#25169-rev & rem-JKK 

2010 SD 44

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, 

 v. 

ERNEST ALBERT FISHER, JR., Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT 

OF THE FIRST JUDICIAL CIRCUIT 

AURORA COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE SEAN M. O’BRIEN 

Judge 

* * * * 

MARTY J. JACKLEY 

Attorney General 

STEVEN R. BLAIR 

Assistant Attorney General Attorneys for plaintiff 

Pierre, South Dakota and appellee. 

CHRIS A. NIPE of 

Larson and Nipe Attorneys for defendant 

Mitchell, South Dakota and appellant. 

* * * * 

 CONSIDERED ON BRIEFS 

ON NOVEMBER 16, 2009 

 OPINION FILED 06/09/10 
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KONENKAMP, Justice 

[¶1.] Defendant was indicted on multiple rape and sexual contact offenses 

against his daughter. Fourteen years earlier, when he was seventeen, defendant 

committed a sexual offense with his thirteen-year-old stepsister. At trial on the 

current charges, the circuit court allowed the prosecution to present the prior 

conviction to the jury with all its details. Because defendant’s prior offense was too 

remote in time and not sufficiently similar to the present charges, admission of the 

prior offense was an abuse of discretion and unfairly prejudicial. We reverse and 

remand for a new trial. 

Background 

[¶2.] Ernest Albert Fisher, Jr. (defendant) and his wife lived in Aurora 

County, South Dakota, with their blended family of eight children and stepchildren. 

On September 13, 2007, I.F., defendant’s daughter, posted an entry on an Internet 

blog site: 

my dad sexually abuses me and I don’t want to lose my step 

mom she is my only mother i have what should i do? he has 

been doing this since i was 8 i hate him he has hit me twice help 

me!!!!!!!!! 

I.F. was thirteen years old at the time, and defendant was thirty-one. This was not 

the first time she had sought refuge from her father. Once, at her request, she was 

sent to her biological mother’s home, but it did not work out. On another occasion, 

she reported to authorities that her father had physically abused her, causing her 

temporary removal from the home. But, at some point, she said she lied, and her 

father regained custody. 
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[¶3.] When I.F.’s sexual abuse allegation was eventually reported to the 

authorities, Aurora County Sheriff David Fink and a Department of Social Services 

case worker went to defendant’s home and spoke to I.F. I.F. told Sheriff Fink and 

the case worker of numerous instances of sexual attacks at the hands of her father. 

Defendant’s home was searched, resulting in the seizure of several pornographic 

videos. I.F. was later interviewed by Child’s Voice in Sioux Falls. She reported that 

defendant’s sexual abuse had been going on for several years. The other seven 

children in the home were also interviewed by Child’s Voice; each child denied any 

sexual abuse by defendant. Defendant was indicted on one count of first degree 

rape in violation of SDCL 22-22-1(1), five counts of third degree rape in violation of 

SDCL 22-22-1(5), and two counts of sexual contact with a child under the age of 

sixteen in violation of SDCL 22-22-7. 

[¶4.] Before trial, the State filed a notice of intent to offer res gestae 

evidence, or in the alternative, other acts evidence. This consisted of all the 

uncharged sexual acts that I.F. said defendant committed against her in the 

previous five years. The State contended that this evidence was part of the res 

gestae because it arose out of the same series of transactions as the charged 

offenses. The court agreed and allowed the testimony. 

[¶5.] The State further sought to offer defendant’s 1994 conviction for sexual 

contact with a child. In December 1993, when defendant was seventeen, he had 

sexual contact with his thirteen-year-old stepsister. The State argued that the 

evidence of the prior conviction was relevant to show intent, motive, common 

scheme or plan, and identity. The court agreed, rejecting the argument that the 
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prior conviction was too remote in time, and finding that the current charges 

against defendant and the prior conviction involved similar victims and similar 

acts. As to the specter of unfair prejudice, the court ruled that use of a limiting 

instruction would sufficiently protect defendant. Moreover, the court found “that 

there is no other evidence of equal probative value that can be introduced to prove 

the charges contained in the indictment.” 

