935 N.W.2d 792 (S.D. 2019), 28640-a-JMK, State v. Richmond

Docket Nº:28640-a-JMK
Citation:935 N.W.2d 792, 2019 S.D. 62
Opinion Judge:KERN, Justice
Party Name:STATE of South Dakota, Plaintiff and Appellee, v. Herbert Lee RICHMOND, Defendant and Appellant.
Attorney:JASON R. RAVNSBORG, Attorney General, ANN C. MEYER, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee. ELLERY GREY of Grey & Eisenbraun Law, Rapid City, South Dakota, Attorneys for defendant and appellant.
Judge Panel:GILBERTSON, Chief Justice, and JENSEN, SALTER, and DEVANEY, Justices, concur.
Case Date:November 13, 2019
Court:Supreme Court of South Dakota

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935 N.W.2d 792 (S.D. 2019)

2019 S.D. 62

STATE of South Dakota, Plaintiff and Appellee,


Herbert Lee RICHMOND, Defendant and Appellant.

No. 28640-a-JMK

Supreme Court of South Dakota

November 13, 2019


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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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JASON R. RAVNSBORG, Attorney General, ANN C. MEYER, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

ELLERY GREY of Grey & Eisenbraun Law, Rapid City, South Dakota, Attorneys for defendant and appellant.


KERN, Justice

[¶1] Herbert Richmond appeals his conviction of first-degree rape of a child under thirteen. Richmond alleges that his Sixth Amendment right to confront and cross-examine the witnesses against him was violated by the circuit court’s order admitting, as other acts evidence, statements from an unavailable witness. We affirm.

Facts and Procedural History

[¶2] Herbert Richmond, the defendant in this case and a resident of Spearfish, South Dakota, was a longtime friend of A.M. (DOB 09/06/2004) and her family. When A.M. was a young child, members of A.M.’s family would drop her off at Richmond’s house for the day, but A.M. did not begin spending the night at Richmond’s house until after she turned five. Richmond often purchased food and gifts for A.M., and A.M. called Richmond her "grandpa." Richmond had more financial resources than A.M.’s family. He had a pool and a trampoline in his backyard.

[¶3] In July 2014, law enforcement investigated an allegation that J.C. (DOB 10/25/2002), a young female close to A.M.’s age, was sexually abused by Richmond while spending time at his home.1 J.C. was interviewed at the Children’s Home Child Advocacy Center (Advocacy Center), a clinic in Rapid City that conducts forensic interviews of children who are suspected victims of physical and sexual abuse. During her forensic interview, J.C. accused Richmond of rape. She told her interviewer, Hollie Strand, that the abuse began "a long time ago," but that she did not feel safe disclosing it right away because Richmond said he would kill her parents if she told anyone. J.C. disclosed that the assaults first occurred when she was five or six years old while her family was living with Richmond. Richmond often gave J.C., her two sisters, and her mother gifts and did favors for them.

[¶4] Because A.M. and her mother were also frequently in Richmond’s home, law enforcement officers scheduled an interview with A.M. for early September 2014. Around the same time that A.M. went to Rapid City for her forensic interview, Richmond gave A.M. an expensive bike, took her shopping, and took her out to eat. During the interview at the Advocacy Center, A.M. did not disclose any instances of sexual abuse. At some point after the interview, A.M.’s mother allowed Richmond to read the report generated as a result of the interview.

[¶5] Richmond was charged with several counts of first-degree rape for alleged sexual abuse of J.C. Pursuant to a plea agreement, Richmond entered an Alford

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plea to abuse or cruelty to a minor, a class 3 felony.2 He was sentenced on December 15, 2015, to serve five years in the penitentiary, the execution of which was suspended on the condition that he successfully complete a term of probation.

[¶6] In 2016, Mother lost the financial support of A.M.’s father because he went to prison for a drug offense. Mother turned to Richmond for help, and he agreed that A.M. and Mother could move in with him. While they resided with Richmond, he continued to buy A.M. toys and gifts. Mother was frequently gone from the home, leaving A.M. alone in Richmond’s care.

[¶7] On June 26, 2016, A.M. was home alone with Richmond when she texted her biological grandmother (Grandma),[3] who lived in a neighboring town that "Grandpa is a pervert," and a "child molester." A.M. confided in Grandma that Richmond had sexually abused her. She expressed her fear of being home alone with him and texted: "Please don’t tell my mom grandpa does not w[a]nt dead[sic] in prison." Because Grandma could not drive, she called Richmond and confronted him over the phone. Richmond denied the allegations, but told Grandma he would come get her and bring her to his house. On the way to get Grandma, Richmond took A.M. shopping and bought her gifts.

