State v. Richmond

#28640-a-JMK
2019 S.D. 62

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

HERBERT LEE RICHMOND, Defendant and Appellant.

****

APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA

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THE HONORABLE MICHELLE K. COMER
Judge

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JASON R. RAVNSBORG
Attorney General

ANN C. MEYER
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.

ELLERY GREY of
Grey & Eisenbraun Law
Rapid City, South Dakota Attorneys for defendant
and appellant.

****

CONSIDERED ON BRIEFS
ON AUGUST 26, 2019
OPINION FILED 11/13/19
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KERN, Justice

[¶1.] Herbert Richmond appeals his conviction of first-degree rape of a child

under thirteen. Richmond alleges that his Sixth Amendment right to confront and

cross-examine the witnesses against him was violated by the circuit court’s order

admitting, as other acts evidence, statements from an unavailable witness. We

affirm.

Facts and Procedural History

[¶2.] Herbert Richmond, the defendant in this case and a resident of

Spearfish, South Dakota, was a longtime friend of A.M. (DOB 09/06/2004) and her

family. When A.M. was a young child, members of A.M.’s family would drop her off

at Richmond’s house for the day, but A.M. did not begin spending the night at

Richmond’s house until after she turned five. Richmond often purchased food and

gifts for A.M., and A.M. called Richmond her “grandpa.” Richmond had more

financial resources than A.M.’s family. He had a pool and a trampoline in his

backyard.

[¶3.] In July 2014, law enforcement investigated an allegation that J.C.

(DOB 10/25/2002), a young female close to A.M.’s age, was sexually abused by

Richmond while spending time at his home. 1 J.C. was interviewed at the Children’s

Home Child Advocacy Center (Advocacy Center), a clinic in Rapid City that

conducts forensic interviews of children who are suspected victims of physical and

sexual abuse. During her forensic interview, J.C. accused Richmond of rape. She

told her interviewer, Hollie Strand, that the abuse began “a long time ago,” but that

1. A.M. is not related to J.C.

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she did not feel safe disclosing it right away because Richmond said he would kill

her parents if she told anyone. J.C. disclosed that the assaults first occurred when

she was five or six years old while her family was living with Richmond. Richmond

often gave J.C., her two sisters, and her mother gifts and did favors for them.

[¶4.] Because A.M. and her mother (Mother) were also frequently in

Richmond’s home, law enforcement officers scheduled an interview with A.M. for

early September 2014. Around the same time that A.M. went to Rapid City for her

forensic interview, Richmond gave A.M. an expensive bike, took her shopping, and

took her out to eat. During the interview at the Advocacy Center, A.M. did not

disclose any instances of sexual abuse. At some point after the interview, A.M.’s

mother allowed Richmond to read the report generated as a result of the interview.

[¶5.] Richmond was charged with several counts of first-degree rape for

alleged sexual abuse of J.C. Pursuant to a plea agreement, Richmond entered an

Alford plea to abuse or cruelty to a minor, a class 3 felony. 2 He was sentenced on

December 15, 2015, to serve five years in the penitentiary, the execution of which

was suspended on the condition that he successfully complete a term of probation.

[¶6.] In 2016, Mother lost the financial support of A.M.’s father because he

went to prison for a drug offense. Mother turned to Richmond for help, and he

agreed that A.M. and Mother could move in with him. While they resided with

2. An Alford plea is a plea that allows the defendant “to avoid the risk of trial
and obtain the benefit of a favorable plea bargain ‘even if he is unwilling or
unable to admit his participation in the acts constituting the crime.’” State v.
Engelmann, 541 N.W.2d 96, 101 (S.D. 1995) (quoting North Carolina v.
Alford, 400 U.S. 25, 38, 91 S. Ct. 160, 167, 27 L. Ed. 2d 162 (1970)).

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Richmond, he continued to buy A.M. toys and gifts. Mother was frequently gone

from the home, leaving A.M. alone in Richmond’s care.

[¶7.] On June 26, 2016, A.M. was home alone with Richmond when she

texted her biological grandmother (Grandma), 3 who lived in a neighboring town

that “Grandpa is a pervert,” and a “child molester.” A.M. confided in Grandma that

Richmond had sexually abused her. She expressed her fear of being home alone

with him and texted: “Please don’t tell my mom grandpa does not w[a]nt dead[sic]

in prison.” Because Grandma could not drive, she called Richmond and confronted

him over the phone. Richmond denied the allegations, but told Grandma he would

come get her and bring her to his house. On the way to get Grandma, Richmond

took A.M. shopping and bought her gifts.

