State v. White Face

#26773-rev & rem-JKK
2014 S.D. 85IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
PATRICK WHITE FACE, Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
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THE HONORABLE WALLY EKLUND
Judge
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MARTY J. JACKLEY
Attorney General
PATRICIA ARCHER
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
THOMAS M. DIGGINS
Pennington County Public
Defender’s Office
Rapid City, South Dakota Attorneys for defendant
and appellant.
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CONSIDERED ON BRIEFS
ON AUGUST 25, 2014
OPINION FILED 12/10/14
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KONENKAMP, Justice
[¶1.] In a case where two separate and distinct incidents of abuse were
alleged in a one-count indictment, the jury found Patrick White Face guilty of
aggravated child abuse under SDCL 26-10-1. But the jurors were not instructed
that to reach a verdict they would have to agree unanimously on at least one of the
two allegations. In some circumstances, multiple instances of child abuse can be
subsumed in one count, because separate incidents may be part of a continuous
course of conduct. Yet here the State took the position that White Face could be
found guilty based on either incident if not both. With the case so postured, there is
no way to determine from the verdict whether all twelve jurors agreed upon the
commission of the same act in order to convict White Face of the charged offense.
Some jurors may have believed him guilty of the first incident and others may have
thought him guilty of the second. Based on the language of the indictment and the
way the State presented its case to the jury, we conclude that White Face was
denied the right to a unanimous jury verdict.
Background
[¶2.] On March 24, 2011, White Face was caring for his six-week-old
daughter, Pamela, and eighteen-month-old son, Phoenix, while the children’s
mother, Dana Fast Horse, was at work. White Face gave Pamela a bath and, as he
would later recount, while putting a diaper on her, he heard what he described as a
“snap” or “pop.” He noticed that something appeared wrong with Pamela’s leg. He
took her to the emergency room. Dr. Donald Oliver treated Pamela, diagnosed her
with a fractured femur, and placed her leg in a Pavlik harness to promote healing.
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Dr. Oliver conducted a number of tests, none of which provided an explanation for
Pamela’s broken femur. No bruising and no other broken bones or injuries were
found. He questioned White Face about Pamela’s care. White Face explained that
he was changing Pamela’s diaper when he heard a “snap” or “pop.” Based on his
thirty-plus years of experience as a pediatrician, Dr. Oliver believed that an infant
with no abnormalities, such as Pamela, would not have been injured in the way
White Face described. Dr. Oliver concluded that Pamela’s injury was a “non-
accidental” trauma.
[¶3.] Law enforcement authorities and the Department of Social Services
(DSS) were contacted, and an officer and a caseworker came to the hospital. By this
time, Dana had arrived, as well. Investigator Dan Wardle interviewed White Face
and Dana about Pamela’s care. White Face relayed the same story to Investigator
Wardle as he did to Dr. Oliver. DSS created a protective plan: instead of removing
Phoenix and Pamela from White Face’s and Dana’s care, DSS asked White Face to
agree to leave the home and have no contact with the children. He agreed. But
that night he went home and continued to live with Dana and the children.
[¶4.] Four days later, on March 28, 2011, White Face was again caring for
Pamela and Phoenix while Dana was working. Around 5:00 p.m., Dana returned
home from work. She checked on Pamela and found her sleeping on the bed.
According to Dana, Pamela appeared normal. Shortly thereafter, Judy Lefholz, a
nurse with the Bright Start Home Visiting Program, arrived for a visit. Judy had
been working with Dana on parenting, nutrition, and in providing support since
Dana’s pregnancy with Phoenix. During the visit she did not see Pamela because
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Dana told her Pamela was sleeping. She was unaware that DSS had a protective
plan in place and that White Face was not to be in the home. Nor did she know he
was in the bedroom with Pamela and Phoenix. Dana later testified that she did not
tell Judy about the protective plan or that White Face was in the room with the
children because she was worried DSS would take her children away.
