State v. Taylor

#29072-a-SRJ
2020 S.D. 48IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
COLE TAYLOR, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA
****
THE HONORABLE MICHELLE K. COMER
Judge
****
JASON R. RAVNSBORG
Attorney General
CHELSEA WENZEL
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff and
appellee.
TIMOTHY J. BARNAUD
Belle Fourche, South Dakota Attorney for defendant and
appellant.
****
ARGUED
APRIL 22, 2020
OPINION FILED 08/19/20
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JENSEN, Justice
[¶1.] A jury convicted Cole Taylor of second-degree rape in violation of
SDCL 22-22-1(2), and sexual contact involving a second victim in violation of SDCL
22-22-7.4. Taylor appeals claiming multiple errors by the circuit court at trial and
sentencing. We affirm.
Facts and Procedural History
[¶2.] On November 10, 2017, M.R. and her friend A.F. travelled to
Deadwood, South Dakota, to attend a concert. A.F. had received four concert tickets
and a one-night stay at a Deadwood hotel from her employer. The hotel room
included one king-sized bed. A.F. and M.R. attended a VIP party for about an hour
before going to the concert. A.F. and M.R. each drank alcoholic beverages at the
VIP party and during the concert.
[¶3.] A.F. gave her two extra concert tickets to her friend, Austin Fitcher.
Fitcher told A.F. that he would bring a friend to use the last ticket. A.F. and M.R.
did not know who Fitcher planned to bring. Fitcher arrived at the concert venue
with the defendant, Cole Taylor. They met with A.F. and M.R. just as the concert
was ending. M.R. knew Taylor because they had a consensual sexual encounter in
April 2013. They had since seen each other one other time and were Facebook
friends.
[¶4.] When the concert ended, the four of them went to a bar for drinks.
A.F. and Fitcher left the bar and returned to the hotel room. M.R. and Taylor
stayed at the bar and later joined A.F. and Fitcher at the hotel room, where they all
continued to socialize and consume alcohol. A.F. claims that Taylor held her in
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place and kissed her while she was sitting on the bed. A.F. moved away from
Taylor, but she chose not to say anything to him to avoid conflict. Later, Taylor
leaned in and kissed M.R. M.R. stopped Taylor when he tried to kiss her a second
time. M.R. and Taylor went outside to smoke, and M.R. informed him that she had
a boyfriend and did not want to do anything to jeopardize that relationship.
[¶5.] A.F., Fitcher, and Taylor decided to go back to the bars, but M.R.
stayed at the hotel room to sleep because she felt sick. While on the dance floor at
one of the bars, Taylor came up behind A.F. and placed one hand on her breast and
his other hand on her vaginal area. A.F. walked away from Taylor and told Fitcher
what happened. Fitcher told Taylor to “knock it off,” and Taylor replied, “my bad,
my bad.” After the bars closed at 2 a.m., A.F., Fitcher, and Taylor headed back to
their hotel room. On the way, A.F. realized she had lost an item. She and Fitcher
went back to find it while Taylor continued to the hotel room.
[¶6.] Taylor arrived at the hotel room and knocked on the door. M.R.
opened the door just far enough to let him in and then hurried back to the bed to
cover up because she had been sleeping naked, as she did every night. M.R. did not
look to see who she had let in when she opened the door. According to M.R., she
realized that she had let Taylor in when Taylor joined her in bed without any
clothing on.
[¶7.] Once in bed, Taylor flipped M.R. onto her back, got on top of her, and
penetrated M.R. vaginally. M.R. testified that she was initially in shock and then
told Taylor to “stop” and said, “I can’t.” She was crying, hyperventilating, and
having a panic attack. Taylor shushed M.R. and tried to calm her down, after
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which he continued to vaginally penetrate her. M.R. physically attempted to hold
Taylor back, but she did not have the strength to stop him. She told Taylor to stop
multiple times.
[¶8.] M.R. then began pulling on the edge of the bed to try and get away
from Taylor. She flipped onto her stomach and began crawling off the bed when
Taylor grabbed her by the hips and penetrated her anally. Taylor then tried to put
his penis in her mouth, but M.R. resisted by clenching her teeth. Taylor then
flipped M.R. back onto her stomach and continued to penetrate her vaginally and
anally until he ejaculated. M.R. eventually passed out. A.F. and Fitcher were not
in the room during this time.
[¶9.] M.R. did not wake up until her alarm sounded around 7:00 a.m. She
woke up on one side of the bed with Taylor next to her. A.F. and Fitcher were on
the other side of the bed. When M.R. started to move, Taylor woke up, got on top of
her, and put himself between her legs. M.R. tried to get away, but Taylor physically
restrained her. Taylor then masturbated while on top of M.R. until he ejaculated on
her. A.F. and Fitcher were asleep in the bed while this took place.
[¶10.] M.R. got up and immediately took a shower. After her shower, she
woke up A.F. and told her they needed to leave. M.R. and A.F. quickly packed their
belongings and left Deadwood. M.R. reported the incident to the Deadwood Police
Department on November 12, 2017.
