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State of South Dakota v. Lucas Waugh

November 2, 2011

STATE OF SOUTH DAKOTA, PLAINTIFF AND APPELLEE,
v.
LUCAS WAUGH, DEFENDANT AND APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT MELLETTE COUNTY, SOUTH DAKOTA THE HONORABLE MARK BARNETT Judge

The opinion of the court was delivered by: Zinter, Justice

CONSIDERED ON BRIEFS

ON OCTOBER 03, 2011

[¶1.] Lucas Waugh was charged with the attempted rape of Vicki Stroup and the rape of C.B., a minor (Minor). The incidents occurred one after the other within walking distance of each other. The circuit court joined the cases for trial, and a jury found Waugh guilty of both offenses. Waugh appeals joinder and the sufficiency of evidence to support the convictions. We affirm.

Facts and Procedural History

[¶2.] Both incidents occurred in the early morning hours of September 23, 2009, in White River. After finishing work on September 22, Stroup and her friend, June Becker, drank a few beers at Stroup's home. Later, Stroup's nephew drove Stroup, Becker, and others including Waugh to a bar. Stroup was acquainted with Waugh's mother. Stroup also knew Waugh, but she did not interact with him that evening. Stroup's nephew subsequently drove Stroup and Becker back to Stroup's home. Becker stayed for a short time and then Becker went home. Soon thereafter, Stroup went to bed, leaving the kitchen light on.

[¶3.] Sometime before 4:11 a.m., while Stroup was sleeping, Waugh entered Stroup's home and bedroom without her knowledge or permission. Stroup awoke to something poking the upper-inside of her thigh, near her vagina. Stroup's sweatpants and underwear had been pulled down. Stroup observed Waugh standing next to her bed holding his penis. Stroup immediately exclaimed: "What the f*** are you doing" and that she was calling the police. Stroup went to the kitchen, opened her cell phone, and observed that it was 4:11 a.m. She immediately called 911. While Stroup was on the phone, Waugh walked into the kitchen, he looked directly at Stroup, and he said her name. He then flipped up the hood on his sweatshirt and walked out the door.

[¶4.] The incident involving Minor occurred shortly thereafter within walking distance of Stroup's home. Earlier in the afternoon of September 22, Minor, a sixteen-year-old, left school early and went to her friend L.D.'s house. At the time, L.D. and Waugh were dating. Waugh was at L.D.'s home periodically throughout that afternoon and evening. Waugh, L.D., and Minor were all drinking. Minor decided to stay overnight with L.D. L.D. testified that Waugh and Minor were flirting that night. When Minor fell asleep, L.D. was sitting next to Minor on the bed and Waugh was on a nearby couch.

[¶5.] Minor later awoke to find Waugh lying on top of her with his penis inside her vagina. Her shorts and underwear had been pulled down. Minor said, "I'm not L.D." Waugh replied, "I know." Minor testified that Waugh hit her, bruising her face and causing a bump on her head. Waugh also placed his hand over Minor's mouth. Minor testified that it then "got all black" (apparently losing consciousness), and when she woke up, no one else was in the room. Minor dressed, used the restroom, and went home. L.D. testified that she heard the front door shut around 4:30 a.m. Minor called the police and reported the incident from her home.

[¶6.] The sheriff and a deputy responded to Stroup's call first. The deputy interviewed Stroup and searched Stroup's home, while the sheriff searched for Waugh. The deputy found an item on Stroup's bedroom floor that belonged to Waugh. After completing the investigation at Stroup's home, the deputy met with the sheriff.

[¶7.] Around 5:30 a.m., while the sheriff and deputy were still searching for Waugh, they received the report of the Minor incident at L.D.'s home. When the officers arrived at L.D.'s home to investigate, Waugh ran from L.D.'s home and eluded the officers. Later that morning, a relative brought Waugh to the police station.

[¶8.] Minor was examined at a hospital, and the sheriff collected a penile swab from Waugh. Examination of the penile swab disclosed the presence of semen and DNA profiles matching Minor and Waugh.

[¶9.] The State filed separate complaints for the Stroup and Minor incidents. Regarding Stroup, Waugh was charged with first-degree burglary, aggravated assault, and attempted second-degree rape. Regarding Minor, Waugh was charged with first-degree burglary, aggravated assault, and second-degree rape. At the conclusion of the preliminary hearing involving Stroup, the circuit court dismissed the aggravated assault charge. At the conclusion of the preliminary hearing involving Minor, the court dismissed the charges of aggravated assault and first-degree burglary. Waugh pleaded not guilty to the remaining charges of rape (involving Minor), attempted rape (involving Stroup), and first-degree burglary (involving Stroup).

[ΒΆ10.] Following the circuit court's joinder of the charges for trial, a jury found Waugh guilty of the rape of Minor and the attempted rape of Stroup, but not guilty of first-degree burglary of Stroup's home. Waugh appeals, arguing that the cases were improperly joined and that there ...


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