State v. Taylor

• Decision Date: 19 August 2020
• Docket Number: #29072
• Citation: 948 N.W.2d 342
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Cole TAYLOR, Defendant and Appellant.
• Court: South Dakota Supreme Court

948 N.W.2d 342

STATE of South Dakota, Plaintiff and Appellee,

v.Cole TAYLOR, Defendant and Appellant.

#29072

Supreme Court of South Dakota.

ARGUED APRIL 22, 2020

OPINION FILED August 19, 2020

JASON R. RAVNSBORG, Attorney General, CHELSEA WENZEL, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

TIMOTHY J. BARNAUD, Belle Fourche, South Dakota, Attorney for defendant and appellant.

JENSEN, Justice

[¶1.] A jury convicted Cole Taylor of second-degree rape in violation of SDCL 22-22-1(2), and sexual contact involving a second victim in violation of SDCL 22-22-7.4. Taylor appeals claiming multiple errors by the circuit court at trial and sentencing. We affirm.

Facts and Procedural History

[¶2.] On November 10, 2017, M.R. and her friend A.F. travelled to Deadwood, South Dakota, to attend a concert. A.F. had received four concert tickets and a one-night stay at a Deadwood hotel from her employer. The hotel room included one king-sized bed. A.F. and M.R. attended a VIP party for about an hour before going to the concert. A.F. and M.R. each drank alcoholic beverages at the VIP party and during the concert.

[¶3.] A.F. gave her two extra concert tickets to her friend, Austin Fitcher. Fitcher told A.F. that he would bring a friend to use the last ticket. A.F. and M.R. did not know who Fitcher planned to bring. Fitcher arrived at the concert venue with the defendant, Cole Taylor. They met with A.F. and M.R. just as the concert was ending. M.R. knew Taylor because they had a consensual sexual encounter in April 2013. They had since seen each other one other time and were Facebook friends.

[¶4.] When the concert ended, the four of them went to a bar for drinks. A.F. and Fitcher left the bar and returned to the hotel room. M.R. and Taylor stayed at the bar and later joined A.F. and Fitcher at the hotel room, where they all continued to socialize and consume alcohol. A.F. claims that Taylor held her in place and kissed her while she was sitting on the bed. A.F. moved away from Taylor, but she chose not to say anything to him to avoid conflict. Later, Taylor leaned in and kissed M.R. M.R. stopped Taylor when he tried to kiss her a second time. M.R. and Taylor went outside to smoke, and M.R. informed him that she had a boyfriend and did not want to do anything to jeopardize that relationship.

[¶5.] A.F., Fitcher, and Taylor decided to go back to the bars, but M.R. stayed at the hotel room to sleep because she felt sick. While on the dance floor at one of the bars, Taylor came up behind A.F. and placed one hand on her breast and his other hand on her vaginal area. A.F. walked away from Taylor and told Fitcher what happened. Fitcher told Taylor to "knock it off," and Taylor replied, "my bad, my bad." After the bars closed at 2 a.m., A.F., Fitcher, and Taylor headed back to their hotel room. On the way, A.F. realized she had lost an item. She and Fitcher went back to find it while Taylor continued to the hotel room.

[¶6.] Taylor arrived at the hotel room and knocked on the door. M.R. opened the door just far enough to let him in and then hurried back to the bed to cover up because she had been sleeping naked, as she did every night. M.R. did not look to see who she had let in when she opened the door. According to M.R., she realized that she had let Taylor in when Taylor joined her in bed without any clothing on.

[¶7.] Once in bed, Taylor flipped M.R. onto her back, got on top of her, and penetrated M.R. vaginally. M.R. testified that she was initially in shock and then told Taylor to "stop" and said, "I can't." She was crying, hyperventilating, and having a panic attack. Taylor shushed M.R. and tried to calm her down, after which he continued to vaginally penetrate her. M.R. physically attempted to hold Taylor back, but she did not have the strength to stop him. She told Taylor to stop multiple times.

[¶8.] M.R. then began pulling on the edge of the bed to try and get away from Taylor. She flipped onto her stomach and began crawling off the bed when Taylor grabbed her by the hips and penetrated her anally. Taylor then tried to put his penis in her mouth, but M.R. resisted by clenching her teeth. Taylor then flipped M.R. back onto her stomach and continued to penetrate her vaginally and anally until he ejaculated. M.R. eventually passed out. A.F. and Fitcher were not in the room during this time.

[¶9.] M.R. did not wake up until her alarm sounded around 7:00 a.m. She woke up on one side of the bed with Taylor next to her. A.F. and Fitcher were on the other side of the bed. When M.R. started to move, Taylor woke up, got on top of her, and put himself between her legs. M.R. tried to get away, but Taylor physically restrained her. Taylor then masturbated while on top of M.R. until he ejaculated on her. A.F. and Fitcher were asleep in the bed while this took place.