[¶8.] Grandma did not immediately tell Mother that A.M. had accused

Richmond of sexual abuse because A.M. begged her not to, and also because of

Grandma’s concerns as to how Mother would react to such information. Instead,

she decided to pack a suitcase and stay temporarily at Richmond’s house with A.M.

to protect her. A few days later, at Grandma’s suggestion, A.M., Mother, and

Grandma went to visit family in North Dakota. While they were away, Richmond

called Grandma’s phone multiple times but Grandma did not answer. Mother, who

was confused by Grandma’s decision to ignore Richmond’s calls, looked through

Grandma’s phone and discovered A.M.’s June 26 text messages to Grandma and six

3. A.M.’s grandma is not related to Richmond.

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or seven more. 4 When Mother confronted her daughter about the messages, A.M.

refused to describe the abuse. However, after Mother threatened to take her to the

hospital, A.M. agreed to explain what happened by writing her accusation down on

a piece of paper. Mother then called Richmond to confront him. Grandmother

overheard Richmond tell Mother: “Let me get my affairs in order and then I will

shoot myself or kill myself and I will let you pull the trigger.”

[¶9.] On July 27, 2016, Mother took A.M. to Massa Berry Clinic in Sturgis,

South Dakota and reported the assault. Thereafter, law enforcement scheduled an

interview for A.M. at the Advocacy Center. Forensic interviewer Tifanie Petro

conducted the interview on August 16, 2016. A.M. told Petro that her “grandpa”

had “hurt [her] in many different ways” and described Richmond as a pervert. She

told Petro that Richmond sexually abused her for the first time when she was eight.

She explained that Richmond threatened to hurt her father unless she kept it a

secret. She further reported that it hurt when Richmond put his “thingy” inside her

“thingy.” When asked whether something came out of Richmond, A.M. described a

“sticky white” substance that got on her leg.

[¶10.] After A.M.’s interview, Tom Derby, a detective from the Lawrence

County Sheriff’s Office, requested that Mother make a recorded phone call to

Richmond. Mother agreed, and during the conversation, Mother attempted to elicit

incriminating statements from Richmond. In response, Richmond told Mother that

“[A.M.]’s the only one that can fix it as far as I’m concerned period.” When asked

4. A.M. deleted all but two of the messages before her mother could see them.

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how A.M. could fix it, Richmond responded: “It depends on what she says, that’s all.

It depends on what she says and if she’s willing to talk to them, or not talk to them

or if she says the same thing that she said the last time.” He said that there was

nothing he could do to fix it and expressed his concern that he’d be “winding—

winding up going to prison for life if she[,] you know[,] goes in there and says

something.”

[¶11.] Richmond requested that Mother provide him with the report from

A.M.’s interview at the Advocacy Center, but Mother told him she did not have

access to it. He also requested to talk to A.M. to see what she wanted to do.

Toward the end of the call, Richmond stated that if A.M. testifies before the grand

jury and “says what she said before . . . [t]he only thing I ever do is kiss her on top of

the head or whatever, then there’s nothing they can do to me period.”

[¶12.] On October 13, 2016, Dr. Cara Hamilton conducted a physical

examination of A.M. and discovered a notch in her hymen consistent with

penetration. Richmond was indicted on November 2, 2016, for two counts of first-

degree rape of a child under thirteen. The State also filed a part II information

alleging that Richmond was a habitual offender having previously been convicted of

child abuse or cruelty to a minor for conduct involving J.C.

[¶13.] On April 3, 2017, the State filed a notice of intent to offer other acts

evidence pursuant to SDCL 19-19-404(b) regarding Richmond’s alleged sexual

abuse of J.C. In its notice, the State requested admission of J.C.’s July 29, 2014

interview report from the Advocacy Center in which J.C. accused Richmond of

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sexual abuse under circumstances similar to those alleged by A.M. The State also

noticed its intent to call Hollie Strand to testify to the incidents reported by J.C.

