State v. Carter

#30048-a-JMK
2023 S.D. 67

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

MATTHEW ALLAN CARTER, Defendant and Appellant.

****

APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
YANKTON COUNTY, SOUTH DAKOTA

****

THE HONORABLE CHERYLE W. GERING
Judge

****

WANDA HOWEY-FOX of
Harmelink & Fox Law Office, P.C.
Yankton, South Dakota Attorneys for defendant
and appellant.

MARTY J. JACKLEY
Attorney General

PAUL S. SWEDLUND
Solicitor General
Pierre, South Dakota Attorneys for plaintiff
and appellee.

****

ARGUED
AUGUST 31, 2023
OPINION FILED 12/28/23
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KERN, Justice

[¶1.] In late December 2020, E.W. disclosed to her mother, Nycole Morkve,

that “Daddy Matt,” Nycole’s then-boyfriend Matthew Carter, had “licked” her “lady

parts.” While spending the Christmas holiday with her grandmother, Jennifer

Morkve, E.W. made a similar disclosure, which Jennifer captured on video. After

E.W. began experiencing heavy vaginal discharge and had some blood in her

underwear, Nycole took her to the emergency room. During the medical

examination, Nycole revealed that E.W. could have experienced sexual abuse. E.W.

was tested for sexually transmitted infections with two urine tests as well as throat,

vaginal, and anal swabs, which all came back positive for gonorrhea. Detective

Joseph Erickson obtained a search warrant to test Carter, who was positive for

gonorrhea in his throat.

[¶2.] Carter was taken into custody after an interview with Detective

Erickson in which he denied that anything sexually inappropriate had occurred

between him and E.W. After Carter called his father from the jail and asked him to

retrieve something from the bathroom ceiling in Carter’s residence, Detective

Erickson conducted a search and discovered several electronic items, including a

hard drive with videos of child pornography. A forensic search of Carter’s cell phone

also revealed search terms and web browsing history related to incest and sexual

contact with minors. Carter was charged with and convicted of first-degree rape, in

violation of SDCL 22-22-1(1).

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[¶3.] Carter appeals, arguing that the circuit court abused its discretion in

certain evidentiary rulings, that his motion for acquittal was improperly denied,

and that he was deprived of the effective assistance of counsel. We affirm.

Factual and Procedural Background

[¶4.] Nycole Morkve met Matthew Carter at work in April 2020. Their

relationship progressed over the summer and Nycole soon began spending time at

Carter’s residence in Yankton, South Dakota. Nycole also introduced Carter to

E.W., her five-year-old daughter and only child. Starting in August 2020, Carter

would sometimes spend time alone with E.W. while Nycole did his laundry or ran

grocery errands. The relationship ended abruptly in late December of the same

year after E.W. disclosed to Nycole that “Daddy Matt” had “licked my girl parts”

while they were alone in his room watching Scooby-Doo. E.W. also made similar

allegations involving an unnamed teacher and fellow student at her school.

According to Nycole, E.W. subsequently claimed that she had invented these

accusations to avoid school and because “Matt yells at me.” Nevertheless, Nycole

broke up with Carter on Christmas Day and ensured that he did not have any

further unsupervised contact with E.W.

[¶5.] Nycole took E.W. to spend the Christmas holiday with Jennifer

Morkve, Nycole’s mother. Jennifer and Nycole had recently been estranged for

several months because Jennifer disapproved of Nycole’s relationship with Carter.

Nycole did not mention any of E.W.’s recent troubling disclosures to Jennifer;

however, Jennifer later noticed E.W. bathing a new baby doll in the bathroom sink

and rubbing it repeatedly in the vaginal area. Jennifer asked E.W. why she was

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doing this, and E.W. responded that “Matthew had touched her and licked her

there.” E.W. did not repeat her other allegations involving the teacher or fellow

student. Jennifer was “shocked” by this disclosure and got her phone to video E.W.

[¶6.] In the video recording, Jennifer asked E.W. to demonstrate on the doll

what Carter had done to her. E.W. put the doll on its back, saying, “He lays me

down.” She then lifted the doll’s dress and mimicked a licking gesture over the

doll’s vaginal area. Jennifer next asked E.W., “How does it make you feel when he

does that?” E.W. responded with a shivering, flinching gesture. Jennifer did not

tell Nycole about this exchange when she arrived to pick E.W. up. Jennifer did,

however, make a report to Child Protective Services and law enforcement the

Monday after the holiday weekend.

[¶7.] Earlier in December, Nycole had noticed that E.W. was experiencing

yellow vaginal discharge along with some signs of skin irritation in the genital area.

Nycole took E.W. in for a medical examination, but tests for yeast or viral infections

came back negative. Not knowing about the potential sexual contact with Carter,

the doctors assumed the symptoms were related to poor hygiene. After Christmas,

between December 29 and 31, Nycole noticed that E.W. “had a little bit of blood in

her underwear.” Nycole brought E.W. to the Avera Sacred Heart Hospital

Emergency Department (Avera), where E.W. gave a urine sample and the physician

swabbed her vagina to collect fluid for testing.

[¶8.] During the medical examination at Avera, Nycole acknowledged that

E.W. “had talked about someone licking her.” The attending physician and nurse

reported this disclosure to law enforcement and referred E.W. to Child’s Voice, a

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clinic for child abuse victims in Sioux Falls, South Dakota. At Child’s Voice, E.W.

gave another urine sample and, after she was sedated, medical professionals

obtained rectal, vaginal, and throat swabs. In addition to the urine sample from

Avera, all of these samples tested positive for gonorrhea.

[¶9.] Detective Erickson of the Yankton Police Department received the

reports from both Jennifer and the staff at Avera alleging that Carter had “licked”

E.W.’s “girl parts.” After interacting with E.W. and Nycole at Avera, Detective

Erickson obtained and executed a search warrant authorizing collection of a urine

sample and throat swab from Carter. The throat specimen ultimately tested

positive for gonorrhea. After being advised of his Miranda rights, Carter

voluntarily submitted to an interview with Detective Erickson at the Yankton

County Safety Center.

[¶10.] During the interview, Carter made several contradictory statements

concerning his relationship with E.W. At first, Carter referred to E.W. as a

“monster” and “spoiled brat” but later claimed that he “loved her.” Carter also

initially denied having gonorrhea. However, after learning of E.W.’s positive test

results, he admitted to having several recent sexual partners, including Nycole.

Carter suggested that Nycole might have passed the disease on to him and E.W.

When Detective Erickson introduced the topic of child sex abusers, Carter expressed

disgust, saying, “They’re f***ed up, man. . . . [T]hey need help. . . . They need to not

be in this world.” Throughout the interview, even after being confronted with

E.W.’s test results and the allegations against him, Carter repeatedly denied having

any inappropriate sexual contact with the child. After prompting, Carter did tell

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Detective Erickson that he had “regular” pornography on his Xiaomi cell phone and

relinquished the device to law enforcement. Carter was then taken into custody.

