State v. Horse

#29967-a-JMK
2024 S.D. 4IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
ROBERT A. HORSE, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
****
THE HONORABLE MATTHEW M. BROWN
Judge
****
JOHN R. MURPHY
Rapid City, South Dakota Attorney for defendant
and appellant.
MARTY J. JACKLEY
Attorney General
STEPHEN G. GEMAR
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
****
CONSIDERED ON BRIEFS
AUGUST 29, 2023
OPINION FILED 01/17/24
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KERN, Justice
[¶1.] Robert Horse was convicted of third-degree rape after a four-day trial
in Pennington County. He appeals his conviction, raising issues involving the
validity of a search warrant for location data from his phone, comments made
during trial by the State about the victim’s motivation to testify, and opinion
testimony given by the detective who investigated the case. We affirm.
Factual and Procedural History
[¶2.] Fourteen-year-old D.M. was walking alone in Rapid City on Tuesday,
June 4, 2019, when a man pulled up next to her in his car. D.M. recalled the man
asking her where he could get some marijuana. She said that she knew a place and
got in the car with him. The man gave her money to purchase marijuana for him,
and they stopped at a house where D.M. knew she could buy some. After she
purchased the marijuana, they stopped at a gas station where the man purchased
some rolling papers. They next drove to Skyline drive in Rapid City where they
smoked some of the marijuana. The man identified himself as “Robert.” They left
the Skyline drive area and drove around Rapid City. At some point, Robert stopped
at a gas station where he purchased a case of beer and cigarettes. According to
D.M., as they were driving around, she drank approximately nine beers as well as
some Jack Daniels and smoked some of the marijuana. D.M. recalled stopping at a
gas station in Deadwood but blacked out after that, and her memory became spotty
thereafter.
[¶3.] D.M.’s next memory was Horse’s face directly in front of hers. She
explained that he was on top of her with his face about a foot or two away while she
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was lying on her back. She next remembered standing in the shower of a “very
nice” bathroom, which she thought might have been in a hotel. Her next
recollection was being at a Dairy Queen and then trying to get into a car, but she
did not know how she had arrived there. The next thing she remembered was
waking up in her own bed in her room. She did not recall having sex with Horse.
However, when she got out of bed, she noticed “white stuff” in her panties. These
events all occurred on Tuesday.
[¶4.] D.M. did not disclose these events to anyone until Wednesday when
she told her mother. Her mother indicated that she would take her to the hospital
Thursday after work. However, D.M. instead went to a friend’s house on Thursday,
got drunk, and went to a weekly summer gathering in downtown Rapid City, where
D.M.’s mother and stepfather eventually found her and attempted to bring her
home. An altercation ensued and D.M. was taken into custody for assaulting her
stepfather. She was taken to the ARISE 1 facility where during the intake process
and screening she told the staff that she might have been sexually assaulted. The
ARISE staff took her to the hospital where a rape kit was performed. D.M. was
interviewed by law enforcement and detailed the information that she could
remember from her time with Horse.
[¶5.] In an attempt to identify the man D.M. referred to as Robert, Detective
Trista Dupres of the Pennington County Sheriff’s Office obtained a surveillance
1. The ARISE Center is located at the Western South Dakota Juvenile Services
Center. It is a staff secure, detention alternative/emergency shelter for youth
between the ages of 10 and 17 serving Pennington, Meade, Lawrence, Fall
River and surrounding counties.
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video from the gas station where, according to D.M., they had bought beer and
alcohol. Detective Dupres took a still photo from the video which depicted a man
getting out of the car D.M. was travelling in. She sent this photo to local law
enforcement asking for assistance in identifying the suspect. Horse was first
identified by Rapid City Police Chief Karl Jegeris, who recognized Horse from the
photo. Horse’s parole officer confirmed Horse’s identity and D.M. identified Horse
from a photo lineup.