[¶5.] After Judy left, Dana went to the bedroom and noticed that Pamela
had been moved and something was seriously wrong. Her skin was gray; her eyes
were rolled back; she was barely breathing. Dana asked White Face what happened
and if Pamela had eaten. He replied that Pamela had only eaten a small amount
for the day. Dana called her sister, whose boyfriend ultimately rushed Dana and
Pamela to the hospital. White Face stayed home with Phoenix. White Face was
later contacted by Investigator Jon Kirk, who asked him to come to the police
station to answer questions. Investigator Kirk did not place White Face under
arrest, and after the interview, White Face joined Dana at the hospital.
[¶6.] At the hospital, Pamela was in a coma and, according to Dr. Oliver,
had a life-threatening blood sugar level. She was intubated and put on a ventilator.
Dr. Oliver conducted multiple tests, but could not determine the cause of Pamela’s
condition. She was air-lifted to the Children’s Hospital in Denver, Colorado. Her
treating physician at the Children’s Hospital, Dr. Curtis Ford, later explained that
Pamela arrived with multi-organ system failure and needed life support. She
continued to have low blood sugar and also suffered repeated seizures, severe liver
damage, and brain injuries. After several days, Pamela’s medical team, Dana, and
White Face decided to take Pamela off life support. She was not expected to live,
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but after the life support was removed, she continued to sustain herself. Her
prospects for quality of life, however, would never be the same: she had permanent
brain damage and continuing seizures. She would require long-term occupational
and physical therapy.
[¶7.] In April 2011, White Face was indicted on a charge of aggravated child
abuse in violation of SDCL 26-10-1, occurring on March 24, 2011. Defense counsel
filed multiple motions, including a motion to require the State to specify character
and other act evidence it intended to introduce at trial. The motion was granted,
but the State did not submit a notice of other acts evidence. In August 2011, a new
indictment issued charging White Face with aggravated child abuse between March
24, 2011 and March 28, 2011. The State then dismissed the earlier indictment.
[¶8.] During a status hearing in January 2013, Attorney Thomas Diggins of
the Pennington County Public Defender’s Office informed the circuit court that
White Face’s original counsel had resigned from her position in the office and that
he and co-counsel, Attorney Jamy Patterson, would represent White Face. Before
trial, Attorney Diggins indicated counsels’ intent to proceed and not request a
continuance. White Face confirmed he was comfortable moving forward with his
current attorneys. During the trial, the State presented testimony from Drs. Oliver
and Ford, Investigators Kirk and Wardle, Dana, Dana’s sister, and Judy Lefholz.
[¶9.] Dr. Oliver testified about the care he provided to Pamela on March 24
for her fractured leg, including the tests he ran to rule out bone abnormalities and
signs of other trauma. He believed Pamela’s fractured leg was caused by “non-
accidental” trauma. He explained that Pamela did not test positive for any
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abnormalities, was otherwise a healthy infant, and a broken femur would not occur
in the way White Face described. In regard to the March 28 incident, Dr. Oliver
expressed concern that it was also caused by non-accidental trauma because “the
child suffered extreme harm twice in the father’s care.”
[¶10.] Dr. Ford testified about both Pamela’s leg fracture and the care he
provided when she arrived at the Children’s Hospital with multi-organ system
failure. He detailed for the jury the various tests he and his team conducted. He
concluded that the cause of Pamela’s organ failure and resulting brain injury was
lack of oxygen to the brain from something obstructing Pamela’s airway, not
allowing her to breathe. Dr. Ford explained the various ways Pamela’s airway
could have been blocked, including smothering. Because White Face was her sole
provider during both incidents, Dr. Ford testified that “[i]t gives a pattern of who
was around Pamela at the time[.]” Because Pamela had a brain injury four days
after the injury to the leg, Dr. Ford expressed concern, stating, “We have a very
vulnerable, very young infant, who has two serious and one very life-threatening
injury within a short period of time. And both are very rare under normal
circumstances to occur.” Pamela suffered, he said, “[t]wo very serious injuries and
two very rare things to happen to a child” under the care of the same person. In Dr.