[¶11.] While incarcerated, Carter made several calls and sent texts from the

jail that were intercepted and recorded. On January 14, 2021, Carter talked with

his father over the phone asking him to retrieve “the most important things to me,

my gold” from the ceiling above the bathroom toilet at Carter’s residence. A few

days later, on January 18, Carter urgently repeated this request via both text

messages and a phone call: “I need you to do this for me. It’s very, very, very

f***ing imperative, Dad, Okay? If you love me.” These entreaties were of no avail

since, after the first call, Detective Erickson had searched Carter’s residence and

retrieved several electronic items, including a hard drive and mobile storage system

found above the bathroom ceiling tiles. 1

[¶12.] A forensic analysis of the confiscated devices revealed a trove of

pornographic content, 2 including three videos which depicted cunnilingus between

an adult male and a young child. The Xiaomi cell phone that Carter had given to

Detective Erickson also contained search terms related to sexual contact with

minors. For example, on December 9, 2020, there was a search for, “Is it possible

for an eight-year-old girl to be sexually abused and enjoy it?” That same day, there

was an additional search for, “Can a 5-year-old little girl have an orgasm.” On

1. The record reflects that Carter was on parole and this search was authorized
by his parole officer.

2. At trial, the State established that the hard drive and Xiaomi cell phone
belonged to Carter. They both contained images of Carter and other personal
identifying information.

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December 30, the phone had also been used to visit a webpage titled: “Father and

daughter making real incest love. Incest porn.” Discussing these materials and

searches via yet another phone call from the jail, Carter admitted, “I’ve always

loved [incest porn]. . . . Like what does that show? Oh, that shows intent. . . . [L]et

it fly in court who cares.”

[¶13.] Carter was initially indicted by a grand jury on one count of sexual

contact with a child under sixteen years of age in violation of SDCL 22-22-7.

However, in a superseding indictment issued April 6, 2021, Carter was charged

with one count of first-degree rape in violation of SDCL 22-22-1(1). This indictment

alleged that Carter “performed cunnilingus on E.W., when E.W. was less than

thirteen years of age.” At his arraignment on April 26, 2021, Carter pled not guilty.

[¶14.] The State subsequently filed a motion to admit the three child

pornography videos as other acts evidence pursuant to SDCL 19-19-404(b) (Rule

404(b)). The State also moved to admit the internet searches and web browsing

history as res gestae or, in the alternative, other acts evidence. The circuit court

admitted this evidence after concluding that its probative value as to Carter’s intent

and motive was not substantially outweighed by the risk of unfair prejudice. 3

[¶15.] The State also filed a motion to admit E.W.’s separate statements to

Nycole and Jennifer under the tender-years hearsay exception in SDCL 19-19-806.1

(Rule 806.1). The circuit court found that these statements were supported by

3. The circuit court limited the State to showing only ten seconds of still photos
from each of the three videos. The circuit court also excluded as unduly
prejudicial certain internet searches concerning the impregnation of children
and related prison sentences.

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sufficient indicia of reliability to be admissible. The court also initially determined

that E.W. was available to testify, meaning that E.W. would be required to testify at

trial before the statements could be admitted. However, at a later competency

hearing, the State had the following exchange with E.W.:

State: Okay. Do you remember something that happened with
Matt that you didn’t like?

E.W.: He yelled at me.

State: Okay. How did that make you feel?

E.W.: Sad.

State: Okay. Do you remember anything else happening . . .
with Matt that you didn’t like?

E.W.: Just when he yelled at me.

E.W. also testified that she couldn’t remember talking to Nycole, Jennifer, or

anyone at Child’s Voice “about something that Matt had done to you.”

[¶16.] The circuit court found, in light of E.W.’s testimony, that she could not

remember the subject matter of the incident and was thus currently unavailable

pursuant to SDCL 19-19-804(a)(3) (Rule 804(a)) and SDCL 19-19-806.1(2)(b). Since

E.W.’s statements were sufficiently corroborated by other evidence, such as the

positive gonorrhea tests and Carter’s possession of child pornography videos, the

court admitted her statements under the tender-years exception. The court also

found that E.W.’s statements to Nycole and Jennifer did not prompt Confrontation

Clause concerns under the federal Constitution, even though she was not subject to

cross-examination, because these disclosures occurred in nontestimonial settings.

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[¶17.] Before trial, Carter filed a motion in limine to exclude evidence of the

gonorrhea tests performed on E.W. As support for his position, Carter pointed to

the disclaimer on the Nucleic Acid Amplification Test (NAAT) kit which read: “This

report is intended for use in clinical monitoring and management of patients. It is

not intended for use in medical-legal applications.” The circuit court held an

evidentiary hearing, where both sides presented expert testimony as to the

reliability of these tests.

[¶18.] Carter’s expert, Dr. Elizabeth Dimitrievich, testified that, when using

NAAT, each individual sample would need to be tested multiple times in order to

ensure accuracy of results. On cross-examination, Dr. Dimitrievich maintained that

collecting and testing two separate samples—for example, the two urine samples in

this case—was not sufficient. In her view, only two or more tests of the same

sample would suffice. Nevertheless, Dr. Dimitrievich did admit that symptoms

consistent with the test result—such as E.W.’s vaginal discharge and skin

irritation—would increase the likelihood of reliability.

[¶19.] The State’s first expert, Dr. Nancy Free, supervised the collection of

E.W.’s second urine sample. According to Dr. Free, one urine sample was examined

using the Aptima 2 test and the other using the Cobas 4800 test, with each test

targeting different parts of the genetic material. When asked to respond to Dr.

Dimitrievich’s concerns, Dr. Free stated:

[W]e have testing that is targeting two different pieces of the
genetic material for a gonorrhea infection. This is the same
child with the same infection giving us a urine sample. To think
we would have different results within 24 hours would not be
expected.

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Dr. Free also addressed the NAAT disclaimer, explaining, “I believe that that is

there to cover the FDA, since they have not been able to do the trials and reassess

in children.” The State’s second expert, Dr. Felix Roth, testified that collecting and

testing two separate urine samples, instead of testing the same specimen twice,

would still “minimize the possibility of a false positive.” 4

[¶20.] The circuit court found the tests performed on E.W. to be both relevant

and reliable. The court pointed to an article provided by Dr. Dimitrievich, which

stated that “no NAAT assays have been cleared [by the FDA] for use in any sample

type from prepubertal boys and girls. Without other options, most laboratories

resort to including disclaimers in NAAT test reports regarding the off-label use of

sample types[.]” 5 As a result, the article concluded that off-label use of NAAT tests

was “inevitable.” 6

[¶21.] The circuit court also referenced forensic guidelines from the U.S.