[¶6.] Horse was arrested on June 26, 2019, and taken to the Pennington
County Jail and charged by complaint with alternative counts of rape. Sometime
thereafter, law enforcement received the test results from the rape kit which
revealed that the DNA identified in the sperm cell fraction obtained from D.M.’s
vaginal area matched a known sample taken from Horse. As part of her
investigation, Detective Dupres applied for and received a search warrant on June
27 (2019 warrant) for Horse’s Samsung Galaxy S7 cell phone. The phone was taken
with Horse’s property at the jail incident to his arrest. 2 On July 10, 2019, Horse
was indicted on one count of third-degree rape in violation of SDCL 22-22-1(4) and
in the alternative, one count of fourth-degree rape in violation of SDCL 22-22-1(5).
[¶7.] To prove that the crime occurred in Pennington County and to verify
D.M.’s recollection of events, the State sought to introduce location data obtained
from Google to show where Horse’s cell phone had been on the day of the alleged
2. Even after obtaining the June 2019 warrant, law enforcement was initially
unable to unlock the phone to obtain any information without a passcode.
However, law enforcement acquired the passcode through listening to a
phone call Horse made at the jail.
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crime. Although not contained in the record, two warrants were apparently issued
to Google in January and February of 2020 to obtain the location data. 3 The
warrants were discussed at a pretrial Daubert hearing where Horse moved via an
oral motion to suppress the historical cell site location data relied upon by the
State’s expert witness, Agent Richard Fennern of the Federal Bureau of
Investigation. In ruling on the suppression motion, the circuit court described the
warrants as listing the physical location of Google, Inc. and the account of Robert
Horse along with a specific email account attributed to him. The court further
stated that the warrant authorized a search for “all location data, whether derived
from local positioning system, GPS data, cell sites or tower triangulation or
trilateration, precision measurement information such as timing, advanced or per
call measurement data, and Wi-Fi location. Such data shall include the GPS
coordinates and date and time of all location readings for June 4th of 2019.” The
court denied the motion to suppress the location data and permitted Agent Fennern
to testify at trial.
[¶8.] At trial, the State called twenty witnesses. D.M. testified about her
memory of the events surrounding the incident. The State showed her several
photos of the bathroom taken at the house where Horse had been staying at a home
on East Enchanted Pines Drive. D.M. testified about various aspects of the
bathroom that she recognized from the photos.
3. At the Daubert hearing, the State indicated that there was an issue with the
time frame listed on the first warrant, resulting in a request for a second
warrant.
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[¶9.] At the end of D.M.’s direct examination, the following exchange
occurred:
State: [D.M.], why are you here today?
Defense Counsel: I’m going to object to relevance. Rule 403.
Court: I will sustain the objection.
State: [D.M.], is it easy for you to be here today?
D.M.: No.
State: Okay. What made you decide to come and
testify today?
Defense Counsel: I’m going to object to that as – the same
objection, Rule 401, Rule 403.
Court: It’s a little bit more specific of a question. I
will overrule the objection, and you can
answer that question.
D.M.: Maybe I will save someone else.
State: Okay. Thank you. I have no further
questions.
Defense Counsel: What was the answer. I didn’t even hear
that answer.
D.M.: Maybe I will save somebody else.
Defense Counsel: I’m going to object to that. I’m going to ask
that it be stricken, Your Honor. That’s
speculation and conjecture, and there is –
there is no basis for that.
State: I object to the speaking objection. And
maybe it’s the truth.
Defense Counsel: I’m going to object, Your Honor, and ask that
that be stricken and the jury be instructed to
disregard it.
At that point, the court took a recess. Outside the presence of the jury, Horse made
a motion for a mistrial based on the State’s comment “And maybe it’s the truth.”
After hearing arguments from the parties, the court overruled the objection to
D.M.’s response to the question regarding why she chose to testify. The court
explained that D.M.’s motivation for testifying was likely to be called into question
on cross-examination and throughout the trial. Observing that although the State’s
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question was likely more appropriate on redirect examination, the circuit court
allowed the question and answer to stand.
[¶10.] As for the State’s superfluous statement, the court determined that it
was argumentative, and therefore inappropriate at that stage of the trial. The court
admonished the State and indicated that it would give a curative instruction to
remedy the situation. The court denied the motion for mistrial concluding there
was not sufficient prejudice to the defendant to warrant a mistrial.
