ARGUED MARCH 19, 2013
APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT TRIPP COUNTY, SOUTH DAKOTA THE HONORABLE JOHN L. BROWN Judge.
MARTY J. JACKLEY Attorney General
KIRSTEN E. JASPER Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
PAUL E. JENSEN of Jensen & Massa Winner, South Dakota Attorneys for defendant and appellant.
GILBERTSON, Chief Justice
[¶1.] M.E.H. alleges she was kidnapped and raped by Gabriel Darryn Medicine Eagle, Junior, on September 23, 2000. In 2001, Medicine Eagle was indicted, but the charges were later dismissed when DNA testing failed to implicate Medicine Eagle. In 2008, the case was reopened and the evidence obtained in 2000 was retested using a new method of DNA testing. This time, the testing revealed the presence of Medicine Eagle's DNA. On December 3, 2009, the grand jury indicted Medicine Eagle on various charges stemming from the alleged rape. Further, a Part II Information was filed charging Medicine Eagle as a habitual offender pursuant to SDCL 22-7-7. At trial, the court admitted evidence of an incident involving Medicine Eagle and S.M., which allegedly occurred in 2003, as other acts evidence pursuant to SDCL 19-12-5 (Rule 404(b)). Additionally, the trial court permitted the State to elicit testimony from a forensic DNA analyst regarding the results of DNA testing performed in 2008 and 2011, even though some steps of the testing were performed by nontestifying analysts. The jury found Medicine Eagle guilty of one count of rape in the second degree, one count of rape in the third degree, sexual contact with a child under age 16, and kidnapping. In a separate trial, the jury found that Medicine Eagle was a habitual offender. Medicine Eagle appeals.
[¶2.] On September 23, 2000, 15-year-old M.E.H. was in Winner, South Dakota, to attend a funeral. M.E.H. was staying with her grandmother, who lived in a housing development just outside of Winner. At approximately 6:00 p.m., M.E.H. had sexual intercourse with her 16-year-old boyfriend Patrick Red Bird while the two were alone at the house. Shortly thereafter, M.E.H., her brother, her cousin, and her friend left the house and walked to town. At approximately 10:30 p.m., M.E.H. began walking home in order to make her 11:00 p.m. curfew.
[¶3.] M.E.H. alleges that while she was walking home, 23-year-old Medicine Eagle and his passenger approached her in Medicine Eagle's van and offered to give her a ride home. M.E.H. recognized the passenger, and accepted the ride. M.E.H. claims Medicine Eagle proceeded to drop the passenger off at his home. After dropping the passenger off, M.E.H. claims Medicine Eagle drove back into town to buy beer at a gas station and then drove to the bowling alley so M.E.H. could look for her cousin. When M.E.H. was unable to locate her cousin, she got back in Medicine Eagle's vehicle so that he could take her home. At this point, M.E.H. alleges Medicine Eagle began driving erratically. Despite her repeated requests to be taken home, M.E.H. asserts Medicine Eagle drove to a desolate field outside of Winner. Upon reaching the field, M.E.H. alleges she tried to run away from the van to get help. However, M.E.H. claims Medicine Eagle caught her and dragged her back to the van by her hair. M.E.H. alleges Medicine Eagle then forced her into the van and raped her. According to M.E.H., Medicine Eagle threatened her throughout the incident. M.E.H. claims Medicine Eagle drove her home after the rape. Medicine Eagle disputes these allegations.
[¶4.] When M.E.H. arrived at home, she told her mother she had been raped. At 2:00 a.m. on September 24, 2000, M.E.H. was taken to the hospital, where she was examined and a rape kit was collected. The rape kit evidence and M.E.H.'s clothing were subsequently sent to the South Dakota State Forensic Laboratory for testing. After M.E.H. was discharged from the hospital, she was interviewed by law enforcement. At this point in time, she did not inform law enforcement that she had sexual intercourse with Red Bird prior to the alleged rape. In 2001, Medicine Eagle was indicted on charges stemming from the alleged rape.
[¶5.] At the South Dakota State Forensic Laboratory, criminalist Stacy Smith conducted serology testing to check for the presence of bodily fluids on the evidence. While conducting the testing, Smith established the presence of bodily fluids on the vaginal swab and the underwear that were collected as part of M.E.H.'s rape kit. However, prior to 2002, the South Dakota State Forensic Laboratory did not do DNA testing. As a result, Smith sent M.E.H.'s vaginal swab, Medicine Eagle's buccal swab, and M.E.H.'s blood sample to the Orchid Cellmark (formerly known as GeneScreen) lab in Texas for DNA testing.
