State v. Hankins ( 2022 )

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2022 S.D. 67IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
NATHAN HANKINS, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA
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THE HONORABLE ERIC J. STRAWN
Judge
****
JOHN R. MURPHY
Rapid City, South Dakota Attorney for defendant
and appellant.
MARK VARGO
Attorney General
ERIN E. HANDKE
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
****
CONSIDERED ON BRIEFS
MAY 25, 2022
OPINION FILED 11/02/22
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MYREN, Justice
[¶1.] A Lawrence County grand jury indicted Nathan Hankins on two
counts of first-degree rape and two alternative counts of sexual contact with a minor
under 16 with his half-sister, R.H. A jury convicted Hankins of two counts of first-
degree rape. Hankins appeals, asserting that his due process rights were violated
due to an insufficient arraignment, that the court abused its discretion in admitting
testimony from certain witnesses, and that the State engaged in prosecutorial
misconduct. We affirm.
Facts and Procedural History
[¶2.] In October 2019, R.H. told her mother, Patricia Hankins (Patricia),
that Hankins had touched her privates. On November 4, 2019, R.H. participated in
a forensic interview with Monica Eaton-Harris. In the interview, R.H. stated that
Hankins touched and kissed her vagina using his hand, mouth, and tongue.
[¶3.] On December 18, 2019, a Lawrence County grand jury indicted
Hankins for the first-degree rape of a child under 13 by digital penetration under
SDCL 22-22-1(1) and SDCL 22-22-1.2(1) or, alternatively, sexual contact with a
minor under age 16 under SDCL 22-22-7. The grand jury also indicted Hankins for
first-degree rape of a child under 13 by cunnilingus under SDCL 22-22-1(1) and
SDCL 22-22-1.2(1) or, alternatively, sexual contact with a minor under 16 under
SDCL 22-22-7. On January 28, 2020, the State filed a part II information that
alleged Hankins was previously convicted of first-degree rape under SDCL 22-22-
1(5) on August 19, 2004.
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[¶4.] The circuit court held Hankins’s arraignment hearing on February 11,
2020. The circuit court advised all defendants appearing on that date of their
statutory and constitutional rights. When the circuit court addressed Hankins and
asked him if he understood his rights, Hankins answered affirmatively. He then
waived his right to have the indictment read to him. The circuit court explained the
charges against Hankins, their maximum sentences, and their mandatory
minimums. The circuit court also informed Hankins of the part II information, the
allegations contained therein, and the potential consequences. Hankins pled not
guilty and denied the part II information.
[¶5.] A three-day jury trial began on May 18, 2021. The State’s first witness
was Dr. Cara Hamilton, who examined R.H. on November 7, 2019. During Dr.
Hamilton’s testimony, the following occurred:
State: In the practice of medicine, is there a term called a
history?
Dr. Hamilton: Yes.
State: What does that mean in medicine?
Dr. Hamilton: While taking a history, I spend some time
gathering information about my patient and
learning about their chief complaint -- another
medical term -- which is the reason they presented
to medical care that day. Also taking a history
would involve getting medical background; medical
history; social history, where the patient lives; any
family history that’s pertinent as well.
State: All right, Doctor. Did you learn in that history
what had happened?
Dr. Hamilton: Yes.
State: What had happened?
Dr. Hamilton: So most of my information actually came from
Monica, the interviewer, and that was by design
that I wouldn’t have to rehash the details with
[R.H.] herself. But I learned --
Hankins: Objection, Your Honor. At this point it’s hearsay.
Court: Sustained.
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State: Did you learn when this event had taken place?
Hankins: Objection. Hearsay, Your Honor.
Court: Overruled.
Dr. Hamilton: Yes. It sounded like it had occurred in the summer
of 2018.
State: Okay. And did you learn who was accused of doing
this to her?
Hankins: Your Honor, I would object to foundation, as to
hearsay.
Court: Overruled.
Dr. Hamilton: Yes.
State: Who?
Dr. Hamilton: Nathan Hankins.