Ford’s assessment, Pamela’s broken leg and brain injury were non-accidental in
nature.
[¶11.] Dr. John Plunkett, a forensic pathologist, testified for the defense that,
based on his review of the medical records, there was no way to determine if
Pamela’s broken femur was caused by accidental or non-accidental trauma: “It’s an
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unusual event, but it does occur.” He further opined that Pamela’s medical
condition on March 28 could have been caused by her abnormally low blood sugar.
Smothering, he said, would not have caused her blood sugar to be so low, and
therefore, smothering was not the cause of her resulting brain injury. He disagreed
with Dr. Ford’s opinion that lack of oxygen was the precipitating cause of Pamela’s
seizures and multi-organ system failure. Rather, he opined that the cause could not
be determined.
[¶12.] During the settling of the jury instructions, defense counsel requested
that the jury be instructed that they must determine guilt or innocence on each
incident, the one on March 24 and the one on March 28. In particular, counsel
stated,
Originally, this case only had the March 24th incident. The
State was then going to use the March 28th incident and there
was a 404(b) issue, and then it got dismissed. When it was
refiled, it was refiled and says, between the dates of March 24th
and March 28th, inclusive. The State has been very clear in
their presentation of what they believe the evidence is, that they
are asking the jury to convict Mr. White Face for these two acts,
that these two acts constitute aggravated child abuse.
The charging document is interesting in and of itself, but in
essence, there is a concern without a jury instruction there could
be seven jurors that believe March 24th happened and five
jurors that believe March 28th happened, and together you come
and you have twelve. And if that is the case, then the State has
not proven their case as the law would require and it would be
an injustice to Mr. White Face.
So I believe that the jury needs to be instructed that in order to
come back with a unanimous vote for guilty of aggravated child
abuse, they need to all unanimously, each on their own, find
that the State has proven beyond a reasonable doubt that March
24th occurred and that beyond a reasonable doubt March 28th
occurred because if they don’t, there could be that problem as
well as the State in essence was able to try to do a 404(b) type
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litigation without actually having fully litigated that theory in
the process.
The State responded,
The State is — on the record the State is alleging from the get-
go of this case from the time this indictment was filed that we
are alleging that child abuse occurred between the dates of
March 24, 2011, and March 28, 2011. The defense essentially is
trying to say there should have been two separate child abuse
counts filed and that was not the choice that the State made. I
have provided authority to the court, if the court would take it
as part of the record. It’s a document I’ve provided to counsel as
well as the clerk. It essentially says that when there’s a pattern
of physical trauma inflicted on a child in a relatively short
period of time — and the other cases list similar type situations
where the State — there does not need to be jury unanimity
regarding the individual acts.
In this case the State has properly charged the crime over a
course of time. The defense is trying to say we have to prove
those individually and that’s just not the case here.
The court refused White Face’s requested jury instruction.
[¶13.] The jury returned a verdict of guilty on the single count of aggravated
child abuse. Defense counsel asked the court to poll the jury and ask “if each juror
found the State has proved beyond a reasonable doubt that both the March 24th
incident was aggravated child abuse . . . and the March 28th incident was
aggravated child abuse.” The court declined and replied that it would poll the jury
in its standard fashion. The court later imposed a sentence of twenty-five years in
prison, with five years suspended, and ordered restitution of $437,603.07.