[¶6.] At the time, Amber Moss worked at Orchid Cellmark (Cellmark) as a forensic scientist. In August 2001, Moss received the evidence sent by Smith. Moss performed DNA testing on the vaginal swab, and compared it to the DNA profiles obtained from Medicine Eagle's buccal swab and M.E.H.'s blood sample. The only DNA profile Moss was able to obtain during the testing was consistent with M.E.H.'s DNA profile. Moss sent these results to Smith at the South Dakota State Forensic Laboratory.
[¶7.] Shortly thereafter, Smith sent a cutting from M.E.H.'s underwear to Cellmark for DNA testing. Moss performed DNA testing on the sample and compared the DNA profiles obtained from the underwear cutting to the DNA profiles of M.E.H. and Medicine Eagle. Medicine Eagle was not implicated by the results of this round of DNA testing. Instead, the only male DNA profile Moss was able to obtain was from an unknown male individual. Upon completion of the testing, Cellmark retained the extractions from M.E.H.'s vaginal swab and M.E.H.'s underwear cutting in a secured area at the lab.
[¶8.] Because the DNA testing failed to implicate Medicine Eagle and instead revealed the presence of DNA from an unidentified male, the charges against Medicine Eagle were dismissed. In 2008, the case was reopened after law enforcement learned M.E.H. had been sexually involved with Red Bird on the day of the alleged rape. Using the DNA index system known as CODIS, Smith was able to match the DNA profile of the unidentified male that was obtained by Cellmark in 2001 to Red Bird. Smith then made inquiries about whether a new DNA-testing method known as Y-STR testing, which was unavailable when the evidence was originally tested in 2001, might produce additional results. The South Dakota State Forensic Laboratory did not do Y-STR testing at this point in time, so Smith contacted Cellmark to perform the testing.
[¶9.] In 2008, Cellmark was asked to perform Y-STR testing on the vaginal swab DNA extract and the underwear cutting DNA extract that Cellmark had retained from the 2001 DNA testing and to compare those extracts to Red Bird's DNA profile and Medicine Eagle's DNA profile. Barbara Leal, a forensic DNA analyst, performed the quantitation, dilution, and amplification steps on the extracts. As Cellmark used a team approach to DNA testing, the additional steps associated with the Y-STR testing were performed by other analysts. The results of the Y-STR testing revealed that Medicine Eagle could not be excluded as a contributor to the non-sperm cell fraction of the vaginal swab or the non-sperm cell fraction of the underwear cutting. In May 2011, Cellmark was also asked to perform Y-STR testing on M.E.H.'s bra, which Cellmark received from Smith. Leal performed the dilution and amplification steps of the Y-STR testing on the bra sample. Additionally, Leal completed the analysis of the results and wrote a report containing her conclusions. The results of the Y-STR testing of the bra sample established that Medicine Eagle could not be excluded as a contributor to the sample. As to each of these samples, Leal's statistical analyses indicated that although Medicine Eagle could not be excluded as a contributor, 99.97 percent of paternally unrelated males would be excluded as contributors to the samples.
[¶10.] On December 3, 2009, the grand jury indicted Medicine Eagle on four counts of second-degree rape, three counts of third-degree rape, one count of sexual contact with a child under age 16, and four counts of kidnapping as a result of the incident that allegedly occurred between Medicine Eagle and M.E.H. in September 2000. Additionally, on July 14, 2010, the State filed a Part II Information charging Medicine Eagle as a habitual offender pursuant to SDCL 22-7-7, because Medicine Eagle had a prior felony conviction. Medicine Eagle was arraigned on the charges on August 3, 2010, and pleaded not guilty.
[¶11.] Prior to trial, the parties filed various motions. On July 21, 2011, the State filed a motion to introduce other acts evidence pursuant to SDCL 19-12-5 (Rule 404(b)), based on an incident that allegedly occurred between Medicine Eagle and thirteen-year-old S.M. on January 29, 2003. S.M. alleged that on that date Medicine Eagle called her home at approximately 4:00 a.m. looking for her sister. According to S.M., Medicine Eagle told her that her mother needed help at work. S.M. claimed Medicine Eagle said he was at the house next door and offered to give her a ride. S.M. did not personally know Medicine Eagle, but she accepted the ride because Medicine Eagle knew her sister. S.M. claimed Medicine Eagle's driving was erratic, and that he forced her to drink vodka while they were driving. Additionally, instead of taking S.M. to her mother, S.M. alleged Medicine Eagle drove to a field outside of town. Once the vehicle stopped and S.M. tried to run away, S.M. claimed Medicine Eagle grabbed her, dragged her back to his vehicle by her hair, and engaged in sexual contact with her. S.M. asserted the attack ended when she told Medicine Eagle she was going to tell her mom about what happened, and she became physically ill. S.M. claimed Medicine Eagle then drove her home. However, S.M. asserted Medicine Eagle threatened to kill her if she told anyone about the incident. The trial court granted the State's motion and allowed the State to present this evidence to the jury pursuant to SDCL 19-12-5 (Rule 404(b))'s plan exception.
