2019 S.D. 61
JONATHAN JEROME PACKARD, Defendant and Appellant. STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
CONSIDERED ON BRIEFS ON AUGUST 26, 2019
FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA. THE HONORABLE JON SOGN Judge
J. BLOUIN CHRISTOPHER MILES of Minnehaha County Public
Defender's Office Attorneys for defendant and appellant.
R. RAVNSBORG Attorney General GRANT FLYNN Assistant Attorney
General Attorneys for plaintiff and appellee.
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.
and Procedural Background
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
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.
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.
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]
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.
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
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