State v. Babcock, 121620 SDSC, 28880-a-JMK

Docket Nº:28880-a-JMK
Opinion Judge:KERN, Justice
Party Name:STATE OF SOUTH DAKOTA Plaintiff and Appellee, v. KEVIN BABCOCK, Defendant and Appellant.
Attorney:JASON R. RAVNSBORG Attorney General ERIN E. HANDKE Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee. ERIC M. SCHLIMGEN of Clayborne, Loos & Sabers, LLP Rapid City, South Dakota Attorneys for defendant and appellant.
Judge Panel:GILBERTSON, Chief Justice, and JENSEN, SALTER, and DEVANEY, Justices, concur.
Case Date:December 16, 2020
Court:Supreme Court of South Dakota

2020 S.D. 71

STATE OF SOUTH DAKOTA Plaintiff and Appellee,


KEVIN BABCOCK, Defendant and Appellant.

No. 28880-a-JMK

Supreme Court of South Dakota

December 16, 2020

Considered on briefs November 4, 2019


JASON R. RAVNSBORG Attorney General ERIN E. HANDKE Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

ERIC M. SCHLIMGEN of Clayborne, Loos & Sabers, LLP Rapid City, South Dakota Attorneys for defendant and appellant.

KERN, Justice

[¶1.] A jury convicted Kevin Babcock of two counts of aggravated assault and two counts of simple assault for attacking his former significant other, Rosa Sosa, during a fight. Babcock appeals, alleging the circuit court erred by granting the State's motion to exclude evidence of Sosa's drug use. He also argues that his convictions for multiple counts of assault placed him in double jeopardy in violation of his constitutional rights. We affirm.

Facts and Procedural History

[¶2.] On May 4, 2018, an altercation between Kevin Babcock and his former significant other, Rosa Sosa, resulted in Sosa sustaining numerous injuries, including marks on her throat consistent with strangulation, a head injury from being struck with a railroad spike, scratch marks, and bruising. While being treated for her injuries at the hospital, a drug screen revealed that Sosa had methamphetamine in her system.

[¶3.] As a result of this incident, a grand jury indicted Babcock for count 1- aggravated assault (domestic violence)1 in violation of SDCL 22-18.1.1(4) (serious bodily injury); count 2-aggravated assault in violation of SDCL 22-18.1.1(1) (extreme indifference to human life) or, in the alternative, count 2A-aggravated assault in violation of SDCL 22-18-1.1(2) (dangerous weapon); count 4-simple assault in violation of SDCL 22-18-1(1) (attempt to cause bodily injury and actual ability to cause injury); and count 5-simple assault in violation of SDCL 22-18-1(5) (intentionally causes bodily injury that does not result in serious bodily injury). The grand jury returned a "no bill" on count 3-a resisting arrest charge. Babcock pled not guilty to all counts. The State also filed a part II information against Babcock alleging that he was a habitual offender.

[¶4.] A two-day jury trial was held from November 19-20, 2018. Immediately before trial, the State filed a motion in limine to exclude any evidence of Sosa's methamphetamine use and the positive drug screen that the hospital obtained in conjunction with Sosa's treatment. Before empaneling the jury, the court heard arguments from the parties and took the matter under advisement. During Sosa's cross-examination, Babcock's defense counsel requested an in-camera hearing to obtain a ruling on the State's motion. The court, after hearing additional arguments from counsel, granted the State's motion to exclude all evidence of Sosa's methamphetamine use. It excluded evidence of Babcock's methamphetamine use as well.2

[¶5.] The evidence produced at trial established that Sosa and Babcock had a tumultuous domestic relationship. Babcock was physically abusive and had a bad temper, but Sosa was not afraid of him and always defended herself by fighting back. The evening of May 4, 2018, was no exception. That day, Babcock and Sosa decided to go to Vale, South Dakota, to stay with one of Sosa's friends, Phil Heller. Once they arrived in Vale, Babcock went to a bar while Sosa and Heller went to Sturgis to run errands. When Sosa returned to Vale later that evening, she went to the bar to pick up Babcock. Although Babcock was reluctant to go, he eventually agreed to leave with Sosa.

[¶6.] Sosa, by her own admission, was in a bad mood when they arrived at Heller's house. She testified that she went inside to shower and eat while Babcock fell asleep in the car. At some point, Sosa went out to the car and began berating and yelling at Babcock, telling him: "I'm at least with some friends. Some real friends . . . . What do you have?" She testified that the fight escalated when she got into the passenger seat of the vehicle. From there, Sosa stated that "things got out of hand" as Babcock choked her, punched her, and scratched her. After she fought "back with every possible force [she] had," he released her throat. At some point "he came at [her] through the door of the passenger seat." She began kicking the door in an effort to push him away. She kicked the door so hard that she damaged it.