[¶12.] On September 29, 2011, the State filed a notice of its intent to offer witness testimony regarding the DNA evidence. In addition to testimony from Smith, Moss, and other witnesses, the State sought to introduce testimony from Leal regarding the Y-STR testing performed in 2008 and 2011. Medicine Eagle objected to this testimony, arguing it violated his Sixth Amendment right to confront the witnesses against him because other analysts that performed some steps of the DNA testing in 2008 and 2011 were not being called as witnesses. The trial court rejected Medicine Eagle's objections to this testimony.
[¶13.] Medicine Eagle's jury trial commenced on October 11, 2011. On October 18, 2011, the jury returned a verdict finding Medicine Eagle guilty of one count of rape in the second degree, one count of rape in the third degree, sexual contact with a child under age 16, and kidnapping. On October 24, 2011, the State filed an Amended Part II Information for Habitual Offender alleging that Medicine Eagle had a second prior felony conviction. Medicine Eagle was then rearraigned on the Amended Part II Information. However, the State later dismissed the Amended Part II Information after discovering that the second "prior" felony conviction actually occurred after the principal offense. The State then proceeded to trial on the original Part II Information, to which Medicine Eagle made no objection. The jury returned a verdict on January 27, 2012, finding that Medicine Eagle was a habitual offender.
[¶14.] On February 13, 2012, Medicine Eagle filed a motion to vacate the part II proceedings, arguing that the trial court had no jurisdiction over the part II proceedings. Medicine Eagle claimed the State's filing of the Amended Part II Information dismissed the original Part II Information. Thus, he asserted that because the State failed to file a second Amended Part II Information or refile the original Part II Information, no part II information even existed at the time of the habitual offender jury trial. The trial court denied the motion. Medicine Eagle received sentences of 25 years in the South Dakota State Penitentiary for rape in the second degree, 15 years for sexual contact with a child under age 16, and life imprisonment for kidnapping. Medicine Eagle appeals the trial court's admission of the other acts evidence, admission of Leal's testimony regarding the results of the Y-STR testing conducted in 2008 and 2011, and its denial of his motion to vacate the part II proceedings.
ANALYSIS AND DECISION
[¶15.] 1. Whether the trial court abused its discretion in admitting evidence of the incident involving S.M. as other acts evidence pursuant to SDCL 19-12-5 (Rule 404(b)).
[¶16.] "A trial court's determination to admit other acts evidence will not be overruled absent an abuse of discretion." State v. Mattson, 2005 S.D. 71, ¶ 21, 698 N.W.2d 538, 546 (quoting State v. Anderson, 2000 S.D. 45, ¶ 93, 608 N.W.2d 644, 670). "An abuse of discretion is 'discretion exercised to an end or purpose not justified by and clearly against, reason and evidence.'" State v. Big Crow, 2009 S.D. 87, ¶ 7, 773 N.W.2d 810, 812 (quoting State v. Machmuller, 2001 S.D. 82, ¶ 9, 630 N.W.2d 495, 498). The admission of other acts evidence is governed by SDCL 19-12-5 (Rule 404(b)), which provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
[¶17.] "To determine the admissibility of other acts evidence, the court must . determine: (1) whether the intended purpose is relevant to some material issue in the case, and (2) whether the probative value of the evidence is substantially outweighed by its prejudicial effect." State v. Huber, 2010 S.D. 63, ¶ 56, 789 N.W.2d 283, 301 (quoting State v. Janklow, 2005 S.D. 25, ¶ 34, 693 N.W.2d 685, 697). This Court has previously determined that SDCL 19-12-5 (Rule 404(b)) is a rule of inclusion, as opposed to exclusion. State v. Wright, 1999 S.D. 50, ¶ 13, 593 N.W.2d 792, 798. "[O]nce a circuit court finds other acts evidence relevant, 'the balance tips emphatically in favor of admission.'" Huber, 2010 S.D. 63, ¶ 59, 789 N.W.2d at 302 (quoting Janklow, 2005 S.D. 25, ¶ 38, 693 N.W.2d at 698). Further, "[m]ere damage to a defendant's position is not a basis for exclusion[.]" Id. Essentially, "[a]ll that is prohibited under § 404(b) is that similar act evidence not be admitted 'solely to prove character.'" Wright, 1999 S.D. 50, ¶ 17, 593 N.W.2d at 800 (quoting Huddleston v. United States, 485 U.S. 681, 687, 108 S.Ct. 1496, 1500, 99 L.Ed.2d 771 (1988)).