[¶14.] On May 30, 2017, the court considered the State’s request, and the

State indicated its intent to offer the testimony through the forensic interviewer,

rather than calling J.C. to testify. The court indicated it would admit the other acts

evidence; however, it told the State that it would determine at trial the extent to

which the evidence would be allowed. 5

[¶15.] In November 2017, the State filed a superseding indictment charging

Richmond with two additional counts of first-degree rape of A.M. In December,

while preparing for trial, the State called J.C.’s mother and requested that she

present J.C. as a witness at trial. J.C.’s mother refused to reveal J.C.’s location or

otherwise cooperate with the prosecution.

[¶16.] A jury trial was held on March 6–9, 2018. A.M. testified first. She told

the jury that Richmond “would play with [her vagina] or he would put his thing

inside of [her].” When asked to describe Richmond’s “thing,” A.M. stated it was the

part of the male body located “between [the] upper thighs.” Sometimes, A.M.

testified, she felt “[s]omething wet and sticky” when Richmond finished with her.

When asked where she would feel the wet and sticky substance, A.M. stated,

“[N]ormally on my upper thighs.” On cross-examination, Richmond’s counsel

intimated that A.M.’s trial testimony was inconsistent with her statements during

5. Judge Randal Macy presided over these proceedings until his retirement in
June of 2017. Judge Comer was assigned the case thereafter.

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the forensic interview and suggested that A.M.’s father, rather than Richmond, had

raped her.

[¶17.] At the conclusion of the first day of trial, the court held a bench

conference outside the presence of the jury for purposes of readdressing its order

regarding J.C.’s forensic interview report. The State reminded the court of its

previous ruling and that it planned to determine the extent to which the other acts

evidence would be permitted based on the testimony elicited at trial. The State

argued that the breadth of Richmond’s cross examination of A.M., namely his

questions suggesting that A.M. fabricated the assaults, opened the door to the

admissibility of other acts evidence concerning J.C. The court reserved ruling until

the morning of the second day of trial.

[¶18.] The next morning, the State requested that the court admit the video

recording of J.C.’s interview at the Advocacy Center in its entirety. It argued

Richmond’s conviction for child abuse was relevant as other acts evidence because it

showed a common scheme, plan, identity, and intent. The State also requested that

the court declare J.C. unavailable to testify due to her mother’s continued refusal to

cooperate with the State’s request to produce J.C. as a witness. Defense counsel

objected, arguing a violation of Richmond’s right to cross-examine his accusers. He

also highlighted that the State dismissed the first-degree rape charges against

Richmond relating to J.C. Finally, he disagreed that J.C. was unavailable, arguing

that the State had sufficient time to locate her and failed to make good faith efforts

to do so.

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[¶19.] The court declared J.C. unavailable to testify and ruled in favor of the

State on its request to admit the other acts evidence. In support of its decision, the

court found Richmond’s previous abuse of J.C. was similar enough to the present

case to be admitted for the limited purpose of proving identity and common scheme

or plan. The court also held that J.C.’s statements were “not of a constitutional

magnitude” because J.C. was not the victim in the current action and “the evidence

[was] only being allowed for a limited purpose.”

[¶20.] The second day of the jury trial began with Grandma’s testimony.

During cross-examination, she incorrectly stated that Richmond’s charges

pertaining to J.C. in the 2015 prosecution had been dismissed, and that he was

instead charged with and pled to “terrorist threats” against law enforcement. This

was corrected later through other witnesses. The State called Strand, the forensic

interviewer who had met with J.C. in 2014. Although Strand confined much of her

testimony to interview techniques and her 2014 interview with A.M., Strand briefly

discussed the statements J.C. made to her in 2014, including J.C.’s allegation that

Richmond had “victimized” her.

[¶21.] At the start of the third day of trial, the State requested the

opportunity to make an additional record regarding the admission of J.C.’s

statements. The State withdrew its request to admit J.C.’s forensic interview video

and the transcript of the interview. However, the State claimed that Grandma’s

testimony left a false impression with the jury that the charges against Richmond

related to J.C. were dismissed entirely. To clarify the matter for the jury, the State

sought admission of Richmond’s 2015 conviction. Richmond did not object to the

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admission of his judgment of conviction, and ultimately did not object to the

evidence being admitted through the testimony of the prosecutor from Richmond’s

previous case involving J.C. Thereafter, the State called the prosecutor who had

negotiated Richmond’s plea agreement to lay the foundation for the judgment. She

further testified that the State agreed to reduce Richmond’s first-degree rape

charges in exchange for his Alford plea to a child abuse charge.

