Spaniol v. Young, 29634-a-JMK

CourtSupreme Court of South Dakota
Writing for the CourtKERN, JUSTICE
Citation2022 S.D. 61
PartiesJOSHUA SPANIOL, Petitioner and Appellant, v. DARIN YOUNG, Warden, South Dakota State Penitentiary, Respondent and Appellee.
Docket Number29634-a-JMK
Decision Date19 October 2022

2022 S.D. 61

JOSHUA SPANIOL, Petitioner and Appellant,

DARIN YOUNG, Warden, South Dakota State Penitentiary, Respondent and Appellee.

No. 29634-a-JMK

Supreme Court of South Dakota

October 19, 2022




Heidepriem, Purtell, Siegel

& Hinrichs, LLP

Sioux Falls, South Dakota

Attorneys for petitioner and appellant.


Attorney General


Assistant Attorney General

Pierre, South Dakota

Attorneys for respondent and appellee.


[¶1.] Joshua Spaniol was convicted of raping and having sexual contact with his four-year-old autistic daughter. Spaniol appealed his conviction, which was affirmed. Thereafter, he filed a petition for habeas corpus alleging that his trial counsel was ineffective by failing to retain an expert witness, object to certain exhibits during trial, and investigate alleged third-party perpetrator information. After an evidentiary hearing, the circuit court denied the petition. Spaniol appeals. We affirm.

Factual and Procedural Background

[¶2.] Spaniol was convicted of three counts of first-degree rape and one count of sexual contact with a child under sixteen involving his daughter, A.S., who was four years old at the time and had been diagnosed with Autism Spectrum Disorder (ASD). The sexual abuse first came to light when Spaniol's wife and A.S.'s mother (Mother) noticed that A.S. had a brown vaginal discharge. Mother took A.S. to a physician who took a sample and sent it to a lab for testing. Two days later, Spaniol saw his doctor for a painful, inflamed, and discharging infection in his penis. After falsely informing the doctor that he was in a monogamous sexual relationship with Mother, the doctor ruled out and did not test for sexually transmitted diseases (STDs) and instead tentatively diagnosed Spaniol's ailment as a urinary tract infection (UTI). The doctor sent a sample of Spaniol's urine for testing and prescribed Cipro, an antibiotic, to be taken twice per day for ten days pending the test results.


[¶3.] Over the course of a few days, A.S.'s condition worsened, and Mother took her to an emergency room. Medical staff suspected that A.S. had an STD and alerted Child Protection Services and the Watertown Police Department. A detective contacted Spaniol who came to the police department for an interview. When asked about A.S.'s symptoms, Spaniol reported that he and A.S. sometimes bathed together and that he had a genital rash but not a discharge. Spaniol was not arrested and returned home.

[¶4.] The following day, A.S.'s test results established that she had gonorrhea. Spaniol and Mother were asked to come to the police station for further interviews. After they arrived, they were placed in separate interview rooms. Spaniol was initially questioned by Sergeant Stahl of the Watertown Police Department. He was informed that he was not under arrest and was not in custody. During a videotaped interview, Spaniol was asked if he knew why he was called back to the station for interviews and he speculated that it was because he admitted to bathing with A.S. He eventually admitted that contact between his penis and A.S. had occurred while bathing but claimed that it was accidental. Shortly after this admission, Sergeant Stahl left the room.

[¶5.] Division of Criminal Investigation Special Agent (SA) Corey next entered the room. SA Corey confirmed with Spaniol that he knew that he was not under arrest and that the interview room door was closed only for privacy purposes. Spaniol repeated his story that while bathing naked with A.S., she slipped and fell on his "semi-erect penis, causing penetration." Spaniol's story eventually evolved into admitting that on two occasions he had "rubb[ed] his penis on the labia of A.S.'s


vagina, and plac[ed] his penis in her vagina after ejaculating." When asked, Spaniol admitted this had happened more than three times. Sergeant Stahl subsequently entered the room and asked Spaniol who should tell his wife about what he had done, and Spaniol responded that he would. Officers brought Mother to the interview room and Spaniol confessed to her, still on camera, that he had "messed around" with A.S. and had rubbed his penis on her. Spaniol was later advised of his Miranda rights. After waiving these rights, Spaniol ultimately admitted that he had penetrated A.S. on four occasions.[1]

[¶6.] Spaniol's urine test taken at the time of his doctor's appointment came back negative for a UTI. Although law enforcement officers arranged for another sample to be taken from Spaniol to test for gonorrhea after his confession, this sample, obtained five days after Spaniol had been taking Cipro for his UTI, came back negative. Expert testimony at trial revealed that just one dose of Cipro will cure gonorrhea 85-90% of the time.