Dr. Hamilton testified that her examination of R.H. was normal and revealed no
evidence of vaginal penetration. However, she testified that a normal examination
was consistent with R.H.’s disclosure and that there is “a lot of evidence that shows
that even witnessed to and confessed to vaginal penetration can leave no
documented conclusive evidence of penetration on exams outside of the three-to
five-day healing period.”
[¶6.] At the time of trial, R.H. was 11 years old and in fourth grade. She
testified that when Hankins would stay at her house, he sometimes slept in her bed.
She testified that Hankins touched her vagina with his hand, mouth, and tongue.
R.H. explained that this happened when she was in second grade. R.H. further
testified that she did not tell anyone about what happened because she was
uncomfortable and concerned her mother would not believe what happened. During
R.H.’s testimony, Hankins made numerous objections, many of which the circuit
court sustained. As the prosecutor persisted with similar questions, Hankins’s
attorney expressed frustration by saying: “Your Honor, I don’t know how many
times I can object to the same question.”
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[¶7.] Patricia testified that she was a stay-at-home mother who was married
but separated from her husband, David. She stated that she had two children with
David: S.H. and R.H. She noted that Hankins is David’s adult son with another
woman. Patricia testified that Hankins would frequently come over to the
apartment she shared with S.H. and R.H. and bring gifts for the children. Patricia
testified that Hankins slept on R.H.’s bed with her three times. She stated that
R.H. disclosed Hankins’s conduct in October 2019. Patricia testified that she
immediately called David, who told law enforcement of Hankins’s conduct at the
end of October.
[¶8.] On redirect, in response to defense counsel eliciting testimony from
Patricia that R.H. had met with the prosecutor multiple times, the prosecutor
inquired: “Do you appreciate the fact that somebody took the time to listen to [R.H.]
before today?” The circuit court overruled Hankins’s objection based on relevancy
and granted his request for a standing objection “to this line of questions.” Patricia
answered: “I think it’s important for children to be heard.” The State then moved to
a different line of questions about David’s drinking problems. In the middle of a
series of questions about David’s drinking, the State asked: “Is [R.H.] a truthful
child?” Patricia responded, “Yes.” The State then returned to additional questions
about David’s drinking. Hankins raised no objections to any of these questions.
[¶9.] Next, Kali Njos testified that she had known Hankins for eight years
and had a relationship with him from 2016 through February 2019. She and
Hankins have one daughter, Kaia. Njos stated that after her relationship with
Hankins ended, she maintained contact with David. She testified that David
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informed her by text messages dated October 22, 2019, that R.H. had claimed that
Hankins inappropriately touched her. Njos testified that she asked Hankins by text
message about R.H.’s disclosure on November 9, 2019. During her testimony, the
circuit court admitted the text-message exchange between Njos and Hankins. The
text-message conversation read:
Njos: Tell me the truth about something?
Hankins: Anything at this point. I’m a dead man walking lol
Njos: [R.H.] is saying you touched her
Hankins: What do you think?
Njos: I don’t know
I really don’t
I can see both
Hankins: Knowing me. What do you think?
Knowing “us”
Our past
Njos: I always thought there was a line
Hankins: Yeah well lines and I don’t bode well.. [sic]
Njos: Lol
Hankins: Lol idk what to tell you. You know me.
Njos: That’s messed up [N]athan [sad emoji face]
Hankins: Well I am getting what I deserve
And well. I cant [sic] help it. I’m sorry
Njos testified that she took a screenshot of this text-message conversation with
Hankins and sent it to David on January 9, 2020.
[¶10.] The State next called Monica Eaton-Harris, who testified that she had
a bachelor’s degree in literature, a master’s degree in counseling, had been a
forensic interviewer for two years and three months, and had conducted 230
forensic interviews. Eaton-Harris noted that she completed 40 hours of training at
the National Child Advocacy Center to become a forensic interviewer. She testified
that “[a] forensic interview is a nonleading, nonsuggestive interview of a child who
is a possible victim of abuse or neglect or a witness to domestic violence.” She
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testified that she interviewed R.H. for an hour in November 2019 when R.H. was
nine years and seven months old. The jury watched a video of her interview with
R.H. Eaton-Harris stated that child victims frequently delay disclosing their abuse.