[¶6.] Defendant sought to offer testimony on what defense counsel termed 

“third party perpetrator” evidence. If allowed, J.F., defendant’s fifteen-year-old son, 

would be called to testify that it was he who had sexual contact with I.F., and not 

his father. In an interview with the sheriff, J.F. opined that someone in the house 

would have heard or seen his father and I.F. engaging in sexual relations if it had 

actually happened. Thus, he refused to acknowledge even the possibility that 

defendant might have committed the charged sex offenses. J.F. told the sheriff of 

his own sexual abuse by his biological mother and others. Then he claimed to have 

had sexual contact in various forms with all the children in the house, except the 

youngest. With respect to I.F., he first told the sheriff that he had sexual 

intercourse with her two or three times, describing details and locations. But by the 

end of the interview, although he persisted in saying that he molested the other 

children, he recanted his claim about I.F., saying that he never had sexual 

intercourse with her. When asked why he would falsely say he had sexual 

intercourse with his sister, J.F. said it was “because I don’t want my Dad in trouble. 

. . .” 
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[¶7.] In denying admission of J.F.’s testimony, the circuit court ruled that 

“the probative value of J.F.’s [evidence] is greatly diminished by his contradictory 

statements, as well as his self-acknowledged belief in his father’s innocence and 

desire to help his father. . . . Introduction of this lengthy and self-contradictory 

evidence, which involves numerous irrelevant claims of sexual misconduct by J.F. 

against other children (as well as past abuses by others against J.F.), would 

significantly confuse the issues and mislead the jury.” See SDCL 19-12-3 (Rule 

403). 

[¶8.] At trial, I.F. was shown several DVD covers found in the search of 

defendant’s home and identified a particular DVD as the one defendant made her 

watch. After she identified it and described a pornographic scene from the DVD 

that defendant had her view, Sheriff David Fink, who viewed the DVD, confirmed 

that such scene was on the DVD. The cover of the DVD was admitted to corroborate 

her testimony, but the DVD was not played for the jury. The title on the cover was 

“Fresh Teen Ass.” 

[¶9.] I.F. testified that over a period of five years, once or twice a week, 

defendant forced sexual relations on her, which included fellatio and sexual 

intercourse, with penetration of both her vagina and her anus; also foreign objects 

were used, such as a dildo, a bathroom plunger handle, a hairspray container, and a 

conditioner bottle. Medical testimony to substantiate this abuse came from two 

physicians. First to testify was Dr. Nancy Free, a pediatrician, who emphasized 

that greater than ninety percent of children who have been sexually abused have 

normal genital exams. With respect to I.F., Dr. Free noted that she had areas of 
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scar tissue on her genitalia and that her hymen had “changes consistent with 

chronic penetration.” I.F.’s anal exam revealed no evidence of injury. Dr. Free 

concluded that I.F. “was a victim of probable child sexual abuse.” Dr. Keith A. 

Hansen, an obstetrician and gynecologist, found evidence of “previous hymenal 

trauma, not acute.” 

[¶10.] Testifying for the defense was Dr. Rich Kaplan, a pediatrician. He is 

the Medical Director and an Associate Professor in a program at the University of 

Minnesota called the Center for Safe and Healthy Children, specializing in 

evaluating children who have been abused. As the founder of Child’s Voice in Sioux 

Falls, Dr. Kaplan spent seven years there examining and treating physically and 

sexually abused children. Dr. Kaplan took issue with Dr. Free’s conclusion that 

there was evidence of scarring on I.F.’s genitalia. From his viewing of the video 

taken in Dr. Free’s exam, Dr. Kaplan “found nothing that was abnormal.” I.F., in 

Dr. Kaplan’s opinion, showed “no signs of recent or remote trauma” evident in the 

material he reviewed. Moreover, he questioned Dr. Free’s statement that although 

scarring was not visible, she could feel it by the change in skin texture. He said 

there is “no medical data to support the feeling of that tissue relates to trauma.” He 

also contradicted her conclusion about I.F.’s hymen. It was his conclusion that I.F. 

showed a “completely normal exam.” Dr. Kaplan agreed, however, that sexually 

abused children may have no evidence of genital trauma. 

