PIERRE, S.D. (KELO) — A man found guilty of illegal sexual contact with a child should have been told in advance that the prosecution was calling an expert witness at his trial, but the expert’s testimony was duplicative and didn’t affect the defendant’s conviction, the South Dakota Supreme Court has found.

In a unanimous opinion publicly released Thursday, the state’s high court upheld the Lawrence County jury’s findings that Vandon Pretty Weasel was not-guilty on two counts but was guilty of 10 counts of sexual contact with a minor and of first-degree rape. Circuit Judge Michelle Comer sentenced him to a total of 25 years in prison.

Pretty Weasel appealed because the prosecution didn’t notify him, as required, before a mental health practitioner, Debra Hughes, who had counseled the victim, took the stand as the prosecution’s last witness.

Justice Scott Myren delivered the Supreme Court’s opinion Thursday. He first found that Pretty Weasel had standing to bring the appeal.

“The circuit court entered an order requiring the State to notify the defense of any expert testimony it intended to present. The State was therefore obligated to provide such notice before offering expert testimony. The State solicited testimony from Hughes; Pretty Weasel objected because he believed it was expert witness testimony. These objections sufficiently presented the issues to the circuit court and preserved them for appellate review,” Justice Myren wrote.

The justice also found that Hughes qualified as an expert because of some of her testimony.

“It is not as evident that Hughes’ testimony on redirect regarding the lack of a connection between A.D.’s statement that she disliked Pretty Weasel because he spanked her and A.D.’s allegations that Pretty Weasel sexually abused her was expert testimony. Making a connection between statements about two events does not necessarily require specialized knowledge; a layperson could make such a connection. However, in her response to the question, Hughes described her professional understanding of a child’s thought process before stating that she did not see the events as connected. Because Hughes’ testimony was based on ‘scientific, technical, or other specialized knowledge[,]’ it constituted an expert opinion. Her expert testimony was subject to the court’s pretrial orders requiring timely expert opinion disclosure,” Justice Myren wrote.

The justice then cited a prior South Dakota Supreme Court decision that said the defendant must know ahead of time that an expert witness would testify.

“Here, the State did not provide the required expert witness notice to Pretty Weasel because it was a last-minute decision to call Hughes as a witness after receiving the counseling records that Pretty Weasel had subpoenaed. Still, Blem establishes that the State must provide advance notice before calling an expert witness. If the State had provided the required notice, Pretty Weasel could have placed the issue before the circuit court for its consideration, outside the jury’s
presence, and before the State presented any expert witness testimony,” Justice Myren wrote.

He continued, “Although Pretty Weasel has established that the circuit court abused its discretion by allowing the State to present expert witness testimony in violation of its pretrial order, he must also establish that the admission of that testimony constituted prejudice. Our record review reveals that Hughes’ unnoticed testimony did not affect the jury’s verdict.

“Earlier in the trial, defense counsel elicited testimony from (Pretty Weasel’s wife) during cross-examination about the family attending counseling with Hughes and that A.D. told Hughes that she did not like Pretty Weasel because he spanked her. On redirect and without objection from the defense, the State elicited testimony from (the wife) that Hughes had diagnosed A.D. with PTSD. The State elicited further testimony from (the wife) about A.D.’s efforts to alter her appearance. Hughes’ testimony about these things was duplicative, but she also provided an expert witness explanation of the significance of A.D.’s efforts to alter her appearance. Additionally, Hughes testified that she did not see a connection between A.D.’s disclosures of sexual abuse and any anger she may have expressed about Pretty Weasel spanking her.

“Despite this testimony from Hughes, Pretty Weasel was not precluded from arguing to the jury that A.D. had a motive to fabricate, given her expressed anger toward him. Pretty Weasel thoroughly presented this theme throughout his closing argument, and neither party mentioned Hughes’ testimony in their closing arguments. We are convinced that even if this expert testimony from Hughes had been excluded, it would have had no effect on the verdict because of the overwhelming nature of the other evidence presented to the jury. Therefore, Pretty
Weasel has not established any prejudice from the admission of this unnoticed expert testimony,” Justice Myren concluded.

The Supreme Court also found that “Hughes’ testimony did not improperly bolster A.D.’s testimony.”