[¶11.] After reporting the incident, M.R. was examined at a local hospital.
Physical evidence from M.R.’s person was sent to the state forensics laboratory
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(DCI) in Pierre. M.R.’s vaginal and anal swabs tested positive for sperm cells, and
the DNA matched the known DNA profile of Taylor.
[¶12.] A grand jury returned an indictment on July 25, 2018, charging Taylor
with second-degree rape and attempted second-degree rape of M.R. The State also
filed a part II habitual offender information alleging Taylor had two prior felony
convictions. The State separately filed an information charging Taylor with two
misdemeanor charges of sexual contact with A.F. Taylor pleaded not guilty to all
charges.
[¶13.] At a pretrial hearing, the circuit court considered the State’s request to
introduce other act evidence in the form of two unrelated sexual assaults that two
other victims (P.R. and T.B.) alleged Taylor had committed. Taylor was initially
charged with rape in T.B.’s case, but the charge was dismissed prior to trial. In
P.R.’s case, Taylor was acquitted by a jury on the rape charges. The circuit court
determined that the State could present evidence of both prior alleged assaults at
trial.
[¶14.] A jury trial was held on April 8-9, 2019, and the State presented
testimony on the other acts evidence from P.R. and T.B. P.R. testified that Taylor
raped her in November 2013 in her college dorm room. This was the only incident
regarding P.R. that the State gave the defense formal notice of and the circuit court
approved of prior to trial. P.R. testified that she was 19 years old at the time and
knew Taylor through her boyfriend. P.R. explained that she was texting her
boyfriend’s phone when she received text messages from a different number from
someone claiming to be her boyfriend who asked to come have sex with her. P.R.
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initially believed that the texts were from her boyfriend, but soon realized that it
was Taylor. Taylor asked if he could come to her dorm room so he could apologize
for an “event” that occurred in August 2013. P.R. explained that she allowed Taylor
in the room to apologize because she did not want to interfere with Taylor’s
friendship with her boyfriend.
[¶15.] P.R. testified that she and Taylor talked for a short time and then
Taylor kissed her. She told him to stop, but Taylor took off her pants and held a
pillow over her face when she screamed. Taylor told her that he would take the
pillow off her face if she stopped screaming. He then vaginally penetrated her with
his penis and tried to penetrate her anally. P.R. testified that Taylor also forced her
to submit to oral sex. Taylor then penetrated P.R. vaginally a second time and
ejaculated inside of her. P.R. reported the incident to police and went to the
hospital. Evidence was presented that Taylor was charged with rape of P.R. but
acquitted by a jury.
[¶16.] During P.R.’s cross-examination, the following exchange occurred
between P.R. and Taylor’s defense counsel:
Q: You and Mr. Taylor had engaged in prior sexual encounters
prior to that incident; correct?
A: No, sir. He raped me before that.
...
Q: Okay. Well, you testified back at your trial that you let him
into your room so people could hear him apologize; correct?
A: No. I did that because of people—if I did end up screaming,
people would hear me. And we couldn’t do that in the car
because that’s where he raped me before is in his car.
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Taylor’s defense counsel did not object, move to strike, or offer a curative instruction
to this evidence. On redirect examination, the State had P.R. explain that the
“event” she believed Taylor was coming to apologize for was when he raped her in
his car at a dog park in Rapid City in August 2013.
[¶17.] The jury also heard evidence at trial about a sexual assault that was
alleged to have occurred between Taylor and his 21-year-old second cousin, T.B., in
December 2014. T.B.’s father testified at trial that T.B. had previously sustained a
traumatic brain injury in a car accident. Due to the injury, T.B. has memory issues,
needs extra time to process words, and has difficulty walking and balancing. He
also testified that T.B. is easily influenced and sometimes has the “mentality of a 6-
year-old.”
[¶18.] T.B. testified that on December 30, 2014, Taylor asked her to take him
to the store. T.B. drove Taylor to the store and then back to her house, where they
went into T.B.’s bedroom. T.B. told the jury that Taylor slapped her in the head,
butt, and back and called her vulgar names. Taylor then penetrated her vaginally
and anally with his penis. Taylor had her get into a kneeling position and made her
perform oral sex. Taylor ejaculated on T.B.’s face. T.B. told her father what
happened when he got home. Her father called the police, and Taylor was charged
with rape. The charges involving T.B. were later dismissed against Taylor.
[¶19.] At trial, the State offered the forensic DNA testing reports prepared by
the DCI crime lab for the cases involving P.R. and T.B. The reports were offered
into evidence through the investigating officers in each case. Each report included
an affidavit from the forensic analyst who conducted the testing, certifying that the
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report contained the results of the testing and was a true and correct copy of the
report. Neither examiner was called as a witness. The report in P.R.’s case showed
that seminal fluid found on P.R.’s person matched Taylor’s DNA profile. Similarly,
the report in T.B.’s case showed that seminal fluid found on T.B.’s person and on
her underwear matched Taylor’s DNA profile. Taylor objected to both reports,
arguing that they lacked foundation, violated his Sixth Amendment right to
confront and cross-examine witnesses, and there was an inadequate chain of
custody. The circuit court admitted the evidence under SDCL 23-3-19.3. 1
[¶20.] At the close of evidence, Taylor moved for a judgment of acquittal or,
alternatively, for a mistrial, alleging A.F. had improperly coached Fitcher before his
testimony. The circuit court denied the motions. The jury returned verdicts,
finding Taylor guilty of second-degree rape of M.R. and not guilty of attempted rape.
