State v. Roach , 825 N.W.2d 258 ( 2012 )

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2012 S.D. 91IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
ARLEY F. ROACH, Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
****
THE HONORABLE JANINE M. KERN
Judge
****
MARTY J. JACKLEY
Attorney General
MAX A. GORS
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
JOHN R. MURPHY
Rapid City, South Dakota Attorney for defendant
and appellant.
****
CONSIDERED ON BRIEFS
ON AUGUST 27, 2012
OPINION FILED 12/26/12
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WILBUR, Justice
[¶1.] Arley Roach was convicted by a jury of second-degree rape. Roach
appeals a number of issues involving hearsay and the denial of a requested jury
instruction, a Batson challenge, and an objection regarding the State’s use of the
word “rape” during trial. We affirm.
FACTS AND PROCEDURAL BACKGROUND
[¶2.] Roach and H.S. were involved in an intimate, three-year relationship
characterized by several break-ups. The couple frequently reunited through
consensual sexual intercourse.
[¶3.] On the evening of February 6, 2011, H.S. tried to end her relationship
with Roach because she had begun a new relationship. That evening and into the
early morning hours of February 7, 2011, the couple exchanged a series of text
messages. Roach sent a text message to H.S. stating that he had finally accepted
the fact that H.S. fell out of love with him. He asked her whether he should leave
her alone. H.S. responded that she did not want him to “bug” her about it. In
response, Roach called H.S. a “fucin whore” “just like [her] mom.” Further, Roach
replied “U [know] ur fucin me 2marow right got [any more] condoms i dont believe u
used one.” H.S. responded “No arley, we arent [okay] not in the god damm mood
rite now stop [okay] gotta go to sleep.” Roach then replied “Oh u can fuc [the] world
[though].” The couple continued to exchange text messages until H.S. turned off her
cell phone.
[¶4.] On the morning of February 7, 2011, Roach entered H.S.’s apartment,
crawled into bed with H.S., and tried to have sex with her. H.S. refused, got up
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from the bed, and moved to the couch. Roach continued to try to have sex with her
and H.S. continued to refuse. Roach then picked up H.S. and tried to carry her into
the bathroom. While Roach was trying to carry her to the bathroom, H.S., in an
effort to stop Roach, attempted to grab onto the walls and scraped her thumb on the
corner of a doorway. H.S. asked Roach to stop and to put her down. Roach
eventually complied and H.S. walked into the bathroom to smoke a cigarette. 1
[¶5.] Once in the bathroom, H.S. again tried to end her relationship with
Roach. During their conversation, Roach became upset when he saw a hickey on
H.S.’s neck. In response to this marking, Roach said that H.S. “c[ould] go fuck the
world but [she] can’t fuck him.” Roach then started to pound his fist into his hand.
H.S. became scared that he was going to harm her. Because Roach stood between
her and the doorway to the bathroom, H.S. walked to the corner of the bathroom
and began to cry. Roach proceeded to undress himself, grabbed a blanket off of a
shelf, and placed it on the floor. Roach then grabbed H.S. and pushed her to the
floor. While being held down by the weight of Roach, H.S. repeatedly told Roach to
stop and that she did not want to have sex with him. H.S. eventually stopped
fighting Roach. Roach penetrated H.S., ejaculated, and left the bathroom.
[¶6.] At this point, H.S.’s roommate, N.R., arrived home from school. In
Roach’s presence, N.R. asked H.S. what was wrong because H.S. was crying. H.S.
did not respond. In an effort to find out more information, N.R. asked H.S. if Roach
had forced H.S. to have sex with him. H.S. shook her head affirmatively. Roach
1. H.S. typically smoked cigarettes in the bathroom because the exhaust fan
removed the smoke from the apartment.
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stated that he had not done anything to H.S. N.R. asked H.S. if Roach had raped
her and H.S. responded yes. N.R. called 911.
[¶7.] On March 31, 2011, Roach was indicted for second-degree rape and
sexual contact with a person incapable of consenting. The sexual contact charge
was later dismissed by the State. In a part two information, Roach was also
charged as a habitual offender due to a prior felony conviction.
[¶8.] After a jury trial, 2 Roach was found guilty of second-degree rape and
sentenced to fifteen years in prison with five years suspended.
[¶9.] Roach raises five issues in this appeal:
1. Whether the trial court erred in denying Roach’s proposed
jury instruction on consent.
2. Whether H.S.’s statements to sexual assault nurse,
Amber Mason, were admissible under SDCL 19-16-8
(Rule 803(4)).
3. Whether the trial court erred in denying Roach’s Batson
challenge to the State’s peremptory strike of prospective
juror, C.B.B.
4. Whether H.S.’s statements to Officer Terviel were
admissible under SDCL 19-16-6 (Rule 803(2)).
