the prejudicial effect of the evidence outweighs its probative value. State v. Reutter, 374 N.W.2d 617, 625 (S.D.1985); State v. Rose, 324 N.W.2d 894, 895 (S.D.1982). In the present case, the trial court concluded the “shoplifting” evidence was not relevant to the victim’s character for truthfulness or untruthfulness. Having reached this conclusion, there was no need for the trial court to proceed to the next step of balancing the probative value of such evidence against its prejudicial effect. Therefore, we do not believe the trial court erred here in failing to conduct an on-the-record balancing of the probative value and prejudicial effects of the “shoplifting” evidence.

This leaves us with the question of whether the trial court abused its discretion in ruling the “shoplifting” incident was not relevant to the victim’s character for truthfulness or untruthfulness, and was therefore inadmissible. We have previously stated that before we will disturb an evidentiary ruling, it must be determined that an abuse of discretion has occurred. State v. Bartlett, 411 N.W.2d 411, 414 (S.D.1987). An abuse of discretion “refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.” State v. Bartlett, supra; Gross v. Gross, 355 N.W.2d 4, 7 (S.D.1984). The issue of whether shoplifting or petty larceny is relevant to a person’s character for truthfulness or untruthfulness is certainly debatable. A number of courts have held that such evidence is not indicative of a person’s character for truthfulness or untruthfulness, and hence should not be allowed at trial for the purpose of attacking the credibility of a witness. See generally, State of Nebraska v. Williams, 212 Neb. 860, 326 N.W.2d 678, 679 (1982); State of Washington v. Burton, 101 Wash.2d 1, 676 P.2d 975, 982 (1984); State of Oregon v. Reitz, 75 Or.App. 82, 705 P.2d 762, 764 (1985). Although we do not adopt this view as a general rule, we believe these authorities at least suggest that the trial court’s ruling was not clearly against reason and evidence. Additionally, we believe the circumstances under which this shoplifting incident occurred also suggest the trial court’s ruling with respect to this issue was not clearly against reason and evidence. The record clearly reflects this shoplifting incident took place late at night, after the victim had been drinking liquor for several hours. Shoplifting under these circumstances indicates even less about a person’s character for truthfulness than it otherwise might under more normal circumstances. Considering these facts and the above-mentioned authorities, we cannot conclude the trial court abused its discretion in refusing to admit the shoplifting evidence under SDCL 19-14-10.

We next address Woodfork’s argument that the shoplifting evidence should have been admitted by the trial court under SDCL 19-12-5 as it was probative of motive, preparation and plan. With respect to this issue, the record shows the trial court refused to admit the “shoplifting” evidence under SDCL 19-12-5 because it was not relevant to any issues relating to the charge of first-degree rape brought against Woodfork.³ Having reviewed the record in this case, we agree the shoplifting evidence was not relevant to any material issues in this case and thus we hold the trial court did not abuse its discretion in refusing to admit such evidence under SDCL 19-12-5. In the present case, it is undisputed that the victim obtained the condoms at the request of Sapp, not Woodfork. Furthermore, there was never any statement or suggestion that the victim was to obtain the condoms so that both Sapp and Wood-fork could engage in sexual intercourse with her. The fact the victim already had one condom on her possession prior to the shoplifting incident bears little significance since Sapp apparently had none and wanted some. Moreover, the victim may have desired to engage in sexual intercourse with Sapp more than once. From these facts, it is clear the victim shoplifted the condoms for the purposes of having sexual intercourse with Sapp, not Woodfork. ' It is clear, therefore, that the shoplifting evidence bears no relevance to the issue of consent in this case.⁴ Hence, we conclude the trial court did not abuse its discretion in denying admission of the shoplifting evidence under SDCL 19-12-5.

Woodfork has also asserted that the trial court erred in refusing to instruct the jury on simple assault as a lesser included offense of first degree rape. We find no merit in this assertion. This issue was presented to this court in State v. Antelope, 304 N.W.2d 115 (S.D.1981). In Antelope, we stated:

‘[I]t is the evidence developed at trial that governs the matter of the instructions to be given....’ State v. Watson, 264 N.W.2d 519, 521 (S.D.1978). In this case appellant admitted that the act occurred, so there is no doubt that there was penetration. Under the facts of this case, either a rape occurred, or it did not. The only question was whether the victim had consented. Even if simple assault could be viewed as a lesser included offense of rape, and we do not hold that it is, the evidence would not warrant such an instruction since there was penetration.

Antelope, supra at 117-118. Similar to the facts in Antelope, Woodfork also admitted that the act occurred, and there was no doubt that there was penetration. Based upon the facts of this case then, either a rape occurred, or it did not. Therefore, in this case as well as in Antelope, even if simple assault could be viewed as a lesser included offense of rape (again, we do not hold that it is), the evidence would not warrant such an instruction as penetration did occur.