The jury also found Taylor guilty of two counts of sexual contact with A.F. After the
1. SDCL 23-3-19.3 provides:
A copy of a statement of the methods and findings of any
examination or analysis conducted by employees of the State
Forensic Laboratory or by a certified chemist employed by a law
enforcement agency within the state, authenticated under oath
by the employee, is prima facie evidence in all grand jury, court,
parole, probation, and contested case proceedings in the State of
South Dakota of the facts contained therein reciting the methods
and findings.
The statement has the same force and effect as if the person who
performed the analysis or examination had testified in person.
An accused person or the accused’s attorney may request that
the person in the State Forensic Laboratory or the certified
chemist employed by a law enforcement agency within the state,
who conducted the examination testify in person at a criminal
trial, parole revocation, or probation revocation, concerning the
examination or analysis.
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verdicts, Taylor renewed his prior motions and, for the first time, moved for a
mistrial based on P.R.’s testimony concerning the unnoticed 404(b) evidence that
Taylor had raped her in his vehicle. The circuit court denied the motions.
[¶21.] Prior to sentencing, Taylor admitted to the two prior felony convictions
in the part II information, enhancing the potential maximum sentence on Taylor’s
second-degree rape conviction one level: from a 50-year penitentiary sentence to a
maximum sentence of life imprisonment. The circuit court sentenced Taylor to 50
years in the penitentiary with 20 years suspended and credit for 337 days served.
The court sentenced Taylor to 337 days in county jail, with credit for time served for
the two convictions of sexual contact.
[¶22.] Taylor raises multiple issues in this appeal that we restate as follows:
1. Whether the circuit court abused its discretion by
allowing evidence of Taylor’s two prior alleged sexual
assaults.
2. Whether the admission of the other act evidence violated
Taylor’s constitutional rights under the Double Jeopardy
and Due Process Clauses.
3. Whether the circuit court abused its discretion when it
denied Taylor’s motion for a mistrial.
4. Whether the circuit court erred when it denied Taylor’s
motion for a judgment of acquittal.
5. Whether the circuit court’s admission of the forensic
laboratory reports by affidavit under SDCL 23-3-19.3
resulted in prejudicial error.
6. Whether Taylor’s sentence violates the Eighth
Amendment.
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Analysis and Decision
1. Whether the circuit court abused its discretion by allowing
evidence of Taylor’s two prior alleged sexual assaults.
[¶23.] “We presume evidentiary rulings made by a trial court are correct, and
review those rulings under an abuse of discretion standard.” State v. Fool Bull,
2008 S.D. 11, ¶ 10, 745 N.W.2d 380, 385. An abuse of discretion “is a fundamental
error of judgment, a choice outside the range of permissible choices, a decision,
which, on full consideration, is arbitrary or unreasonable.” State v. Lemler, 2009
S.D. 86, ¶ 40, 774 N.W.2d 272, 286.
[¶24.] Taylor argues the other act evidence regarding the alleged sexual
assaults of P.R. and T.B. was not properly admitted under SDCL 19-19-404(b)
because it was improper character evidence. Taylor also claims the evidence was
unduly prejudicial under SDCL 19-19-403 and effectively resulted in a trial within a
trial.
[¶25.] SDCL 19-19-404(b) provides: “Evidence of a crime, wrong, or other act
is not admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” However, the rule
permits other act evidence “for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” Id. “Thus . . . evidence of other crimes or wrongs is inadmissible
to show bad character and that the defendant acted in conformity therewith on the
date in question. However, such evidence is admissible if it is relevant to one of the
stated exceptions . . . and that exception or element is in issue.” State v. Willis, 370
N.W.2d 193, 197 (S.D. 1985) (internal citations omitted) (analyzing an older version
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of SDCL 19-19-404(b)). When other act evidence is admitted, “the State must
present sufficient evidence for a jury to conclude by a preponderance of the evidence
‘that the other acts occurred, and that the defendant was the actor.’” State v.
Thomas, 2019 S.D. 1, ¶ 22, 922 N.W.2d 9, 16 (quoting State v. Phillips, 2018 S.D. 2,
¶ 20, 906 N.W.2d 411, 417).
[¶26.] We apply a two-part test when considering the admissibility of other
act evidence under 404(b). State v. Stone, 2019 S.D. 18, ¶ 24, 925 N.W.2d 488, 497.