[¶11.] Defendant testified at trial. He offered neither accident nor lack of 

intent as a defense. He denied entirely the sexual acts I.F. alleged. On September 

19, 2008, after a four-day trial, the jury found him guilty on all charges. He was 
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hird 

no 

rinciples.2

 

sentenced to sixty years in the penitentiary, with five suspended, for the first degree 

rape conviction; fifteen years, with five suspended, for three of the third degree rape 

convictions; and twenty-five years with five suspended for the two remaining third 

degree rape convictions and the two sexual contact with a child convictions.1 All 

the sentences were to run concurrently with the first degree rape sentence. 

Defendant appeals asserting that the court erred when it (1) excluded the t

party perpetrator evidence, (2) allowed evidence of defendant’s uncharged sexual

acts against I.F., (3) admitted the cover of a sexually explicit DVD found in 

defendant’s home, and (4) admitted evidence of his prior conviction. We find 

abuse of discretion or error of law pertaining to defendant’s Issue 3; consequently, 

we uphold that ruling without discussion, because it was decided in accord with 

well-settled p

Analysis and Decision 

 A. Third Party Perpetrator Evidence 

[¶12.] Defendant contends that J.F.’s claim of sexual relations with his 

siblings and step-siblings was improperly excluded. He argues that the evidence 

would have offered an alternative explanation to the jury for the medical experts’ 

findings. J.F. is defendant’s minor son, who lived with defendant and I.F. in 

 (continued . . .) 

1. As the State points out in its appellate brief, the written judgment of 

conviction does not conform to the circuit court’s oral sentence. The oral 

sentence controls over the written judgment. 

2. On our standards of review applicable to these issues, we recognize that in 

reviewing difficult evidentiary rulings we must evaluate a circuit court’s 

decisions “from its perspective when it had to rule and not indulge in review 
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________________________ 

(. . . continued) 

defendant’s home. In his interview with the sheriff, J.F. claimed and then denied 

having had sexual intercourse with I.F. He also claimed to have had sexual contact 

with all the other children in the home, except the youngest. None of the other 

children corroborated J.F.’s purported confession. He professed his belief in his 

father’s innocence and insisted that I.F. was fabricating the abuse. 

[¶13.] The court found the interview of J.F. to be relevant. It then engaged in 

a balancing test to examine whether the probative value of the evidence outweighed 

its possible prejudicial effect. The court considered that J.F. recanted part of his 

claims during the interview. The court also considered that J.F. is defendant’s son 

who insisted on his father’s innocence. J.F. claimed that I.F. was lying because she 

did not want to live in the house any longer. J.F. refused to recognize that his 

father could be guilty of the charges against him. In light of J.F.’s motivation to lie, 

his partial recantation, and the fact that J.F.’s testimony about other children in the 

home would mislead and confuse the issues, the court excluded the evidence. 

[¶14.] We recently examined a court’s exclusion of third party perpetrator 

evidence in State v. Packed, 2007 SD 75, 736 NW2d 851 (citation omitted). In that 

case, the defendant was convicted of first degree rape and sexual contact with a 

child who lived in his home. He sought to introduce evidence through cross 

examination of a witness that the victim had a relationship with a neighbor boy 

that she wanted to hide from her mother. He argued that the victim fabricated her 

by hindsight.” Old Chief v. United States, 519 US 172, 182 n6, 117 SCt 644, 

651 n6, 136 LEd2d 574 (1997).
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claims against him in order to hide her relationship with the neighbor boy. The 

court denied admission of the evidence on the ground that it was third party 

perpetrator evidence. On appeal, we emphasized that there is no rule flatly 

prohibiting third party perpetrator evidence in South Dakota. Id. ¶22. Rather, if 

the proffered evidence is relevant but challenged as unfairly prejudicial, confusing 

or misleading, we require trial courts to balance the probative value of the evidence 

against its possible prejudicial effect. 

