State v. Werner

¶1(specially concurring).

¶2As a child, Abraham Lincoln was sorely distressed when he could not understand the expressions and thoughts of grownups as they talked at night in his home. Comments of the adults confounded him for he could not comprehend them, being a boy. So to understand words — their meaning— became in his own words “a kind of passion with me.” As our esteemed President, he expressed: “I am never easy now, when I am handling a thought, till I have bounded it north, and bounded it east, bounded it south, and bounded it west.” Unfortunately, those of us who study the law, cannot always “bound it” together. I am no exception. Lincoln’s law partner, William Herdon, in a testimonial on Lincoln’s mental processes, expressed inter alia, that “He saw all things through a perfect mental lens. There was no diffraction or refraction.” Again, Herndon expressed: “No lurking illusion or other error, false in itself and clad for the moment in robes of splendor, ever passed undetected over the threshold of his mind."1 Few of us are so endowed. Thus, we conceptualize differently and express ourselves in varying words. Born is a difference in opinion and a different way to say it. Perforce, concurring opinions are written, dissenting opinions are filed, special concurrences are triggered, and concurrences in result are formed into words. Opinion writing is a fascinating calling. Precedent is created thereby. Majority opinions have' prece-dential bite and well they should. A special writing may or may not provide a positive influence to jurisprudence. In Moor-head, Concurring and Dissenting Opinions, 38 A.B.A.J. 821 (1952), as quoted in Opinion Writing, by Ruggero J. Aldisert, Senior United States Circuit Judge, West Publishing Co., St. Paul, Minn., 1990, at 166, proper functions of a separate opinion may, inter alia, be:

(a) To assure counsel and the public that the case has received careful consideration.

(b) To help attain the objective of the law: a just result through careful formulation and application of a system of legal principle.

(c) To appeal to the intelligence of a future day, when a change in the law may be forthcoming.

(d) To warn that a holding laid down must not be pressed too far; i.e., that it is dangerous if given a wider application.

¶3The “bad acts rule” causes great consternation in its application. Scholars might well read our opinions on this subject, years hence, and advance that we have been inconsistent in its application, to include this writer. Back to Honest Abe for a moment. On his application of principles to specific plans for reconstructing the Southern States, after hostilities ceased in the Civil War, he concluded in his last public address:

No exclusive and inflexible plan can safely be prescribed as to details and collat-erals. Such exclusive and inflexible plan would surely become a new entanglement.2

¶4Thus, to follow his reasoning, there are certain principles, which must stand fast as principles, but nevertheless must have certain flexibility, in effect, to sustain themselves. By analogy, the admissibility of *293other acts testimony as governed by SDCL 19-12-5, cannot sustain itself unless it has some flexibility. When one reads the first sentence of this evidentiary rule, it appears to be inflexible; when the last sentence thereof was written, the rule takes on flexibility. I daresay that the constitutional right to a fair jury trial is inflexible. In said address, he also declared: “Important principles may, and must be inflexible.”3 Attach therefore to the right of a fair jury trial, I surmise, the inflexibility thereof, but consider the last sentence of this statute to give it some degree of flexibility so as to sustain its intent. Having said this relative to the preservation of statutory strength and the vitality of the rule,4 hereby I wish to assure counsel and the public that this case has received careful consideration; furthermore, that I believe a just result is achieved through the majority opinion, i.e., Pastor Werner be punished for his wrongdoing and the jury’s verdict was formulated by the application of a system based upon legal principle.

¶5Pastor Werner’s conduct is reflected by a chart, which is supported by the evidence, and is attached hereto, and by this reference, made a part hereof. These sexually abusive acts were perpetrated upon these young girls who trusted him, as did their families. With the exception of two years, these acts of abuse were perpetrated from 1962 to 1990. There were no provable sexual offenses for the years, 1983 and 1986. It is apparent that he isolated maturing young girls, sexually contacted female genitalia or breasts, used his religious position to abuse these young victims, and inflicted, in nearly each scenario, identical acts. These are what could be described as “touchy-feely” acts; testimony reflects that he was known to be a person who commonly touched people, patted them, and placed his hands on people. Therefore, Pastor Werner could easily advance that his “touchings” were really not sexually abusive acts, but were acts in friendship, love or admiration. It is vital to consider that SDCL 22-22-7.1 reflects that a “touching” must be with an intent to arouse or gratify the sexual desire of either party. Therefore, considering these numerous sexual contacts, over a number of years, it can be reasonably argued, were not accidental “touchings” nor can it be argued that these acts were just “mistakes.” These numerous “touchings” are not lost in time: They were continuous acts of sexual exploitation of young girls, where he had the opportunity, and were all a part of a common scheme or plan to arouse and gratify his sexual desire. This conduct was not harmless play, nor mistakes, nor accidents; it was wrong and Pastor Werner knew it was wrong. These young girls were in his presence by virtue of the trust of the parents in his congregation. These parents, and their offspring, had an expectation of safety within their own church. It was not there.

¶6Mr. Chief Justice has seen fit to quote one of my special writings in Titus. Said writing, nearly four years ago, depicts that which I still believe in, namely that “each case depends upon its own particular facts as to a limitation, regarding vintage, on the remoteness. Admission of prior acts must realistically depend upon their nature.” Titus, at 582, emphasis supplied mine. In Klein, seeking the spirit of the rule, and a certain flexibility, at 20, I expressed:

These “prior crimes, wrongs, or bad acts” cases, i.e., admitting prior crimes or wrongs or bad acts to prove the crime at hand, must be distinguished and decided on each set of facts. Admitting evidence of prior crimes, wrongs or bad acts is a matter of judicial discretion. It is not a matter, in every case, of automatic inclusion or automatic exclusion.

¶7For consistent writings of this special writer, I refer to State v. Willis, 370 N.W.2d 193 (S.D.1985) (isolating retarded women to take advantage of them); see also, State v. *294Bradley, 431 N.W.2d 317 (S.D.1988) (physically abusing women establishing a pattern leading to murder); see also, State v. Perkins, 444 N.W.2d 34 (S.D.1989) (pedophilia). In summation, this case turns on the trial court’s admission of evidence. Our scope of review is the abuse of discretion test. In my opinion, Judge Timm did not abuse his discretion. State v. Sieler, 397 N.W.2d 89 (S.D.1986) and State v. Rose, 324 N.W.2d 894 (S.D.1982).

¶8Sexually Abusive Acts Committed Against Victims By Appellant Admitted to Prove Opportunity, Common Scheme or Plan, Absence of Mistake or Accident

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