During redirect examination, Hankins objected to the following question:
State: Can you explain to us how the family dynamics
works into your ability to get a disclosure from a
child?
Hankins: Objection. Foundation, Your Honor.
Court: Overruled.
Eaton-Harris: Children may be more likely to disclose if the
alleged offender is someone that they’re not close
to, such as a stranger. If it’s a family member or
close friend, they may have more concerns about
how it’ll affect the dynamic, whether they’ll be
believed, worried about the person getting in
trouble.
[¶11.] Tifanie Petro, the director of the Children’s Home Child Advocacy
Center and statewide prevention education for Children’s Home Society, further
testified that delays in disclosure are the most common characteristic of children
who are sexually abused. She testified that some children fear disclosing what
happened because they do not think they will be believed.
[¶12.] When the State rested, Hankins made a motion for judgment of
acquittal, which the circuit court denied. The only defense witness called was
Patricia Hankins, who testified about a letter from R.H.’s school in October 2019
regarding her missing several days of school.
[¶13.] The jury found Hankins guilty of first-degree rape of a child under 13
by digital penetration and first-degree rape of a child under 13 by cunnilingus.
Hankins was sentenced to 50 years on each count with 25 years suspended on each
count, with the two sentences to run consecutively. Hankins appeals.
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Analysis
1. Whether Hankins’s arraignment was inadequate.
[¶14.] Hankins claims his arraignment violated his due process rights and
SDCL 23A-7-1 because the circuit court did not advise him of the charges against
him, read his indictment aloud, or confirm that he read the indictment.
Additionally, Hankins asserts the circuit court should have covered the elements of
the crimes charged in the indictment. He contends he did not have sufficient time
to discuss the matter with his attorney before entering his pleas or waiving his
right to have the indictment read aloud.
[¶15.] SDCL 23A-7-1 provides:
An arraignment shall be conducted in open court, except that an
arraignment for a Class 2 misdemeanor may be conducted in
chambers, and shall consist of reading the indictment,
information, or complaint, as is applicable, to the defendant or
stating to him the substance of the charge and calling on him to
plead thereto.
A defendant must be informed that if the name in the
indictment, information, or complaint is not his true name, he
must then declare his true name or be proceeded against by the
name given in the indictment, information, or complaint. If he
gives no other name, the court may proceed accordingly. If he
alleges that another name is his true name, he shall be
proceeded against pursuant to § 23A-6-20. He shall be given a
copy of the indictment, information, or complaint, as is
applicable, before he is called upon to plead.
[¶16.] “Due process of law . . . does not require the state to adopt any
particular form of procedure [for an arraignment], so long as it appears that the
accused has had sufficient notice of the accusation and an adequate opportunity to
defend himself in the prosecution.” State v. Anderson, 2013 S.D. 36, ¶ 12, 831
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N.W.2d 54, 57 (alterations in original) (quoting State v. Mitchell, 491 N.W.2d 438,
444 (S.D. 1992)).
[¶17.] On February 11, 2020, Hankins was arraigned by the circuit court.
The circuit court began with a general advisement of rights to all in attendance.
When the circuit court called Hankins’s case, Hankins’s attorney identified himself
and indicated that there would be a not guilty plea. At the circuit court’s request,
Hankins identified himself and stated that he understood his rights. The circuit
court told Hankins that he was entitled to have the indictment read aloud in open
court, or he could waive that right. Hankins said: “I’ll waive that right.” Although
the indictment was not read in open court, the circuit court individually discussed
each of the four counts listed in the indictment and explained the maximum
penalties allowed, the mandatory minimum sentences that applied, and the
maximum fines that could be imposed. The circuit court also explained the
allegations in the part II information and the potential consequences. Hankins
informed the circuit court that he understood the maximum penalties and his
constitutional and statutory rights. Hankins pled not guilty and denied the
allegations in the part II information. Hankins’s counsel expressed no concerns or
objections to the process but requested a hearing date for non-evidentiary motions.