[¶15.] In Packed, the balancing test was not conducted. Id. ¶24. In this case, 

the court performed the requisite balancing test and found that the probative value 

of the evidence was substantially outweighed by the risk that that evidence would 

have an undue tendency to move the jury to decide the case on an improper basis. 

We review these types of rulings under the abuse of discretion standard. Id. ¶17. 

Although “Rule 403 will not permit judges to exclude testimony in plain disbelief,” 

here there was more than credibility in question. See State v. Wright, 1999 SD 50, 

¶15, 593 NW2d 792, 799 (citations omitted). The proposed evidence, selfcontradictory and embellished, threatened to distract the jury from the true 

questions at hand. We find no abuse of discretion. 

 B. Uncharged Sexual Acts with the Same Victim — Res Gestae 

[¶16.] Defendant next asserts that the court abused its discretion when it 

allowed I.F. to testify about defendant’s uncharged sexual contact with her that 

occurred in the five years preceding the charged offenses. All the charged offenses 

were alleged to have occurred in 2006 and 2007, but the State wanted to place 

before the jury all defendant’s alleged sexual abuse from the time I.F. was eight 
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years old. The court ruled that this testimony would be admissible as res gestae 

evidence. Defendant argues that the court erred in concluding that the testimony 

was res gestae evidence rather than “other act” evidence under SDCL 19-12-5 (Rule 

404(b)). Defendant also contends that even if the evidence was other act evidence, it 

was an abuse of discretion to admit the testimony. “We review a trial court’s 

decision to admit other acts evidence under the abuse of discretion standard.” 

Wright, 1999 SD 50, ¶12, 593 NW2d at 797 (citing State v. Loftus, 1997 SD 94, ¶21, 

566 NW2d 825, 830 (citing State v. Ondricek, 535 NW2d 872, 873 (SD 1995))). 

[¶17.] In State v. Floody, we examined a trial court’s admission of evidence 

related to uncharged instances of sexual penetration and sexual contact in a child 

sex abuse case. 481 NW2d 242, 252 (SD 1992). The child victim testified that 

Floody raped her “all the time,” although Floody was only charged with two counts 

of rape. Id. The victim also testified about uncharged sexual contact that occurred 

during the rapes. In affirming the admission of the evidence, we stated that the 

testimony did not implicate SDCL 19-12-5 (Rule 404(b)). Rather, the testimony 

about the victim being raped “all the time,” was “part of a course of conduct,” not 

evidence that “Floody probably committed the acts charged.” Id. (citations omitted). 

It “constituted direct proof of the crimes charged.” Id. Additionally, the testimony 

about the uncharged sexual contact that occurred during the rapes was not other 

act evidence under SDCL 19-12-5 (Rule 404(b)), because it constituted “part of the 

circumstances of the charged crime.” Id. at 253. The uncharged sexual contact was 

so blended and connected to the rapes that proof of the rapes involved proof of the 

sexual contact. 
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[¶18.] The circuit court relied on Floody and concluded that the testimony 

about the uncharged sexual abuse perpetrated by defendant on I.F. in the previous 

five years in various counties other than Aurora did not constitute other act 

evidence. The court considered the testimony to be directly and intrinsically related 

to the crimes charged, and therefore, admissible as res gestae evidence. 

[¶19.] Res gestae evidence has been defined as “the events at issue or others 

contemporaneous with them.” Bryan A. Garner, Dictionary of Modern Legal Usage 

(2d ed 1995). As one court explained, res gestae evidence is “matter incidental to 

the main fact and explanatory of it, including acts and words which are so closely 

connected therewith as to constitute a part of the transaction, and without 

knowledge of which the main fact might not be properly understood.” Martinez v. 

People, 132 P 64, 65 (Colo 1913). I.F.’s testimony about the uncharged acts of rape 

and sexual contact defendant committed was not directly or intrinsically related to 

the charged rapes and sexual contact in Aurora County, nor were the acts 

contemporaneous with the charged acts. “Evidence [] of over fifty acts of sexual 

assault spanning a long time frame cannot be characterized as res gestae.” 