Department of Justice:

Due to low prevalence of STDs in the prepubescent population,
and lack of enough large randomized controlled trials for
validation, this [NAAT] testing is not yet approved by the Food
and Drug Administration for this population. However, the

4. According to Dr. Roth, the Aptima and Cobas tests utilize two different
collection devices. Thus, in order to test the same sample twice, a doctor or
nurse would have to know that they must distribute the initial specimen
among multiple collection devices.

5. Xuan Qin & Ann J. Melvin, Laboratory Diagnosis of Sexually Transmitted
Infections in Cases of Suspected Child Sexual Abuse, 58 J. CLINICAL
MICROBIOLOGY, Feb. 2020, at 5 (alterations in original) (emphasis added).

6. See id.

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CDC discusses the use of NAAT for this population as indicated
in protocol recommendations. 7

The court concluded that, while “multiple testing is recommended, . . . it can either

be multiple tests done on one sample or multiple tests done on more than one

sample.” In support of this finding, the court cited relevant CDC recommendations:

“When a specimen tests positive, the result should be confirmed either by retesting

the original specimen or obtaining another.” 8 Based on this evidence of reliability,

the court admitted E.W.’s positive test results and permitted Dr. Roth and Dr. Free

to testify at trial.

[¶22.] At the conclusion of a jury trial held January 31 to February 2, 2022,

Carter was found guilty of rape in the first degree, in violation of SDCL 22-22-1(1).

On April 4, 2022, he was sentenced to 45 years imprisonment, with 25 years

suspended upon compliance with numerous terms and conditions.

[¶23.] Carter raises five issues on appeal, which we restate as follows:

1. Whether the circuit court abused its discretion when it
allowed the State to publish to the jury three short videos
of child pornography.

2. Whether the circuit court abused its discretion when it
refused to allow Carter’s expert the opportunity to testify
as to the reliability of the NAAT testing.

3. Whether the circuit court’s decision to admit E.W.’s
unsworn statements into evidence was an abuse of
discretion and violated Carter’s right of confrontation.

7. DOJ, A National Protocol for Sexual Abuse Medical Forensic Examinations
Pediatric 167 n.227 (2016) (alteration in original) (emphasis added).

8. CDC, Sexually Transmitted Infections Treatment Guidelines, 70 Morbidity
and Mortality Wkly. Rep., July 23, 2021, at 133 (emphasis added).

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4. Whether the circuit court erred by denying Carter’s
motion for judgment of acquittal on the grounds of
insufficient evidence.

5. Whether Carter’s trial counsel was so ineffective that
Carter was denied his due process right to counsel.

Standard of Review

[¶24.] Before analyzing Carter’s claims, we take this opportunity to clarify

our standard of review for evidentiary determinations. A “trial court’s evidentiary

rulings are presumed correct and will not be overturned absent a clear abuse of

discretion.” Ronan v. Sanford Health, 2012 S.D. 6, ¶ 8, 809 N.W.2d 834, 836. We

have defined abuse of discretion as “discretion exercised to an end or purpose not

justified by, and clearly against, reason and evidence.” State v. Snodgrass, 2020

S.D. 66, ¶ 25, 951 N.W.2d 792, 802. “To establish reversible error with regards to

an evidentiary ruling, ‘a defendant must prove not only that the trial court abused

its discretion in admitting the evidence, but also that the admission resulted in

prejudice.’” State v. Loeschke, 2022 S.D. 56, ¶ 46, 980 N.W.2d 266, 280 (quoting

State v. Little Long, 2021 S.D. 38, ¶ 49, 962 N.W.2d 237, 255).

[¶25.] In describing what constitutes prejudice, this Court has often stated

that “[e]rror is prejudicial when, in all probability. . . [it] produced some effect upon

the final result.” Little Long, 2021 S.D. 38, ¶ 49, 962 N.W.2d at 255 (alterations in

original); see also State v. Ortiz-Martinez, 2023 S.D. 46, ¶ 26, 995 N.W.2d 239, 244–

45 (defining prejudice in the context of a mistrial). At the same time, in cases

involving the third prong of plain error review, we have referred to prejudice as “a

reasonable probability that, but for the error, the result of the proceeding would

have been different.” State v. Fifteen Impounded Cats, 2010 S.D. 50, ¶ 33, 785

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N.W.2d 272, 283; see also Neels v. Dooley, 2022 S.D. 4, ¶ 16, 969 N.W.2d 729, 735

(citing United States v. Dominguez Benitez, 542 U.S. 74, 81–82, 124 S. Ct. 2333,

2339, 159 L. Ed. 2d 157 (2004) (noting that prejudice in the context of plain error

review is the same standard of prejudice employed in ineffective assistance claims)).

[¶26.] After a review of our precedent, we conclude that this Court has

applied these two formulations of prejudice in an interchangeable and equivalent

manner. For example, in State v. Loeschke, we utilized the “all probability [that the

error] produced some effect upon the final result” standard and then concluded that,

because there was no “reasonable probability that the jury would have reached a

different result,” the prejudice standard had not been met. 2022 S.D. 56, ¶¶ 46, 48,

980 N.W.2d at 281. Because this Court has treated both formulations as expressing

the same concept of prejudice, we conclude that the “all probability” phrase should

be understood as “a reasonable probability that, but for [the error], the result of the

proceeding would have been different.” Owens v. Russell, 2007 S.D. 3, ¶ 9, 726

N.W.2d 610, 615. In other words, “a probability sufficient to undermine confidence

in the outcome.” Id.

Analysis

1. Whether the circuit court abused its discretion when
it allowed the State to publish to the jury three short
videos of child pornography.

[¶27.] SDCL 19-19-404(b) permits the admission of other acts evidence to

prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence

of mistake, or lack of accident.” See also State v. Medicine Eagle, 2013 S.D. 60,

¶¶ 16–17, 835 N.W.2d 886, 892. “All that is prohibited under § 404(b) is that

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similar act evidence not be admitted solely to prove character.” State v. Phillips,

2018 S.D. 2, ¶ 14, 906 N.W.2d 411, 415. Where evidence of other acts is introduced,

the evidence must be sufficient “for a trial court to conclude that a jury could find by

a preponderance of the evidence that the other ‘act[s] occurred and that the

defendant was the actor.’” Id. ¶ 20, 906 N.W.2d at 417 (quoting Kostel v. Schwartz,

2008 S.D. 85, ¶ 28, 756 N.W.2d 363, 375).

[¶28.] Before admitting other acts evidence, a trial court must also consider

the record and determine “(1) [w]hether the intended purpose for offering the other

acts evidence is relevant to some material issue in the case (factual relevancy); and

(2) [w]hether the probative value of the evidence is substantially outweighed by its

prejudicial effect (legal relevancy).” State v. Steichen, 1998 S.D. 126, ¶ 18, 588

N.W.2d 870, 874–75. “Evidence is relevant if: (a) It has any tendency to make a fact

more or less probable than it would be without the evidence; and (b) The fact is of

consequence in determining the action.” SDCL 19-19-401. “Upon a trial court’s

determination that the proffered evidence is relevant, the balance tips emphatically

in favor of admission unless the dangers set out in [SDCL 19-19-403] substantially

outweigh the probative value” of the evidence. State v. Taylor, 2020 S.D. 48, ¶ 33,

