Heib v. Lehrkamp

• Decision Date: 21 September 2005
• Docket Number: No. 23065.,23065.
• Citation: 2005 SD 98,704 N.W.2d 875
• Parties: Todd A. HEIB, Plaintiff and Appellant, v. Robert LEHRKAMP, Jr., individually and in his official capacities with Meade County, South Dakota, Defendant and Appellee. Susan Grusing, Guardian Ad Litem of J.G., a female juvenile, and J.G., a male juvenile; and Carol Raths, Guardian Ad Litem of N.W., a female juvenile, Defendants.
• Court: South Dakota Supreme Court

704 N.W.2d 875

2005 SD 98

Todd A. HEIB, Plaintiff and Appellant, v. Robert LEHRKAMP, Jr., individually and in his official capacities with Meade County, South Dakota, Defendant and Appellee.

Susan Grusing, Guardian Ad Litem of J.G., a female juvenile, and J.G., a male juvenile; and Carol Raths, Guardian Ad Litem of N.W., a female juvenile, Defendants.

No. 23065.

Supreme Court of South Dakota.

Argued on June 2, 2004.

Decided September 21, 2005.

Rehearing Denied October 24, 2005.

Kenneth R. Dewell, Gregory A. Eiesland of Johnson Eiesland Law Firm, Rapid City, South Dakota, Attorneys for plaintiff and appellant.

John Stanton Dorsey of Whiting, Hagg & Hagg, Rapid City, South Dakota, Attorneys for appellee R. Lehrkamp, Jr.

KONENKAMP, Justice.

[¶ 1.] Todd Heib was falsely accused, arrested, and jailed for eighty-six days on charges of kidnapping and rape. After the charges were dismissed, he successfully sued the three children who fabricated the story of their abduction. He also sued the deputy sheriff who led the investigation. The circuit court granted summary judgment for the deputy. On appeal, we conclude, under the totality of circumstances, that probable cause to arrest Heib existed as a matter of law because two of the children positively identified Heib as one of the perpetrators, medical examinations corroborated the children's accusations, and Heib had an incomplete alibi. Accordingly, we affirm.

I.

[¶ 2.] It began on the afternoon of December 9, 1997. A female middle school student walked into a restroom at the Sturgis Community Center. There she found two classmates, ages 12 and 13, crying. She asked what was wrong, and with some hesitation on whether to reveal the source of their anguish, the two girls told their story. After hearing her classmates' account of being taken in a car to a remote location and raped, the student called her parents, and they in turn contacted the police.

[¶ 3.] At 4:30 p.m., Officer Hardman of the Sturgis Police Department met with the two girls and one of their parents at the Community Center. The girls were crying and "could not talk to" the officer. The Chief of Police directed that they be taken to the Law Enforcement Center to meet with Deputy Bob Lehrkamp, Jr. From then on, Deputy Lehrkamp became the lead investigator. In his initial report, Deputy Lehrkamp noted that the children were "upset, crying and scared." Believing that the girls needed each other's support, he decided to interview them together. During the interview, the girls told the deputy that while going to school together that morning along with the younger brother of one of the girls, the three were picked up by Josh Wisser in his car. One of the girls said that she recognized Wisser because she babysat his sister's children on occasion. The girls also said that another man was in the vehicle with Wisser. While the girls did not know the name of the other man, they said that they recognized him as someone who lived in the area. The girls also said they knew where this other man lived.

[¶ 4.] They told Deputy Lehrkamp that Wisser and the other man offered them a ride to school. Because of the weather, they accepted. Once in the car, the girls recounted that Wisser and the other man did not take them to school, but drove them to a parking lot at Fort Meade where Wisser sexually assaulted them. Deputy Lehrkamp asked the girls what they meant by sexually assaulted. One responded by pointing to her crotch. They showed him bruises on their arms that they said they received in the assault. They said that they were both sexually assaulted by Wisser and that the other man helped him do it. Upon request, the girls described Wisser's clothes and vehicle. They told how they spent the entire day in Wisser's car until he dropped them off at their school around 3:30 p.m. Deputy Lehrkamp arranged for the girls to have medical exams at Rapid City Regional Hospital. Their parents drove them there.

