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State v. Packard

Supreme Court of South Dakota

November 13, 2019

2019 S.D. 61
v.
JONATHAN JEROME PACKARD, Defendant and Appellant. STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

          CONSIDERED ON BRIEFS ON AUGUST 26, 2019

          APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA. THE HONORABLE JON SOGN Judge

          BEAU J. BLOUIN CHRISTOPHER MILES of Minnehaha County Public Defender's Office Attorneys for defendant and appellant.

          JASON R. RAVNSBORG Attorney General GRANT FLYNN Assistant Attorney General Attorneys for plaintiff and appellee.

          DEVANEY, JUSTICE.

         [¶1.] Jonathan Packard appeals his convictions for second-degree rape and simple assault. He alleges that the circuit court should have granted a mistrial after one of the prospective jurors-a law enforcement officer-arrived in full uniform, and in response to a question, indicated that he knew Packard. He further alleges that the circuit court erred when it admitted a narrative report prepared by an emergency room nurse summarizing the victim's oral statements made during a sexual assault examination. We affirm.

         Factual and Procedural Background

         [¶2.] On the evening of September 30, 2015, S.S., her mother, and her neighbor (Charles) were sitting around a fire pit in her mother's driveway consuming alcoholic beverages. Around midnight, after S.S.'s mother had gone inside her home for the night, two men were walking by the driveway. Charles and S.S. were still sitting by the fire, and the two men stopped to talk to them. Neither S.S. nor Charles knew either man. S.S. described one man as shorter and more talkative, while the other was tall and did not speak. The shorter man asked Charles for a cigarette and struck up a conversation. Charles eventually asked the two men to leave, and they complied.

         [¶3.] Charles and S.S. continued to sit around the fire until between 2:00 and 3:00 a.m. when Charles went inside his home. After Charles left, S.S. poured water on the fire, disposed of the wood, and took the fire pit inside her mother's garage. While S.S. was still inside the garage, but at some unknown point, she awoke finding herself face down on her stomach on the garage floor. She could not recall how she ended up there. However, she believed she had gotten hit on the head because the last thing she remembered was looking at the lock on the garage, and she had not yet closed the garage door. When she woke up, the garage door was closed, and she could feel that she was lying in kitty litter remnants and oil residue. She could also feel that her pants and underwear were being pulled down, and a man was lying on top of her. S.S. explained that she felt the full weight of his body and smelled a strong odor of alcohol coming from him.

         [¶4.] S.S. did not fight against the man as he laid on top of her because she was worried that the situation would become worse. After he penetrated S.S.'s vagina with his penis, he flipped her onto her back and continued to penetrate her. S.S. believed he had ejaculated. After he stood up, S.S. also stood up, pulled up her pants, and opened the garage door. With the garage door open, S.S. recognized that her attacker was one of the men-the taller, quieter one-that had stopped by the fire when she and Charles were still in the driveway. She told him to leave, but according to S.S., he seemed confused about her request. When she reiterated that he must leave, the man left the garage.

         [¶5.] S.S. then closed and locked the garage door and ran into her mother's home where she cleaned the kitty litter and grease off her face and hair. S.S. did not shower; rather, she fell asleep on the living room floor. Later the next day, S.S. told her parents about the rape. She did not want to call law enforcement because she was embarrassed and ashamed. She was worried that people would judge her because she is Native American and would try to "make it [her] fault."

         [¶6.] S.S. noted that she had a big knot on the left side of her head and was really sore. She went to the emergency room around 4:00 or 5:00 p.m. and was initially examined by an emergency room nurse. The nurse, Erin Stansbury, obtained S.S.'s general health history and determined whether any injuries currently needed treatment. Thereafter, Stansbury completed a Sexual Assault Nurse Evaluation (SANE) note, which is the form used by the hospital for a sexual assault interview. Stansbury explained that her interview for the SANE note generally includes "specific questions about different types of possible injuries, were they hit, kicked anywhere, whether or not there was vaginal penetration, [or] anal penetration[.]" Stansbury testified that she also asks victims to describe "exactly what happened in their words." Both the nurse and the treating doctor use the information in the SANE note to determine what evidentiary samples to collect from the victim.

         [¶7.] During her interview of S.S., Stansbury recorded, among other things, a description of S.S.'s assailant and S.S.'s account of the assault. After completing the interview, Stansbury and Dr. Beth Ellen Lapka obtained buccal, vaginal, and cervical swabs from S.S. The swabs were later tested by the South Dakota State Health Laboratory. This testing confirmed the presence of semen on the vaginal and cervical swabs. DNA testing confirmed that the semen originated from Jonathan Packard.

         [¶8.] Law enforcement interviewed Packard. He denied knowing S.S. and denied having sex with her. He persisted in his denial despite being informed of the DNA evidence. Packard was arrested and charged by indictment with one count of second-degree rape and four counts of simple assault. The State also filed a part II information, alleging Packard to ...


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