STATE of South Dakota, Plaintiff and Appellant, v. Judy Kay JONES, Defendant and Appellee, 654 N.W.2d 817

SABERS, Justice. [¶ 1.] Judy Jones was charged with 4 counts of unlicensed practice of midwifery in connection with her involvement in the at-home births of two children. The State filed a notice of intent to use evidence of an injunction prohibiting Jones from practicing midwifery, a contempt order for violating the injunction, and the treatment and death of one of the children she helped deliver. Jones moved to suppress the evidence and the trial court granted the motion. The State appeals and we affirm.

FACTS [¶ 2.] In January 1993, Jones was enjoined from practicing midwifery without a license by the First Judicial Circuit after assisting in the at-home delivery of a child in Union County, South Dakota. Jones was permanently enjoined from “practicing any acts or medical functions of a nurse midwife ... unless and until she becomes licensed under SDCL [ch] 36-9A.” She did not obtain a license to practice midwifery as required under SDCL ch 36-9A and violated the injunction by aiding in the at-home delivery of a child in Clay County.

In August 1996, the First Judicial Circuit held her in contempt for violating the injunction. [¶ 3.] Jones appealed the finding of contempt to this Court and we unanimously affirmed. South Dakota Bd. of Nursing v. Jones, 1997 SD 78, 566 N.W.2d 142. [¶ 4.] Jones assisted in two at-home births, one in August 1999 and one in March 2001 in Minnehaha County. On April 18, 2001, Jones was indicted on four counts of unlicensed practice of midwifery in connection with the two at-home births. The State filed a notice of intent to offer specified evidence of the 1993 injunction and 1996 finding of contempt.

Jones moved to suppress evidence of the injunction and evidence of one of the children’s post-birth treatment and death. The death of the child occurred in the hospital 10 days after the child was removed from Jones’ care. [¶ 5.] Both sides briefed the issues and argued them on October 5, 2001. On February 7, 2002, the trial court suppressed from the State’s case-in-chief evidence of the injunction, the contempt order, and the treatment and death of one of the children whose birth she assisted.

The court stated that if Jones were to open the door as to the suppressed evidence, the State could request a hearing to determine the relevance and probative value of the evidence. A trial was scheduled for February 26, 2002, but was stayed by order of this Court on February 19, 2002. STANDARD OF REVIEW [¶ 6.] “The decision to admit evidence at trial is a matter within the discretion of the trial court and is reviewed under an abuse of discretion standard.” State v. Chamley, 1997 SD 107, ¶7, 568 N.W.2d 607, 611 (citing State v. Fowler, 1996 SD 78, ¶ 12, 552 N.W.2d 92, 94). See also State v.

Klein, 444 N.W.2d 16, 18 (S.D.1989) (stating, “[o]ur standard of review concerning the trial court’s admission of evidence of prior crimes, wrongs or acts is whether the trial court abused its discretion”). [¶ 7.] 1. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY EXCLUDING EVIDENCE OF THE INJUNCTION AND CONTEMPT ORDER FROM THE STATE’S CASE-IN-CHIEF. [¶ 8.] The State argues that evidence of the injunction and contempt order is admissible under SDCL 19-12-5 or Federal Rule of Evidence 404(b).

It argues that the permanent injunction and contempt order is evidence of a continuing plan to practice midwifery without a license. [¶ 9.] “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” SDCL 19-12-5.

The statute provides that such evidence may be admissible for other purposes, such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” However, “prior bad acts evidence is not admissible to show that, merely because a defendant committed a similar offense on another occasion, he has a propensity to commit the offense charged.” State v. Steichen, 1998 SD 126, ¶ 17, 588 N.W.2d 870, 874 (citing State v.