[¶8] Grandma did not immediately tell Mother that A.M. had accused Richmond of sexual abuse because A.M. begged her not to, and also because of Grandma’s concerns as to how Mother would react to such information. Instead, she decided to pack a suitcase and stay temporarily at Richmond’s house with A.M. to protect her. A few days later, at Grandma’s suggestion, A.M., Mother, and Grandma went to visit family in North Dakota. While they were away, Richmond called Grandma’s phone multiple times but Grandma did not answer. Mother, who was confused by Grandma’s decision to ignore Richmond’s calls, looked through Grandma’s phone and discovered A.M.’s June 26 text messages to Grandma and six or seven more.[4] When Mother confronted her daughter about the messages, A.M. refused to describe the abuse. However, after Mother threatened to take her to the hospital, A.M. agreed to explain what happened by writing her accusation down on a piece of paper. Mother then called Richmond to confront him. Grandmother overheard Richmond tell Mother: "Let me get my affairs in order and then I will shoot myself or kill myself and I will let you pull the trigger."

[¶9] On July 27, 2016, Mother took A.M. to Massa Berry Clinic in Sturgis, South Dakota and reported the assault. Thereafter, law enforcement scheduled an interview for A.M. at the Advocacy Center. Forensic interviewer Tifanie Petro conducted the interview on August 16, 2016. A.M. told Petro that her "grandpa" had "hurt [her] in many different ways" and described Richmond as a pervert. She told Petro that Richmond sexually abused her for the first time when she was eight. She explained that Richmond threatened to hurt her father unless she kept it a secret. She further reported that it hurt when Richmond put his "thingy" inside her

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"thingy." When asked whether something came out of Richmond, A.M. described a "sticky white" substance that got on her leg.

[¶10] After A.M.’s interview, Tom Derby, a detective from the Lawrence County Sheriff’s Office, requested that Mother make a recorded phone call to Richmond. Mother agreed, and during the conversation, Mother attempted to elicit incriminating statements from Richmond. In response, Richmond told Mother that "[A.M.]’s the only one that can fix it as far as I’m concerned period." When asked how A.M. could fix it, Richmond responded: "It depends on what she says, that’s all. It depends on what she says and if she’s willing to talk to them, or not talk to them or if she says the same thing that she said the last time." He said that there was nothing he could do to fix it and expressed his concern that he’d be "winding— winding up going to prison for life if she[,] you know[,] goes in there and says something."

[¶11] Richmond requested that Mother provide him with the report from A.M.’s interview at the Advocacy Center, but Mother told him she did not have access to it. He also requested to talk to A.M. to see what she wanted to do. Toward the end of the call, Richmond stated that if A.M. testifies before the grand jury and "says what she said before ... [t]he only thing I ever do is kiss her on top of the head or whatever, then there’s nothing they can do to me period."

[¶12] On October 13, 2016, Dr. Cara Hamilton conducted a physical examination of A.M. and discovered a notch in her hymen consistent with penetration. Richmond was indicted on November 2, 2016, for two counts of first-degree rape of a child under thirteen. The State also filed a part II information alleging that Richmond was a habitual offender having previously been convicted of child abuse or cruelty to a minor for conduct involving J.C.

[¶13] On April 3, 2017, the State filed a notice of intent to offer other acts evidence pursuant to SDCL 19-19-404(b) regarding Richmond’s alleged sexual abuse of J.C. In its notice, the State requested admission of J.C.’s July 29, 2014 interview report from the Advocacy Center in which J.C. accused Richmond of sexual abuse under circumstances similar to those alleged by A.M. The State also noticed its intent to call Hollie Strand to testify to the incidents reported by J.C.

[¶14] On May 30, 2017, the court considered the State’s request, and the State indicated its intent to offer the testimony through the forensic interviewer, rather than calling J.C. to testify. The court indicated it would admit the other acts evidence; however, it told the State that it would determine at trial the extent to which the evidence would be allowed.5

[¶15] In November 2017, the State filed a superseding indictment charging Richmond with two additional counts of first-degree rape of A.M. In December, while preparing for trial, the State called J.C.’s mother and requested that she present J.C. as a witness at trial. J.C.’s mother refused to reveal J.C.’s location or otherwise cooperate with the prosecution.

[¶16] A jury trial was held on March 6-9, 2018. A.M. testified first. She told the jury that Richmond "would play with [her vagina] or he would put his thing inside of [her]." When asked to describe Richmond’s "thing," A.M. stated it was the part of the male body located "between [the] upper thighs." Sometimes, A.M. testified, she felt "[s]omething wet and sticky"...

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