[¶22.] During the trial, the jury also considered testimony from Dr. Hamilton,

Petro (A.M.’s 2016 forensic interviewer), Mother, and Detective Derby. At the close

of the evidence, the circuit court gave the jury the final instructions of law, which

included a limiting instruction informing the jury how to properly consider other

acts evidence. The jury found Richmond not guilty of three counts of first-degree

rape but convicted him of the fourth count. The court sentenced Richmond to 30

years in the penitentiary. Richmond appeals, alleging the circuit court violated his

Sixth Amendment right to confront the witnesses against him. 6

Analysis and Decision

[¶23.] Richmond claims that the circuit court erred in permitting Strand to

testify regarding the statements J.C. made during her 2014 Advocacy Center

interview. 7 More specifically, Richmond challenges the following portions of the

testimony the State elicited at trial:

6. Richmond is represented by different counsel on appeal.

7. Richmond also challenges the admission of testimony from Petro, who
interviewed A.M. in 2016. When Petro was asked about the circumstances
surrounding A.M.’s interview in 2014, she explained that “[t]here was
another child that had disclosed abuse and there was concern because [A.M.]
(continued . . .)
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The State: [W]hen did you interview [J.C.]?
Strand: July 29, 2014.
The State: And did she reveal that she had been victimized?
Strand: Yes.
The State: And was this interview tape-recorded?
Strand: Yes.
The State: Who did she indicate had been abusing her?
Strand: Herbert Richmond, who she referred to as Rich.
The State: Did she indicate to you when that had first
occurred?
Strand: She said she believed she was about five or six
years old.

Because J.C. did not testify, Richmond claims he was deprived of his Sixth

Amendment right to confront and cross-examine the witnesses against him. See

Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

Richmond does not challenge the circuit court’s ruling on evidentiary grounds

beyond claiming his constitutional rights were violated. We review constitutional

challenges de novo. State v. Outka, 2014 S.D. 11, ¶ 7, 844 N.W.2d 598, 603.

[¶24.] The Sixth Amendment declares: “In all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against him.”

U.S. Const. amend. VI. In the pivotal United States Supreme Court decision
________________________
(. . . continued)
had . . . contact with [Richmond], and so they wanted to make sure that
nothing had happened.” Petro testified that the other child was J.C. Petro’s
testimony did not contain hearsay statements. Rather, it provided
background information illuminating the circumstances of A.M.’s prior
interview, a topic on which Richmond’s counsel had previously cross-
examined A.M. The Confrontation Clause “does not bar out-of-court
statements when the statement is not offered to prove the truth of the matter
asserted[.]” State v. Kihega, 2017 S.D. 58, ¶ 36, 902 N.W.2d 517, 528
(quoting United States v. James, 487 F.3d 518, 525 (7th Cir. 2007)).

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Crawford v. Washington, the Court instructed that the right to confrontation

delineated in the Sixth Amendment requires exclusion of out-of-court testimonial

statements unless: (1) the witness is declared unavailable to testify; and (2) the

defendant had a prior opportunity to cross-examine the witness. 541 U.S. at 68–69,

124 S. Ct. at 1374.

A. Nature of J.C.’s statements

[¶25.] The lynchpin of a Confrontation Clause analysis under Crawford is the

difference between testimonial and nontestimonial statements. This is because the

Confrontation Clause applies only to testimonial hearsay. Id. If the statements are

deemed testimonial hearsay, the right to confrontation attaches regardless of

whether the challenged evidence satisfies other evidentiary requirements, such as a

hearsay exception or the prerequisites for admitting other acts evidence under

SDCL 19-19-404(b). See Crawford, 541 U.S. at 54–57, 124 S. Ct. 1365–67 (holding

the existence of a hearsay exception has no effect on the Confrontation Clause); see

also, e.g., Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (applying Crawford to

404(b) evidence). 8

[¶26.] J.C.’s statements, although admitted to prove identity or common

scheme or plan, constitute hearsay. “Hearsay means a statement that: (1) [t]he

declarant does not make while testifying at the current trial or hearing; and (2) [a]