[¶14.] White Face appeals asserting error in: (1) awarding restitution; (2)
denying White Face’s request to instruct the jury to make separate findings for the
two separate offenses charged in the one-count indictment; (3) failing to vacate the
conviction based upon the duplicitous indictment and the lack of unanimity in the
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verdict; (4) denying a motion for two new trials; (5) denying effective assistance of
counsel; and (6) failing to recognize the State’s prejudicial misconduct by dismissing
the original indictment and obtaining a second indictment alleging two criminal
acts in a single count. 1
Lack of Unanimity in the Verdict
[¶15.] White Face contends that the indictment against him was duplicitous,
because it charged two separate incidents in a single count of aggravated child
abuse. One “vice of duplicity is that because the jury has multiple offenses to
consider under a single count, the jury may convict without reaching a unanimous
agreement on the same act, thereby implicating the defendant’s right to jury
unanimity.” State v. Muhm, 2009 S.D. 100, ¶ 29, 775 N.W.2d 508, 517. White Face
concedes he failed to raise the issue of duplicity in the indictment before trial as
required by SDCL 23A-8-3(3). In accord with this statute, defects in an indictment
“must be raised prior to trial[.]” See id. Thus, the issue of a defective indictment
was waived.
1. Standard of Review: “Whether an indictment is . . . duplicitous is a question
of law reviewed de novo.” State v. Muhm, 2009 S.D. 100, ¶ 18, 775 N.W.2d
508, 514. We review claims of a violation of due process de novo, and thus,
whether a unanimity instruction was required to ensure a defendant’s due
process rights is a question of law. State v. Tiegen, 2008 S.D. 6, ¶ 14, 744
N.W.2d 578, 585 (employing de novo standard of review to a claimed
constitutional error). We review a court’s refusal of a requested jury
instruction for an abuse of discretion. State v. Webster, 2001 S.D. 141, ¶ 7,
637 N.W.2d 392, 394. We similarly review a court’s denial of a defendant’s
motion for a new trial for an abuse of discretion. State v. Zephier, 2012 S.D.
16, ¶ 15, 810 N.W.2d 770, 773.
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[¶16.] White Face next argues that his failure to timely raise the duplicitous
indictment issue did not absolve the circuit court of its duty to ensure that any
verdict was unanimous. Both the United States and South Dakota Constitutions
grant an accused the right to a jury trial. U.S. Const. amends. VI, XIV; S.D. Const.
art. VI, § 7. By statute in South Dakota, verdicts in criminal cases must be
unanimous. SDCL 23A-26-1. White Face asserts that the court abused its
discretion when it denied his requested jury instruction on unanimity. He further
contends that even if the court did not abuse its discretion when it denied his
proposed instruction, the circuit court had a duty to instruct the jury that it must
unanimously find White Face guilty of “at least one of the charges in the duplicitous
count.” See Muhm, 2009 S.D. 100, ¶ 32, 775 N.W.2d at 519.
[¶17.] In response, the State argues that no specific unanimity instruction
was required because this case did not involve a single-act offense, but instead
presented a “course of conduct.” In the State’s view, “the jury did not have to
unanimously agree on any one particular act, but had to unanimously agree that
the State proved the overall offense of aggravated child abuse.” The State contends
that if error did occur and was not waived, the error was harmless, because “it is
likely the jury found beyond a reasonable doubt that [White Face] committed
aggravated child abuse on both dates presented by the evidence.”
[¶18.] We first review whether the circuit court erred when it refused White
Face’s requested instruction. “Trial courts possess broad discretion in instructing
the jury.” State v. Pellegrino, 1998 S.D. 39, ¶ 9, 577 N.W.2d 590, 594. With a
proper request, however, “defendants are entitled to instructions on their defense
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theories if evidence supports them.” Id. But no abuse of discretion will be found “in
the refusal of a proposed jury instruction that does not represent a correct
statement of the law.” State v. Downing, 2002 S.D. 148, ¶ 27, 654 N.W.2d 793, 801
(per curiam). White Face’s proposed instruction was not a proper statement of the
law, because it required unanimity on both incidents as if they were charged as
separate counts. White Face was not indicted on two counts of aggravated child
abuse, and therefore, the State was not required to prove beyond a reasonable doubt
that he committed aggravated child abuse on March 24 and March 28: the evidence
could have supported a conviction on either incident. The circuit court did not
abuse its discretion when it denied White Face’s requested instruction.
[¶19.] Did the trial court have a duty sua sponte to properly instruct the jury
on unanimity? A defendant has a due process right to a unanimous jury verdict.