Woertman v. People, 804 P2d 188, 190 n3 (Colo 1991) (emphasis omitted). I.F.’s 

testimony relating to the uncharged conduct was not res gestae evidence but other 

act evidence under SDCL 19-12-5 (Rule 404(b)). 

[¶20.] Other act evidence is admissible to prove such matters as “motive, 

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or 

accident.” SDCL 19-12-5 (Rule 404(b)). Also in Floody, we examined the admission 

of testimony related to non-contemporaneous uncharged sexual contact. 481 NW2d 
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at 253-54. The testimony was admitted, although it was extrinsic to the crimes 

charged, because it would show a continuous plan or scheme of criminal activity and 

establish intent to carry out the crimes charged in the indictment. The jury was 

instructed that they could only consider the evidence to determine whether Floody 

had a plan of continuous criminal activity. Finally, the court balanced the probative 

value of the evidence against its prejudicial effect, concluding that the evidence was 

“highly probative in showing a plan or course of continuous criminal activity.” Id.

at 254. 

[¶21.] Here, as in Floody, the testimony of the uncharged sexual contact with 

I.F. was not contemporaneous to the charged acts. The testimony related to conduct 

in three other counties and covered a five-year time span. This other act evidence, 

however, was probative in showing an uninterrupted chain or series of closely 

connected events between defendant and I.F., allowing the jury to realistically 

evaluate the charged events in light of the entire history of alleged sexual abuse 

committed against I.F. See Edward J. Imwinkelried, 1 Uncharged Misconduct 

Evidence § 6:29 (Rev ed 1998). To exclude this history would truncate the child’s 

narrative and deprive the testimony of its “full evidentiary context.” Old Chief, 519 

US at 182, 117 SCt at 651, 136 LEd2d 574. Furthermore, the danger of unfair 

prejudice was diminished because the jury still had only I.F.’s credibility to 

consider. Although the court erred in concluding that this was res gestae evidence, 

the testimony was admissible under SDCL 19-12-5 (Rule 404(b)) and not unfairly 

prejudicial under SDCL 19-12-3 (Rule 403). 
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 C. Prior Conviction — Relevance and Remoteness

[¶22.] We must next decide whether the circuit court abused its discretion 

when it admitted evidence of defendant’s fourteen-year-old conviction for sexual 

contact with a child. Defendant was a juvenile when he committed this offense and 

the victim was his thirteen-year-old stepsister. They did not live in the same home. 

He pleaded guilty to the charge, admitting to touching her bare breasts and 

digitally penetrating her. Relying solely on the fact that defendant denied 

committing the crimes charged here, the circuit court ruled the prior conviction 

admissible under SDCL 19-12-5 (Rule 404(b)) to prove intent, identity, plan, design 

or scheme. In its case in chief, the prosecution was permitted to call the detective 

who investigated the prior charge. The detective detailed the facts surrounding the 

conviction and read to the jury portions of the defendant’s confession. The 

transcript of the entire confession was admitted into evidence, along with a certified 

copy of the judgment of conviction. 

[¶23.] Under our rules, evidence of a defendant’s other acts admitted only to 

show propensity is irrelevant and thus inadmissible. Wright, 1999 SD 50, ¶14, 593 

NW2d at 798-99. The proponent of the evidence bears the burden of establishing its 

relevance. Id. SDCL 19-12-5 (Rule 404(b)) provides a nonexclusive list of purposes 

for which other act evidence could be used: “proof of motive, opportunity, intent, 

preparation, plan, knowledge, identity, or absence of mistake or accident.” To be 

considered relevant, evidence must logically tend to prove or disprove a material 

issue of fact. State v. Moeller, 1996 SD 60, ¶13, 548 NW2d 465, 472 (citing State v. 

Steele, 510 NW2d 661, 667 (SD 1994)); SDCL 19-12-1 (Rule 401) (to prove or 
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disprove “any fact that is of consequence to the determination of the action”); see 

also 22 Charles Wright and Kenneth Graham, Federal Practice and Procedure, § 

5249 (1978) (footnotes omitted). For courts to be in the best position to decide 

whether an issue sought to be proved by other acts evidence is truly in dispute, “it is 

preferable to delay the admission of [other acts] evidence until the defense rests. . . 