5. Whether the trial court abused its discretion in allowing
the use of the word “rape” during trial.
ANALYSIS AND DECISION
[¶10.] 1. Whether the trial court erred in denying Roach’s
proposed jury instruction on consent.
[¶11.] At trial, Roach based his theory of defense on the tumultuous nature of
his relationship with H.S., as well as their method of reconciliation – consensual
2. Appellate counsel did not represent Roach at the trial level.
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sexual intercourse. He alleged that it was reasonable for him to believe that H.S.
consented to the sexual encounter.
[¶12.] Roach proposed his jury instruction number two that stated, “[i]f the
Defendant reasonably believed H.S. consented to the sex act, then no rape
occurred.” The trial court considered the jury instruction and denied it. Instead,
the court gave Roach’s third proposed instruction, a “mistake of fact” instruction,
similar to the South Dakota Criminal Pattern Jury Instruction 2-8-1 3 and similar to
the instruction approved by this Court in State v. Woodfork, 454 N.W.2d 332 (S.D.
1990). 4 Roach’s proposed instruction three became jury instruction 17. Instruction
17 provided:
3. South Dakota Criminal Pattern Jury Instruction 2-8-1 provides:
An act is not a crime when committed or omitted under
an ignorance or mistake of fact which disproves any criminal
intent.
Where a person honestly and reasonably believes certain
facts, and acts or fails to act based upon a belief in those facts,
which, if true, would not result in the commission of a crime, the
person is not guilty.
4. Woodfork was charged with and convicted of first-degree rape. Woodfork, 454
N.W.2d at 333. He contended that “the trial court erred in refusing to grant
his requested instruction relating to the issue of consent.” Id. He requested
that the jury be instructed with the following instruction:
It is a defense to a charge of rape that the defendant entertained
a reasonable and good faith belief that the female person
voluntarily consented to engage in sexual intercourse. If from
all the evidence you have reasonable doubt whether the
defendant reasonably and in good faith believed she voluntarily
consented to engage in sexual intercourse you must give the
defendant the benefit of the doubt and find him not guilty.
(continued . . .)
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An act is not a crime when committed or omitted under an
ignorance or mistake of fact which disproves any criminal
intent. Where a person honestly believes certain facts, and acts
or fails to act based upon a belief in those fact[s], which, if true,
would not result in the commission of a crime, the person is not
guilty. 5
[¶13.] This Court has previously provided the standard of review for a trial
court’s instructions to a jury. “A trial court has discretion in the wording and
arrangement of its jury instructions, and therefore we generally review a trial
court’s decision to grant or deny a particular instruction under the abuse of
discretion standard.” State v. Klaudt, 2009 S.D. 71, ¶ 13, 772 N.W.2d 117, 121
(quoting State v. Cottier, 2008 S.D. 79, ¶ 7, 755 N.W.2d 120, 125). This Court has
also stated, however, that
[a]n accused must be afforded a meaningful opportunity to
present a complete defense. When a defendant’s theory is
supported by law and . . . has some foundation in the evidence,
however tenuous[,] the defendant has a right to present it.
Nonetheless, [j]ury instructions are to be considered as a whole,
and if the instructions when so read correctly state the law and
________________________
(. . . continued)
Id. The trial court refused to give this instruction to the jury. Id. at 334.
The court instead instructed, and this Court ultimately approved, the
following mistake of fact instruction:
An act is not a crime when committed or omitted under an
ignorance or mistake of fact which disproves any criminal
intent. Where a person honestly and reasonably believes certain
facts, and acts or fails to act based upon a belief in those facts,
which, if true, would not result in the commission of a crime, the
person is not guilty.
Id.
5. Unlike South Dakota Criminal Pattern Jury Instruction 2-8-1 and the
instruction approved by this Court in Woodfork, jury instruction 17 did not
contain the words “and reasonably” in the second sentence.
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inform the jury, they are sufficient. This is a question of law
reviewed de novo.
Id. (alterations in original) (internal citations and quotations omitted).
[¶14.] Further, an “[e]rror in refusing a proposed instruction ‘is reversible
only if it is prejudicial, and the defendant has the burden of proving any prejudice.’”
Id. ¶ 18 (quoting State v. Martin, 2004 S.D. 82, ¶ 21, 683 N.W.2d 399, 406). “This
requires a showing that the alleged error, in all probability, produced some effect
upon the jury’s verdict and was harmful to the substantial rights of the party
assigning it.” Id. (quoting Martin, 2004 S.D. 82, ¶ 37, 683 N.W.2d at 411).
[¶15.] Roach argues that the trial court deprived him of his constitutional
rights to due process and a fair trial when it refused to instruct the jury on his
theory of defense – consent. He further asserts that his second proposed instruction
was supported by law and had a foundation in the evidence presented at trial.