See Muhm, 2009 S.D. 100, ¶ 29, 775 N.W.2d at 517. Contrary to the State’s claim,
White Face did not waive this issue. Defense counsel made clear to the court that
unanimity was a concern and requested an instruction on jury unanimity.
Moreover, multiple courts have held that a trial court has a duty to instruct sua
sponte on unanimity when the evidence requires, and a defendant’s failure to assert
the issue does not constitute a waiver. See State v. Crane, 804 P.2d 10, 16 (Wash.
1991) (issue can be raised for the first time on appeal); see also People v. Dieguez, 89
Cal. App. 4th 266, 275 (2001); Cody v. State, 361 P.2d 307, 320 (Okla. Crim. App.
1961); Ngo v. State, 175 S.W.3d 738, 748 (Tex. Crim. App. 2005); State v. Lomagro,
335 N.W.2d 583, 590 n.3 (Wis. 1983).
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[¶20.] When evidence of several acts is presented at trial, any one of which
could constitute the basis for the single offense charged, trial courts can take one of
two actions: (1) require the prosecution to elect the transaction on which it relies for
the conviction, or (2) give a unanimity instruction telling the jurors that they must
unanimously agree that the defendant committed the same act or acts or that the
defendant committed all the acts offered in evidence. Muhm, 2009 S.D. 100, ¶ 32,
775 N.W.2d at 518-19 (either or rule) (citing 1A Charles A. Wright et al., Federal
Practice and Procedure § 145 (4th ed. 2014)); State v. Weaver, 964 P.2d 713, 720
(Mont. 1998). Unanimity is at risk when the evidence at trial suggests more than
one distinct crime or the jury has multiple offenses to consider under a single count.
Muhm, 2009 S.D. 100, ¶ 29, 775 N.W.2d at 517. In these circumstances, “a general
verdict may not reveal whether the jury unanimously found the defendant guilty of
one offense or more offenses, or guilty of one offense and not guilty of others.” Id.;
see also State v. Brende, 2013 S.D. 56, ¶ 13, 835 N.W.2d 131, 137.
[¶21.] But the above requirements are not implicated, even though the
evidence suggests more than one distinct crime, when the case falls within a
continuing course of conduct. People v. Vargas, 204 Cal. App. 3d 1455, 1464 (1988).
Under the continuing course of conduct doctrine, when “the evidence establishes a
pattern of physical trauma inflicted upon a child within a relatively short period of
time, a single course of conduct is involved and no justification exists for departing
from the well-established rule . . . that jury unanimity is not required” on the
underlying conduct constituting child abuse. Id. Here, the State contends that
neither an election nor a unanimity instruction was required because it charged
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White Face with one count of aggravated child abuse alleged to have occurred over a
period of time and presented the case as a continuous course of conduct. In the
State’s view, the abuse was continuous because, after White Face broke Pamela’s
femur and was not to be in the home, he smothered Pamela on March 28 to keep her
quiet so as not to be discovered by the Bright Start nurse working with Dana.
[¶22.] Much of the analytical difficulty in child abuse cases lies in
determining when multiple acts constitute separate offenses and when they
encompass a single offense. Juror unanimity is not required when the crime
charged involves a continuous course of conduct or a series of related acts over a
period of time, and aggravated child abuse under SDCL 26-10-1 can be such a
crime. People v. Napoles, 104 Cal. App. 4th 108, 115 (2002). Our statute provides:
“Any person who abuses, exposes, tortures, torments, or cruelly punishes a minor in
a manner which does not constitute aggravated assault, is guilty of a Class 4
felony.” SDCL 26-10-1. Although abuse, torture, torment, and cruelly punish are
not defined in the statute, a plain reading of this language indicates that the
primary purpose is to criminalize acts of child abuse, whether it occurs in single or
multiple acts. The terms do not contemplate that abuse will in all instances be
complete upon a single act. This is because in child abuse cases it is possible that
several acts, considered individually, might not amount to a commission of the
offense, but the cumulative effect of the multiple injuries constitutes a crime.