948 N.W.2d 342, 352.

[¶29.] In cases of sexual assault and abuse, other acts evidence can be

probative where there is a nexus of similarity between the uncharged conduct and

the alleged criminal offense. For example, we recently held in State v. Snodgrass

that “searches and images associated with sexual acts between a stepdad and

stepdaughter and the use of a dildo on young girls were probative to common plan,

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intent, and motive” where the defendant was charged with several counts of raping

his girlfriend’s juvenile daughter, including with the use of sex toys. 2020 S.D. 66,

¶¶ 12, 33, 951 N.W.2d at 799, 803. Similarly, in State v. Thomas, searches for

terms such as “teen,” “way too young,” “family orgy,” and “incest,” “were

corroborative of [the defendant’s] plan and intent to engage in sexual conduct with

minors and family members.” 2019 S.D. 1, ¶¶ 8, 23, 922 N.W.2d 9, 13, 16.

[¶30.] Here, the circuit court did not abuse its discretion by admitting the

three videos of child pornography found on Carter’s hard drive. The court

specifically found that the videos, internet searches, and web browsing history, were

“all probative of Defendant’s motive to commit the alleged offense with which he is

charged, namely, that he has a sexual interest in children such as E.W.” The court

also found these materials “relevant to Defendant’s intent, including refuting

Defendant’s voluntary statement to law enforcement that he did not perform

cunnilingus on E.W., and that even hearing about such an act was ‘horrible.’” The

court determined that “having State witness(es) describing the video scenes to the

jury . . . [would] not result in unfair prejudice that substantially outweighs the

probative value of the evidence.” Additionally, in order to avoid the risk of unfair

prejudice, the court limited the length of the videos that could be shown to the jury

to ten seconds each.

[¶31.] Carter argues that “[t]he publication of the videos to the jury had no

probative value and only served to inflame the jury against” him. He also objects to

the testimony of Division of Criminal Investigation Agent Kendra Russell, a State

witness who had performed a forensic examination of Carter’s electronic devices.

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According to Carter, “[n]either [the searches from his phone] nor the video clips of

hardcore pornography had anything to do with the crime for which” he was charged.

[¶32.] Preliminarily, we note that, despite repeated references in the briefing,

Carter does not seem to directly challenge the admission of his Xiaomi cell phone

search history. However, even if he did, our analysis would remain unchanged

since the videos and search histories are both relevant to proving Carter’s motive

and intent to orally penetrate E.W., a central element of the charged offense. The

three videos all depict the exact act Carter was charged with committing:

cunnilingus on a juvenile female. Further, the searches for terms such as “can a 5-

year-old little girl have an orgasm” and “father and daughter making real incest

love” reflect a prurient obsession with penetrating the “lady parts” of a young child

such as E.W.

[¶33.] Carter’s argument that these parallels are completely irrelevant is

unavailing. Because there is such close correlation to the underlying criminal

activity, we conclude that the other acts evidence presented here is highly probative

of both intent and motive. Carter acknowledged as much during his several ill-

advised calls from the jail: “Oh, that shows intent. . . . [L]et it fly in court who

cares.” In Carter’s own words, these videos were “the most important things to me,

my gold.” He was determined to retrieve them because he knew this evidence

would incriminate him by revealing his desire and intent to orally penetrate E.W.

[¶34.] The relevance of this evidence is only strengthened by the testimony of

Agent Russell. At trial, she first described her forensic analysis of Carter’s

electronic devices, laying a necessary foundation for the admission of the child

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pornography videos. After presenting Carter’s internet search history, Agent

Russell described the hard drive videos and explained their file names to the jury.

For example, one of the files contained terms such as “pthc,” “11 YO,” and “pedo.”

According to Agent Russell, these acronyms stood for “preteen hard-core,” “11 years

old,” and “pedophilia or pedophile,” respectively.

[¶35.] Although Carter submits that this testimony has “little, if any,

probative value,” we conclude otherwise. The information provided by Agent

Russell was integral to presenting the electronic evidence of Carter’s motive and

intent. Her testimony as to the internet searches and hard drive illustrated

Carter’s fascination with “incest porn” and “preteen hard-core” videos involving

adult males performing cunnilingus on prepubescent females. Highlighting this

point, Agent Russell noted that Carter could have changed the video file names if he

wanted to. Instead, Carter chose to keep the explicit language, further

contradicting his claimed revulsion to child pornography. Agent Russell did not

unnecessarily testify “at length, about different types of pornography.” Rather, her

references to genres such as “PTAP (Pre-Teen Asian Porn)” and “PTSC (Pre-Teen

Soft Core)” were direct translations of the title acronyms on Carter’s own videos.

Agent Russell’s testimony thus supplied the jury with necessary context that

directly pertained to Carter’s motive and intent in searching for and possessing

these obscene materials.

[¶36.] Carter also claims the hard drive and videos might not have been his.

He asserts that “no testimony or evidence was provided to establish that those hard

drives were [his] property.” This statement is contradicted by the record. In its

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motion to admit on March 18, 2021, the State provided evidence linking the hard

drive to Carter:

Subsequent to the interview Defendant asked his father on a
recorded jail call to go to his residence and remove some items
located in the ceiling of his bathroom. Law enforcement went to
the residence and obtained those items which included an
external hard drive. Pursuant to a search warrant, the external
hard drive was forensically examined. That hard drive
contained several videos of an adult male performing oral sex on
a prepubescent female. The hard drive also contains
information identifying Defendant as the owner of the hard drive
such as his unemployment documents, apartment information
and photos.

(Emphasis added.) At the pre-trial hearing on this motion, Agent Russell further

discussed the personal identifying contents of the hard drive:

I found numerous image files, depicting Mr. Carter. I also found
some text files that looked like he authored. There was a South
Dakota unemployment dissolvement text file that he authored.
As well as an apartment evacuation notice that he appeared to
author with his name. 9

[¶37.] The State provided the circuit court with ample grounds “to conclude

that a jury could find by a preponderance of the evidence” that the hard drive and

its contents belonged to Carter. Phillips, 2018 S.D. 2, ¶ 20, 906 N.W.2d at 417.