Roach maintains that he was prejudiced by the court’s denial of his second proposed
jury instruction because, had the instruction been given to the jury, the verdict
would have been different.
[¶16.] The State asserts that the jury was properly instructed because, when
the instructions are read as a whole, the law governing the case is correctly stated.
The State contends that lack of consent is not an element of forcible rape under
SDCL 22-22-1(2), and thus, the jury need not be given a specific instruction as to
consent. In citing State v. Faehnrich, 6 the State concedes, however, that if the
6. In Faehnrich, this Court stated that, “consent may be a defense when there is
evidence offered and received that the victim did indeed consent; however,
(continued . . .)
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victim freely and voluntarily consents without force, coercion, or threat, then
consent is a defense to forcible rape. 359 N.W.2d 895, 900 (S.D. 1984).
[¶17.] The instructions given to the jury correctly stated the law applicable in
this case. A plain reading of SDCL 22-22-1(2) 7 does not include a consent element.
See State v. Jones, 2011 S.D. 60, ¶ 12, 804 N.W.2d 409, 413 (quoting State v.
Schnaidt, 410 N.W.2d 539, 541 (S.D. 1987) (“When the language of a statute is
clear, certain, and unambiguous, there is no occasion for construction, and this
Court’s only function is to declare the meaning as clearly expressed in the
statute.”)). And, Roach does not present evidence of H.S.’s consent much less any
evidence that would “utterly negate” any element of force, coercion, or threat.
Faehnrich, 359 N.W.2d at 900. At trial, Roach elicited testimony from H.S. on
cross-examination that he and H.S. frequently had sexual intercourse in the
bathroom in the weeks leading up to the event at issue. H.S. also testified on cross-
examination that at least one of the incidences of sexual intercourse included acts of
simulated violence. This evidence, however, does not “utterly negate” any element
of force, coercion, or threat in this case. H.S. received injuries from the encounter,
________________________
(. . . continued)
that evidence would also have to utterly negate any element of force,
coercion, or threat.” 359 N.W.2d at 900.
7. SDCL 22-22-1(2) provides:
Rape is an act of sexual penetration accomplished with any
person under any of the following circumstances:
...
(2) Through the use of force, coercion, or threats of immediate
and great bodily harm against the victim or other persons
within the victim’s presence, accompanied by apparent power of
execution[.]
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which were documented by medical professionals. H.S. also testified as to the
nonconsensual nature of her sexual encounter with Roach. Thus, an instruction
specifically containing the word “consent,” as proposed by Roach in his second
instruction, was not necessary.
[¶18.] Furthermore, the jury instructions, when read as a whole, correctly
stated the law applicable to this case and allowed Roach “a meaningful opportunity
to present a complete defense.” Klaudt, 2009 S.D. 71, ¶ 13, 772 N.W.2d at 121.
Following rejection of Roach’s instruction number two, the trial court gave the jury
Roach’s proposed “mistake of fact” instruction. In addition to Roach’s “mistake of
fact” instruction, the jury was also given instructions as to the elements of forcible
rape, the presumption of innocence standard, and the reasonable doubt standard.
Thus, when read as a whole, the instructions guided the jury to return a verdict of
not guilty if the jury had a reasonable doubt as to whether Roach believed H.S.
consented to intercourse.
[¶19.] Finally, Roach has failed to articulate any prejudice he suffered as a
result of the court’s denial of his proposed instruction. Even though Roach’s second
proposed jury instruction was denied, the court gave Roach’s proposed “mistake of
fact” instruction. Additionally, Roach was permitted to elicit testimony from H.S.
on cross-examination that supported his consent defense. He also argued his
consent defense before the jury in his closing argument. Thus, Roach did not suffer
any prejudice from the trial court’s denial of his proposed jury instruction.
[¶20.] 2. Whether H.S.’s statements to sexual assault nurse, Amber
Mason, were admissible under SDCL 19-16-8 (Rule
803(4)).
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[¶21.] Prior to trial, the State filed a notice to offer hearsay evidence of sexual
assault nurse, Amber Mason, regarding statements H.S. made to Mason during
Mason’s examination of H.S. Mason is a registered nurse with specialized training
in sexual assault at Rapid City Regional Hospital.
[¶22.] During a motions hearing, the State presented Mason’s testimony.
