Considered on Briefs August 25, 2014.
As Amended October 20, 2014.
[Copyrighted Material Omitted]
APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, YANKTON COUNTY, SOUTH DAKOTA. THE HONORABLE GLEN W. ENG, Judge.
MARTY J. JACKLEY, Attorney General, BETHANY L. ERICKSON, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
KRAIG L. KRONAIZL of Blackburn & Stevens Prof. LLC, Yankton, South Dakota, Attorneys for defendant and appellant.
WILBUR, Justice. GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and SEVERSON, Justices, concur.
[¶1] Tyson Hayes appeals the circuit court's judgment and sentence for second-degree rape and two counts of aggravated assault. Hayes raises the following issues: (1) whether the circuit court committed structural error by allowing an improper reasonable doubt standard to be presented to jurors during voir dire; (2) whether the State's questioning during voir dire amounted to prosecutorial misconduct; (3) whether the circuit court erred in denying Hayes's motion for acquittal because the State's evidence was insufficient to support his convictions; and (4) whether the cumulative effect of the circuit court's errors denied Hayes his constitutional right to a fair trial. We affirm the circuit court.
Facts and Procedural History
[¶2] On March 19, 2012, Hayes and R.S. began dating. Thereafter, R.S. moved in with Hayes for about a month. In October 2012, R.S. and Hayes ended their committed relationship. Despite R.S. and Hayes both entering into a relationship with other people, they continued to engage in sexual relations with each other. Hayes and R.S. engaged in consensual sex on November 4, 2012.
[¶3] On the evening of November 5, 2012, R.S. sent a series of text messages to her niece that said that her relationship with Hayes was over because it was " too hard with him" and her relationship with her new boyfriend " was just easy." At about 10:30 that evening, Hayes unexpectedly knocked on the back door of R.S.'s apartment.
[¶4] Typically, Hayes sent R.S. a text message before he came over to her apartment so that she would unlock the back door for him. R.S. asked Hayes why he had not sent her a text message before showing up at her apartment. Hayes responded by asking R.S. if she had something to hide and requested to see her phone. In the meantime, Hayes instructed R.S. to go into her bedroom and get undressed. Hayes proceeded to read the text message exchange between R.S. and her niece. Hayes subsequently became upset and ordered R.S. to put her clothes back on.
[¶5] Hayes searched for something to tie R.S. to her bed. R.S. and Hayes had previously engaged in consensual sexual relations involving binding with a jump
rope. Hayes could not find the jump rope, so he tied R.S. to her bed with scarves that he found in her bedroom. As Hayes tied R.S.'s ankles and wrists, he told her he was going to kill her and asked her how she wanted to die. While R.S. struggled, Hayes pulled out handfuls of her hair, choked her, and sat on her chest. On one occasion, Hayes hit R.S. on the side of her head with his head.
[¶6] After some time, Hayes went to the kitchen and retrieved a six-inch-long, serrated knife from a butcher block. Hayes returned to the bedroom with the knife and held it against R.S.'s neck and lips. Hayes continued to choke R.S. throughout the attack and at certain points she began to lose her breath. He grabbed a pair of socks from R.S.'s dresser and stuffed them in her mouth. With R.S. still bound by the scarves, Hayes continued this attack until approximately 4:00 a.m. Eventually, R.S. complained that her arms were numb, and Hayes untied her from her bed.
[¶7] Immediately after Hayes untied R.S. from her bed, he led her into the bathroom with her wrists tied behind her back and her ankles bound together with a scarf. Hayes told R.S. that he was going to use the knife to kill her in the bathroom. Hayes grabbed R.S.'s hair and held the knife to her neck. After R.S. pleaded for her life, Hayes told her that he would let her live if she agreed to buy him a new phone.
[¶8] Hayes led R.S. back into the bedroom with the knife, untied her, and told her to undress herself. Hayes penetrated R.S. orally, rectally, and vaginally. Afterwards, Hayes directed R.S. to retrieve a towel and wash his genital area. R.S. testified that she complied and acted as normal as possible so that Hayes would leave her apartment. At 6:00 a.m., Hayes left R.S.'s apartment for work. Before Hayes left, he threatened R.S. that he would kill her and her children if she told anyone and reminded her to buy him a new phone and bring it to his place of employment at 10:30 a.m. Immediately after Hayes left R.S.'s apartment, he sent her a text message that said " goodnight and dont [sic] forget."
[¶9] R.S. testified that after Hayes left, she returned to her bedroom and fell asleep for one and a half hours due to mental and physical exhaustion. After she awoke, she took a shower and called her friend. Her friend answered the telephone and heard " [h]ysterical crying and inconsolable sobs" from the other end. R.S. told her friend about what Hayes had done, and her friend advised R.S. to report the attack to the police. R.S. called the Yankton Police Department and reported the assault.
[¶10] Officer Scott Silvernail, Detective Darren Moser, and Detective Todd Bailey arrived at R.S.'s apartment to investigate. Detective Moser and Detective Bailey took photographs and collected evidence from the apartment. During the investigation, Officer Silvernail observed the scarves that were used to tie R.S. to her bed. He also observed a large clump of R.S.'s hair that Hayes had pulled out in the bathroom area. Although Officer Silvernail did not observe any injuries, redness, or marks on R.S.'s face or ears, Detective Moser testified that he observed some bruising on her neck area.
[¶11] At the hospital, Nurse Sandra Gehl of the Avera Sacred Heart Emergency Department examined R.S. for injuries
and collected evidence using a rape kit. Nurse Gehl examined R.S. for the presence of petechiae and, finding none, testified that " [p]etechia is frequently found hours, . . . maybe even days after strangulation. It's not something that you see initially." Nurse Gehl collected swabs from both R.S. and Hayes. The vaginal, cervical, and anal swabs taken from R.S. tested positive for seminal fluid and matched the DNA sample collected from Hayes's swabs.
[¶12] Hayes was charged with rape in violation of SDCL 22-22-1, and two counts of aggravated assault in violation of SDCL 22-18-1.1(2) and SDCL 22-18-1.1(8). A jury trial began on June 3, 2013. After the State rested, Hayes asked for " directed judgment of acquittal"  based upon the insufficiency of the evidence. The circuit court denied Hayes's motion and ruled that the State provided sufficient evidence to support a verdict of guilty on all counts. On June 5, 2013, the jury found Hayes guilty, and the circuit court sentenced Hayes to ten years in prison on each count, to be served concurrently.
[¶13] Hayes raises the following issues for our review:
1. Whether the circuit court committed structural error by allowing an improper reasonable doubt standard to be ...