8. Several jurisdictions have applied Crawford to evidence involving uncharged
crimes offered under 404(b). People v. Bunyard, 200 P.3d 879, 888–90 (Cal.
2009), cert. denied, 130 S. Ct. 553 (2009); Bell v. State, 597 S.E.2d 350, 353
(Ga. 2004); Moody v. State, 594 S.E.2d 350, 354 (Ga. 2004). See also State v.
Lawson, 1 So.3d 516, 526–27 (La. Ct. App. 2008) (indicating that Crawford
applies to 404(b) evidence, but ultimately finding the statements in question
non-testimonial); accord State v. Barnes, 854 A.2d 208 (Me. 2004).

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party offers in evidence to prove the truth of the matter asserted in the statement.”

SDCL 19-19-801. Here, J.C.’s declarations were made out of court and presented to

the jury for their truth, namely, that Richmond had sexually abused her.

[¶27.] As for the testimonial or nontestimonial nature of her statements, the

United States Supreme Court has not yet provided a comprehensive list of

situations that render a hearsay statement testimonial. Instead, it loosely defined

testimonial as “[a] solemn declaration or affirmation made for the purpose of

establishing or proving some fact.” Crawford, 541 U.S. at 49, 124 S. Ct. at 1363.

The Court explained that, at a minimum, testimonial statements include police

interrogations and “prior testimony at a preliminary hearing, before a grand jury, or

at a former trial[.]” Id. at 68, 124 S. Ct. at 1374.

[¶28.] For all other statements, the Court outlined three categories that

would render a statement testimonial. The first class, according to the Court, is “ex

parte in-court testimony or its functional equivalent, . . . or similar pretrial

statements that declarants would reasonably expect to be used prosecutorially.” Id.

at 51–52, 124 S. Ct. at 1364. The next group consists of statements “contained in

formalized testimonial materials, such as affidavits, depositions, prior testimony, or

confessions.” Id. at 52, 124 S. Ct. at 1364. As to the final class, statements are

testimonial if they are “made under circumstances which would lead an objective

witness reasonably to believe that the statement would be available for use at a

later trial.” Id. In outlining these classifications, the Supreme Court identified

certain types of hearsay evidence that are categorically non-testimonial. These

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include business records and statements in furtherance of a conspiracy. 9 Id. at 56,

124 S. Ct. at 1367.

[¶29.] Depending on the circumstances, disclosures made during forensic

interviews, such as J.C.’s statements to Strand at the Advocacy Center, may be

testimonial. See United States v. Eagle, 515 F.3d 794, 802 (8th Cir. 2008) (declaring

forensic interviews testimonial without discussion); United States v. Bordeaux, 400

F.3d 548, 555–56 (8th Cir. 2005). See generally State v. McKinney, 2005 S.D. 73,

699 N.W.2d 471. This is because one purpose of this type of forensic interview is to

gather evidence of suspected physical or sexual abuse. The testimonial character of

such statements is particularly salient when the child makes disclosures for

purposes of memorializing evidence for law enforcement.

[¶30.] When J.C. disclosed the abuse at the Advocacy Center, “an objective

witness [would have] reasonably . . . believe[d] that the statements would be

available for use at a later trial.” See Crawford, 541 U.S. at 52, 124 S. Ct. at 1364.

After J.C. spoke with Strand, copies of the recorded interview and Strand’s written

report were distributed to law enforcement. The prosecution then used this

evidence to build a case against Richmond in the 2015 prosecution. Accordingly, the

statements J.C. made to Strand during the interview were testimonial and of a

constitutional magnitude. We must then determine whether their admission

constitutes a violation of the Confrontation Clause. A violation occurs when the

9. Although Richmond does not challenge the admission of his 2015 judgment of
conviction, we note that public records, such as a judgment of conviction, are
analogous to business records. Other courts have concluded the same. See,
e.g., State v. King, 146 P.3d 1274, 1279–80 (Ariz. Ct. App. 2006); Com. v.
Crapps, 835 N.E.2d 275, 276 (Mass. App. Ct. 2005).

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witness making the testimonial statements is both unavailable and has not

previously been subject to cross-examination. See id. at 59, 124 S. Ct. at 1369.