Roach objected to the testimony arguing that the testimony was hearsay and not
admissible under SDCL 19-16-8 (Rule 803(4)). In a subsequent hearing, the trial
court ruled generally that the portions of H.S.’s statements to Mason that were
related to diagnosis and treatment were admissible at trial under SDCL 19-16-8
(Rule 803(4)). The trial court, however, did not specify which statements were
admissible under SDCL 19-16-8 (Rule 803(4)) and which were not. 8
[¶23.] At trial, Mason testified about the method she utilizes in the
examination of rape victims. Specifically, she stated,
I do an interview history on them. I basically ask them to tell
me everything that happened from beginning to the end; any
positions you were in; anything that they said to you; where
they touched you; absolutely anything that will help me find any
injuries, trauma, anything like that in the exam so they don’t
8. In its ruling, the trial court noted that,
there is no indication that the statements of the victim to Nurse
Mason were made with the clear understanding that they were
for medical treatment or diagnosis. Accordingly, the [c]ourt will
not admit the identity information elicited.
. . . The rest of the information elicited by Nurse Mason as it
relates to diagnosis and treatment is admissible. . . . [S]o, in
essence, the [c]ourt is telling you that the information provided
by Nurse Mason relevant to medical diagnosis and treatment is
admissible.
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have to keep repeating it during the exam for me so I can just
kind of know where to look.
[¶24.] Mason further stated that she records the conversation she has with
the victim in a “narrative.” Mason testified that this narrative serves a medical
purpose because it provides guidance to Mason in helping her locate injuries on the
victim. Mason testified that she took H.S.’s narrative prior to the physical exam. In
quoting H.S.’s narrative, Mason testified,
[H.S.] told me that she had broke up with her boyfriend and he
came into - - over to her house uninvited, that she was in the
bathroom and he was wanting to have sex with her. She kept
telling him that she didn’t want anything. He pulled a blanket
off of a shelf and laid it on the floor. She said that she didn’t
want anything. She just kept saying “No.”
And then in the middle of it, she had recalled that she was
forced into the bathroom. She didn’t walk willingly into the
bathroom, and she injured her thumb being forced into the
bathroom.
She had also stated that at one point, she just stopped fighting
because she just wanted it to get over with. In the middle of it,
she grabbed her cell phone. She was pushing buttons and – just
random buttons trying to call anybody so that somebody would
be able to hear what was going on.
Mason further stated,
A. Yes. There’s an abrasion on her thumb.
Q. And is that what she - - maybe she told you about on her left
thumb?
A. Yes.
Q. Okay. Do you recall what [H.S.] told you about how she
received all of her injuries?
A. She told me that she was forced onto the floor where she was
fighting for awhile for him to stop. And then she finally just
gave up and she was laying on her back on the floor.
Mason also testified that,
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Q. I want to – before I move on, I want to ask you, did [H.S.] tell
you about penetration?
A. Yes.
Q. And - - and does that serve a medical purpose to find out
about whether somebody was penetrated or not?
A. Yes.
Q. And what does penetration mean? Can you explain that?
A. Penetration is just the penis being inserted into the vagina.
Q. And what did [H.S.] tell you about penetration?
A. She told me that he had sex with her. He forced her to have
sex with him.
Roach interposed no objection to the foregoing testimony.
[¶25.] On appeal, Roach argues that some of the statements made by Mason
at trial were not relevant for medical diagnosis or treatment, were cumulative to
H.S.’s in-court testimony, and thus, were inadmissible hearsay. The State argues
that H.S.’s statements to Mason are admissible under SDCL 19-16-8 (Rule 803(4)).
[¶26.] Admissibility of evidence pursuant to SDCL 19-16-8 (Rule 803(4)) is
reviewed under an abuse of discretion standard. See United States v. Sumner, 204
F.3d 1182, 1185 (8th Cir. 2000). “‘Hearsay’ is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” SDCL 19-16-1(3) (Rule 801(c)); State v. Shepard,
2009 S.D. 50, ¶ 14, 768 N.W.2d 162, 166. “Hearsay is not admissible except as
provided by law or by chapters 19-9 to 19-18, inclusive, or by other rules prescribed
by the Supreme Court.” SDCL 19-16-4 (Rule 802). One such exception is SDCL 19-
16-8 (Rule 803(4)), which provides:
Statements made for purposes of medical diagnosis or treatment
and describing medical history, or past or present symptoms,
pain, or sensation, or the inception or general character of the
cause or external source thereof are not excluded by § 19-16-4 in
so far as reasonably pertinent to diagnosis or treatment, even
though the declarant is available as a witness.
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“The crucial question under this rule . . . is whether the out-of-court statements
were ‘reasonably pertinent’ to diagnosis or treatment.” Olesen v. Class, 962 F.
Supp. 1556, 1565 (D.S.D. 1997) aff’d in part, rev’d in part, 164 F.3d 1096 (8th Cir.
1999).