[¶ 5.] Later that evening, Josh Wisser, age eighteen, was apprehended. His vehicle and clothing generally matched the description given by the girls. Wisser was informed of his rights and he agreed to speak with Deputy Lehrkamp. During the interview, Wisser admitted that he had previously been in trouble and was currently on probation for stalking a twelve-year-old girl. He said that he had worked the previous night and finished around 6:30 that morning. He then went over to the home of his friend, Todd Heib. Wisser admitted that he and Heib had driven in Wisser's car that morning. He told Deputy Lehrkamp that he had dropped Heib off at Bob Roush's home and then went to his own home around 10:00 a.m. Wisser admitted to giving the children a ride after dropping off Heib. He said that he drove the three around because they wanted to skip school. During that time they met with some of Wisser's friends as well as some of the children's friends. He explained that as the morning went on he decided to drop the children at their school because he did not want to get in trouble by helping them be truant. Wisser denied any sexual contact with the children.

[¶ 6.] Detective Dan Anderson of the Sturgis Police Department interviewed Bob Roush who said that Heib had been to his home that morning. He said that they had gone to breakfast and then to Heib's optometrist. Afterwards, Heib borrowed Roush's van to go to work. Detective Anderson then contacted Heib's employer, who confirmed that he had been at work that day. Anderson then noted in his report that "[i]f [Heib] was with Roush, at the eye doctors and at work that day, [Heib] may not be our suspect."

[¶ 7.] Detective Anderson interviewed the eleven-year-old boy who was allegedly kidnapped and present during the sexual assaults on the two girls. The boy told the detective that they had been abducted, but that he had not witnessed the rapes because he was removed from the vehicle by one of the men. He also told the detective that the children had remained in the vehicle all day until dropped off at their school at 3:30 p.m. He gave a description of the man with Wisser that generally came close to Heib's description, but with discrepancies. He also said that this man smoked Marlboro Reds.

[¶ 8.] After his meeting with Wisser, Deputy Lehrkamp proceeded to the hospital where medical personnel were performing examinations on the girls. Deputy Lehrkamp spoke with two nurses who confirmed that the girls had been sexually assaulted. Doctor Michael Matthews wrote in his report that the twelve-year-old girl "was sexually assaulted I believe at about 8 a.m. this morning." In his gynecological exam, he found "minimal vulvar erythema" and "some whitish Wood's-positive material between the labia minora and the majora."¹ Whitish material was also found in the vaginal vault. His assessment: "Probable sexual contact. There are also multiple soft tissue ecchymoses." In his examination of the thirteen-year-old girl, Dr. Matthews noted that "[t]he alleged sexual contact occurred at 8 in the morning. She is not exactly sure on all the details of the assault." As to her gynecological exam, he noted that "[s]he has a little bit of whitish material present intralabially and that is the extent of the positives on the examination." But he found "Wood's-positive material" and collected it for evidence. In his assessment, Dr. Matthews wrote: "Alleged sexual contact. I think it is fairly likely."²

[¶ 9.] In the morning, Deputy Lehrkamp interviewed both girls a second time. The first to be re-interviewed was the twelve-year-old. She described the rape in greater detail. She explained that Wisser had forced her to remove her clothes; he then removed his own clothes, forced her to kiss him, and inserted his fingers and possibly his penis into her. She then stated that because of her struggling, she was unsure if Wisser actually penetrated her with his penis. The girl stated that both men and all three children were present in the vehicle during that time. The men told the girls that if they told anyone they would be killed. After the assault, the girl said that she could not recall much of the remainder of the day.

[¶ 10.] The thirteen-year-old girl's second interview that morning did not result in many further details. Deputy Lehrkamp reported that she was not feeling well, so he ended the interview early. Later Deputy Lehrkamp conducted a third interview. On this occasion, he described the information given to him as similar to that of the twelve-year-old's, yet he noted some discrepancies. After the interview, Deputy Lehrkamp had the girls take him to the location where the purported assault occurred. She directed him to a parking lot on Fort Meade located near the Veterans' Hospital.

[¶ 11.] Because some doubts existed in the officers' minds about whether Heib was the second assailant, Deputy Lehrkamp decided to prepare a photo lineup. Detective Anderson asked Heib to submit to a photograph. Heib agreed. Heib commented to Detective Anderson that "Bob [Roush] can tell you that I was with him when the rapes happened that morning." The detective found this curious because he had not told Heib about any rapes or when they were committed. Heib recalled Wisser mentioning to him, after he dropped him off, that Wisser was going to go back and give the three children they passed a ride. The detective mentioned to Deputy Lehrkamp that he noticed that Heib's features matched those described by the children and he was wearing clothes like those described as worn by the other man. Lehrkamp made the same observation and asked Heib if he was wearing these same clothes on the 9th. Heib answered that he was wearing the same coat, shirt, pants, shoes, hat, and belt. Detective Anderson asked Heib if he smoked. Heib said he did and pulled out a pack of Marlboro Reds.

[¶ 12.] At the photo lineup on December 11, 1997, the boy and the twelve-year-old girl identified Wisser and Heib as the assailants. The...