[¶18.] Hankins did not preserve this issue for appeal; consequently, he must
establish plain error. See State v. McMillen, 2019 S.D. 40, ¶ 13, 931 N.W.2d 725,
729. “To demonstrate plain error, [the appellant] must establish that there was: ‘(1)
error, (2) that is plain, (3) affecting substantial rights; and only then may we
exercise our discretion to notice the error if (4) it seriously affect[s] the fairness,
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integrity, or public reputation of the judicial proceedings.’” State v. Guziak, 2021
S.D. 68, ¶ 10, 968 N.W.2d 196, 200 (alteration in original) (quoting State v. Jones,
2012 S.D. 7, ¶ 14, 810 N.W.2d 202, 206). “We invoke our discretion under the plain
error rule cautiously and only in ‘exceptional circumstances.’” Id. (quoting Jones,
2012 S.D. 7, ¶ 14, 810 N.W.2d at 206).
[¶19.] Contrary to Hankins’s contention, SDCL 23A-7-1 does not require the
circuit court to go through each element of every charge in a defendant’s indictment
during the arraignment. The record establishes that Hankins’s not guilty
arraignment was consistent with the requirements of SDCL 23A-7-1. As to
Hankins’s claim of a violation of his due process rights, it is clear from the record
that there was no error because he “had sufficient notice of the charge against him,
pleaded not guilty, exercised his rights, and had an adequate opportunity to defend
himself at trial[.]” Anderson, 2013 S.D. 36, ¶ 15, 831 N.W.2d at 58. There was no
error concerning the circuit court’s handling of this arraignment.
2. Whether the circuit court abused its discretion in
making its evidentiary rulings.
[¶20.] “Our standard of review for evidentiary rulings ‘requires a two-step
process: first, to determine whether the trial court abused its discretion in making
an evidentiary ruling; and second, whether this error was a prejudicial error that in
all probability affected the jury’s conclusion.’” State v. Thoman, 2021 S.D. 10, ¶ 41,
955 N.W.2d 759, 772 (quoting Johnson v. United Parcel Serv., Inc., 2020 S.D. 39,
¶ 27, 946 N.W.2d 1, 8). “The trial court[’s] evidentiary rulings are presumed to be
correct.” State v. Babcock, 2020 S.D. 71, ¶ 21, 952 N.W.2d 750, 757 (alteration in
original) (quoting State v. Boston, 2003 S.D. 71, ¶ 13, 665 N.W.2d 100, 105).
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[¶21.] “An abuse of discretion is a discretion exercised to an end or purpose
not justified by, and clearly against, reason and evidence.” Id. (quoting State v.
Hayes, 2014 S.D. 72, ¶ 22, 855 N.W.2d 668, 675). “It is ‘a fundamental error of
judgment, a choice outside the range of permissible choices, a decision, which, on
full consideration, is arbitrary or unreasonable.’” Id. (quoting State v. Delehoy, 2019
S.D. 30, ¶ 22, 929 N.W.2d 103, 109). Prejudicial error is when “in all probability
[the error] produced some effect upon the jury’s verdict and is harmful to the
substantial rights of the party assigning it.” State v. Reeves, 2021 S.D. 64, ¶ 11, 967
N.W.2d 144, 147 (alteration in original) (quoting State v. Shelton, 2021 S.D. 22,
¶ 16, 958 N.W.2d 721, 727).