[¶27.] At the pretrial hearing, the trial court did not make a definitive ruling
on the specific portions of Mason’s narrative that are now at issue: those statements
that were not related to diagnosis and treatment. Upon review, it appears that
some portions of Mason’s narrative were relevant to medical diagnosis and
treatment and some portions were not. The trial court never made a specific
pretrial ruling as to admissibility of each portion of the narrative, and Roach did not
renew his objection at trial as to the portions of Mason’s testimony that were not
related to medical diagnosis and treatment. We have said on previous occasions
that “[t]he ‘failure to object at trial constitutes a waiver of that issue on appeal.’”
State v. Motzko, 2006 S.D. 13, ¶ 4 n.2, 710 N.W.2d 433, 436 n.2 (quoting State v.
Moran, 2003 S.D. 14, ¶ 21, 657 N.W.2d 319, 325). Because Roach failed to renew
his objection at trial to the portions of Mason’s testimony that were not related to
medical diagnosis and treatment, he waived this issue. Thus, this Court will not
review the issue on appeal.
[¶28.] 3. Whether the trial court erred in denying Roach’s Batson
challenge to the State’s peremptory strike of prospective
juror, C.B.B.
[¶29.] During voir dire, Roach’s counsel presented questions to the
prospective jurors regarding the presumption of innocence. C.B.B., a Native
American prospective juror, stated that her understanding of the presumption of
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innocence was that the defendant is innocent until proven guilty. In response to
counsel’s request to elaborate on her affirmative response to the question about
whether it would be hard for her to look at Roach as having done nothing wrong,
C.B.B. responded, “Seeing him sitting there looking innocent, but you really don’t
think he did something wrong.” After questioning C.B.B. about her responses to
Roach’s counsel’s questions, the State exercised one of its peremptory strikes on
C.B.B.
[¶30.] Roach raised a Batson challenge to the State’s peremptory strike of
C.B.B. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
Based on C.B.B.’s responses to its inquiries, the State responded that it did not
believe that C.B.B. could be a fair and impartial juror. In relying on its detailed
notes and observations of the proceedings, the trial court ruled that, based on
C.B.B.’s confused responses to both counsel as to the standards for a criminal trial
and C.B.B.’s demeanor throughout the proceedings, the State presented race-
neutral reasons for the strike.
[¶31.] On appeal, Roach argues the State failed to articulate a race-neutral
explanation for striking C.B.B., and therefore, Roach’s conviction should be vacated.
Specifically, he asserts that the State struck C.B.B. and, yet, chose to retain
another juror, R.W., who incorporated C.B.B.’s response as to the meaning of
presumption of innocence in his response to counsel’s voir dire questions.
[¶32.] This Court reviews a trial court’s ruling on a Batson challenge for clear
error. State v. Mulligan, 2007 S.D. 67, ¶ 34, 736 N.W.2d 808, 820 (citing Batson,
476 U.S. at 98 n.21, 106 S. Ct. at 1724 n.21). Additionally,
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[t]his [C]ourt’s function under the clearly erroneous standard is
to determine whether the decision of the lower court lacks the
support of substantial evidence, evolves from an erroneous view
of the applicable law or whether, considering the entire record,
we are left with a definite and firm conviction that a mistake
has been made.
State v. Overbey, 2010 S.D. 78, ¶ 11, 790 N.W.2d 35, 40 (quoting In re H.L.S., 2009
S.D. 92, ¶ 11, 774 N.W.2d 803, 807-08).
[¶33.] The test for examining a Batson challenge consists of three steps. “[A]
defendant must first establish a prima facie case of purposeful discrimination by
showing he or she is a member of a cognizable racial group and the State used its
peremptory challenges to remove members of the defendant’s race from the
potential jury candidates.” Mulligan, 2007 S.D. 67, ¶ 33, 736 N.W.2d at 820
(quoting State v. Owen, 2007 S.D. 21, ¶ 45, 729 N.W.2d 356, 369). “A criminal
defendant may object to race-based exclusions of jurors effected through peremptory
challenges whether or not the defendant and the excluded juror share the same
race.” Id. (quoting Honomichl v. Leapley, 498 N.W.2d 636, 639 (S.D. 1993)). “The
burden then shifts to the State to provide a race-neutral explanation for the use of
its peremptory challenges.” Id. (quoting Owen, 2007 S.D. 21, ¶ 45, 729 N.W.2d at
369). “The trial court will then have the duty to determine if the defendant has
established purposeful discrimination.” Id. (quoting State v. Farmer, 407 N.W.2d
821, 823 (S.D. 1987)).
[¶34.] In this case, the trial court found that the State articulated a race-
neutral explanation for the use of its peremptory challenge. The court based this
finding on its observations of C.B.B.’s confusion in her responses as to the standards
in criminal trials and her demeanor throughout the proceedings. We acknowledge
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that the trial court is in a better position to judge the credibility of C.B.B. This
Court will give great deference to the trial court’s finding that the State exercised a
race-neutral strike. See id. ¶ 34 (quoting Batson, 476 U.S. at 98 n.21, 106 S. Ct. at1724 n.21 (“[T]he trial judge’s findings in the context under consideration here
largely will turn on evaluation of credibility, therefore a reviewing court ordinarily
should give those findings great deference”)). Thus, because the trial court was in
the best position to judge C.B.B.’s credibility and demeanor throughout the
proceedings, the finding of the trial court that the strike was a race-neutral strike is
affirmed.
