State of South Dakota v. James Big Crow

Summary

The Supreme Court of South Dakota affirmed James Big Crow’s incestuous sexual contact convictions. The court held that evidence of alleged sexual contact involving two other nieces was admissible under SDCL 19-12-5 (Rule 404(b)) to establish a common plan, design, or scheme, and was not too remote or substantially more prejudicial than probative. The court also held that Big Crow waived his challenge to a subpoena involving a tribal member because he did not raise the issue in the circuit court.

Holdings

1. Other-acts evidence involving similar sexual contact with two other minor relatives was admissible under SDCL 19-12-5 to prove a common plan, design, or scheme, rather than merely to show character or conformity.
2. The circuit court did not abuse its discretion in finding that the probative value of the other-acts evidence was not substantially outweighed by its prejudicial effect.
3. The other acts were not too remote in time to be admissible in this child-sex-abuse case.
4. Big Crow waived his challenge to the State's subpoena of M.H., a tribal member residing on an Indian reservation, because he did not raise the issue, object, or move to quash the subpoena in the circuit court.
5. Big Crow waived his challenge to the absence of a jury instruction requiring proof of the other acts by a preponderance of the evidence because he failed to propose the instruction.

Questions Presented

1. Whether evidence of alleged sexual contact with two other minor relatives was relevant and admissible under SDCL 19-12-5 to prove a common plan, design, or scheme.
2. Whether the other-acts evidence was inadmissible because its probative value was substantially outweighed by unfair prejudice.
3. Whether the temporal remoteness of the other acts rendered the evidence inadmissible.
4. Whether the circuit court abused its discretion by admitting the other-acts evidence.
5. Whether Big Crow could challenge the State's subpoena of a tribal-member witness when he failed to object or move to quash the subpoena at trial.
6. Whether Big Crow preserved a challenge to the jury instruction concerning the burden of proof for the other acts by failing to propose an alternative instruction.

Disposition

affirmed