“First, the court must determine whether the other-act evidence is relevant to some
material issue in the case other than character[.] Second, the court must determine
whether the probative value of the evidence is substantially outweighed by the
danger of unfair prejudice[.]” Id. (quoting State v. Birdshead, 2015 S.D. 77, ¶ 57,
871 N.W.2d 62, 81).
[¶27.] “Evidence is relevant if it has any tendency to make a fact more or less
probable than it would be without the evidence.” SDCL 19-19-401(a). “Relevancy is
demonstrated where evidence is necessary to prove an element of the crime, not
simply to demonstrate [the] defendant’s character.” State v. Lassiter, 2005 S.D. 8, ¶
14 n.2, 692 N.W.2d 171, 175 n.2. “[I]f the other act evidence is admissible for any
purpose other than simply character, then it is sustainable. All that is prohibited
under § 404(b) is that similar act evidence not be admitted solely to prove
character.” Phillips, 2018 S.D. 2, ¶ 14, 906 N.W.2d at 415 (internal quotation
marks omitted).
[¶28.] Here, the circuit court found Taylor’s alleged sexual assaults of P.R.
and T.B. relevant to establish Taylor’s “plan, intent and motive to achieve sexual
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gratification with non-consenting young female partners.” The court reasoned that
the evidence included “three unrelated complaining witnesses who do not know
each other. All three young women have made similar complaints against the
Defendant. All three young women assert they were sexually assaulted in a non-
consensual manner. In two of the three cases, the young women assert that the
Defendant anally penetrated them.” The court determined that the evidence was
relevant to Taylor’s primary defense of whether M.R. consented to the sex.
[¶29.] In determining whether other act evidence is relevant, “[T]he threshold
inquiry . . . is whether that evidence is probative of a material issue other than
character.” Huddleston v. United States, 485 U.S. 681, 686, 108 S. Ct. 1496, 1499,
99 L. Ed. 2d 771 (1988). We have held that “[o]ther acts evidence is admissible in
rape cases to negate the defense of consent[.]” State v. Waugh, 2011 S.D. 71, ¶ 17,
805 N.W.2d 480, 484. “When [an] appellant claims innocence . . . by a mitigating
factor, namely, consent, he thus begets the establishment of intent as a material
issue in the crime of rape.” State v. White, 538 N.W.2d 237, 243 (S.D. 1995).
[¶30.] Here, Taylor did not dispute that he had sexual intercourse with M.R.
Instead, his core defense was that M.R. had consented. Taylor requested, and the
circuit court gave, the following instruction to the jury:
An act is not a crime when committed or omitted under an
ignorance or mistake of fact which disproves any criminal
intent. When a person honestly and reasonably believes certain
facts, and acts or fails to act based upon a belief of those facts,
which, if true, would not result in the commission of a crime, the
person is not guilty.
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As such, Taylor’s intent and belief as to whether M.R. was consenting to the sex
acts were material issues in the case. 2
[¶31.] The other act evidence involved two separate instances where Taylor
was alleged to have had sexual intercourse with young female acquaintances who
later reported to law enforcement that the sexual intercourse was non-consensual.
The circuit court did not abuse its discretion in finding the prior sexual assault
allegations relevant to the issue of consent, Taylor’s intent, and his common plan or
scheme. 3 See White, 538 N.W.2d at 244 (“If a rapist’s method of operation is
calculated to create the appearance of consent by the victim, similar acts evidence
may be admitted to negate the defense of consent.”).
[¶32.] Taylor argues that the other act evidence was too remote to be
relevant. However, the prior acts all occurred less than four years before the rape of
M.R. In State v. Most, we allowed the admission of prior act evidence that occurred
decades earlier because “the prior acts were substantially similar in several
respects” and negated the claim of accident. 2012 S.D. 46, ¶ 18, 815 N.W.2d 560,
2. Additionally, Taylor was charged with attempted second-degree rape, a
specific intent crime. See State v. Hart, 1996 S.D. 17, ¶ 13, 544 N.W.2d 206,
209 (stating that attempted second-degree rape is a specific intent crime,
requiring a specific intent “to accomplish forced or coercive sexual
penetration”). Proof of similar acts may be particularly relevant to crimes
where the State has the burden to prove specific intent. White, 538 N.W.2d
at 244.
3. The circuit court also held that the prior act evidence was relevant to show
Taylor’s motive. The relevance of this evidence to motive is less clear. See
Lassiter, 2005 S.D. 8, ¶ 21, 692 N.W.2d at 177 (discussing factual situations
where “[e]vidence of a prior crime may demonstrate a defendant’s motive to
commit a crime”).
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565. The prior acts here were not too remote given the similarities of the
encounters and their relevance to the issue of consent.
[¶33.] The circuit court also weighed the probative value of this evidence
against the prejudicial impact under SDCL 19-19-403. The court acknowledged
that the evidence was prejudicial to Taylor, but determined the probative value was
not substantially outweighed by the danger of unfair prejudice. “Upon a trial
court’s determination that the proffered evidence is relevant, the balance tips
emphatically in favor of admission unless the dangers set out in Rule 403
substantially outweigh probative value.” Lassiter, 2005 S.D. 8, ¶ 15, 692 N.W.2d at
176. “Damage to the defendant’s position is no basis for exclusion; the harm must
come not from prejudice, but from ‘unfair prejudice.’” State v. Janklow, 2005 S.D.