[¶35.] 4. Whether H.S.’s statements to Officer Terviel were
admissible under SDCL 19-16-6 (Rule 803(2)).
[¶36.] At trial and prior to H.S. taking the stand, Officer Terviel testified on
behalf of the State. Officer Terviel responded to N.R.’s 911 call on February 7,
2011. He testified as to his observations of H.S. When Officer Terviel began to
testify as to his conversation with H.S. regarding what had happened, Roach
objected to this testimony arguing that it was hearsay. His objection was overruled
without explanation. The following day at trial, the State supplemented the record
and stated that the testimony of Officer Terviel was admissible under the excited
utterance exception to the hearsay rule under SDCL 19-16-6 (Rule 803(2)). 9
Following this exchange, the court did not make any findings on the record
9. SDCL 19-16-6 (Rule 803(2)) provides:
A statement relating to a startling event or condition made
while the declarant was under the stress of excitement caused
by the event or condition, is not excluded by § 19-16-4, even
though the declarant is available as a witness.
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regarding the admission of Officer Terviel’s testimony under SDCL 19-16-6 (Rule
803(2)). On appeal, Roach, relying on State v. Orelup, argues that the trial court
erred when it admitted Officer Terviel’s testimony under SDCL 19-16-6 (Rule
803(2)) yet did not make any findings on the record. See 492 N.W.2d 101, 106 (S.D.
1992) (finding that the trial court erred by admitting the testimony of two witnesses
under SDCL 19-16-6 (Rule 803(2)) when the record did not indicate that the court
found that the victim’s statements were related to a startling event and made under
the stress of excitement).
[¶37.] This Court reviews evidentiary rulings of the trial court under an
abuse of discretion standard. State v. Graham, 2012 S.D. 42, ¶ 16, 815 N.W.2d 293,
301. “An abuse of discretion refers to a discretion exercised to an end or purpose
not justified by, and clearly against reason and evidence.” State v. Fisher, 2011 S.D.
74, ¶ 32, 805 N.W.2d 571, 578 (quoting State v. Krebs, 2006 S.D. 43, ¶ 26, 714
N.W.2d 91, 101).
[¶38.] To be admissible pursuant to the excited utterance exception to the
hearsay rule, a hearsay statement must “relate ‘to a startling event or condition
made while the declarant was under the stress of excitement caused by the event or
condition.’” State v. Midgett, 2004 S.D. 57, ¶ 31, 680 N.W.2d 288, 295 (quoting
SDCL 19-16-6 (Rule 803(2)). “The reliability of the statement stems from the
influence of the event that overrides any reflective capability essential for
fabrication.” State v. Floody, 481 N.W.2d 242, 250 (S.D. 1992). “Thus, ‘the critical
inquiry is whether the statements were made while the declarant was still under
the influence of the experience.’” Id. (quoting State v. Logue, 372 N.W.2d 151, 159
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(S.D. 1985)). “The lapse of time between the startling event and the out-of-court
statement although relevant is not dispositive in the application of [R]ule 803(2).”
United States v. Iron Shell, 633 F.2d 77, 85 (8th Cir. 1980).
[¶39.] The State has cited the record in support of the trial court’s admission
of Officer Terviel’s testimony under SDCL 19-16-6 (Rule 803(2)). The trial court,
however, did not make findings as to whether the statements at issue were made
under the stress of excitement of the event.
[¶40.] In Midgett, we said,
[t]he problem here is that the trial court did not determine
whether each statement at issue was made under the stress of
excitement caused by this event. Although the State argues
that [the officer] indicated [that the victim] “seemed to—
appeared to be shaken,” he also testified that she “just seemed
hesitant about coming over to talk to me. She just kind a stayed
back.” Therefore, while [the victim] may have been under the
requisite stress of excitement when she made some of the
statements to [the officer], we cannot, from the State’s limited
citation to the record, make that assessment for all the
statements.