B. Prior opportunity to cross-examine

[¶31.] A defendant’s constitutional right to cross-examine witnesses is

“generally satisfied when the defense is given a full and fair opportunity to probe

and expose a witness’ infirmities through cross examination, thereby calling to the

attention of the factfinder the reasons for giving scant weight to the witnesses’

testimony.” State v. Carothers, 2006 S.D. 100, ¶ 16, 724 N.W.2d 610, 618. It is

undisputed that Richmond never had occasion to cross-examine J.C. The State,

however, asserts that the requirements of the Confrontation Clause were satisfied

because Richmond cross-examined Strand, the witness repeating J.C.’s out-of-court

testimonial statements. The State points to State v. Kihega to support this position.

2017 S.D. 58, ¶ 36, 902 N.W.2d 517, 528.

[¶32.] We are unpersuaded by the State’s reliance on Kihega. In that case,

the witness testifying did not repeat the declarant’s out-of-court statements. Id. ¶

35, 902 N.W.2d at 528. Instead, he merely referenced, without including details, a

previous conversation he had with an unavailable witness in order to correct an

inaccurate inference made by defense counsel. Id. We classified the witness’s

statement as non-hearsay and held that the Confrontation Clause “does not bar out-

of-court statements when the statement is not offered to prove the truth of the

matter asserted[.]” Id. ¶ 36, 902 N.W.2d at 528. Indeed, the rule that the Sixth

Amendment does not impact the admission of non-hearsay is now well-settled.

Williams v. Illinois, 567 U.S. 50, 57, 132 S. Ct. 2221, 2228, 183 L. Ed. 2d 89 (2012).

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Because the statements in Kihega were not hearsay, the Confrontation Clause

analysis was entirely inapplicable. Id.

[¶33.] The contents of J.C.’s testimonial statements at the Advocacy Center,

though instrumental in resolving Richmond’s case against J.C., were never subject

to cross-examination by Richmond. When Richmond accepted the State’s offer and

pled to child abuse in 2015, he waived his right to a jury trial and, with it, his right

to confront and cross-examine J.C. with respect to that charge. See, e.g., United

States v. Hill, No. 07-15060, 2008 WL 2529574 at *1 (11th Cir. 2008) (noting that

Confrontation Clause challenges are waived when a defendant pleads guilty).

[¶34.] In the present case, however, Richmond did not waive his right to

confront J.C. with respect to her allegations that he abused her. Nor does the

circuit court’s decision to admit the evidence to prove identity, an element of the

offense in this case, as well as common scheme or plan, mean that Richmond’s

constitutional right to confront his accuser disappeared. When the circuit court

decided to admit the statements of J.C., it violated Richmond’s Sixth Amendment

right of confrontation. Having determined that the State failed to meet this prong

for admissibility under Crawford we need not address Richmond’s remaining

argument that the circuit court erred by finding J.C. unavailable.

C. Harmless Error

[¶35.] When a defendant has shown his constitutional right to confrontation

has been violated, he is entitled to a new trial unless the improperly admitted

evidence constitutes harmless error. We will deem an error harmless if we “may

confidently say, on the whole record, that the constitutional error was harmless

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beyond a reasonable doubt.” State v. Podzimek, 2019 S.D. 43, ¶ 15, 932 N.W.2d 141,

146.

[¶36.] Whether the error was harmless “depends upon a host of factors, all

readily accessible to reviewing courts.” Delaware v. Van Arsdall, 475 U.S. 673, 684

106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674 (1986). “These factors include the

importance of the witness’[s] testimony in the prosecution’s case, whether the

testimony was cumulative, the presence or absence of evidence corroborating or

contradicting the testimony . . . [,]the extent of cross-examination otherwise

permitted, and . . . the overall strength of the prosecution’s case.” Id.; see also

Kihega, 2017 S.D. 58, ¶ 33, 902 N.W.2d at 527 (discussing the appropriate standard

for harmless error).