Carter’s phone calls alone contained strong evidence that the electronic devices

found in his bathroom ceiling were his “gold” and his alone. He stated in a recorded

phone call from the jail that “I’ve always loved [incest porn].” Coupled with the

9. Agent Russell also presented this testimony at trial.

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other personal identifying information, the evidence of ownership was more than

sufficient for the court to present the videos to the jury for their consideration. 10

[¶38.] Finally, Carter argues that the videos, despite their relevance, should

be excluded for unfair prejudice: “[The] video clips prejudiced the jury members

against Matthew based upon what was on his cellular phone.” Importantly,

however, “[d]amage to the defendant’s position is no basis for exclusion; the harm

must come not from prejudice, but from ‘unfair’ prejudice.” State v. Wright, 1999

S.D. 50, ¶ 16, 593 N.W.2d 792, 799. “To cause unfair prejudice, the evidence must

persuade the jury in an unfair and illegitimate way.” St. John v. Peterson, 2011

S.D. 58, ¶ 16, 804 N.W.2d 71, 76. While presenting Carter’s video recordings and

search history to the jury may have been detrimental to his case, such harm does

not meet the standard for unfair prejudice. As discussed previously, this evidence is

highly probative of Carter’s motive and intent to perform cunnilingus on E.W.

[¶39.] In other cases, such as Snodgrass, we have previously held that web

searches, histories, and still images related to child pornography, while prejudicial,

can be admissible when such evidence is closely related to the charged sexual

misconduct and thus probative of criminal motive and intent. See Snodgrass, 2020

S.D. 66, ¶¶ 31–34, 951 N.W.2d at 803. We acknowledge that videos of child

pornography may be particularly sensitive and inflammatory, especially in cases

where they are presented as other acts evidence rather than as an element of the

10. The court properly gave a limiting instruction to the jury in this regard:
“Before determining whether to consider this evidence, you must first
determine if a preponderance of the evidence established that the defendant
committed the other act. You are not required to consider this evidence and
whether you do is a matter within your exclusive province.”

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charged offense. In such cases, courts must carefully consider whether the

probative value of such evidence is substantially outweighed by the danger of unfair

prejudice. However, given the strong probative value of the videos in this case, we

cannot say the court abused its discretion in permitting their limited admission.

[¶40.] Carter’s videos are not just similar in kind to the alleged assault on

E.W., they are highly relevant to whether Carter intended to, and in fact did,

penetrate E.W. as required for first-degree rape. See SDCL 22-22-1(1). Indeed, one

of the video file names includes “5 Y full penetration,” which, as explained at trial

by Agent Russell, likely refers to sexual penetration of a five-year-old child.

Additionally, Carter’s internet searches occurred in December 2020, both shortly

before and after E.W. disclosed the assault and began to experience symptoms of

gonorrhea. The probative value of such evidence here is readily apparent given “its

proximity to the period of alleged abuse.” Snodgrass, 2020 S.D. 66, ¶ 32, 951

N.W.2d at 803. Although it is unclear when Carter may have viewed the videos—

Agent Russell testified that the associated timestamps most likely pertained to the

times when they were placed on the hard drive—Carter’s possession of the hard

drive around the same time as the abuse of E.W. is another temporally significant

marker.

[¶41.] Viewed in totality, the videos provide compelling evidence of Carter’s

plan, motive, and intent to orally penetrate E.W. The jury was entitled to consider

the videos, especially when an alleged lack of proof of penetration was a central part

of Carter’s defense. Additionally, the circuit court mitigated the risk of unfair

prejudice by limiting the State to showing only ten-second clips or still photos of the

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videos and by culling search terms related to the impregnation of minors. The court

also provided the jury with the following limiting instruction:

Evidence has been introduced that the defendant committed an
act other than that which is now charged. Although evidence of
this nature is allowed, it may be used only to show motive or
intent. You may not consider it as tending to show in any other
respect the defendant’s guilt of the offense with which the
defendant is charged.

[¶42.] We conclude that the circuit court did not err or abuse its discretion by

permitting the jury to consider Carter’s internet search history, his child

pornography videos, and the file names of the videos as explained at trial by Agent

Russell.

2. Whether the circuit court abused its discretion when
it refused to allow Carter’s expert the opportunity to
testify as to the reliability of the NAAT testing.

[¶43.] On October 15, 2021, Carter filed a motion in limine, seeking to

exclude evidence of the positive gonorrhea tests performed on E.W. In support of

this motion, Carter’s expert, Dr. Dimitrievich, submitted a memo proposing that, for

legal investigations, a positive NAAT result should be confirmed by alternate

testing. The circuit court treated this as a Daubert motion challenging the

admissibility of the NAAT testing and held an evidentiary hearing where the

State’s experts and Dr. Dimitrievich testified as to the reliability of NAAT testing.

The court determined that E.W.’s NAAT results were relevant, reliable, and

ultimately admissible under Daubert. On appeal, it is not clear whether Carter is

directly contesting this finding. His issue statement asks us to hold that the “Trial

Court erred when it refused to allow Matthew’s expert the opportunity to testify as

to the reliability of the NAAT testing[.]” However, he also argues that “allowing the

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jury to hear[] any testimony regarding [the singular NAAT performed on Carter]

was clear error by the Trial Court.” We address both issues in turn.

i. The Testimony of Dr. Dimitrievich

[¶44.] According to Carter, “the Trial Court refused to allow Matthew’s expert

to testify as to the validity of testing to ensure the accuracy of the testing.”

However, Carter does not point to any finding or ruling in the record where the

circuit court prohibited Dr. Dimitrievich from testifying at the trial or otherwise.

As discussed below, although Carter’s challenge to the admissibility of the NAAT

results at the Daubert hearing was unsuccessful, he was free to proffer Dr.

Dimitrievich as a rebuttal expert witness at trial, so long as her proffered testimony

could survive a potential Daubert challenge by the State if it chose to make one. It

is not apparent that any such attempt occurred, and we are unwilling to speculate

in the face of an undeveloped record on this point.

[¶45.] We nonetheless make the following limited observations. “Trial courts

enjoy broad discretion in ruling on the admissibility of expert opinions.” Garland v.

Rossknecht, 2001 S.D. 42, ¶ 9, 624 N.W.2d 700, 702. Such determinations will not

be reversed “absent a clear abuse of discretion.” Id. It is the responsibility of the

appellant to demonstrate that an abuse of discretion has occurred. At the very

least, we can say that Carter has not made such a showing on this record.

[¶46.] In cases where we have found that a court abused its discretion in

rejecting a defense expert’s testimony, there has been a proffer of testimony to rebut

the State’s theory. See State v. Huber, 2010 S.D. 63, 789 N.W.2d 283. There is no

such proffer here. Dr. Dimitrievich’s involvement appears to have been limited

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solely to the memorandum submitted in support of Carter’s motion to exclude the

evidence of E.W.’s gonorrhea tests and her corresponding testimony offered at the

Daubert hearing. Nowhere in the record is there any indication that Carter wished

to present testimony from Dr. Dimitrievich at trial in order to undermine a State

theory or argument. Rather, Carter’s strategy regarding Dr. Dimitrievich seems

limited to relying on her expert testimony to support his Daubert motion to preclude

the NAAT results from being admitted at trial. Once that attempt failed, there are

no indications of any effort to present her testimony at trial for the jury to consider

in weighing the credibility of the State expert witnesses and NAAT results.

