State v. Floody ( 1992 )

SABERS, Justice

(concurring specially).

I agree with the majority in issue IV(a) that it was error to admit the hearsay statement under the “excited utterance exception” for the reasons stated by the majority and for the reason that to fit within the exception, the hearsay statement must relate to a startling event or condition involving the defendant as opposed to a startling event or condition involving sex between the two children.

“[T]he statement involved must relate or pertain to the event or condition that caused the immediate or excited response.” J. Larson, South Dakota Evidence, § 803.2, at 576 (1991); see also M. Graham, Handbook of Federal Evidence, § 803.2, at 837 (3rd Ed.1991); McCormick, Evidence, § 297, at 857-858 (3rd Ed.1984). Therefore, the “startling event or condition” existing between A.C. and Randy may support a hearsay statement about that event or condition but certainly will not support a hearsay statement about some prior and remote event or condition that occurred between A.C. and defendant.

I agree with the majority in issue V that A.C.’s testimony of Floody’s other acts with her was properly admitted. These other acts were sufficiently contemporaneous with the acts charged and provide relevant evidence of the background and the relationship of the parties in the context of the charged acts.

Other courts have acknowledged that as to evidence of other occurrences a distinction exists between sexual molestation cases and other crimes. See State v. Friedrick, 135 Wis.2d 1, 398 N.W.2d 763 (1987). However, this distinction and the greater latitude given to admission of prior bad acts in sex crimes is and should be exercised only in the context of same defendant/same victim. The rationale for creating the distinction is that the victim’s testimony as to prior similar acts by the defendant is necessary to “disc-los[e] the relationship between the parties, [the] opportunity and inclination to commit the act complained of, and [to] corroborat[e] ... the specific charge.” State v. Haala, 415 N.W.2d 69, 77 (Minn.App.1987). Testimony by the victim, but not by her step-sister, as to prior instances of sexual contact by the defendant may be relevant to the issue of intent in a charge for a violation of SDCL 22-22-7. (Emphasis in original).

State v. Basher, 468 N.W.2d 413, 418 (S.D.1991) (Sabers, J., specially concurring) (quoting State v. Champagne, 422 N.W.2d 840, 845-46 (S.D.1986) (Sabers, J., dissenting)).