552 N.W.2d 391 (S.D. 1996), 19271, State v. Fowler

Docket Nº:19271.
Citation:552 N.W.2d 391, 1996 SD 79
Opinion Judge:The opinion of the court was delivered by: Gilbertson
Party Name:STATE of South Dakota, Plaintiff and Appellee, v. Randy Alan FOWLER, Defendant and Appellant.
Attorney:Mark Barnett Attorney General.
Case Date:June 26, 1996
Court:Supreme Court of South Dakota
 
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552 N.W.2d 391 (S.D. 1996)

1996 SD 79

STATE of South Dakota, Plaintiff and Appellee,

v.

Randy Alan FOWLER, Defendant and Appellant.

No. 19271.

Supreme Court of South Dakota.

June 26, 1996

Considered on Briefs May 22, 1996.

Mark Barnett, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, for plaintiff and appellee.

Phillip O. Peterson, of Frieberg, Rudolph & Peterson, Beresford, for defendant and appellant.

GILBERTSON, Justice.

¶1 Randy Fowler appeals from a judgment of conviction after having been found guilty of attempted second degree rape, simple assault, and sexual contact. We affirm.

FACTS AND PROCEDURE

¶2 On July 6, 1991, Sally Doe 1 attended a street dance in North Sioux City, South Dakota with her sister. The two women arrived at the dance at 9:00 p.m. and did not leave until the dance was over around 2:00 a.m. the next morning. Randy Fowler, a police officer for North Sioux City, was on patrol that evening and stopped briefly to say hello to Sally and her sister at the dance. Sally knew Fowler from her employment at a gas station/liquor store in North Sioux City where the local patrolmen would stop to refuel their vehicles.

¶3 Shortly after 2:00 a.m., Sally dropped her sister off at their parents' home and then started to drive herself home. At some point

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she noticed headlights and the flashing lights of a police car behind her. She stopped her vehicle and Officer Fowler approached and informed her she had a tail light out. He then asked her if she had been drinking. Sally admitted she had been as she had consumed three beers as well as some soft drinks during the five hours she and her sister had been at the street dance. Fowler stated he did not have his breathalyzer equipment with him and told Sally to follow him back to the police station. He did not ask her to perform any field sobriety tests. He did not ask her for her registration or driver's license. Sally drove her own vehicle and followed Fowler's patrol car to the station, approximately three miles from the stop site.

¶4 Sally followed Fowler into the station, through a front room and into a second, private office. The doors to both rooms closed behind them. There, Fowler told Sally she was legally drunk and that he could arrest her for driving while under the influence, but would let her go if she would perform oral sex on him. Sally answered that he should arrest her because she was not going to do it. Fowler pulled his pants down to mid-thigh, exposing himself to Sally, and she moved to the back of the office still telling him she was not going to do it. Fowler then began twisting her breast while pushing her hand down on his penis and telling her to stroke him. He continued twisting her breast and told her to "go ahead and scream. It gets me off." Sally stroked him and he did not twist her breast as hard, but when she stopped, he twisted harder. Finally, when Sally could no longer stand the pain, she kneed him in the groin and headed for the door. Fowler caught up with her and, grabbing her by the neck and arm, pushed her back into the chair. He told her he was going to "come tonight" and forced his finger into Sally's mouth stating he was "going to come right there." Sally told him no and Fowler said yes, and told Sally he wanted her on her knees. Sally, still seated, shook her head no and looked down. When she looked up, she saw Fowler had his police night stick and was trying to force it between her legs telling her how good a lover he was, that she would enjoy it, and that the night stick indicated how hard he was. Sally continued to tell Fowler no and pushed him away. She next heard gravel crunching outside the police station. Sally was still looking down when police officer Greg Hansen entered the room.

¶5 Hansen asked Sally if she was okay and asked Fowler what was going on. Sally was crying and fled for her vehicle parked outside. Hansen followed her outside to inquire again if she was okay. Sally stated to Hansen, "Thank God you showed up when you did." When Hansen asked why, Sally stated she would tell him later.

¶6 About a week later, Sally told Hansen that Fowler had told her she could either go to bed with him or be arrested. Hansen asked Sally if she wanted to make a formal statement and she agreed to do so. Hansen reported this to then-police chief Scott Price. There was no further investigation into the matter but Sally learned later that Fowler was no longer with the North Sioux City police force. In April 1994, Sally was contacted by police chief Skip Ensley about the matter and gave him a statement.

¶7 On May 6, 1994, Fowler was charged with attempted rape in the second degree, kidnapping, sexual...

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