[¶11.] After the recess, the court reread a preliminary instruction given to the
jury emphasizing that statements and arguments by the attorneys during the trial
were not evidence, and also that the jury should not be influenced by the objections
made by the lawyers. The court struck the particular statement made by the
prosecutor from the record and told the jury to disregard it. 4
[¶12.] Detective Dupres also testified at trial about her investigative efforts
in the case. She indicated that she had obtained a search warrant for Horse’s phone
and gave the phone to a forensic examiner in order to download the contents of the
phone. She explained that she had also obtained additional warrants for Horse’s
Google account in an attempt to gather location data to determine where Horse and
D.M. travelled on the day in question. Her objective for obtaining this information
was to determine in which county the crime occurred. She stated that she received
an Excel spreadsheet from Google containing a series of latitudinal and longitudinal
4. In striking the statement, the court advised the jury that the prosecutor’s
comment “maybe it’s the truth,” “has been stricken from the record, and I am
admonishing the [j]ury to disregard that argument and that statement from
your consideration in the trial.”
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coordinates. She delivered this information to the FBI for assistance in mapping
out the location of the phone during the time frame involved.
[¶13.] Agent Fennern testified that he was a member of the FBI’s cellular
analysis survey team, comprised of agents who receive extensive training on
cellular technology and location information. In collaboration with local agencies,
team members assist with investigations by using historical data and records to
determine the location of phones, fugitives, and missing persons. Agent Fennern
testified that he received the Google location data and prepared a report based on
that information, which was admitted as an exhibit at trial. He described the data
as containing approximate locations of the device based on interactions with GPS, 5
wi-fi access points, and cellular networks that provide a radius within which a
phone is located. Agent Fennern testified that of the various types of data analyzed,
the GPS data is the most precise, with wi-fi data covering a larger radius, and cell
data having the broadest radius.
[¶14.] Using the information acquired from the data points of these three
sources, Agent Fennern testified that the data showed that the cell phone in
question had been in the area of the East Enchanted Pines Drive address D.M.
described on June 4, 2019, from 10:00 a.m. until 10:53 a.m. At 10:53 a.m., the
phone started moving into Rapid City. Agent Fennern testified that the location
information was consistent with the phone being at an Exxon gas station from 11:33
a.m. until 11:35 a.m. and at a Corner Pantry gas station from 11:39 a.m. until 11:43
5. Agent Fennern testified that most cell phones contain a GPS radio. The GPS
receivers in the phone connect with a satellite to determine the location of the
phone.
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a.m. From 1:51 p.m. until 3:19 p.m., the location data showed the phone leaving
Rapid City and going north to Sturgis before traveling toward Deadwood. The data
revealed that the phone moved back to Rapid City from Deadwood between 3:20
p.m. and 4:26 p.m. Agent Fennern testified that the phone was back in the
immediate vicinity of the East Enchanted Pines Drive address from 4:26 p.m. to
5:30 p.m. Finally, Agent Fennern testified that the phone was located in the
immediate vicinity of a Dairy Queen from 8:24 p.m. until 8:45 p.m. and then
returned to the East Enchanted Pines Drive address at 10:49 p.m.
[¶15.] Detective Dupres was recalled to the witness stand, and toward the
end of her direct examination, the State asked whether, based on her investigation,
she had an opinion as to where the assault took place. Horse objected as to lack of
foundation and invading the province of the jury, which the court overruled.
Detective Dupres indicated that she believed the assault occurred at the East
Enchanted Pines Drive address, located within Pennington County. This opinion
was based on the report from the FBI as well as what D.M. had told her regarding
the pictures of the bathroom in Horse’s residence.
[¶16.] The jury convicted Horse of third-degree rape on September 14, 2021,
and the court ordered a presentence investigation and a psycho-sexual examination.
At the sentencing hearing held on March 24, 2022, the circuit court sentenced Horse
to serve twenty years in the penitentiary, consecutive to a sentence he was already
serving. Horse appeals, raising several issues which we restate as follows:
1. Whether there was probable cause to authorize the search
warrant for the Google location data.
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2. Whether the circuit court abused its discretion by
overruling Horse’s objection to the State’s question
regarding D.M.’s motive for testifying and in denying
Horse’s motion for a mistrial based on the State’s
comment.