.” State v. Werner, 482 NW2d 286, 290 (SD 1992) (quoting United States v. 

Estabrook, 774 F2d 284, 289 (8thCir 1985)). 

[¶24.] Prior bad act evidence is not admissible simply because it shows 

conduct similar to the charged offense. The question is whether the prior bad act 

relates to a point genuinely in issue.3 In Wright, we cautioned courts to 

independently apply each theory of admission to the facts of the case. 1999 SD 50, 

¶17 n6, 593 NW2d at 800 n6. To be admissible, the other act must offer proof of an 

issue “relevant to the present offense,” that is, the prior act evidence must have “a 

logically relevant purpose.” Id. ¶¶14, 25. Here, the State listed several proposed 

theories and the circuit court declared the evidence admissible under those theories. 

Although the prior conviction was fourteen years old, the court did not find it to be 

too remote. The court concluded that defendant would be sufficiently protected 

3. See State v. Harris, 365 NW2d 922, 926 (Wis 1985) (quoting the remarks of 

Lord Sumner in Thompson v. The King, [1918] App.C. 221, 232): 

Before an issue can be said to be raised, which would permit the 

introduction of evidence so obviously prejudicial to the accused, it must 

have been raised in substance if not in so many words. . . . The mere 

theory that a plea of not guilty puts everything material in issue is not 

enough for this purpose. The prosecution cannot credit the accused 

with fancy defenses in order to rebut them at the outset with some 

damning piece of prejudice. 
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from unfair prejudice by the use of a limiting jury instruction. Moreover, the court 

ruled that because there was no other evidence of equal probative value to prove the 

charges against defendant, the prejudice would not substantially outweigh the 

probative value of the evidence. 

[¶25.] In evaluating the admissibility of the evidence under SDCL 19-12-5 

(Rule 404(b)), the court found that the prior conviction was sufficiently similar to 

the current charges to allow its admission to establish defendant’s specific intent to 

arouse or gratify himself or his victim. Similarities identified by the court included 

the fact that both victims were family members: the first was his stepsister, the 

current one is his daughter. And the court also found similar the fact that both 

victims, at least at the time of the charges, were the same age. 

[¶26.] At the outset, we note that at least one of the court’s reasons for 

declaring this prior offense relevant was wrong. Identity was never an issue in this 

case. I.F. unequivocally identified her father as the continuing perpetrator. No 

suggestion arose at trial on some possible misidentification. In most instances, 

admitting evidence of other crimes for the purpose of proving identity should occur 

when the question of identity is genuinely in issue. See State v. Goodrich, 432 A2d 

413, 417 (Me 1981). In Goodrich, the court held that a prior bad act of the 

defendant should not have been admitted on the issue of the defendant’s identity 

because there was no “question as to the identity of the perpetrator of the alleged 

crime. The defendant contended that the alleged rape did not, in fact, occur. Thus, 

evidence of other crimes would not have been admitted to prove . . . identity.” Id. 
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[¶27.] Furthermore, a defendant’s purported disposition toward sexual 

misconduct is not enough to prove identity. United States v. Fawbush, 900 F2d 

150, 151-52 (8thCir 1990). The real issue in this case was whether I.F. was telling 

the truth about her father. In a sexual assault case, identity is not actually in issue 

unless, under the evidence, the jury could reasonably conclude that the victim had 

been assaulted but had misidentified the assailant. People v. Pitts, 273 CalRptr 

757, 882-83 (CalCtApp 1990). No dispute existed on identity here, especially as the 

circuit court excluded any third party perpetrator evidence. Admission of the prior 

conviction on this ground was a clear abuse of discretion. 