[¶47.] Even if we assume (1) that the circuit court did refuse a request by

Carter to present Dr. Dimitrievich as an expert witness at trial; and (2) that this

refusal was an abuse of discretion, we are still unpersuaded that this hypothetical

error would have resulted in prejudice. Dr. Dimitrievich’s testimony centered on

the disclaimer found on the NAAT results: “This report is intended for use in

clinical monitoring and management of patients. It is not intended for use in

medical-legal applications.” She proposed that a positive NAAT be verified by

further testing using a different method on the same sample. However, as noted by

the State’s experts, this need for additional testing is clarified in the CDC

guidelines: “When a specimen tests positive, the result should be confirmed either

by retesting the original specimen or obtaining another.” (Emphasis added.)

[¶48.] E.W. gave two urine samples that were examined using different tests

that target separate genetic material. Both methods came back positive for

gonorrhea. E.W.’s vaginal, rectal, and oral swabs also tested positive. Moreover,

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E.W. was experiencing substantial yellow vaginal discharge. By Dr. Dimitrievich’s

own admission, such confirmation, in general, adds to the reliability of the initial

positive test. The NAAT results were also not the only corroborating evidence that

Carter had orally penetrated E.W. We are thus unable to conclude that there is a

reasonable probability that if the jury had heard Dr. Dimitrievich’s reservations

regarding testing protocols it would have reached a different result. See Loeschke,

2022 S.D. 56, ¶ 48, 980 N.W.2d at 281.

ii. Carter’s NAAT Result

[¶49.] Carter next claims that “[t]he Trial Court denied Matthew’s request to

exclude the results of the NAAT test taken from Matthew on December 31, 2021.”

However, Carter’s Daubert motion on October 15, 2021, sought only to “determine

whether the medical testing that was conducted by the State in this matter for E.W.

[ ] the alleged victim, is reliable.” The ensuing Daubert hearing focused exclusively

on the testing performed on E.W. Indeed, the testimony prominently referenced the

lack of data on NAAT testing on prepubertal children as opposed to adults. After

careful review of the record, we are unable to locate a motion seeking to exclude

Carter’s throat swab, which tested positive for gonorrhea, or his urine sample.

Further, Carter did not object at trial to the admission of the test results and only

conducted a cursory cross-examination of the State’s witness on this issue. The

circuit court was thus given no opportunity to address any arguments Carter might

have made as to the exclusion of the evidence. By failing to timely object to the

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admission of these test results, Carter forfeited this issue for review on appeal. See

State v. Bryant, 2020 S.D. 49, ¶ 18, 948 N.W.2d 333, 338. 11

[¶50.] “When an issue is not preserved for appeal, this Court is limited to

review for plain error.” State v. Robertson, 2023 S.D. 19, ¶ 18, 990 N.W.2d 96, 101.

“To demonstrate plain error, [the appellant] must establish that there was: ‘(1)

error, (2) that is plain, (3) affecting substantial rights; and only then may we

exercise our discretion to notice the error if (4) it seriously affect[s] the fairness,

integrity, or public reputation of the judicial proceedings.’” Id. (alterations in

original) (quoting State v. Guziak, 2021 S.D. 68, ¶ 10, 968 N.W.2d 196, 200).

[¶51.] On appeal, Carter argues that “allowing the jury to hear[] any

testimony” regarding his positive throat swab was erroneous. Carter references the

disclaimer on E.W.’s results—“this report is not intended for use in medical-legal

applications”—and repeats arguments concerning the supposed need for an

additional test on the same specimen. But no such disclaimer is present on Carter’s

results. As explained at the Daubert hearing regarding E.W.’s results, the

objections to NAAT largely revolved around the lack of data for prepubertal testing,

which is categorically inapplicable to Carter.

[¶52.] We are unable to discern any error in this situation. Prior to his

assault of E.W., Carter admitted in a text exchange that he was buying supplies to

“cure the clap.” While incarcerated, he also sought treatment for gonorrhea. In the

11. We note that the Supreme Court has differentiated between waiver and
forfeiture: “Whereas forfeiture is the failure to make the timely assertion of a
right, waiver is the intentional relinquishment or abandonment of a known
right.” United States v. Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 1777, 123
L. Ed. 2d 508 (1993) (internal quotations omitted).

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face of such confirming evidence of reliability, we conclude that the circuit court did

not err by admitting evidence of Carter’s positive throat swab.

iii. E.W.’s NAAT Results

[¶53.] Finally, Carter challenges the admission of E.W.’s test results. Based

on our review of the record, we find no abuse of discretion. At the Daubert hearing,

Carter’s own witness admitted that symptoms consistent with the test result would,

in the case of most infections, increase the presumed reliability of any positive test.

The court was also provided with guidelines from the CDC stating that positive

NAAT results from children could be confirmed through obtaining and testing

another sample. The State’s experts testified that these guidelines were followed

here since the two urine samples from E.W. were evaluated separately with tests

that targeted different genetic material. 12

[¶54.] NAAT testing in cases of child sexual abuse has been accepted as

sufficiently relevant and reliable in other states. Over a decade ago, the Supreme

Court of Kentucky determined that a single NAAT result positive for chlamydia,

performed on a pubertal female under the age of twelve, was properly admitted

under Daubert. See Smith v. Kentucky, No. 2008-SC-000786-MR, 2010 WL 1005907

(Ky. Mar. 10, 2010). Even though NAAT had not yet been approved by the FDA for

use on females under twelve, the court noted that this was a function of the limited

data “due typically to a lack of sexual activity in children that young.” Id. at *4.

12. Dr. Roth also noted that it would be unusual for the same urine sample to be
tested twice since the two tests here used different collection devices.

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[¶55.] Here, we accord the circuit court “considerable leeway in deciding . . .

how to go about determining whether particular expert testimony is reliable.”

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S. Ct. 1167, 143 L. Ed.

2d 238 (1999). “We review a circuit court’s decision to admit or deny an expert’s

testimony under the abuse of discretion standard.” Burley v. Kytec Innovative

Sports Equip., Inc., 2007 S.D. 82, ¶ 12, 737 N.W.2d 397, 402. Carter fails to meet

that standard in this case.

[¶56.] The initial positive urine sample from E.W. was confirmed by another

positive result on a different sample using a different test that targeted different

genetic material. Swabs of her throat, vagina, and anus also all tested positive. As

stated previously, the CDC guidelines suggesting confirmation through the testing

of a new sample were followed here. Additionally, E.W. exhibited other physical

symptoms of the underlying disease, such as a vaginal discharge. The circuit court

was well within its discretion to admit the evidence that E.W. was infected with

gonorrhea.

3. Whether the circuit court’s decision to admit E.W.’s
unsworn statements into evidence was an abuse of
discretion and violated Carter’s right of
confrontation.