3. Whether the circuit court abused its discretion in
permitting Detective Dupres to opine about the location of
the crime.
Analysis
1. Whether there was probable cause to authorize the
search warrant for the Google location data.
[¶17.] Horse first argues that the circuit court should have granted his
motion to suppress the location data relied upon by Agent Fennern. He alleges that
there was a lack of probable cause to support the search warrant in that the search
warrant lacked sufficient particularity as to the information sought. We review the
issuing court’s determination of probable cause with “great deference,” and we “are
not empowered to conduct an after-the-fact de novo probable cause
determination[.]” State v. Ostby, 2020 S.D. 61, ¶ 13, 951 N.W.2d 294, 298 (quoting
State v. Raveydts, 2004 S.D. 134, ¶ 8, 691 N.W.2d 290, 293).
[¶18.] “In determining whether probable cause exists to support the issuance
of a search warrant, ‘[t]here must be “a showing of probability of criminal activity.”’”
Id. ¶ 14, 951 N.W.2d at 299 (alteration in original) (quoting State v. Tenold, 2019
S.D. 66, ¶ 30, 937 N.W.2d 6, 14). A probability of criminal activity is analyzed “by
looking at the totality of the circumstances to decide if there was at least a
‘substantial basis’ for the issuing judge’s finding of probable cause.” Raveydts, 2004
S.D. 134, ¶ 7, 691 N.W.2d at 293 (quoting State v. Jackson, 2000 S.D. 113, ¶ 8, 616
N.W.2d 412, 416). However, “[o]n review, we are limited to an examination of the
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facts as contained within the four corners of the affidavit.” Ostby, 2020 S.D. 61,
¶ 13, 951 N.W.2d at 298 (quoting State v. Gilmore, 2009 S.D. 11, ¶ 7, 762 N.W.2d
637, 641). Furthermore, we “look at the evidence contained in the affidavit in its
entirety—the ‘whole picture’—rather than at each piece of the evidence in
isolation.” Id. ¶ 15, 951 N.W.2d at 299 (quoting State v. Barry, 2018 S.D. 29, ¶ 22,
910 N.W.2d 204, 212).
[¶19.] In his argument to this Court, Horse argues that the June 2019 search
warrant for his cell phone was overly broad, not based on probable cause, and not
sufficiently particular. In support of his argument that the location data should be
suppressed, he challenges the June 2019 warrant. But the location data used by
Agent Fennern was produced from the January and February 2020 search warrants
presented to Google, not from the June 2019 warrant. Agent Fennern testified that
he relied on the location data obtained from Google for his analysis, not on the
information from the cell phone itself. 6 In other words, law enforcement did not
need the cell phone in order to obtain this location data. Therefore, the June 2019
search warrant was not relevant to the analysis, and we decline to address this
claim.
6. In his reply brief, Horse contends that the GPS data came from within the
cell phone itself. However, Agent Fennern testified that all of the
information he relied upon including GPS, wi-fi, and cellular data came from
the Google location data. During the Daubert hearing, Agent Fennern
explained that in order to obtain the location data from Google, it was
necessary to provide the phone identifier (the serial number of the cell phone,
also known as the International Mobile Equipment Identifier) or a Gmail
account and not the physical phone itself.
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[¶20.] In regard to the remaining two warrants from January and February
2020, they are not contained in the record for our review. We may only “review the
trial court record insofar as it exists.” Graff v. Child.’s Care Hosp. & Sch., 2020 S.D.
26, ¶ 16, 943 N.W.2d 484, 489. “[T]he ultimate responsibility for presenting an
adequate record on appeal falls upon the appellant.” Strong v. Gant, 2014 S.D. 8,
¶ 23, 843 N.W.2d 357, 363 (quoting Toben v. Jeske, 2006 S.D. 57, ¶ 11, 718 N.W.2d
32, 35). “Where the trial court record is incomplete and not adequate to the task,
‘our presumption is that the circuit court acted properly.’” Graff, 2020 S.D. 26, ¶ 16,
943 N.W.2d at 489 (quoting Baltodano v. N. Cent. Health Servs., Inc., 508 N.W.2d
892, 895 (S.D. 1993)). We therefore assume that the January and February 2020
search warrants were properly granted.