25, ¶ 38, 693 N.W.2d 685, 698. Given the probative value of the other act evidence,
we cannot say that the circuit court abused its discretion in permitting the State to
introduce this evidence at trial.
[¶34.] Taylor further argues that the circuit court abused its discretion when
it permitted P.R.’s “surprise testimony” about Taylor allegedly raping P.R. in his
vehicle. However, Taylor did not object to this evidence or otherwise move to strike
the evidence at the time P.R. testified. 4 Taylor has failed to show error by the
circuit court concerning the unnoticed other act evidence.
4. Taylor does not ask us to review this claim on plain error review. Even if we
were to do so, the record does not support that the error was plain or
otherwise affected a substantial right. State v. McMillen, 2019 S.D. 40, 931
N.W.2d 725. Defense counsel initially elicited the evidence on cross-
examination in an apparent attempt to undercut P.R.’s claim that the sex
acts with Taylor in her dorm room were non-consensual. Further, we “have
(continued . . .)
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2. Whether the admission of the other act evidence violated
Taylor’s constitutional rights under the Double Jeopardy
and Due Process Clauses.
[¶35.] Taylor contends that under the Double Jeopardy Clause, the State was
collaterally estopped from relitigating P.R.’s case to the jury because a prior jury
had already found him not guilty of the charge. He also argues that forcing him to
relitigate the rape allegations violated due process because it was fundamentally
unfair. Alleged violations of a defendant’s constitutional rights are reviewed de
novo. State v. King, 2014 S.D. 19, ¶ 4, 845 N.W.2d 908, 910.
[¶36.] In discussing whether P.R.’s testimony violated the Double Jeopardy
Clause, Taylor and the State both cite the United States Supreme Court decision in
Dowling v. United States, 493 U.S. 342, 110 S. Ct. 668, 107 L. Ed. 2d 708 (1990). In
Dowling, the Court considered whether the admission of other act evidence for
which there was a prior acquittal violates the Double Jeopardy Clause. The Court
initially recognized “that an acquittal in a criminal case does not preclude the
Government from relitigating an issue when it is presented in a subsequent action
governed by a lower standard of proof.” Id. at 349, 110 S. Ct. at 672. The Court
then analyzed the differing standards of proof when admitting 404(b) evidence
versus determining someone’s guilt. The Court distinguished the two standards by
holding that “in the Rule 404(b) context, similar act evidence is relevant only if the
jury can reasonably conclude that the act occurred and that the defendant was the
________________________
(. . . continued)
permitted the State to introduce otherwise inadmissible evidence when a
criminal defendant’s trial strategy has ‘opened the door’ to the evidence.”
State v. Letcher, 1996 S.D. 88, ¶ 25, 552 N.W.2d 402, 406. See also State v.
Burtzlaff, 493 N.W.2d 1, 5-6 (S.D. 1992) (permitting the State the right to
respond when defense counsel “opened the door”).
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actor.” Id. at 346, 110 S. Ct. at 670. Thus, the prior acquittal of the charge on proof
beyond a reasonable doubt “did not determine the ultimate issue in the present
case[,]” and the prosecution was not collaterally estopped from admitting the other
act evidence. Id. at 348, 110 S. Ct. at 671.
[¶37.] Dowling further determined that Double Jeopardy was inapplicable
because the defendant “did not demonstrate that his acquittal in his first trial
represented a jury determination that he was not one of the men” who committed
the alleged offense. Id. at 350, 110 S. Ct. at 673. “The acquittal did not prove that
the defendant is innocent; it merely proves the existence of a reasonable doubt as to
his guilt.” Id. at 349, 110 S. Ct. at 672-73 (citation omitted). “Because a jury might
reasonably conclude that [defendant committed the offense], even if it did not
believe beyond a reasonable doubt that [the defendant] committed the crimes
charged at the first trial, the collateral-estoppel component of the Double Jeopardy
Clause is inapposite.” Id. at 348-49, 110 S. Ct. at 672 (emphasis added).
[¶38.] Dowling also rejected the defendant’s claim that such evidence violates
fundamental fairness under the Due Process Clause. Id. at 352-53, 110 S. Ct. at
674-75. The Court held that judges “are to determine only whether the action
complained of . . . violates those fundamental conceptions of justice which lie at the
base of our civil and political institutions, and which define the community’s sense
of fair play and decency.” Id. at 353, 110 S. Ct. at 675 (internal quotations marks
and citations omitted). The Court determined that the Rules of Evidence were
adequate to consider the admissibility of the evidence and declined “to use the Due
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Process Clause as a device for extending the double jeopardy protection to cases
where it otherwise would not extend.” Id. at 354, 110 S. Ct. at 174.