Dr. Hamilton’s Testimony
[¶22.] Dr. Hamilton was the State’s first witness. Although the jury
ultimately watched the video of R.H.’s interview with Child’s Voice and heard
directly from R.H., they had not received this evidence before Dr. Hamilton
testified. The State asked Dr. Hamilton about what she had learned while
obtaining a medical history before examining R.H. In particular, the State asked:
“Did you learn when this event had taken place?” The circuit court overruled
Hankins’s hearsay objection. Dr. Hamilton responded, “Yes. It sounded like it had
occurred in the summer of 2018.” Dr. Hamilton was then asked, “And did you learn
who was accused of doing this to her?” Again, the circuit court overruled Hankins’s
hearsay objection. Dr. Hamilton responded, “Nathan Hankins.” Hankins argues
that Dr. Hamilton’s testimony was hearsay. He contends that this testimony was
prejudicial because Dr. Hamilton testified as an expert, assumed that the sexual
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assault occurred, indicated that Dr. Hamilton investigated the facts of R.H.’s case,
and failed to inform the jury where she received her information.
[¶23.] Hearsay is “a statement that: (1) [t]he declarant does not make while
testifying at the current trial or hearing; and (2) [a] party offers in evidence to prove
the truth of the matter asserted in the statement.” SDCL 19-19-801(c).
[¶24.] In her answers, Dr. Hamilton explained her understanding, from the
information provided by R.H.’s forensic interviewer, of when the incidents occurred
and who was involved. Dr. Hamilton was not asked, in either question, to convey
an out-of-court statement made by another person, and it is not clear her answers
were offered for the truth of the matter asserted. The record does not reflect why
the circuit court overruled the objection. Still, even if the circuit court viewed this
testimony as hearsay, it may have concluded that the statements were excepted
from hearsay under SDCL 19-19-803(4) as statements made to a medical
professional for purposes of diagnosis or treatment. 1 See State v. Packard, 2019
S.D. 61, ¶ 26, 935 N.W.2d 804, 811 (noting that in child abuse cases, “statements
identifying the abuser may be reasonably pertinent to treatment”). We conclude the
circuit court properly exercised its discretion in overruling the hearsay objections.
Moreover, even if the evidence should have been excluded, Hankins cannot show
prejudice because R.H. ultimately testified concerning the time of the events and
1. SDCL 19-19-803(4) provides that the hearsay rule does not exclude a
statement that:
(A) Is made for--and is reasonably pertinent to--medical
diagnosis or treatment; and
(B) Describes medical history; past or present symptoms or
sensations; their inception; or their general cause.
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identified Hankins as the perpetrator. Additionally, the jury viewed R.H.’s forensic
interview with Child’s Voice.
Patricia Hankins’s Testimony
[¶25.] Hankins argues that the circuit court abused its discretion by allowing
Patricia to testify on three topics: that she appreciated that somebody took the time
to listen to R.H. before trial, that David had a drinking problem, and that she
believed R.H. was a truthful child. Hankins asserts that allowing Patricia to testify
that she appreciated somebody listening to R.H. before trial elicited sympathy for
R.H. and portrayed the prosecutor as caring. Further, he argues that Patricia’s
testimony about David’s drinking was irrelevant because David was not a witness
in the case. Lastly, Hankins contends that Patricia’s testimony that R.H. was a
truthful child invaded the jury’s province.
[¶26.] “Evidence is relevant if: (a) [i]t has any tendency to make a fact more
or less probable than it would be without the evidence; and (b) [t]he fact is of
consequence in determining the action.” SDCL 19-19-401. “The law favors
admitting relevant evidence no matter how slight its probative value.” Thoman,
2021 S.D. 10, ¶ 44, 955 N.W.2d at 772 (quoting State v. Bowker, 2008 S.D. 61, ¶ 39,
754 N.W.2d 56, 68). “Evidence, to be relevant to an inquiry, need not conclusively
prove the ultimate fact in issue, but only have a 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.” Supreme Pork, Inc. v. Master
Blaster, Inc., 2009 S.D. 20, ¶ 46, 764 N.W.2d 474, 488 (quoting 2 Jack B. Weinstein
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& Margaret A. Berger, Weinstein’s Federal Evidence, § 401.04[2][c] (Joseph M.
McLaughlin, ed., Matthew Bender 2d ed. 2008)).
[¶27.] After defense counsel elicited testimony from Patricia that R.H. had
met with the prosecutor on multiple occasions, the prosecutor then asked, “[d]o you
appreciate the fact that somebody took the time to listen to [R.H.] before today?”
