OCTOBER 3, 2018
FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT MEADE
COUNTY, SOUTH DAKOTA THE HONORABLE MICHAEL W. DAY Judge
J. JACKLEY Attorney General ANN C. MEYER Assistant Attorney
General Pierre, South Dakota Attorneys for plaintiff and
GREY of Grey & Eisenbraun Law Prof. LLC Rapid City, South
Dakota Attorneys for defendant and appellant.
Waylon Uhre was convicted following a jury trial of
first-degree rape, multiple counts of sexual contact with a
child, and possessing, manufacturing, or distributing child
pornography. He appeals, claiming the circuit court violated
his right to a public trial when it ordered the partial
closure of the courtroom during the minor victim's
testimony. Uhre also argues the court erred when it denied
his motion to suppress his non-custodial statement to a law
enforcement officer. We affirm.
On June 30, 2015, E.B.'s parents left E.B., then four
years old, and her older brother with their grandparents in
Black Hawk while they took an overnight trip. Waylon Uhre,
E.B.'s adopted uncle, lived with E.B.'s grandparents.
That evening, E.B. told her grandmother that Uhre made her
perform a sexual act on him earlier that day. E.B.'s
grandparents removed Uhre from the home, and E.B.'s
father contacted law enforcement the next day.
Hollie Strand, a forensic interviewer with the Child's
Advocacy Center, interviewed E.B. on July 2, 2015. E.B. told
Strand she licked Uhre. Strand noted that E.B. was anxious,
"incredibly guarded," and "avoidant"
during the interview. Strand provided the family with
options, including counseling, to help E.B. and suggested
giving her more time before considering a second interview.
On July 7, 2015, Deputy Dustin Bostrom with the Meade County
Sheriff's Office called Uhre and requested a meeting to
discuss E.B.'s allegations. Uhre told Bostrom that he had
spoken with an attorney and wanted to speak with the attorney
again before any meeting, adding his attorney would contact
Bostrom. Attorney Robbie Rohl called Bostrom six days later,
inquiring if Bostrom intended to indict Uhre. Bostrom told
Rohl he was still investigating the matter. Bostrum testified
that Rohl called him two days later and advised that he would
not be representing Uhre in the criminal investigation.
After E.B. told her mother more details about the incident
with Uhre, Strand interviewed E.B. a second time on July 14,
2015. During this interview, E.B. gave Strand more
information, including where she was in her grandparents'
home when Uhre made her "suck his wee-wee," what
Uhre was wearing, and where her grandmother and brother were
in the home when the abuse occurred.
Tye Parsons was also living with E.B.'s grandparents but
was not home on the afternoon and evening of the incident.
When Parsons returned, he was told to move out. While
packing, he found a secure digital (SD) card on the floor in
the doorway of Uhre's bedroom. Parsons believed the S.D.
card was his and packed it with his belongings. He later
viewed the contents of the S.D. card and found pornographic
images of children, including E.B., along with pictures of
Uhre. He gave the S.D. card to E.B.'s grandparents, who
turned it over to law enforcement.
On February 22, 2016-over seven months later-Special Agent
Brett Garland with the South Dakota Division of Criminal
Investigation interviewed Uhre at a friend's home where
Uhre was staying. While the two were inside of the home,
Garland told Uhre that he did not want to bother Uhre and
that he was free to get up and leave. Uhre, nevertheless,
agreed to speak with Garland, but wanted to continue the
conversation outside of the home. The two went to
Garland's car, where Garland again advised Uhre at least
two times that he did not have to speak with him and could
discontinue the interview at any time. During their
conversation, Uhre admitted to several of E.B.'s
allegations. Two days later, Uhre was charged by indictment
with one count of first-degree rape, nine counts of sexual
contact with a child, and twenty counts of possessing,
manufacturing, or distributing child pornography.
Prior to trial, the State filed a motion to close the
courtroom to "all but the necessary persons" listed
in SDCL 23A-24-6 during E.B.'s testimony, citing
concerns about the victim's young age and the seriousness
of the crimes. Uhre objected, asserting his Sixth Amendment
right to a public trial and arguing there was insufficient
justification to close the courtroom. Following oral
arguments and post-hearing briefs, the circuit court issued a
memorandum opinion granting the State's motion and
ordering a partial closure of the courtroom during E.B.'s
testimony. The court concluded a partial closure was
necessary to protect E.B.'s interests based upon her age,
psychological maturity, and the sensitive personal nature of
Also prior to trial, Uhre moved to exclude his statement to
Special Agent Garland, arguing it was obtained in violation
of the holding in Edwards v. Arizona, which
prohibits reinitiating police questioning after a suspect has
asked for a lawyer in an earlier interview. 451 U.S. 477, 101
S.Ct. 1880, 68 L.Ed.2d 378 (1981). Uhre contended he had
requested an attorney during his initial telephone
conversation with Deputy Bostrom over seven months earlier.
The circuit court initially accepted Uhre's argument and
granted his motion to suppress. However, the court later
changed its ruling after granting the State's motion to
reconsider, concluding, among other things, that the
Edwards rule applies only in custodial situations.
During the three-day trial, Uhre testified and denied the
allegations, telling the jury he had been pressured into
making a false confession. He also said he did not recognize
the S.D. card, had never taken any sexually explicit
photographs, and never possessed child pornography. The jury
found Uhre guilty on all counts. The circuit court sentenced
Uhre to 80 years in prison for first-degree rape, 15 years
for each count of sexual contact with a child, and 10 years
for each count of possessing, manufacturing, or distributing
Uhre appeals his conviction, raising the following issues:
1. Whether the circuit court erred by ordering a partial
closure of the courtroom during E.B.'s testimony in
violation of Uhre's right to a public trial.
2. Whether the circuit court erred when it denied Uhre's
motion to suppress his statement to ...