[¶57.] Carter next argues that the circuit court violated his constitutional

right of confrontation by allowing Nycole and Jennifer to testify as to the hearsay

statements of E.W. In his view, once the statements were introduced at trial, he

was entitled to cross-examine E.W. Initially, the court had determined that E.W.

was available to testify, subject to a competency hearing. After the hearing,

however, the court found that E.W. did not remember the subject matter of the case

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and was thus unavailable to testify. Determining that E.W.’s statements were

admissible under the rules of evidence, the court permitted both Nycole and

Jennifer to recount E.W.’s separate disclosures that Carter had “licked” her “lady

parts.”

[¶58.] Before addressing Carter’s Confrontation Clause arguments, we must

first consider whether E.W.’s hearsay statements were properly admitted under the

rules of evidence. Pursuant to SDCL 19-19-806.1, statements of a child under the

age of thirteen describing incident(s) of sexual abuse are admissible if (1) supported

by “sufficient indicia of reliability”; and (2) the child either “[t]estifies at the

proceedings” or is “unavailable as a witness.” “However, if the child is unavailable

as a witness, such statement may be admitted only if there is corroborative evidence

of the act.” SDCL 19-19-806.1. As required by this statute, the circuit court held

evidentiary hearings to examine the reliability of E.W.’s statements, at which

several individuals, including Jennifer and Nycole, testified. After hearing the

testimony, the circuit court found that “[t]he time, content, and circumstances” of

E.W.’s statements to Jennifer and Nycole regarding the assault by Carter

“provide[d] sufficient indicia of reliability to be admissible.”

[¶59.] “A circuit court’s evidentiary rulings are reviewed for an abuse of

discretion, including its decision to allow a witness to testify about certain hearsay

statements.” State v. Toohey, 2012 S.D. 51, ¶ 11, 816 N.W.2d 120, 127. The circuit

court did not abuse its discretion by finding E.W.’s statements to be reliable. E.W.

made similar disclosures separately to both Jennifer and Nycole during a short time

period. As to the first disclosure, Nycole, despite E.W.’s purported retraction,

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separated E.W. from Carter and then followed up with counseling for her. At the

time of the second disclosure, Jennifer was unaware of the first disclosure made to

Nycole and did not prompt or suggest the allegation to E.W. We agree with the

circuit court that the cell phone video of this exchange “shows E.W. making what

appear to be unrehearsed and non-coerced actions and statements.”

[¶60.] Despite these indicia of reliability, E.W. was required to either testify

at trial or be declared unavailable in order for her statements to be admissible

under Rule 806.1. “A declarant is considered to be unavailable as a witness if the

declarant . . . [t]estifies to not remembering the subject matter[.]” SDCL 19-19-

804(a)(3). In Toohey, we explained in a footnote that, while “memory loss may not

render a witness ‘unavailable’ in the constitutional sense,” it can for purposes of

Rule 804(a). 2012 S.D. 51, ¶ 16 n.2, 816 N.W.2d at 128 n.2. Rule 804(a) provides an

exception to the general bar against hearsay evidence. If a declarant is unavailable,

perhaps because of death or physical illness, then certain hearsay statements

become admissible. Rule 804(a)(3) clearly states that a declarant is unavailable if

they testify to not remembering the subject matter of the case.

[¶61.] At the competency hearing, E.W. stated that she did not remember

telling Jennifer or Nycole about something that Carter had done to her. When

asked, “Do you remember anything else happening . . . with Matt that you didn’t

like?,” E.W. responded, “Just when he yelled at me.” The circuit court then

determined that E.W. was unavailable because she had testified to not

remembering the subject matter of the case. We conclude that this ruling was not

an abuse of discretion. E.W. was asked multiple questions regarding her

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disclosures to Jennifer and Nycole concerning Carter. She repeatedly testified that

she could not remember. We also understand her statement, “[j]ust when he yelled

at me,” to be an indication that she does not remember any other significant

instances where Carter did something she “didn’t like.” The subject matter of this

case turns on both E.W.’s disclosures as well as Carter’s alleged sexual assault.

Since E.W. could not remember either, the court properly held that she was

unavailable pursuant to Rule 804(a)(3).

[¶62.] When a child witness is unavailable to testify and the child’s out-of-

court statements are offered under Rule 806.1 to describe an act of sexual contact or

rape, the statements may only be admitted if there is corroborative evidence of the

acts described. The circuit court properly held that such evidence existed. The

positive gonorrhea tests and reported symptoms experienced by E.W., Carter’s

admission that he had gonorrhea, Carter’s positive test, and Carter’s search terms

and pornographic videos all served to substantiate E.W.’s allegations. Additionally,

Nycole confirmed that E.W. was sometimes left alone with Carter. During his

interview with Detective Erickson, Carter also admitted to watching Scooby-Doo

alone with E.W. and volunteered, without specific prompting, that E.W. had asked

him right before Christmas 2020 whether he was going to “lick” her “girl parts.”

Thus, the circuit court did not abuse its discretion in finding E.W.’s hearsay

statements to Jennifer and Nycole admissible under Rule 806.1.

[¶63.] We turn next to Carter’s Confrontation Clause concerns. The Sixth

Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against him.” U.S. Const. amend.

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VI. According to the Supreme Court, “a statement cannot fall within the

Confrontation Clause unless its primary purpose was testimonial.” Ohio v. Clark,

576 U.S. 237, 245, 135 S. Ct. 2173, 2180, 192 L. Ed. 2d 306 (2015). “In the end, the

question is whether, in light of all the circumstances, viewed objectively, the

‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for

trial testimony.’” Id. (alterations in original) (quoting Michigan v. Bryant, 562 U.S.

344, 358, 131 S. Ct. 1143, 1155, 179 L. Ed. 2d 93 (2011)). “Where no such primary

purpose exists, the admissibility of a statement is the concern of state and federal

rules of evidence, not the Confrontation Clause.” Id.

[¶64.] E.W.’s statements to Jennifer and Nycole were quintessentially

nontestimonial. E.W. made these disclosures of her own volition in informal

settings, including while washing her doll. Both Jennifer and Nycole testified that

they did not prompt or suggest the allegations to E.W. It would be illogical to

assume that E.W., then five years old, uttered these statements with an eye toward

having adults use them in a criminal proceeding against Carter. In addition, at the

time of the disclosures, law enforcement was not yet involved.

[¶65.] As to Jennifer’s recording of E.W. washing her doll, Carter argues that

Jennifer must have been contemplating some sort of legal action against Carter

when she began videoing, transforming E.W.’s recorded statements into testimonial

hearsay. Jennifer testified at trial that E.W.’s initial statement “really shocked

her.” At a pretrial evidentiary hearing, Jennifer also acknowledged that she made

the recording in an attempt to preserve E.W.’s contemporaneously given statements

for Child Protection Services and law enforcement. However, the Supreme Court

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has indicated that we should consider whether the surrounding “circumstances . . .

would lead an objective witness reasonably to believe that the statement would be

available for use at a later trial.” State v. Richmond, 2019 S.D. 62, ¶ 28, 935

N.W.2d 792, 800 (emphasis added) (quoting Crawford v. Washington, 541 U.S. 36,

52, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177 (2004)). Thus, we must view the

situation through the eyes of E.W., the declarant.