Hankins made several objections to the relevancy of this question. Ultimately, the
circuit court overruled Hankins’s relevancy objections and granted a standing
objection to that line of questioning. This information sought by the question had
questionable relevance, but even if the evidence was irrelevant, Hankins has not
established that any error was prejudicial. Further, after the standing objection
was granted, the State moved to a new line of questions regarding David’s drinking
problems. In the middle of that line of questions, the State asked Patricia if R.H.
was a truthful child. Hankins did not object to any of those questions. As a result,
Hankins failed to preserve those issues for appeal. See State v. Roach, 2012 S.D. 91,
¶ 27, 825 N.W.2d 258, 266 (stating that a failure to object at trial waives the issue
on appeal). But even under a plain error analysis, Hankins has not established any
error, much less any “plain error” concerning those two issues.
[¶28.] The State first elicited testimony on direct examination about David’s
drinking while laying the foundation for an exhibit depicting a text message
introduced into evidence. This information appears to have been relevant to
provide context for how Patricia obtained the text message. Moreover, on cross-
examination, defense counsel then elicited further testimony from Patricia
regarding David’s drinking problems to suggest that R.H. had no problem disclosing
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other types of concerning behaviors like her father’s drinking. Therefore, it was
defense counsel’s questions that prompted the further testimony elicited by the
State on redirect regarding this topic. As to the question about whether R.H. was a
truthful child, SDCL 19-19-608(a) allows testimony of a witness’s character for
truthfulness after such character for truthfulness has been attacked. Because
R.H.’s truthfulness had been challenged, Patricia could offer a general opinion as to
R.H.’s truthfulness.
Eaton-Harris’s Testimony
[¶29.] Hankins argues that the circuit court abused its discretion by allowing
Eaton-Harris to testify that children are more concerned about disclosing sexual
assault when the offender is a family member instead of a stranger.
[¶30.] Hankins’s objection was based on a lack of foundation. Eaton-Harris
described her professional work history and the special training needed to become a
forensic interviewer. She testified that she had been a forensic interviewer for
approximately two years and three months and had conducted 230 forensic
interviews. The admitted answer was based on Eaton-Harris’s perceptions made
throughout her career. See State v. Janis, 2016 S.D. 43, ¶ 15, 880 N.W.2d 76, 80–
81; Gerlach v. Ethan Coop Lumber Ass’n, 478 N.W.2d 828, 831–32 (S.D. 1991).
There was sufficient foundation for Eaton-Harris’s testimony, and the circuit court
did not abuse its discretion when admitting it.
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3. Whether the State’s questioning during R.H.’s
testimony and closing argument amounted to
prosecutorial misconduct.
[¶31.] “If an issue of prosecutorial misconduct is preserved with a timely
objection at trial, [this Court will] review the trial court’s ruling under the standard
of abuse of discretion.” State v. Hayes, 2014 S.D. 72, ¶ 24, 855 N.W.2d 668, 675
(alteration in original) (quoting State v. Ball, 2004 S.D. 9, ¶ 49, 675 N.W.2d 192,
207). “An abuse of discretion is a discretion exercised to an end or purpose not
justified by, and clearly against, reason and evidence.” Id. ¶ 22, 855 N.W.2d at 675(quoting Schieffer v. Schieffer, 2013 S.D. 11, ¶ 14, 826 N.W.2d 627, 633). “Under
this standard, ‘not only must error be demonstrated, but it must also be shown to be
prejudicial error.’” Id. (quoting State v. Moran, 2003 S.D. 14, ¶ 13, 657 N.W.2d 319,
324).
[¶32.] “Prosecutorial misconduct implies a dishonest act or an attempt to
persuade the jury by use of deception or by reprehensible methods.” Id. ¶ 22, 855
N.W.2d at 675 (quoting State v. Lee, 1999 S.D. 81, ¶ 20, 599 N.W.2d 630, 634).