[¶10.] M.R. got up and immediately took a shower. After her shower, she woke up A.F. and told her they needed to leave. M.R. and A.F. quickly packed their belongings and left Deadwood. M.R. reported the incident to the Deadwood Police Department on November 12, 2017.

[¶11.] After reporting the incident, M.R. was examined at a local hospital. Physical evidence from M.R.’s person was sent to the state forensics laboratory (DCI) in Pierre. M.R.’s vaginal and anal swabs tested positive for sperm cells, and the DNA matched the known DNA profile of Taylor.

[¶12.] A grand jury returned an indictment on July 25, 2018, charging Taylor with second-degree rape and attempted second-degree rape of M.R. The State also filed a part II habitual offender information alleging Taylor had two prior felony convictions. The State separately filed an information charging Taylor with two misdemeanor charges of sexual contact with A.F. Taylor pleaded not guilty to all charges.

[¶13.] At a pretrial hearing, the circuit court considered the State's request to introduce other act evidence in the form of two unrelated sexual assaults that two other victims (P.R. and T.B.) alleged Taylor had committed. Taylor was initially charged with rape in T.B.’s case, but the charge was dismissed prior to trial. In P.R.’s case, Taylor was acquitted by a jury on the rape charges. The circuit court determined that the State could present evidence of both prior alleged assaults at trial.

[¶14.] A jury trial was held on April 8-9, 2019, and the State presented testimony on the other acts evidence from P.R. and T.B. P.R. testified that Taylor raped her in November 2013 in her college dorm room. This was the only incident regarding P.R. that the State gave the defense formal notice of and the circuit court approved of prior to trial. P.R. testified that she was 19 years old at the time and knew Taylor through her boyfriend. P.R. explained that she was texting her boyfriend's phone when she received text messages from a different number from someone claiming to be her boyfriend who asked to come have sex with her. P.R. initially believed that the texts were from her boyfriend, but soon realized that it was Taylor. Taylor asked if he could come to her dorm room so he could apologize for an "event" that occurred in August 2013. P.R. explained that she allowed Taylor in the room to apologize because she did not want to interfere with Taylor's friendship with her boyfriend.

[¶15.] P.R. testified that she and Taylor talked for a short time and then Taylor kissed her. She told him to stop, but Taylor took off her pants and held a pillow over her face when she screamed. Taylor told her that he would take the pillow off her face if she stopped screaming. He then vaginally penetrated her with his penis and tried to penetrate her anally. P.R. testified that Taylor also forced her to submit to oral sex. Taylor then penetrated P.R. vaginally a second time and ejaculated inside of her. P.R. reported the incident to police and went to the hospital. Evidence was presented that Taylor was charged with rape of P.R. but acquitted by a jury.

[¶16.] During P.R.’s cross-examination, the following exchange occurred between P.R. and Taylor's defense counsel:

Q: You and Mr. Taylor had engaged in prior sexual encounters prior to that incident; correct?

A: No, sir. He raped me before that.

...

Q: Okay. Well, you testified back at your trial that you let him into your room so people could hear him apologize; correct?

A: No. I did that because of people—if I did end up screaming, people would hear me. And we couldn't do that in the car because that's where he raped me before is in his car.

Taylor's defense counsel did not object, move to strike, or offer a curative instruction to this evidence. On redirect examination, the State had P.R. explain that the "event" she believed Taylor was coming to apologize for was when he raped her in his car at a dog park in Rapid City in August 2013.

[¶17.] The jury also heard evidence at trial about a sexual assault that was alleged to have occurred between Taylor and his 21-year-old second cousin, T.B., in December 2014. T.B.’s father testified at trial that T.B. had previously sustained a traumatic brain injury

in a car accident. Due to the injury, T.B. has memory issues, needs extra time to process words, and has difficulty walking and balancing. He also testified that T.B. is easily influenced and sometimes has the "mentality of a 6-year-old."

[¶18.] T.B. testified that on December 30, 2014, Taylor asked her to take him to the store. T.B. drove Taylor to the store and then back to her house, where they went into T.B.’s bedroom. T.B. told the jury that Taylor slapped her in the head, butt, and back and called her vulgar names

. Taylor then penetrated her vaginally and anally with his penis. Taylor had her get into a kneeling position and made her perform oral sex. Taylor ejaculated on T.B.’s face. T.B. told her father what happened when he got home. Her father called the police, and Taylor was charged with rape. The charges involving T.B. were later dismissed against Taylor.

[¶19.] At trial, the...