2. Whether the circuit court abused its discretion by
overruling Horse’s objection to the State’s question
and denying Horse’s motion for mistrial.
[¶21.] Horse next alleges that the State’s question to D.M.— “What made you
decide to come and testify today?”—was irrelevant and elicited a response which
had the sole purpose of appealing to the sympathy of the jury. “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 . . . prejudicial[.]’” State v. Hankins, 2022 S.D. 67,
¶ 20, 982 N.W.2d 21, 30 (quoting State v. Thoman, 2021 S.D. 10, ¶ 41, 955 N.W.2d
759, 772). “An abuse of discretion is a discretion exercised to an end or purpose not
justified by, and clearly against, reason and evidence.” Id. ¶ 21 (quoting State v.
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Babcock, 2020 S.D. 71, ¶ 21, 952 N.W.2d 750, 757). In addition to a showing of
error, the appellant must also show prejudice before we will reverse. Id. ¶ 20.
[¶22.] Horse claims that the question and answer about D.M.’s motive to
testify was irrelevant and highly prejudicial as D.M.’s credibility and her motivation
to testify had not yet been attacked on cross-examination. We agree with the circuit
court that the question may have been better suited for redirect examination to
rehabilitate D.M. after her credibility was challenged through cross-examination.
However, D.M.’s motive to testify was not irrelevant. Notably, defense counsel had
advised the jury in his opening statement that this case would come down to the
credibility of D.M., and he also alluded to what might have motivated her to report
that she had been sexually assaulted. Under these circumstances, the circuit court
was acting within its discretion in allowing the question and we find no error.
[¶23.] Closely related to the previous issue is Horse’s contention that the
prosecutor’s statement of “And maybe it’s the truth” regarding D.M.’s answer about
her motivation to testify at trial should have been grounds for a mistrial, as the
impermissible comment amounted to prosecutorial misconduct that improperly
bolstered the witness’s credibility. “We review the denial of a motion for mistrial for
an abuse of discretion[.]” State v. Shibly, 2023 S.D. 30, ¶ 21, 993 N.W.2d 143, 150
(alteration in original) (quoting State v. Nelson, 2022 S.D. 12, ¶ 35, 970 N.W.2d 814,
826).
[¶24.] “Improper vouching ‘invite[s] the jury to rely on the government’s
assessment that the witness is testifying truthfully.’” State v. Manning, 2023 S.D.
7, ¶ 38, 985 N.W.2d 743, 755 (alteration in original) (quoting State v. Snodgrass,
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2020 S.D. 66, ¶ 45, 951 N.W.2d 792, 806). “Prosecutorial misconduct implies a
dishonest act or an attempt to persuade the jury by use of deception or by
reprehensible methods.” Hankins, 2022 S.D. 67, ¶ 32, 982 N.W.2d at 33 (quoting
State v. Hayes, 2014 S.D. 72, ¶ 23, 855 N.W.2d 668, 675). “[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. ¶ 33 (alteration in original) (quoting
State v. McMillen, 2019 S.D. 40, ¶ 27, 931 N.W.2d 725, 733). “Prosecutorial
misconduct is prejudicial when it ‘so infect[s] the trial with unfairness as to make
the resulting convictions a denial of due process.’” Id. (alteration in original)
(quoting State v. Smith, 1999 S.D. 83, ¶ 52, 599 N.W.2d 344, 355). “‘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.” Id. (quoting
McMillen, 2019 S.D. 40, ¶ 27, 931 N.W.2d at 733).
[¶25.] Here, the statement by the prosecutor does not require reversal. The
prosecutor’s remark, while improper, was not so reprehensible that it “infected the
trial with unfairness” so as to require reversal. The comment was a very short
statement made in the course of responding to a specific objection by defense
counsel regarding the speculative nature of the witness’s statement. And fairly
read, the prosecutor did not state that D.M. had, in fact, told the truth; the
prosecutor said that “maybe it’s the truth.” Regardless, the circuit court took
appropriate curative action by striking the comment from the record and by
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reiterating the preliminary instruction given to the jury that comments and
objections made by the attorneys are not evidence that should be considered.