[¶28.] Assuming without deciding that this prior conviction was relevant for 

some other purpose allowable under SDCL 19-12-5 (Rule 404(b)), admission must 

still be weighed with the question of remoteness. Our rule on this subject is not 

rigid: it will depend on the facts of the case. Wright, 1999 SD 50, ¶24, 593 NW2d at 

802. In analyzing whether a prior offense should be admitted, “[r]emoteness and 

similarity must be considered together because the two concepts are so closely 

related; the remoteness of a prior crime takes on increased significance as the 

similarity between the prior crime and the charged offense increases.” Fisher v. 

State, 641 NE2d 105, 109 (IndCtApp 1994). Accordingly, “a prior bad act, despite 

its remoteness, may still be relevant if it is strikingly similar to the charged offense. 

Conversely, less similarity may be required where the prior act is closer in time to 

the charged incident.” Id. 

[¶29.] In this case, the prior offense was not strikingly similar. Defendant 

was only four years older than his victim at that time. As to the current charges, 
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defendant was thirty-one, and I.F. testified that the sexual contact began when she 

was eight and ended when she was thirteen. Also, while it was asserted that both 

victims were family members, defendant was related to his prior victim only by 

marriage. She was his stepsister and did not live in the same home. I.F., on the 

other hand, is defendant’s daughter and lived in the home with him. The lack of 

similarities between the current charges and the prior conviction and the 

remoteness in time tends to negate any relevance to prove intent, common plan, 

design, or scheme. 

[¶30.] On the remoteness question, furthermore, one aspect the circuit court 

appears to have overlooked in its §404(b) analysis is the fact that defendant was 

himself a juvenile when he committed the prior offense. A vital point, because, as 

the United States Supreme Court recently observed, “As compared to adults, 

juveniles have a ‘lack of maturity and an underdeveloped sense of responsibility’; 

they ‘are more vulnerable or susceptible to negative influences and outside 

pressures, including peer pressure’; and their characters are ‘not as well formed.’” 

Graham v. Florida, 2010 WL 1946731 (2010) (quoting Roper v. Simmons, 543 US 

551, 569-570, 125 SCt 1183, 1195, 161 LEd2d 1 (2005)). “[F]rom a moral standpoint 

it would be misguided to equate the failings of a minor with those of an adult, for a 

greater possibility exists that a minor’s character deficiencies will be reformed.” Id. 

(quoting Roper, 543 US at 570, 125 SCt at 1195, 161 LEd2d 1). Indeed, changes in a 

defendant’s circumstances, such as age, “may render the earlier uncharged act too 

remote and legally irrelevant.” Edward J. Imwinkelried, 2 Uncharged Misconduct 

Evidence § 8:8 (Rev ed 1998). Thus, a “time lapse could be fatal to admissibility of 
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the evidence if the defendant was a callow teenager at the time of the earlier crime.” 

Id. “Because of the considerable changes in character that most individuals 

experience between childhood and adulthood, behavior that occurred when the 

defendant was a minor is much less probative than behavior that occurred while the 

defendant was an adult.” State v. Barreau, 651 NW2d 12, 23 (WisCtApp 2002) 

(citations omitted) (error to admit prior offense committed when defendant was a 

minor).

[¶31.] We conclude that it was an abuse of discretion for the circuit court to 

admit the prior conviction: it was too remote in time and too dissimilar to be 

deemed relevant. Moreover, we cannot classify this error as harmless. See State v. 

Stanga, 2000 SD 129, ¶20, 617 NW2d 486, 491 (citing Arizona v. Fulminante, 499 

US 279, 306, 111 SCt 1246, 1263, 113 LEd2d 302, 329 (1991); SDCL 15-6-61; SDCL 

23A-44-14 (Rule 52(a)). The prosecution made this highly prejudicial evidence an 

integral part of its case. Improperly admitted prior bad act evidence may well be 

the “most prejudicial evidence imaginable. . . .” People v. Smallwood, 722 P2d 197, 

205 (Cal 1986). From our review of the record, admission of this evidence was 

“inconsistent with substantial justice.” See SDCL 15-6-61. Therefore, we reverse 

and remand for a new trial. 

[¶32.] Reversed and remanded. 

[¶33.] GILBERTSON, Chief Justice, and ZINTER, MEIERHENRY, and 

SEVERSON, Justices, concur.