[¶7.] Mother took A.S. to Child's Voice, an advocacy center in Sioux Falls where children who may have been abused are forensically interviewed by trained professionals. A.S. participated in a videotaped interview with Robyn Niewenhis and reported that her dad had hurt her on several occasions. When asked where, she pointed to her vaginal area. Further, A.S. indicated that her dad used his finger to hurt her and that it went in her body, pointing again to her vaginal area.


[¶8.] Spaniol's counsel filed a motion prior to trial, challenging A.S.'s competency to testify because of her age and ASD, alleging she would be difficult to understand. The circuit court held a competency hearing at which A.S. testified and was subjected to cross-examination. The court found A.S. competent to testify, concluding that "[a]lthough A.S. has several developmental delays and limitations in her ability to communicate, A.S. has sufficient mental capacity to observe and recollect, A.S. has an ability to communicate, and A.S. has some sense of moral responsibility." At trial, the State presented strong evidence against Spaniol including the following: A.S.'s direct testimony and the Child's Voice interview, in which she stated that her father had "hurted [her] potty"; her gonorrhea diagnosis and Spaniol's simultaneous infection and potential gonorrhea; Spaniol's videotaped confessions to law enforcement officers and to Mother in which he admitted penetrating A.S. with his penis; and Spaniol's cell phone search history which included searches for role-playing father/daughter pornography and a query into whether STDs could be transferred through water.

[¶9.] In his defense, Spaniol advanced the theory that he could not have given A.S. gonorrhea because he was not infected and speculated that either a third-party perpetrator molested A.S. and gave her gonorrhea, or A.S. contracted gonorrhea by playing with a sex toy in their home that had been used by someone with gonorrhea. After deliberation, the jury found Spaniol guilty of three counts of first-degree rape and one count of sexual contact with a child under sixteen. A more detailed version of the facts surrounding the convictions is set forth in State v. Spaniol,


2017 S.D. 20, 895 N.W.2d 329, wherein we affirmed Spaniol's convictions on direct appeal.

[¶10.] Spaniol filed a pro se application for writ of habeas corpus on July 6, 2017, alleging that his conviction was unconstitutional due to ineffective assistance of counsel. The habeas court appointed counsel for Spaniol on July 18, 2017. Spaniol filed an amended petition for writ of habeas corpus on September 12, 2018. In the amended petition, Spaniol alleged that trial counsel had been ineffective for failing to retain an expert on the issue of A.S.'s competence, failing to object to Exhibit 11 (the Child's Voice summary of A.S.'s forensic interview) and Exhibit 12 (the recording of A.S.'s Child's Voice interview), and failing to further investigate potential third-party perpetrators. The habeas court held an evidentiary hearing on the petition on May 8, 2019. At the hearing, Spaniol called Dr. Kenneth Hasseler, a licensed psychologist, Mother, and Tim Nisich, Spaniol's uncle. With the permission of the circuit court, Spaniol later submitted an affidavit from Reed Anderson, a man Mother dated shortly after Spaniol's conviction, who was unavailable to testify in person because he was incarcerated.

[¶11.] Dr. Hasseler was qualified as an expert witness in the field of psychology, having worked with children with neurodevelopmental conditions and disorders, including autism. Spaniol retained Dr. Hasseler to render an opinion regarding A.S.'s competency to testify at the trial, specifically, whether A.S. had "sufficient mental capacity to observe, recollect, and communicate [with] some sense o[f] moral responsibility" in light of her young age and her ASD diagnosis. In order to form his opinion, Dr. Hasseler reviewed the transcript of the competency hearing


and the evidence the State introduced regarding A.S., including her forensic interview at Child's Voice; her medical progress notes; a psychological evaluation summary; a report from Sanford Children's Specialty Clinic; and a Watertown School District multidisciplinary report. Based on this review, Dr. Hasseler testified that, in his opinion, A.S. lacked "timeline intention[,]" meaning that "[s]he can't tell you time. She cannot recount events." Further, Dr. Hasseler testified that A.S. was "highly suggestible" and lacked "social communication processing" skills. Dr. Hasseler concluded that A.S. "did not exhibit the capacity to understand or answer simple questions accurately, consistently, or to observe or recall events pertinent to the case other than in a very cursory manner."

[¶12.] Dr. Hasseler's expert report was also admitted at the hearing, in which he concluded that he did "not believe that [A.S.]...

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