[¶39.] Applying Dowling, the State was not collaterally estopped from
offering evidence of P.R.’s alleged rape, nor did the admission of this evidence
violate fundamental fairness. The circuit court applied well-established rules of
evidence and properly instructed the jury that, before considering the other acts,
the jury must first determine if a preponderance of the evidence established that
the defendant committed the other acts. See Thomas, 2019 S.D. 1, ¶ 22, 922 N.W.2d
at 16. Taylor extensively cross-examined P.R. concerning the alleged sexual assault
and the prior acquittal. The jury “remained free to assess the truthfulness and the
significance of [the alleged victim’s] testimony, and the petitioner had the
opportunity to refute it.” Dowling, 493 U.S. at 353, 110 S. Ct. at 675. See also
People v. Wallen, 996 P.2d 182, 185 (Colo. App. 1999) (upholding the admission of a
prior sexual assault charge where the defendant had raised a similar consent
defense, as the jury could consider the prior act under the preponderance of the
evidence standard).
3. Whether the circuit court abused its discretion when it
denied Taylor’s motions for a mistrial.
[¶40.] Taylor argues the court abused its discretion when it denied his motion
for a mistrial based on what he characterizes as “witness tampering” by A.F.
involving the testimony of Fitcher. During her testimony, A.F. stated on direct
examination that Taylor had kissed her at the hotel room, and Taylor extensively
cross-examined her as to whether this had occurred; primarily because A.F. had not
stated this fact to the grand jury. A.F. also testified that she had not told Fitcher
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about being kissed by Taylor. Fitcher testified after A.F. and stated that he had
observed Taylor and A.F. kiss in the hotel room. However, on cross-examination,
Fitcher admitted that he did not actually see Taylor kiss A.F. Instead Fitcher
claimed that A.F. had told him this occurred. During cross-examination, Taylor
suggested that A.F. and Fitcher had talked about this testimony, but Fitcher denied
A.F. had told him what to say. After Fitcher’s testimony, Taylor asked for a
mistrial. Taylor claimed that A.F. had told Fitcher to testify about the kiss when
she and Fitcher were in the hallway together outside the courtroom immediately
before Fitcher’s testimony. 5 The circuit court denied the motion for a mistrial.
[¶41.] We review the denial of a motion for mistrial for an abuse of discretion
and will only overturn upon a showing that an error has caused actual prejudice to
the defendant. State v. Kryger, 2018 S.D. 13, ¶ 33, 907 N.W.2d 800, 812. Although
not prefaced as such, Taylor’s claim of “witness tampering” was essentially an
argument that the court’s sequestration order had been violated. To establish
prejudice where a witness sequestration order has been violated, it must be
5. After the jury returned a verdict, Taylor renewed his motion for a mistrial on
this issue and also moved for a mistrial for the first time concerning the
unnoticed 404(b) evidence. On appeal, Taylor also raises the circuit court’s
denial of his post-verdict motion for a mistrial on the unnoticed 404(b)
evidence. We decline to review the motion for a mistrial with respect to the
unnoticed 404(b) evidence because Taylor failed to timely move for a mistrial
on this issue prior to the jury’s verdict.
“A court may declare a mistrial before the jury returns a verdict but, after a
verdict has been returned, the trial is complete. If the motion is not made
before the verdict, the party seeking a new trial has waived the mistrial
issue.” 75B Am. Jur. 2d Trial § 1408. Taylor did not move for a new trial
after the verdict pursuant to SDCL 23A-29-1. Further, as discussed above,
Taylor has failed to show an error or prejudice concerning the unnoticed
404(b) evidence that Taylor elicited from M.R.
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established that “the witness’[s] testimony has changed or been influenced by what
[they] heard from other witnesses.” State v. Randle, 2018 S.D. 61, ¶ 21, 916 N.W.2d
461, 466. The circuit court found there was insufficient evidence that A.F. and
Fitcher had discussed the kiss in the hallway before Fitcher took the stand, or that
A.F. influenced Fitcher’s testimony. We agree. In any event, whether Taylor had
kissed A.F. was an issue of minimal significance to the charges Taylor faced at trial.
Therefore, Taylor has failed to make any showing that he was prejudiced concerning
Fitcher’s testimony. The court did not abuse its discretion when it denied Taylor’s
motion for a mistrial.
4. Whether the circuit court erred when it denied Taylor’s
motion for a judgment of acquittal.
[¶42.] Taylor contends the circuit court erred in denying his motion for a
judgment of acquittal. The denial of a motion for a judgment of acquittal is
reviewed de novo. State v. Quist, 2018 S.D. 30, ¶ 13, 910 N.W.2d 900, 904. “When
conducting our review, we determine whether the evidence was sufficient to sustain
the conviction.” Stone, 2019 S.D. 18, ¶ 38, 925 N.W.2d at 500. “In measuring the
sufficiency of the evidence, we ask whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Most, 2012 S.D. 46,
¶ 29, 815 N.W.2d at 568. “If the evidence, including circumstantial evidence and
reasonable inferences drawn therefrom sustains a reasonable theory of guilt, a
guilty verdict will not be set aside.” Stone, 2019 S.D. 18, ¶ 38, 925 N.W.2d at 500.
[¶43.] At trial, the jury heard from the victim M.R., the investigating officer,
and the nurse who examined M.R. at the hospital. In her testimony, M.R. provided
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specific details about the sexual assault and her efforts to resist Taylor. Sufficient
evidence exists in the record to support the conviction.