[¶66.] We are unable to conclude that, from E.W.’s perspective, the recording

created a testimonial atmosphere. The surrounding informal circumstances and

impromptu nature of E.W.’s disclosure strongly support a nontestimonial finding.

We are also unpersuaded that Jennifer’s subjective private motivations would have

affected E.W.’s perception of the situation. However, even if the video itself was

testimonial, we can “confidently say, on the whole record, that the constitutional

error was harmless beyond a doubt.” Taylor, 2020 S.D. 48, ¶ 49, 948 N.W.2d at 356

(citation omitted). The video merely recaps the substance of E.W.’s previous

independent nontestimonial disclosures to Nycole and Jennifer. Furthermore, as

discussed previously, there is substantial corroborating evidence—including

multiple positive gonorrhea tests—that E.W. was indeed sexually abused by Carter.

[¶67.] In conclusion, E.W.’s disclosures do not prompt Confrontation Clause

concerns sufficient to require a new trial and are thus admissible under SDCL 19-

19-806.1.

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4. Whether the circuit court erred by denying Carter’s
motion for judgment of acquittal on the grounds of
insufficient evidence.

[¶68.] Carter insists that the circuit court “had an absolute obligation” to

grant his motion for acquittal. He claims that “the State did not produce one [ ]

scintilla of evidence that would serve to establish beyond a reasonable doubt that

Matthew had performed an act of penetration [on] the person of E.W.”

[¶69.] “We review the denial of a motion for acquittal de novo.” State v.

Quist, 2018 S.D. 30, ¶ 13, 910 N.W.2d 900, 904. “Our task is to determine ‘whether

the evidence was sufficient to sustain the conviction.’” State v. Guthmiller, 2014

S.D. 7, ¶ 21, 843 N.W.2d 364, 371 (quoting State v. Dowty, 2013 S.D. 72, ¶ 15, 838

N.W.2d 820, 825). The central question is “whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Id.

[¶70.] Penetration is a necessary element of rape in the first degree under

SDCL 22-22-1(1). Sexual penetration is defined as “any intrusion, however slight,

of any part of the body or of any object into the genital or anal openings of another

person’s body.” SDCL 22-22-2. “We have interpreted this definition to mean that

evidence of vulvar or labial penetration, however slight, is sufficient to prove

penetration of the female genital opening.” Toohey, 2012 S.D. 51, ¶ 22, 816 N.W.2d

at 129. “Penetration can be inferred from circumstantial evidence and need not be

proved by medical evidence.” Id. (citing Spurlock v. State, 675 N.E.2d 312, 315 (Ind.

1996)).

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[¶71.] Here, there is ample evidence for a rational trier of fact to have found

beyond a reasonable doubt that Carter orally penetrated E.W. E.W.’s statements to

multiple individuals that Carter “licked my lady parts” is an age-appropriate way to

describe the act of cunnilingus, which involves oral stimulation of interior vaginal

structures. Carter’s internet searches and pornographic videos also reveal his

interest in sexually penetrating a five-year-old. Finally, the State presented expert

testimony that it would have been virtually impossible for E.W. to contract

gonorrhea absent penetration. 13 Because the totality of the evidence is more than

sufficient to sustain Carter’s conviction, we affirm the circuit court’s denial of his

motion for judgment of acquittal.

5. Whether Carter’s trial counsel was so ineffective
that Carter was denied his due process right to
counsel.

[¶72.] Carter makes a final argument that his attorney at the trial stage

should have moved to suppress the hard drive because it was removed from his

residence prior to a search warrant being issued. He claims that “[a] review of the

record does not reflect that trial counsel made even reasonable efforts to suppress

evidence, investigate the allegations or require the State to prove up its case.”

According to Carter, this failure deprived him of his due process right to effective

counsel.

13. The State’s experts testified that transferring gonorrhea without penetration
would require a hand “dripping” with infected bodily discharge to come into
contact with an open wound on E.W. Although gonorrhea can be spread via
kissing, this similarly would require some exchange of bodily fluids, and
would take a certain period of time to spread from the mouth to the rest of
the body.

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[¶73.] “Ineffective-assistance-of-counsel claims are generally not considered

on direct appeal. Rather, such claims are best made by filing a petition for a writ of

habeas corpus which, if granted, will result in an evidentiary hearing.” State v.

Vortherms, 2020 S.D. 67, ¶ 30, 952 N.W.2d 113, 120 (quoting State v. Hauge, 2019

S.D. 45, ¶ 18, 932 N.W.2d 165, 171). “This is because the record on direct appeal

typically does not afford a basis to review the performance of trial counsel.” Id.

Therefore, we have stated that “[a]bsent exceptional circumstances, we will not

address an ineffective assistance claim on direct appeal. We depart from this

principle only when trial counsel was so ineffective and counsel’s representation so

casual as to represent a manifest usurpation of the defendant’s constitutional

rights.” Id. ¶ 30, 952 N.W.2d at 120–21 (quoting State v. Golliher-Weyer, 2016 S.D.

10, ¶ 8, 875 N.W.2d 28, 31).

[¶74.] At the time of his arrest and the search of his residence by law

enforcement, Carter was on parole for driving under the influence. Detective

Erickson testified that the search was approved by Carter’s parole officer. A search

warrant was also obtained prior to forensic analysis of the seized electronic devices.

Although Carter has not refuted the State’s claim that the search of his residence

was authorized under the terms of his parole agreement, he argues the State should

have obtained a search warrant to enter his apartment and seize the hard drive.

However, trial counsel’s reasons for not challenging the search of Carter’s

apartment and seizure of evidence are unknown. At this stage, we are unable to

conclude that a “manifest usurpation” of Carter’s constitutional rights has occurred.

The record requires further development in order to permit a merits review.

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Accordingly, we decline to address his ineffective assistance of counsel claims

herein.

Conclusion

[¶75.] We conclude that the circuit court did not abuse its discretion in

allowing the State to publish to the jury brief clips of the three child pornography

videos on Carter’s hard drive. The court did not abuse its discretion or commit

reversible error in its rulings on the NAAT testing and related expert testimony.

Further, the admission of E.W.’s hearsay statements to Nycole and Jennifer,

including the related video recording, was not an abuse of discretion and did not

violate the Confrontation Clause. Moreover, based on our review of the record in

the light most favorable to the prosecution, there was sufficient evidence to sustain

the jury’s conclusion that the elements of rape in the first degree were established

beyond a reasonable doubt and the circuit court did not err in denying Carter’s

motion for a judgment of acquittal. Finally, the undeveloped record as to trial

counsel’s strategy renders Carter’s ineffective assistance claim not ripe for

adjudication on direct appeal.

[¶76.] Affirmed.

[¶77.] JENSEN, Chief Justice, and SALTER, DEVANEY, and MYREN,

Justices, concur.

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