Woodfork next contends that the trial court erred in refusing to allow him to cross examine the victim about her prior sexual encounters with Sapp. We disagree. As a general rule, the admission of evidence concerning a rape victim’s prior sexual conduct is precluded by SDCL 23A-22-15.⁵ This statute, like rape shield laws in other jurisdictions, represents a legislative determination that in most instances, such evidence is not relevant and highly prejudicial to the victim. State v. Blalack, 434 N.W.2d 55, 57 (S.D.1988) (citations omitted). Evidence of a rape victim’s prior sexual encounters may be admitted if the trial court finds that it is relevant and material to a fact at issue in the case. Blalack, supra. This determination is entrusted to the sound discretion of the trial court. Id. We will not interfere with the trial court’s determination unless an abuse of discretion is clearly demonstrated. Id.

In the present case, the trial court concluded that the evidence concerning the victim’s prior sexual encounters with Sapp was not relevant or material to any fact at issue in the case. Therefore, cross-examination of the victim regarding that matter was prohibited.⁶ Woodfork now contends that the trial court abused its discretion in prohibiting such cross-examination because he claims that the evidence of the victim’s prior sexual encounters with Sapp was relevant to the issue of consent. We find no merit in this argument. The record in this case is devoid of any substantial evidence which would tend to suggest that because the victim had consensual sexual intercourse with Sapp, then she would be inclined to have consensual sexual intercourse with Woodfork. The victim’s prior sexual encounters with Sapp suggest little more than her willingness to engage in sexual intercourse with Sapp. It bears no relevance to the issue of whether the victim may have consented to sexual intercourse with Woodfork. As a result, we cannot conclude that the trial court abused its discretion in refusing to allow Woodfork to cross-examine the victim regarding her pri- or sexual conduct with Sapp.

We next address Woodfork’s contention that the trial court abused its discretion in allowing the jury to view photographs of the victim taken shortly after the rape. In State v. Swallow, 350 N.W.2d 606 (1984), we stated the following:

Photographs, slides and X-rays are admissible when they accurately portray anything which it is competent for a witness to describe in his own words, or where they are helpful as an aid to a verbal description of objects or conditions and relevant to some material issue.

Swallow, supra at 610. In addition to this, we have also stated that the “trial court, in determining whether pictures or photographs should be admitted, must weigh the probative value of the photographs in resolving a material issue as against the danger of prejudice to the appellant through needless arousals of the passions of the jurors.” State v. Kane, 266 N.W.2d 552, 558 (S.D.1978). Having applied these rules to the present ease, we conclude that the trial court did not abuse its discretion in allowing the jury to view the photographs in question.

The record clearly reflects that the trial court considered the probative value of these photographs together with the prejudicial effects that they may have. Having given due consideration to these matters, the trial court then concluded that these photographs could be displayed to the jury. We do not believe the trial court abused its discretion in reaching this conclusion. Both the victim and the doctor who treated her testified that the photographs were accurate depictions of the victim’s appearance shortly after the rape. In fact, the doctor stated that-the victim’s appearance after the rape was worse than what the photographs depicted. Furthermore, these photographs were clearly relevant to the central issue of force in this case. We must conclude, therefore, that the trial court committed no error in allowing the jury to view the photographs in question.

Woodfork finally argues that the cumulative effect of all these alleged errors effectively deprived him of his right to a fair trial. As we have determined that the trial court committed no errors in this case, we reject this argument presented by Wood-fork. It is clear then that Woodfork was not deprived of his right to a fair trial in any manner.

Judgment is affirmed.

MORGAN and MILLER, JJ., concur. HENDERSON and SABERS, JJ., dissent.

1 . SDCL 19-14-10 provides:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in §§ 19-14-12 to 19-14-16, inclusive, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness

(1) concerning his character for truthfulness or untruthfulness, or

(2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

2 . SDCL 19-12-5 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.

3 . Again, as the record indicates the trial court concluded that such evidence was not relevant, there was no need for the trial court to conduct an on the record balancing analysis of the probative value and prejudicial effects of such evidence.

4 . Even if this evidence was to be considered relevant upon the issue of consent, the "shoplifting” evidence would still be irrelevant under SDCL 19-12-5 since the manner in which the victim obtained the condoms is insignificant for the purpose of proving motive, preparation or plan.

5 . SDCL 23A-22-15 provides:

In prosecutions for rape, evidence of specific instances of a victim’s prior sexual conduct shall not be admitted nor reference made thereto before the jury or jury panel, except as provided in this section. Whenever a party proposes to offer evidence concerning a victim’s prior sexual conduct, the court shall first conduct a hearing in the absence of the jury and the public to consider and rule upon the relevancy and materiality of the evidence.

6 . In addressing this issue, we believe it is worthy to note that the evidence of the victim’s prior sexual encounters with Sapp was ultimately brought to the attention of the jury through Woodfork’s direct examination of Sapp towards the end of the trial.