“This Court will find that prosecutorial misconduct has occurred if (1) there has
been misconduct, and (2) the misconduct prejudiced the party as to deny the party a
fair trial.” Id. ¶ 23, 855 N.W.2d at 675. “If both prongs for prosecutorial misconduct
are satisfied, this Court will reverse the conviction.” Id.[¶33.] “[N]o hard and fast rules exist which state with certainty when
prosecutorial misconduct reaches a level of prejudicial error which demands
reversal of the conviction and a new trial; each case must be decided on its own
facts.” McMillen, 2019 S.D. 40, ¶ 27, 931 N.W.2d at 733 (alteration in original)
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(quoting State v. Stetter, 513 N.W.2d 87, 90 (S.D. 1994)). Prosecutorial misconduct
is prejudicial when it “so infect[s] the trial with unfairness as to make the resulting
convictions a denial of due process.” State v. Smith, 1999 S.D. 83, ¶ 52, 599 N.W.2d
344, 355 (alteration in original) (quoting Donnelly v. DeChristoforo, 416 U.S. 637,
643, 94 S. Ct. 1868, 1871, 40 L. Ed. 2d 431 (1974)). “‘A criminal conviction is not to
be lightly overturned on the basis of a prosecutor’s comments standing alone,’ but, if
the prosecutor’s conduct affects the fairness of the trial when viewed in context of
the entire proceeding, reversal can be warranted.” McMillen, 2019 S.D. 40, ¶ 27,
931 N.W.2d at 733 (quoting Stetter, 513 N.W.2d at 90 (S.D. 1994)).
R.H.’s Direct Examination
[¶34.] Hankins argues that the State’s line of questions during its direct
examination of R.H. constituted prosecutorial misconduct. He notes that even
though the circuit court repeatedly sustained his objections about this line of
questioning, the State persisted with its questions.
[¶35.] Even if the circuit court properly sustained the prosecutor’s questions
during R.H.’s direct examination, this alone does not constitute prosecutorial
misconduct. From our review of the record, the prosecutor’s questioning of R.H.
does not constitute prosecutorial misconduct because it did not involve an attempt
to persuade the jury by use of deception or by reprehensible methods.
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State’s Closing Argument
[¶36.] Additionally, Hankins asserts that the State committed prosecutorial
misconduct during its rebuttal closing argument. The pertinent part reads as
follows:
State: And so then what happens here, you should get into, like,
the revictimization of [R.H.] And what I mean by that is
that [R.H.] is being attacked for being a liar. So she gets
raped by her brother, and then the defense says that she’s
a liar because you can’t find the defendant innocent if you
believe that [R.H.] has told you the truth. So when you
finally get a child able to come into court and face a whole
crowd of people that she doesn’t know and have the
courage to talk, then she gets revictimized. It’s like, well,
you got raped, but now we’re going to basically rape you
again by --
Hankins: Objection, Your Honor. Improper argument.
Court: Sustained. [Prosecutor], that is sustainable.
State: Yes, Your Honor.
Court: Nothing like that again, please.
State: Sure. Courage of children should not be met by attacks
upon them. You have to decide was that child telling the
truth? Was that child telling the truth when she went to
the forensic interview? Was that child telling the truth
when she swore the oath in front of you two days ago to
tell you what happened. Did she make that all up? You
know, is this all some sort of a master plan? And then, in
addition to that, did somehow this evidence in the form of
text messages between the defendant and Kali, was that
all invented? Is that some sort of a frame-up too, because
where’s the evidence to that? What witness came in and
said anything like that? That’s all --
Hankins: Objection. It’s a shifting burden, Your Honor.
Court: Sustained.
State: Where’s the evidence that supports that kind of a claim
that you heard from the defense? Was there somebody
that came in and said --
Hankins: Your Honor, objection. That shifts the burden.
Court: Sustained.
[¶37.] The State concedes that the statement, “It’s like, well, you got raped,
but now we’re going to basically rape you again by --” was improper and amounted
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to misconduct. A prosecutor cannot “inject[ ] ‘unfounded or prejudicial innuendo
into the proceedings . . . [or appeal] to the prejudices of the jury.’” Smith, 1999 S.D.