Moeller, 1996 SD 60, ¶ 12, 548 N.W.2d 465, 471) (citations omitted). [¶ 10.] Before other acts evidence may be admitted as evidence, the trial court must apply a two-prong analysis:

(1) Whether the intended purpose for offering the other acts evidence is relevant to some material issue in the case (factual relevancy); and

(2) Whether the probative value of the evidence is substantially outweighed by its prejudicial effect (legal relevancy). State v. Ondricek, 535 N.W.2d 872, 873 (S.D.1995) (citing State v. Steele, 510 N.W.2d 661, 667 (S.D.1994)). This Court has stated that “it is preferable to delay admission of [other acts] evidence until the defense rests” or otherwise joins the issue. Steichen, 1998 SD 126 at ¶ 19, 588 N.W.2d at 875 (internal quotations and additional citations omitted). [¶ 11.] The State argues that the injunction and contempt order are relevant to show knowledge or that the act was not a mistake or accident.

These claims, however, are not relevant until Jones opens the door by claiming lack of knowledge, mistake or accident. The State also argues that the injunction and contempt order are relevant to prove a common plan or scheme. Again, however, Jones must open the door.

When a defendant “denies doing the charged act, evidence of a common plan or scheme to achieve the act is directly relevant to refute this general denial.” Steichen, 1998 SD 126 at ¶ 23, 588 N.W.2d at 875 (citing Ondricek, 535 N.W.2d at 875) (additional citations omitted). [¶ 12.] The trial court determined that evidence of the injunction and contempt order could not be used in the State’s casein-chief.

It held that: “Should the Defendant open the door, the State is instructed to request a hearing outside the presence of the jury so that the Court can determine the relevance and probative value of the evidence the State wishes to submit.” If Jones opens the door at any time by claiming accident or mistake or any other stated exception, the State has the opportunity to prove the relevance of this evidence. The State has failed to show that the trial court abused its discretion in suppressing the evidence at this time. [¶ 13.] 2.

WHETHER THE TRIAL COURT ERRED IN SUPPRESSING EVIDENCE OF THE POST-BIRTH TREATMENT AND DEATH OF A CHILD WHOSE BIRTH JONES ASSISTED. [¶ 14.] The State argues that all evidence relating to the birth, treatment and death of a child whose birth Jones assisted is part of the res gestae of the case and may be presented as evidence to the jury.

It argues that the practice of midwifery by Jones and the death of the child constitute a continuous ■ course of events, thereby making it a part of the main transaction. [¶ 15.] This Court has stated: The res gestae embraces matters and statements immediately antecedent to, and having a causal connection with, the ■main transaction. The res - gestae, as applied to a crime, includes the complete criminal transaction from its beginning or starting point in the act of accused until the end is reached.

Continuing acts or a series of events, transpiring before the commission of the crime, and which lead up to and are necessary or helpful to an understanding of the main event, and tend to explain the conduct and purposes of the parties are admissible as part of the res gestae. State v. Burtts, 81 S.D. 150, 155, 132 N.W.2d 209, 211-12 (1964) (citation omitted).

Furthermore, “‘relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” SDCL 19-12-1. [¶ 16.] This Court’s definition of res gestae is clear. Because it embraces only those matters and statements “immediately antecedent ... to the main transaction” (emphasis supplied), the evidence of a death that occurred ten days after Jones’ treatment of the child is not part of the res gestae.

This restriction in no way ties the State’s hands in proving the crime charged. The State is still free to show any care or conduct by the Defendant prior to the time the child was removed from her care. The evidence remaining for the State’s use is sufficient for it to try the case without unfair prejudice to the Defendant. [¶ 17.] Jones was indicted on charges of practicing midwifery without a license in violation of SDCL ch 36-9A. The medical treatment and death of one of the children is not relevant to prove the charges against Jones.

Moreover, this evidence is not sufficiently related to the conduct charged so as to create a .continuing act or transaction. The State has failed to show that the trial court abused its discretion in denying admission of this evidence at this time. [¶ 18.] Therefore, we affirm. [¶ 19.] KONENKAMP, Justice, and AMUNDSON, Retired Justice, concur. [¶ 20.] GILBERTSON, Chief Justice, and ZINTER, Justice, dissent in part and concur in result in part. [¶ 21.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate. .

In the event that Defendant or her attorney attempts to assert at any time during trial, as she asserted in a pretrial affidavit, that she was acting as a “certified professional midwife''- or was acting under some similar cá-pacity not legally authorized for the lawful practice of midwifery, then the issue would be properly joined and the State may seek to offer its other act evidence.