State v. DOSCH

#24499-a-PER CURIAM
2008 SD 21

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

CURTIS ALLEN DOSCH, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT
OF THE FIFTH JUDICIAL CIRCUIT
BROWN COUNTY, SOUTH DAKOTA

* * * *

HONORABLE SCOTT P. MYREN
Judge

* * * *

LAWRENCE E. LONG
Attorney General

ANDREW KNECHT
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.

GINA J. ROGERS Attorney for defendant
Aberdeen, South Dakota and appellant.

* * * *

CONSIDERED ON BRIEFS
JANUARY 7, 2008

OPINION FILED 3/19/08
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PER CURIAM

[¶1.] Curtis Dosch (Dosch) appeals his convictions for one count of third

degree burglary, one count of grand theft and ten counts of unauthorized possession

of a controlled substance. We affirm.

FACTS

[¶2.] Sometime during the night of September 23, 2005, an individual broke

through a window in Jones' Drug Store in Aberdeen, South Dakota and stole

various schedule two controlled prescription drugs from a locked drawer inside the

business. Prescription drugs that were taken included: oxycodone; demerol;

methadone; morphine; and adderall.

[¶3.] Sometime during the evening of November 20, 2005, an individual

entered an access panel in the roof of the Medical Center Pharmacy in Aberdeen

and stole various schedule two controlled prescription drugs from that business.

Prescription drugs that were taken included: adderall; methadone; lorazepam;

morphine; and, oxycodone.

[¶4.] The investigation of these incidents led to Dosch who was indicted for:

two counts of third degree burglary; two counts of grand theft; and, ten counts of

unauthorized possession of a controlled substance. The State also filed a part two

habitual offender information alleging Dosch had a prior felony conviction for

possession of a controlled substance.

[¶5.] Dosch's three day jury trial took place in March 2007. At the

conclusion of the trial, the jury returned verdicts finding Dosch guilty of one count

of burglary, one count of grand theft and ten counts of unauthorized possession of a
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controlled substance. 1 Dosch admitted the allegations of the habitual offender

information and was sentenced to: twelve years in the penitentiary for burglary;

ten years, with thirty-two months suspended, for grand theft; and two years for

each unauthorized possession count. All sentences were ordered to be served

consecutively. Dosch appeals.

ISSUE

[¶6.] Did the trial court abuse its discretion in admitting testimony
on population studies from the State's DNA expert?

[¶7.] During the investigation of the Jones' Drug burglary, law enforcement

discovered several blood stains close to the burglar's point of entry and the drawer

from which controlled substances were stolen. A sample of each blood stain was

taken and, pursuant to a warrant, a buccal swab was also obtained from Dosch.

The various samples were submitted to the State Forensic Laboratory in Pierre for

comparison and analysis and the criminalist who performed the study appeared as

the State's DNA expert witness at trial.

[¶8.] The criminalist testified that the DNA from the blood stains was

consistent with the DNA in the swab obtained from Dosch and further testified

concerning the probability of recurrence of the DNA profile in the general

population. In that regard, the criminalist read into the record the conclusion from

her written report that, "[t]he male DNA profile obtained from . . . the stains from

Jones Drug would not be expected to occur more than once among unrelated

individuals in the world population." Dosch's counsel objected to this testimony on

1. Dosch was acquitted of the burglary and grand theft charges relating to the
Medical Center Pharmacy.
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grounds of lack of foundation and the objection was overruled. On cross-

examination, the criminalist testified that population studies provided the

statistical basis for her opinion but that she had no expertise in population studies,

statistics or population genetics. On appeal, Dosch argues that the trial court erred

in admitting the criminalist's testimony because she was not qualified as an expert

in population studies, statistics or genetics and because her conclusion was based

solely on information received from the expertise of others.

Admission of expert testimony is governed by SDCL 19-
15-2 (Rule 702):

If scientific, technical, or otherwise
specialized knowledge will assist the trier of
fact to understand the evidence or to
determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience,
training, or education, may testify thereto in
the form of an opinion or otherwise.

Trial courts retain broad discretion in ruling on the
admissibility of expert opinion. Decisions to admit or
deny opinion evidence will not be reversed absent a clear
showing of abuse of discretion.

State v. Guthrie, 2001 SD 61, ¶ 30, 627 NW2d 401, 414-415 (citations omitted).

SDCL 19-15-3 (Rule 703) on the factual basis for expert opinions provides:

The facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to him at or before the
hearing. If of a type reasonably relied upon by experts in
the particular field in forming opinions or inferences upon
the subject, the facts or data need not be admissible in
evidence. (emphasis added).