83, ¶ 46, 599 N.W.2d at 354 (second omission and alteration in original) (quoting
State v. Blaine, 427 N.W.2d 113, 115 (S.D. 1988). This prosecutor’s statement was
an attempt to persuade by inappropriate means. Moreover, the prosecutorial
misconduct occurred during the State’s rebuttal argument when the prosecutor
knew Hankins had no opportunity to respond. Even if the prosecutor believed he
was responding to an improper argument by defense counsel, the comments were
wholly unjustified and were no less an attempt to improperly persuade the jury by
reprehensible methods.
[¶38.] “[D]ue process does not guarantee a defendant the right to an error-
free trial, nevertheless it must be a fair trial. Prosecutorial misconduct reaches the
level of a federal constitutional violation only if the argument ‘so infect[s] the trial
with unfairness as to make the resulting convictions a denial of due process.’”
Smith, 1999 S.D. 83, ¶ 52, 599 N.W.2d at 355 (quoting Donnelly, 416 U.S. at 643, 94
S. Ct. at 1871). “Prejudicial error is error which in all probability produced some
effect upon the jury’s verdict and is harmful to the substantial rights of the party
assigning it.” Lee, 1999 S.D. 81, ¶ 21, 599 N.W.2d at 634 (quoting State v. Hofman,
1997 S.D. 51, ¶ 13, 562 N.W.2d 898, 902). “[N]o hard and fast rules exist which
state with certainty when prosecutorial misconduct reaches a level of prejudicial
error which demands reversal of the conviction and a new trial; each case must be
decided on its own facts.” Id. (quoting Stetter, 513 N.W.2d at 590).
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[¶39.] Hankins immediately objected to the State’s argument. In the jury’s
presence, the circuit court sustained the objection and admonished the prosecutor
by stating, “[n]othing like that again.” The circuit court did not strike the comment,
but the court’s comments clearly delineated the impropriety of the prosecutor’s
comments to the jury. Further, the circuit court gave the jury three instructions
advising them that statements made during closing arguments were not evidence.
See Janis, 2016 S.D. 43, ¶¶ 25, 28, 880 N.W.2d at 83, 84 (despite improper conduct
by prosecutor, result of trial was not affected when the circuit court gave the jury a
correct instruction on the elements of the offense and jury’s duties). We generally
presume that juries follow the court’s instructions and have no reason to believe
they failed to do so in this case. State v. Eagle Star, 1996 S.D. 143, ¶ 22, 558
N.W.2d 70,75. Hankins did not move for a mistrial or request the circuit court to
take further action to address the misconduct. Further, R.H. provided detailed
statements and testimony concerning the abuse by Hankins, and her statements
were corroborated by other evidence. This included evidence of grooming, that
Hankins often slept in the same bed with R.H., and his admissions in a text
message with a former girlfriend. In light of this case’s circumstances, it is
improbable that the prosecutor’s misconduct altered the jury’s verdict. 2 Hankins
has failed to show prejudicial error.
2. Hankins highlights that this is not the first time this prosecutor has been
found to have committed prosecutorial misconduct by this Court. See Smith,
1999 S.D. 83, ¶ 49, 599 N.W.2d at 355. This fact may be relevant to the first
prong of prosecutorial misconduct and show the prosecutor’s “penchant for
making statements meant to inflame the passion of the jury and go outside
the realm of admissible evidence,” but it does not establish the element of
(continued . . .)
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Conclusion
[¶40.] The circuit court did not abuse its discretion in handling Hankins’s
arraignment or in its evidentiary rulings. Although misconduct occurred during the
State’s closing rebuttal argument, it did not constitute prejudicial error. We affirm.
[¶41.] JENSEN, Chief Justice, and KERN, SALTER, and DEVANEY,
Justices, concur.
________________________
(. . . continued)
prejudice given the evidence of guilt on this record. Id., 1999 S.D. 83, ¶ 49,
599 N.W.2d at 354.
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