Further, Horse has not shown that this statement, made in the course of a four-day
trial, was prejudicial to him. Therefore, the circuit court did not abuse its discretion
in denying Horse’s motion for a mistrial.
3. Whether the circuit court abused its discretion in
permitting Detective Dupres to opine about the
location of the crime.
[¶26.] Finally, Horse asserts that Detective Dupres’s opinion as to where the
rape occurred was not a lay opinion, but rather an expert opinion that should have
been disclosed prior to trial, pursuant to a pretrial order requiring disclosure of
experts and their anticipated testimony.
[¶27.] “Decisions to admit or deny opinion evidence will not be reversed
unless there is a clear showing of an abuse of discretion.” State v. Moran, 2003 S.D.
14, ¶ 12, 657 N.W.2d 319, 324. Lay witness testimony is governed by SDCL 19-19-
701, which states:
If a witness is not testifying as an expert, testimony in the form
of an opinion is limited to one that is:
(a) Rationally based on the witness’s perception;
(b) Helpful to clearly understanding the witness’s testimony
or to determining a fact in issue; and
(c) Not based on scientific, technical, or other specialized
knowledge within the scope of § 19-19-702.
[¶28.] Here, Detective Dupres’s opinion was not an expert opinion. Her
testimony regarding the location in which the crime occurred was rationally based
on her perceptions of the case having served as the lead investigator. This Court
has determined in prior cases that law enforcement officers may testify as lay
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witnesses based upon their own observations and involvement with the case. See,
e.g., State v. Evans, 2021 S.D. 12, ¶ 56, 956 N.W.2d 68, 89; State v. Stone, 2019 S.D.
18, ¶ 32, 925 N.W.2d 488, 499; State v. Asmussen, 2006 S.D. 37, ¶ 40, 713 N.W.2d
580, 592. Detective Dupres was simply connecting the dots between information
gleaned from the overall investigation, namely, her knowledge of the Google
location data provided by Agent Fennern charting the route taken by Horse and
D.M., and D.M.’s statements that she recognized the bathroom in Horse’s home
from photographs shown to her by law enforcement. Detective Dupres’s opinion
was not based on “scientific, technical, or other specialized knowledge,” as defined
in SDCL 19-19-702.
[¶29.] Horse also alleges that Detective Dupres’s testimony invaded the
province of the jury on the issue of venue. Detective Dupres gave her opinion
regarding where the crime occurred, and the jury was entitled to give that opinion
whatever weight they deemed appropriate. Indeed, the jury was properly
instructed that it was their role to determine that the State had established venue
by a preponderance of the evidence, which was defined in a separate instruction. 7
7. The instruction read:
The indictment alleges that offenses for which Defendant stands
charged were committed in Pennington County. This place of
commission of a crime is called venue. Venue must be shown by
the evidence which the State has the burden of proving by a
preponderance of the evidence. If the State does not prove
venue by a preponderance of the evidence, you must acquit the
Defendant.
(continued . . .)
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Therefore, Detective Dupres’s opinion as to where the crime occurred was a lay
opinion and the circuit court did not abuse its discretion by admitting the evidence.
Conclusion
[¶30.] The location data was obtained by the January and February 2020
search warrants and because these warrants are not included in the record, we
presume the warrants were proper and the circuit court did not err in its probable
cause determinations. Further, the court did not abuse its discretion in denying
Horse’s motion for a mistrial because the prosecutor’s comment did not rise to the
level of prosecutorial misconduct. Finally, the court did not abuse its discretion by
admitting Detective Dupres’s opinion as to where the rape took place because such
testimony did not constitute previously undisclosed expert testimony.
[¶31.] JENSEN, Chief Justice, and SALTER, DEVANEY, and MYREN,
Justices, concur.
________________________
(. . . continued)
When a Crime is committed in one county and partly in another
county, or the acts requisite to the offense occur in two or more
counties, the venue of the crime is in either county.
This instruction adequately instructed the jury that the State was
required to prove venue.
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