5. Whether the circuit court’s admission of forensic
laboratory reports by affidavit under SDCL 23-3-19.3
resulted in prejudicial error.
[¶44.] Taylor claims the admission of the DNA testing reports from P.R.’s and
T.B.’s cases violated his Sixth Amendment right to confront and cross-examine
witnesses against him because the two forensic analysts did not testify at trial.
“The Sixth Amendment’s Confrontation Clause confers upon the accused, ‘[i]n all
criminal prosecutions, . . . the right . . . to be confronted with the witnesses against
him.’” Bullcoming v. New Mexico, 564 U.S. 647, 658, 131 S. Ct. 2705, 2713, 180 L.
Ed. 2d 610 (citation omitted). We review this alleged violation of Taylor’s
constitutional right de novo. State v. Medicine Eagle, 2013 S.D. 60, ¶ 27, 835
N.W.2d 886, 896.
[¶45.] Taylor relies on the balancing test from State v. Beck, 2000 S.D. 141,
619 N.W.2d 247, to support his claims. However, Beck was decided before the
United States Supreme Court’s decisions in Bullcoming and Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 and no longer controls
the issue before the Court.
[¶46.] Bullcoming considered whether “a forensic laboratory report
containing a testimonial certification, made in order to prove a fact at a criminal
trial” could be introduced through “an analyst who did not sign the certification or
personally perform . . . the test . . . .” 564 U.S. at 657, 131 S. Ct. at 2713. The New
Mexico Supreme Court held that the admission of the report did not violate the
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defendant’s Sixth Amendment right to confront witnesses because the results were
calculated by a machine, and merely transcribed by the non-testifying analysts. Id.
The Court disagreed.
[¶47.] The Court held “[a]n analyst’s certification prepared in connection with
a criminal investigation or prosecution . . . is ‘testimonial,’ and therefore within the
compass of the Confrontation Clause.” Id. at 658-59, 131 S. Ct. at 2712 (citing
Melendez–Diaz v. Massachusetts, 557 U.S. 305, 321-24, 129 S. Ct. 2527, 2537-40,
174 L. Ed. 2d 314 (2009)). No matter how reliable a piece of evidence may be, there
is no “forensic evidence” exception to the Confrontation Clause. Id. The Court
stated:
[T]he comparative reliability of an analyst’s testimonial report
drawn from machine-produced data does not overcome the Sixth
Amendment bar. This Court settled in Crawford that the
“obviou[s] reliab[ility]” of a testimonial statement does not
dispense with the Confrontation Clause. (Clause “commands,
not that evidence be reliable, but that reliability be assessed in a
particular manner: by testing [the evidence] in the crucible of
cross-examination”). Accordingly, the analysts who write
reports that the prosecution introduces must be made available
for confrontation even if they possess “the scientific acumen of
Mme. Curie and the veracity of Mother Teresa.”
Id. at 661, 131 S. Ct. at 2715 (citations omitted).
[¶48.] Therefore, the circuit court erred by admitting the lab reports under
SDCL 23-3-19.3 without affording Taylor the opportunity to cross-examine the
analysts who conducted the testing and authored the reports. However, we must
also consider whether the error was harmless. Id. at 668 n.11, 131 S. Ct. at 2719
n.11 (“express[ing] no view on whether the Confrontation Clause error in this case
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was harmless” and holding that “nothing in this opinion impedes a harmless-error
inquiry on remand”).
[¶49.] “When a defendant has shown his constitutional right to confrontation
has been violated, he is entitled to a new trial unless the improperly admitted
evidence constitutes harmless error.” State v. Richmond, 2019 S.D. 62, ¶ 35, 935
N.W.2d 792, 802. “An otherwise valid conviction should not be set aside if the
reviewing court may confidently say, on the whole record, that the constitutional
error was harmless beyond a reasonable doubt.” State v. Podzimek, 2019 S.D. 43,
¶ 15, 932 N.W.2d 141, 146 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681, 106
S. Ct. 1431, 1436, 89 L. Ed. 2d 674 (1986)). We consider many factors when
determining whether an error is harmless such as the testimony of the witnesses,
whether the evidence is cumulative, the presence or absence of corroborating or
contradicting evidence on the material points, the extent of cross-examination
otherwise permitted, and the overall strength of the prosecution’s case. Id.[¶50.] In Taylor’s case, “a full review of the record reveals a host of factors
that show that any alleged error committed by the circuit court in admitting [the
lab reports] was harmless beyond a reasonable doubt.” Podzimek, 2019 S.D. 43,
¶ 16, 932 N.W.2d at 146. The State offered the lab reports solely to corroborate the
other act evidence of P.R. and T.B., specifically, that it was Taylor who had sexual
intercourse with them; allegations that Taylor did not appear to dispute. In fact, as
to P.R., Taylor’s cross-examination of P.R. tried to suggest that P.R. and Taylor had
a consensual sexual encounter, much like the defense Taylor raises in this case. As
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to T.B., Taylor did not challenge T.B.’s testimony about the alleged sexual
intercourse. 6
[¶51.] In any event, the DNA tests speak only to the question of whether
sexual intercourse with the two other act witnesses occurred, not whether it was
consensual. Because consent was the central issue in this case, the testimony from
the other alleged victims was material to the issue of Taylor’s mistake of fact
defense, his criminal intent, and to show a common plan or scheme. Finally, the
State’s overall case against Taylor was strong regardless of whether the lab reports
at issue had been admitted into evidence. “[W]hen considered in light of the
evidence submitted at trial, the circuit court’s admission of [the lab reports], though