[¶37.] Based on our review of the records in this case, we conclude that the

effect of the circuit court’s error in admitting J.C.’s statements at trial was harmless

beyond a reasonable doubt. Strand’s testimony concerning J.C.’s interview was very

brief, and no description was given of any of the abuse claimed by J.C. Moreover,

although impermissible, this testimony relaying J.C.’s statement that she had been

“victimized” by Richmond was limited to a few comments made in the middle of a

four-day trial that involved ten witnesses and numerous exhibits. Further,

Richmond’s prior conviction for child abuse involving J.C. was introduced into

evidence without objection, as was the testimony of the prosecutor who relayed

information about the case and Richmond’s plea agreement.

[¶38.] The State presented a strong case. A.M. appeared in person and was

the first witness to testify at trial. She described the manner in which Richmond

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touched her private parts, including instances where he put his “thingy” which she

identified as his penis inside of her. She explained where the events occurred and

that Richmond had removed her clothing. In his assertion that the admission of the

testimony at issue was not harmless error, Richmond points to unidentified DNA

from semen found on sheets removed from a guest bed in Richmond’s house. While

A.M. had referenced this room when explaining where sexual acts had occurred, she

testified at trial that the sexual acts had occurred mainly in Richmond’s bedroom.

A.M. also recounted the chain of events leading up to her decision to disclose the

sexual abuse to her grandma.

[¶39.] The jury also considered Grandma’s and Mother’s testimony, which

strongly corroborated the circumstances surrounding A.M.’s disclosure. Grandma

described the multiple text messages she received from A.M. on June 26 and stated

A.M. “sounded terrified” on the phone. Grandma also testified that when Mother

confronted Richmond about the rapes over the phone, she heard him offer to let

Mother “pull the trigger” and kill him once his affairs were in order.

[¶40.] When Mother took the stand, she explained her reaction to discovering

Richmond had raped her daughter, which included thoughts of killing him. This

testimony confirmed the reasons underlying Grandma’s and A.M.’s hesitation to

inform Mother about the sexual abuse. Like Grandma, Mother described the phone

conversation she had with Richmond in which Richmond offered to let her kill him.

While Mother was on the stand, the State also introduced the recorded phone call

between Mother and Richmond, arranged by Detective Derby, in which Richmond

requested the opportunity to read A.M.’s Advocacy Center report and to meet with

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A.M. Richmond suggested that A.M. could “fix” the situation by refusing to

cooperate with law enforcement.

[¶41.] The State also presented testimony establishing that Richmond

groomed A.M. with gifts immediately prior to both of her forensic interviews and

before she met with Grandma after A.M. disclosed the abuse. As for physical

evidence, the jury heard the expert testimony of Dr. Hamilton, a board-certified

pediatrician, who had examined A.M. and testified that the deep notch found on

A.M.’s hymen was consistent with penetration.

[¶42.] At the close of the evidence, the circuit court gave the jury the final

instructions of law which included a limiting instruction regarding the other acts

evidence. The court instructed the jurors that if they chose to consider the

testimony regarding Richmond’s abuse of J.C., they could do so only for the limited

purpose of proving Richmond’s identity, common scheme, or opportunity to commit

the charged offenses. 10 “Juries are presumed to follow the instructions of the

[circuit] court.” State v. Eagle Star, 1996 S.D. 143, ¶ 22, 558 N.W.2d 70, 75. The

State, in its closing remarks, did not mention J.C.’s allegations. Instead, it

10. Instruction 34 provided:

Evidence has been introduced that the defendant committed an
offense (or act) other than that which is now charged. Although
evidence of this nature is allowed, it may be used only to show
common scheme, opportunity, or identity of the person charged.
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. Before determining whether to consider this evidence,
you must first determine if a preponderance of the evidence
established that the defendant committed the other acts or
wrongs. You are not required to consider this evidence and
whether you do is a matter within your exclusive province.

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emphasized the plethora of evidence incriminating Richmond as to the charges

relating to A.M. for which he was on trial. After reviewing the evidence presented

at trial, the jury weighed the evidence and acquitted Richmond of three counts and

convicted him of the fourth.

[¶43.] Based on the strength of the State’s case against Richmond, the

erroneously admitted statements, given their limited nature, had a minimal effect

on the trial. Therefore, when considered in light of the evidence submitted at trial,

the circuit court’s admission of Strand’s statements about J.C.’s disclosure, though

erroneous, was harmless. We affirm.

[¶44.] GILBERTSON, Chief Justice, and JENSEN, SALTER, and

DEVANEY, Justices, concur.

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