[¶9.] An argument over admission of expert testimony similar to that

presented here was raised in State v. Edelman, 1999 SD 52, 593 NW2d 419. The

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defendant in Edelman was charged with multiple counts of sexual contact with a

minor and rape. During trial, a crimialist specializing in serology provided expert

testimony linking the defendant to the crimes. As part of the State's case, the

criminalist testified from a book concerning the rate of occurrence of a rare blood

type in the Caucasian population. The criminalist also testified that she had not

personally conducted any statistical studies in that area. On appeal, the defendant

argued that there was no foundation to qualify the criminalist as a statistical expert

on population genetics or blood type percentages. This Court concluded:

"the trial court has broad discretion in determining the
qualifications of expert witnesses and in admitting expert
testimony." We find no abuse of discretion by the trial
court in allowing this testimony. [The criminalist] did
establish expert qualifications in serology. Her expertise
in serology would include a knowledge of blood types and
their general distribution throughout the population. We
affirm.

Edelman, 1999 SD 52, ¶ 38, 593 NW2d at 425 (citations omitted).

[¶10.] A similar result was reached by the Virginia Court of Appeals in

Funderburk v. Commonwealth of Virginia, 368 SE2d 290 (VaCtApp 1988). During

the defendant's murder trial in Funderburk, a forensic serologist testified for the

state that blood stains found on the defendant's clothing were consistent with the

victim's blood. Over the defense's objections, the trial court allowed the serologist to

testify concerning the statistical prevalence in the general population of persons

with the victim's blood characteristics. As foundation for her testimony, the

serologist stated that she had consulted published studies to determine the

percentage of each blood type in the general population, but admitted that she was

unable to specifically identify by name which studies or tables she had relied upon.

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The defendant argued on appeal that because the serologist relied on unidentified

studies not in evidence and because she was not an expert in statistics the trial

court erred in allowing her to testify on statistical matters. The Virginia Court

disagreed, concluding:

[T]he studies or tables consulted by [the serologist] to
arrive at the statistical prevalence of [the victim's] blood
type are of a type customarily relied upon and consulted
by those in her field. Such information and knowledge is
within the expertise of the forensic serologist, and the
court did not err [in admitting] her testimony when the
studies or tables [were] not in evidence or not identified.

Funderburk, 368 SE2d at 292 (emphasis added)(citations omitted).

[¶11.] A DNA case more analogous to this matter was considered by the

Indiana Court of Appeals in Patterson v. State of Indiana, 729 NE2d 1035

(IndCtApp 2000). The defendant in Patterson was charged with attempted

burglary. During trial, the State presented testimony from a DNA expert

affirmatively comparing DNA markers extracted from blood stains found at the

crime scene with markers found in the defendant's blood sample. Relying on

statistics about the general population, the expert testified to the rate of occurrence

of these common DNA markers in the Caucasian and Black populations. 2 The

expert derived her statistics from a published study developed by a company that

had sampled a randomly selected group of individuals from around the country. As

to the defendant's contention on appeal that the trial court erred in admitting the

statistical analysis due to lack of an adequate foundation, the Indiana court held:

Because the statistical analysis was based on published,
empirical scientific data, and not mere speculation or

2. The defendant in Patterson was of African American heritage.
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unsubstantiated estimates, the trial court did not abuse
its discretion in finding the evidence reliable and
admissible. See [Davis v. State, 476 NE2d 127, 135
(IndCtApp 1985)](no foundational error in admitting
probability calculation[s] where they were based not on
speculation, but upon accepted scientific tables reporting
the frequency of each genetic marker in the Caucasian
population in Indiana).

Patterson, 729 NE2d at 1040. (emphasis added).

[¶12.] The criminalist in this case provided foundation testimony very much

like that provided by the DNA expert in Patterson. The expert testified concerning

her educational background, job experience, specialized training and membership in

various professional organizations. She further testified regarding her qualification

as an expert in serology and DNA in prior criminal cases. With regard to her work

in this case, the expert testified to the techniques, protocols, procedures, safeguards

and controls employed in performing her DNA analysis and to their general

acceptance in the scientific community. With specific regard to her statistical

analysis, the criminalist testified that her information was based upon population

studies conducted by the FBI and other laboratories and DNA profiling performed

on hundreds of samples from various ethnic groups within the population. The

criminalist testified that the FBI had published its data in several peer review

journals and made it a part of a computer program used by most forensic labs across

the country in calculating frequency of occurrence of certain DNA markers.

[¶13.] Given the detailed foundation testimony provided by the criminalist,

the fact that her statistical analysis was based upon published, empirical scientific

data and not on mere speculation or unsubstantiated estimates, and the fact that

the studies or tables she relied upon were of a type customarily consulted by those

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in her field, the trial court committed no abuse of discretion in ruling that her

testimony was admissible.

[¶14.] Affirmed.

[¶15.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER

and MEIERHENRY, Justices, concur.

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