erroneous, was harmless.” Richmond, 2019 S.D. 62, ¶ 43, 935 N.W.2d at 804. 7
6. Whether Taylor’s sentence violates the Eighth Amendment.
[¶52.] Taylor contends that his sentence is grossly disproportionate to the
offenses and is therefore unconstitutional under the Eighth Amendment. “[W]hen
the question presented is whether a challenged sentence is cruel and unusual in
6. Instead of cross-examining T.B., Taylor used information from the DNA
report to cross-examine the investigating officer in T.B.’s case to suggest,
without objection from the State, that T.B. had engaged in other recent
sexual behavior aside from Taylor. Defense counsel elicited testimony from
the officer that DNA of a third, unknown contributor had been found in T.B.’s
underwear, and the officer believed the charges against Taylor relating to the
alleged sexual assault of T.B. were ultimately dismissed based, at least in
part, upon these DNA results.
7. Taylor asserts that cumulative errors by the circuit court violated his
constitutional right to a fair trial. “The cumulative effect of errors by the
trial court may support a finding by the reviewing court of a denial of the
constitutional right to a fair trial.” State v. Davi, 504 N.W.2d 844, 857 (S.D.
1993). However, Taylor has failed to demonstrate any error that was
prejudicial to him, either on its own or on a cumulative basis.
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violation of the Eighth Amendment, we conduct a de novo review.” State v. Chipps,
2016 S.D. 8, ¶ 31, 874 N.W.2d 475, 486.
[¶53.] “The Eighth Amendment to the U.S. Constitution, which was extended
to the states through the Fourteenth Amendment, prohibits the infliction of ‘cruel
and unusual punishments.’” Id. ¶ 32. In reviewing a sentence challenged under the
Eighth Amendment, we must determine “whether the sentence imposed is grossly
disproportionate to its corresponding offense.” State v. Yeager, 2019 S.D. 12, ¶ 4,
925 N.W.2d 105, 108. In doing so, we first “look to the gravity of the offense and the
harshness of the penalty.” Chipps, 2016 S.D. 8, ¶ 38, 874 N.W.2d at 488. Such a
comparison “rarely leads to an inference of gross disproportionality and typically
marks the end of our review.” Id. However, should the penalty imposed appear to
be grossly disproportionate to the gravity of the offense, we next “compare the
sentence to those ‘imposed on other criminals in the same jurisdiction’ as well as
those ‘imposed for commission of the same crime in other jurisdictions.’” Id.(quoting Solem v. Helm, 463 U.S. 277, 291, 103 S. Ct. 3001, 3010, 77 L. Ed. 2d 637).
[¶54.] Taylor was convicted of second-degree rape under SDCL 22-22-1. We
have held that “[r]ape is a heinous crime . . . without a doubt deserving of serious
punishment.” Yeager, 2019 S.D. 12, ¶ 6, 925 N.W.2d at 109 (analyzing child rape).
The crime is often violent because “it normally involves force, or the threat of force
or intimidation, to overcome the will and the capacity of the victim to resist.” Id.
Along with physical injury, it “can also inflict mental and psychological damage.”
Id. There may be public injury as well, because rape “undermines the community’s
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sense of security.” For these reasons, “the gravity of [rape] is comparatively high
when weighed against other criminal acts.” Id.
[¶55.] “In judging the gravity of an offense, a court may also consider certain
past conduct of the defendant” in sentencing enhancement cases. Chipps, 2016 S.D.
8, ¶ 36, 874 N.W.2d at 488. After Taylor’s conviction, he admitted to two prior
felony convictions under the habitual offender statute in SDCL 22-7-7. Because of
the habitual offender enhancement, Taylor faced a potential life sentence on the
conviction for second-degree rape. “[I]f the sentence is enhanced because of the
offender’s recidivism, then the gravity of his past offenses also contributes to the
gravity of the present offense.” Id.[¶56.] The circuit court’s imposition of a 50-year sentence, with 20 years
suspended, was well within the maximum sentence boundaries that Taylor faced.
“[A] sentence within the statutory maximum generally will not be disturbed on
appeal.” State v. Talla, 2017 S.D. 34, ¶ 10, 897 N.W.2d 351, 354. Given the record
before the circuit court, we conclude that Taylor has failed to show his sentence was
grossly disproportionate. “Accordingly, no further review of [Taylor’s] challenge on
Eighth Amendment grounds is warranted.” Yeager, 2019 S.D. 12, ¶ 10, 925 N.W.2d
at 110.
[¶57.] We affirm.
[¶58.] GILBERTSON, Chief Justice, and KERN, SALTER and DEVANEY,
Justices, concur.
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