Considered on Briefs August 25, 2014
As Amended December 12, 2014.
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA. THE HONORABLE WALLY EKLUND, Judge.
MARTY J. JACKLEY, Attorney General, PATRICIA ARCHER, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
THOMAS M. DIGGINS, Pennington County Public, Defender's Office, Rapid City, South Dakota, Attorneys for defendant and appellant.
KONENKAMP, Justice. GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and WILBUR, Justices, concur.
[¶1] In a case where two separate and distinct incidents of abuse were alleged in a one-count indictment, the jury found Patrick White Face guilty of aggravated child abuse under SDCL 26-10-1. But the jurors were not instructed that to reach a verdict they would have to agree unanimously on at least one of the two allegations. In some circumstances, multiple instances of child abuse can be subsumed in one count, because separate incidents may be part of a continuous course of conduct. Yet here the State took the position that White Face could be found guilty based on either incident if not both. With the case so postured, there is no way to determine from the verdict whether all twelve jurors agreed upon the commission of the same act in order to convict White Face of the charged offense. Some jurors may have believed him guilty of the first incident and others may have thought him guilty of the second. Based on the language of the indictment and the way the State presented its case to the jury, we conclude that White Face was denied the right to a unanimous jury verdict.
[¶2] On March 24, 2011, White Face was caring for his six-week-old daughter, Pamela, and eighteen-month-old son, Phoenix, while the children's mother, Dana Fast Horse, was at work. White Face gave Pamela a bath and, as he would later recount, while putting a diaper on her, he heard what he described as a " snap" or " pop." He noticed that something appeared wrong with Pamela's leg. He took her to the emergency room. Dr. Donald Oliver treated Pamela, diagnosed her with a fractured femur, and placed her leg in a Pavlik harness to promote healing. Dr. Oliver conducted a number of tests, none of which provided an explanation for Pamela's broken femur. No bruising and no other broken bones or injuries were found. He questioned White Face about Pamela's care. White Face explained that he was changing Pamela's diaper when he heard a " snap" or " pop." Based on his thirty-plus years of experience as a pediatrician, Dr. Oliver believed that an infant with no abnormalities, such as Pamela, would not have been injured in the way White Face described. Dr. Oliver concluded that Pamela's injury was a " non-accidental" trauma.
[¶3] Law enforcement authorities and the Department of Social Services (DSS) were contacted, and an officer and a caseworker came to the hospital. By this time, Dana had arrived, as well. Investigator Dan Wardle interviewed White Face and Dana about Pamela's care. White Face relayed the same story to Investigator Wardle as he did to Dr. Oliver. DSS created a protective plan: instead of removing Phoenix and Pamela from White Face's and Dana's care, DSS asked White Face to agree to leave the home and have no contact with the children. He agreed. But that night he went home and continued to live with Dana and the children.
[¶4] Four days later, on March 28, 2011, White Face was again caring for Pamela and Phoenix while Dana was working. Around 5:00 p.m., Dana returned home from work. She checked on Pamela and found her sleeping on the bed. According to Dana, Pamela appeared normal. Shortly thereafter, Judy Lefholz, a nurse with the Bright Start Home Visiting Program, arrived for a visit. Judy had been working with Dana on parenting, nutrition, and in providing support since Dana's pregnancy with Phoenix. During the visit she did not see Pamela because Dana told
her Pamela was sleeping. She was unaware that DSS had a protective plan in place and that White Face was not to be in the home. Nor did she know he was in the bedroom with Pamela and Phoenix. Dana later testified that she did not tell Judy about the protective plan or that White Face was in the room with the children because she was worried DSS would take her children away.
[¶5] After Judy left, Dana went to the bedroom and noticed that Pamela had been moved and something was seriously wrong. Her skin was gray; her eyes were rolled back; she was barely breathing. Dana asked White Face what happened and if Pamela had eaten. He replied that Pamela had only eaten a small amount for the day. Dana called her sister, whose boyfriend ultimately rushed Dana and Pamela to the hospital. White Face stayed home with Phoenix. White Face was later contacted by Investigator Jon Kirk, who asked him to come to the police station to answer questions. Investigator Kirk did not place White Face under arrest, and after the interview, White Face joined Dana at the hospital.
[¶6] At the hospital, Pamela was in a coma and, according to Dr. Oliver, had a life-threatening blood sugar level. She was intubated and put on a ventilator. Dr. Oliver conducted multiple tests, but could not determine the cause of Pamela's condition. She was air-lifted to the Children's Hospital in Denver, Colorado. Her treating physician at the Children's Hospital, Dr. Curtis Ford, later explained that Pamela arrived with multi-organ system failure and needed life support. She continued to have low blood sugar and also suffered repeated seizures, severe liver damage, and brain injuries. After several days, Pamela's medical team, Dana, and White Face decided to take Pamela off life support. She was not expected to live, but after the life support was removed, she continued to sustain ...