[¶7.] Sosa could not precisely recall the exact sequence of the events after the first physical conflict or how she sustained her head wound. Nor, she admitted, did she remember what type of object caused it, although she stated that Heller later told her it was a railroad spike. She did, however, recall that she was sitting in the vehicle when she first noticed the blood on her clothing. When asked about whether the fight occurred during separate incidents or during one encounter, Sosa stated that it was "all the same." However, she later clarified that by "all the same," she meant the fight occurred on the same day. Sosa testified that after being struck with the object, she returned to the house where Heller discovered her injuries.

[¶8.] Heller's testimony at trial and Sosa's initial report to police, which were relayed to the jury through body camera footage from the responding officers, suggest that Babcock and Sosa left the car after their initial altercation and continued the physical fight in the yard. When officers questioned Sosa about the incident, she stated that she and Babcock initially fought in the vehicle before getting out and walking toward the house. Sosa claimed that while outside of the car, Babcock pulled her hair.

[¶9.] According to Heller, Babcock and Sosa came inside the house after the first altercation. When they entered, Heller, who did not witness the fight, saw that Babcock had a small amount of blood spatter on his face and a bite mark on his leg. Heller testified that Babcock told him Sosa had bitten him and was crazy. Heller stated that aside from Babcock's leg injury, he did not observe any serious injuries to either person when they first entered the house.

[¶10.] After a brief time, Heller testified that Babcock and Sosa went back outside to continue the affray, walking past a pile of old railroad spikes on the front porch on their way out. The parties continued to argue outside and got back into the car where the second fight began. The State alleged that during this scuffle, Babcock struck Sosa on the side and top of her head with one of the spikes.

[¶11.] After being struck with the spike, Sosa began to bleed profusely. She and Babcock returned to the house. Sosa went into a room used as an office in the front of the house, while Heller and Babcock sat in Heller's bedroom where he had a TV and chairs. Heller stated that Babcock picked up a dull knife and informed Heller that he did not want to live anymore. Babcock asked Heller where his gun was, and Heller replied, "What gun?" Heller stated that, for some time, he tried to talk Babcock into putting the knife down, but he could not reason with him.

[¶12.] Heller then decided to check on Sosa. He found her in the front room sitting on a couch holding paper towels to her face. Heller inspected her wounds and discovered a deep gash above her eye. Sosa did not want to call the police because she did not want to get Babcock in trouble. Concerned for her well-being, Heller suggested that Sosa go with him to see his friend, Larry Schumacher, a field medic with the Army National Guard, who lived nearby and could render first-aid. Sosa agreed, and they left for Schumacher's house, leaving Babcock behind.

[¶13.] Schumacher testified that when Sosa arrived at his home, he assessed her wounds and concluded that her injuries were severe. While cleaning the larger of her head wounds, he saw that the back of Sosa's eye socket was visible through the gaping hole. Although Sosa remained reluctant to involve law enforcement, Schumacher called dispatch for help. Butte County Sheriff Deputy Casey McKenzie (Deputy McKenzie) testified that he was the first to respond and spoke to Schumacher's wife outside when he arrived at the residence. After this discussion, he called an ambulance and entered the residence to assess Sosa's injuries. Sosa was "very calm" and cooperative, telling Deputy McKenzie that Babcock had assaulted her at Heller's house and that Babcock was still there. Deputy McKenzie recorded his interview with Sosa on his body camera and photographed her injuries. While the ambulance was en route, Deputy McKenzie left the Schumacher house and drove to the Heller residence.

[¶14.] Deputy McKenzie testified that when he arrived at Heller's house, he learned that Babcock had barricaded himself inside. For two hours, Heller and several others attempted to talk Babcock into coming out of the house. Eventually, it became clear that Babcock would not come out voluntarily, so the officers went inside to arrest him. Babcock was in the back bedroom when the officers entered. A brief struggle ensued before the officers were able to subdue him. A search incident to Babcock's arrest revealed that Babcock had a double-edged dagger in his back pocket. The officers also discovered a railroad spike, covered in what appeared to be blood, in the room where he was hiding.

[¶15.] In the meantime, Sosa was taken to the Sturgis Hospital. Dr. Natalie Tymkowych, the emergency room physician who examined her, testified that she initially observed an open wound above Sosa's left eye and a second wound on top of her head. She also noted that Sosa had a...

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