Vargas, 204 Cal. App. 3d at 1461. On the other hand, “child abuse is not invariably
charged as a course of conduct offense; one act or omission constituting abuse may
be sufficient for conviction.” Napoles, 104 Cal. App. 4th at 116. Based on the
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language of SDCL 26-10-1, we think the Legislature intended for the offense of child
abuse to include both a single act of abuse, as well as a continuing course of abusive
acts. 2 Thus, a unanimity instruction in child abuse cases will be required in some
instances but not others.
[¶23.] In determining when to give the unanimity instruction, trial courts
“must ask whether (1) there is a risk the jury may divide on two discrete crimes and
not agree on any particular crime, or (2) the evidence merely presents the possibility
the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a
single discrete crime. In the first situation, but not the second, [the court] should
give the unanimity instruction.” People v. Russo, 25 Cal. 4th 1124, 1135 (2001). In
assessing the evidence, the defendant’s acts should be viewed in a “commonsense
manner,” taking into account “whether the acts occurred in ‘a separate time frame’”
or separate “‘identifying place.’” State v. Marko, 27 P.3d 228, 231 (Wash. Ct. App.
2001) (quoting State v. Petrich, 683 P. 2d 173, 177 (Wash. 1984)).
[¶24.] For two reasons, we conclude that this case presents the first situation,
where a special unanimity instruction was required. First, the evidence and expert
opinion did not suggest a pattern of continuous abuse but two discrete incidents —
the infant’s broken femur and, days later, her sudden systemic failure. Other than
stating that one of the reasons for concluding that both the child’s injuries were not
2. In State v. Augustine, in the context of double jeopardy, we said, “Each time
an adult abuses a child, it is a separate, isolated impulse; not an inherently
continuous offense. Individual acts of child abuse, especially when not shown
to be inflicted simultaneously, constitute successive violations of SDCL 26-10-
1 . . . .” 2000 S.D. 93, ¶ 24, 614 N.W.2d 796, 799.
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accidental was because the child was alone with White Face, neither Dr. Oliver nor
Dr. Ford opined that the injuries inflicted upon Pamela on March 24 and March 28
formed a pattern of abuse or constituted battered child syndrome. See, e.g., Vargas,
204 Cal. App. 3d at 1462 (burns, bruises, contusions, whipping injuries, and bites
within a 10-day period); Steichen v. Weber, 2009 S.D. 4, ¶ 13, 760 N.W.2d 381, 389.
And the risk of division among the jurors was a significant potential here because
the mechanism of injury to the child was not clear. Circumstantially, the evidence
pointed to White Face: he was alone with the infant on both occasions when her
traumatic incidents occurred. But jurors could have easily divided on which
incident, if not both, the defendant was responsible for.
[¶25.] Second, the State invited the jury to convict on either incident, if not
both, thus elevating the risk the jury could divide on the two offenses and not all
agree on one particular offense. In closing argument, one of the prosecutors
remarked: “I believe the State’s shown beyond any reasonable doubt on both the
March 24th and the March 28th incident that there was a violation of the statute
involving child abuse. You think — one or the other is good enough, you can still
find guilty on one or the other or both. I think the totality of the circumstances as a
whole, it’s child abuse.” Under these circumstances, we cannot be reasonably
certain that White Face was found guilty by a unanimous jury.
[¶26.] We conclude that the State presented two incidents of trauma, each of
which could have formed the basis of aggravated child abuse under SDCL 26-10-1,
and the instructions given only informed the jury that the verdict must be
unanimous. The circuit court erred by not providing the jury with a special
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unanimity instruction requiring it to agree on the act supporting the conviction or
find that White Face had committed both acts of child abuse. In view of our
decision, we need not reach White Face’s remaining appellate issues.
[¶27.] Reversed and remanded for a new trial.
[¶28.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and
WILBUR, Justices, concur.
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