2004 S.D. 57, ¶ 31, 680 N.W.2d at 295. Similar to the trial court in Midgett, the
trial court in the present case did not determine whether each statement at issue
was made under the stress of excitement of the event. However, unlike Midgett, the
State has cited to stress of excitement evidence within the record. Officer Terviel,
who arrived at H.S.’s apartment at 11:09 a.m. – 39 minutes after the forcible
encounter occurred and three or four minutes after he received notice from dispatch
of the incident, testified that he observed that H.S. “appeared to have been recently
crying” and was “visibly upset.” He also noted that H.S. was holding her abdomen
area. Officer Terviel further testified that, while he was speaking to N.R., he “could
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hear [H.S.] crying.” When Officer Terviel began to question H.S. about the alleged
rape, H.S. “appeared to be visibly shaken, alternate - - alternately crying, sobbing,
and appeared quite upset.” Specifically, Officer Terviel testified that
A. [s]he - - she told me that she continually told [Roach] no, but
he told her he just wanted to have sex with her one more time.
Q. Did she break down at any point during this conversation?
A. Yes sir. Again, she - - she would cry on and off throughout
the conversation.
Officer Terviel’s investigation involving H.S. lasted approximately 49 minutes. 10
[¶41.] Officer Terviel’s observations and H.S.’s demeanor throughout Officer
Terviel’s investigation indicate that H.S.’s excited statements were the product of
the startling event she was continuing to experience at the time she spoke with
Officer Terviel rather than the product of reflection. While the trial court did not
make findings as to the stress of excitement of the event on the record as discussed
in Orelup, the State has cited stress of excitement evidence in the record to warrant
the trial court’s admission of Officer Terviel’s testimony under the excited utterance
exception to the hearsay rule. Therefore, the trial court was within its discretion to
admit the testimony of Officer Terviel under SDCL 19-16-6 (Rule 803(2)).
[¶42.] 5. Whether the trial court abused its discretion in allowing
the use of the word “rape” during trial.
[¶43.] Finally, Roach contends that the trial court abused its discretion in
overruling his two objections and allowing the use of the word “rape” during the
trial. He argues that he was prejudiced by its use. Roach further asserts that the
use of the term was a legal conclusion which invaded the province of the jury.
10. Following the investigation, H.S. was taken to Rapid City Regional Hospital–
a 10 minute commute. H.S. was seen by medical professionals at 12:07 p.m.
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Additionally, he contends that the trial court suggested that it would instruct the
jury as to the use of the word “rape” at trial, but a specific instruction was never
given. This Court reviews the trial court’s denial of Roach’s objection to the use of
the word “rape” at trial under an abuse of discretion standard. See State v.
Mattson, 2005 S.D. 71, ¶ 13, 698 N.W.2d 538 (“[This Court] presume[s] the
evidentiary rulings made by a trial court are correct, and review[s] those rulings
under an abuse of discretion standard.”).
[¶44.] This is the first time this Court has addressed whether allowing the
use of the word “rape” throughout trial is an abuse of discretion. Other jurisdictions
have had the opportunity to address this issue. See State v. Goss, 235 S.E.2d 844,
849 (N.C. 1977) (finding that the use of the term “rape” by the victim was clearly a
“convenient shorthand term” and not an impermissible legal conclusion); State v.
Wonser, 537 P.2d 197, 199 (Kan. 1975) (finding that the trial court did not err in
allowing the repeated use of the word “rape” by witnesses, the prosecuting attorney,
and defense counsel when referring to an element of the offense of indecent liberties
with a child and stating that “the parties were simply designating the act by its
common name”); State v. Amick, No. COA8-760, 2009 WL 1056557, at *3 (N.C. Ct.
App. Apr. 21, 2009) (stating that the victim’s use of the word “rape” was not an
impermissible legal conclusion, but rather “a ‘convenient shorthand term’ to
describe the victim’s version of events”); People v. Haynes, No. A122908, 2010 WL
4132618, *6-7 (Cal. Dist. Ct. App. Oct. 21, 2010) (stating that it was not an abuse of
discretion for the court to allow the prosecutor to ask the victim questions using the
word “rape” and for the victim to use the word “rape” in response because victim’s
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responses were shorthand for describing what had occurred). See also State v.
Mireles, No. A03-699, 2004 WL 1244077, *4 (Minn. Ct. App. June 8, 2004) (finding
that there was no prosecutorial misconduct in the prosecution’s use of the word
“rape” to describe the offense). But see Arnold v. State, 304 S.E.2d 118, 123 (Ga. Ct.
App. 1983) (stating that in this case, which turned on the identity of the assailant
rather than on whether the rape occurred, the “[u]nrestricted use of the word
[“rape”] may be objectionable, absent some jury instruction that the question of
whether or not any rape occurred was for [the jury’s] determination”).
[¶45.] On a review of the record, the words “rape” or “raped” are used by both
parties in voir dire, direct and cross-examination of witnesses, and closing
arguments. Prior to Roach’s first objection, “rape” or “raped” was used several
times by both the State and Roach. Notably, even after his second objection, Roach
used “rape” or “raped” in his cross-examination of H.S. and his closing argument.