[¶18.] This Court has previously recognized that evidence of other acts can be admitted under the plan exception "not only where the charged and uncharged acts are part of a single continuing conception or plot, but also where the uncharged misconduct is sufficiently similar to support the inference that they are manifestations of a common plan, design, or scheme . . . ." Big Crow, 2009 S.D. 87, ¶ 8, 773 N.W.2d at 812 (citing State v. Champagne, 422 N.W.2d 840, 842 (S.D. 1988)). "[W]here the defendant denies doing the charged act, evidence of a common plan or scheme to achieve the act is directly relevant to refute this general denial." State v. Ondricek, 535 N.W.2d 872, 875 (S.D. 1995) (citing United States v. Weidman, 572 F.2d 1199, 1202 (7th Cir. 1978)).
[¶19.] The existence of a plan need not be proven with direct evidence, but instead "can be shown circumstantially[, ] with evidence that the defendant committed a series of similar but 'unconnected' acts." Wright, 1999 S.D. 50, ¶ 19, 593 N.W.2d at 801 (citing People v. Ewoldt, 867 P.2d 757, 768-69 (Cal. 1994)). Essentially, "[a]ll that is required to show a common plan is that the charged and uncharged events 'have sufficient points in common.'" Id. ¶ 19, 593 N.W.2d at 800 (citing United States v. Elizondo, 920 F.2d 1308, 1320 (7th Cir. 1990)). However, the other acts evidence "must demonstrate 'not merely a similarity in results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.'" Id. ¶ 19, 593 N.W.2d at 801 (quoting Ewoldt, 867 P.2d at 770).
[¶20.] In this case, the trial court concluded that evidence of the incident involving S.M. was admissible under SDCL 19-12-5 (Rule 404(b)) to show Medicine Eagle's plan, common scheme, and modus operandi. In admitting the evidence, the trial court concluded that the incidents involving M.E.H. and S.M. were "strikingly similar, " and that the incident involving S.M. was relevant to prove that Medicine Eagle "had a common plan or scheme to kidnap, rape, and assault young girl victims he could take advantage of after isolating them by use of his deception, physical threats, and intimidation." Furthermore, the trial court concluded that the incident involving S.M., which occurred approximately two and one-half years after M.E.H. was allegedly kidnapped and raped, was not too remote so as to exclude its admission from trial. Finally, the trial court determined that admission of evidence regarding the incident involving S.M. was not unfairly prejudicial.
[¶21.] On appeal, Medicine Eagle argues that evidence of the incident involving S.M. was inadmissible for two reasons. First, Medicine Eagle argues that evidence of the incident involving S.M., which allegedly occurred two and one-half years after Medicine Eagle's commission of the crimes against M.E.H., cannot be used to prove that Medicine Eagle had a plan in 2000. However, this Court has previously recognized that "[o]ther act evidence does not have to be a prior act to be admissible under SDCL 19-12-5 (Rule 404(b))." State v. Toohey, 2012 S.D. 51, ¶ 20, 816 N.W.2d 120, 129. Further, in State v. White, this Court acknowledged that other jurisdictions have admitted evidence of acts occurring subsequent to the charged offense to prove common plan or scheme. 538 N.W.2d 237, 244 (S.D. 1995) (discussing State v. Downing, 511 P.2d 638 (Ariz. 1973) and State v. Morgan, 485 P.2d 1371 (Kan. 1971), in which the Supreme Courts of Arizona and Kansas held that evidence of rapes committed after the rapes the defendants were on trial for was admissible to show plan or scheme). Thus, subsequent acts can be admitted under the plan exception to SDCL 19-12-5 (Rule 404(b)).
[¶22.] Second, Medicine Eagle argues evidence of the incident involving S.M. was not admissible under SDCL 19-12-5 (Rule 404(b))'s plan exception because the State did not present evidence to establish that a common plan or scheme actually existed at the time of M.E.H.'s alleged rape in 2000. However, as discussed above, direct proof of the existence of a plan is not necessary. Instead, the existence of a common plan or scheme can be proven circumstantially by establishing that the acts are sufficiently similar. In this case, ...