The prevalence of the use of the word “rape” by both sides lends credence to fact
that the word “rape” was not used as a legal conclusion, but rather as shorthand to
describe the events that occurred.
[¶46.] Further, while the court did not give a specific jury instruction as to
the use of the words “rape” or “raped,” the court did give specific instructions as to
the elements of forcible rape under SDCL 22-22-1(2) that must be proven beyond a
reasonable doubt, the definition of reasonable doubt, and the presumption of
innocence. Roach did not suffer prejudice because the jury was properly instructed,
thus avoiding confusion, if any, that the use of the word “rape” may have caused.
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Therefore, the court did not abuse its discretion in denying Roach’s objection to the
use of the word “rape” during trial.
CONCLUSION
[¶47.] The trial court properly denied Roach’s proposed jury instruction on
consent. The instructions that were given to the jury accurately stated the law and
were not prejudicial to Roach. Additionally, because Roach did not object to
Mason’s testimony at trial, he failed to preserve that issue on appeal. The trial
court also correctly denied Roach’s Batson challenge to the State’s peremptory
strike of juror, C.B.B. Further, while the trial court did not make specific findings
on the record, the State has cited to stress of excitement evidence in the record to
warrant the trial court’s admission of Officer Terviel’s testimony under the excited
utterance exception to the hearsay rule. Lastly, the trial court did not abuse its
discretion in denying Roach’s objection to the use of the word “rape” during trial.
Therefore, based on the foregoing, we affirm.
[¶48.] GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices,
concur.
[¶49.] KONENKAMP, Justice, concurs specially.
KONENKAMP, Justice (concurring specially).
[¶50.] This case illustrates one of the pitfalls inherent in our rule in SDCL
19-9-3 (Rule 103(a)). The rule provides in part: “Once the court makes a definitive
ruling on the record admitting or excluding evidence, either at or before trial, a
party need not renew an objection or offer of proof to preserve a claim of error for
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appeal.” SDCL 19-9-3 (Rule 103(a)) (emphasis added); see also Papke v. Harbert,
2007 S.D. 87, ¶ 54 n.16, 738 N.W.2d 510, 528 n.16. Our rule gives no further
guidance on what constitutes a “definitive ruling.” Overreliance on this provision
may be hazardous to preserving an objection for appeal.
[¶51.] Here, the defense sought a pretrial order to exclude, among other
things, the testimony of Nurse Amber Mason about statements the victim made
regarding the identity of the alleged assailant and other remarks not pertinent to
medical diagnosis. The court granted the request, in part, saying it “will not admit
the identity information elicited.” Defense counsel also asked the court for
“clarification on the purported statements the State is seeking to introduce, as not
all statements of the alleged victim supposedly made to Ms. Mason are pertinent to
medical diagnosis or treatment.” The court responded:
The court finds that the rest of . . . the information elicited by
Nurse Mason as it relates to diagnosis and treatment is
admissible. Now I note in your response, [defense counsel], that
you are asking for clarification regarding what statements the
victim made to the nurse as pertinent to medical diagnosis or
treatment so, in essence, the court is telling you that the
information provided to Nurse Mason relevant to medical
diagnosis and treatment is admissible. The identity question
the court finds to be inadmissible.
Then the court asked counsel if its response provided “sufficient direction.” The
State answered affirmatively, and defense counsel replied, “We do rely on our letter
dated August 12th.” But that letter, again, only sought the same “clarification” and
commented that “not all statements the alleged victim supposedly made to Ms.
Mason are pertinent to medical diagnosis or treatment.”
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[¶52.] Was there a definitive ruling? In fairness to defense counsel, in a
sense the ruling was definitive: it was not conditional or provisional. Apparently,
the trial court intended its ruling to be its final word on the subject. But was the
court saying that all the nurse’s testimony, except on identity, was pertinent to
medical diagnosis or treatment? Or was the court saying that it would admit the
nurse’s testimony pertaining only to medical diagnosis or treatment? These are
close questions. As explained in the Committee Notes to the federal counterpart to
SDCL 19-9-3 (Rule 103(a)), the rule “imposes the obligation on counsel to clarify
whether an in limine or other evidentiary ruling is definitive when there is doubt on
that point.” See Fed. R. Evid. 103(a) advisory committee’s note.
[¶53.] On appeal, counsel thoroughly parses Nurse Mason’s testimony,
arguing that portions were not at all related to diagnosis or treatment. But the
trial court was never given the opportunity to hear these specific objections. If it
had, the matter may have been easily corrected. Defense counsel should have
brought this issue back to the court’s attention at trial. As the Committee Notes
explain, “Even where the court’s ruling is definitive, nothing in the [rule] prohibits
the court from revisiting its decision when the evidence is to be offered.” Id. Since
the court was not given an opportunity to rule on the specific concerns now before
us, we must declare the issue waived.
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