State v. Boston, 22439.

Citation2003 SD 71,665 N.W.2d 100
Decision Date11 June 2003
Docket NumberNo. 22439.,22439.
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Samuel Wayne BOSTON, Defendant and Appellant.
CourtSupreme Court of South Dakota

Lawrence E. Long, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Matthew T. Stephens, Rapid City, South Dakota, and LYnn A. Moran, Custer, South Dakota, Attorneys for defendant and appellant.

SABERS, Justice.

[¶ 1.] Samuel Wayne Boston was convicted of second-degree felony murder on May 5, 2002. The trial court sentenced Boston to life in prison without parole for the murder of Richard Gitter. Boston appeals his conviction raising five issues. We affirm.


[¶ 2.] On March 17, 2001, Boston placed a 911 call requesting assistance because Gitter was unresponsive. When emergency personnel arrived at Boston's apartment, they found 45-year-old Gitter lying on his side in Boston's bathtub. Gitter was completely unclothed and not breathing. His clothing had been folded and placed on the edge of Boston's bed. Boston told officers that Gitter had arrived at the apartment earlier in the afternoon very inebriated and had passed out on Boston's couch. Boston told police that he disrobed Gitter and placed him in the tub. According to Boston, Gitter was unconscious but alive when Boston put him in the tub, but he later stopped breathing. Medical personnel determined that Gitter was dead. Gitter had a fresh laceration over his right eye and injuries similar to rug burns on both knees. Boston's explanation of how Gitter received the injuries changed with nearly every telling. The investigating officer felt that the circumstances of death were highly suspicious and designated the area a crime scene.

[¶ 3.] A subsequent search revealed blood-stained clothing belonging to both the victim and the Defendant, blood stains in various places throughout the apartment and blood stains on the inside and outside of the underwear worn by Defendant. The police found a rug and other laundry that Boston had washed that day prior to their arrival. Police also found a camera with film. The film contained several pictures of the unclothed victim lying in the bathtub. In some of the pictures, Defendant's shoes are visible because he is standing on the edge of the tub and shooting downward. In one of the pictures, Defendant's unclothed stomach is visible. All of the pictures focus on the victim's backside, with one focusing only on his buttocks. In a laundry room located outside of Boston's apartment, police found pornographic material focusing on female buttocks which Boston had torn, removed from his apartment and placed in a garbage can prior to the arrival of the police. Police also found a videotape entitled "Butt Man."

[¶ 4.] The State's pathologist determined that the cause of death was manual strangulation and Boston was charged. At trial, Boston was convicted of second-degree felony murder, specifically, murder while engaged in or attempting sexual contact with a person incapable of consenting as defined in SDCL 22-22-7.2 in violation of SDCL 22-16-9. He appeals raising five issues:

1. Whether the trial court erred when it denied Defendant's motions for judgment of acquittal.

He claims the trial court abused its discretion when it:

2. allowed evidence regarding Defendant's sexual orientation;
3. denied Defendant's motion for a new trial based on alleged failure to disclose exculpatory evidence;
4. denied admission of Defendant's psychological and psychiatric history; and
5. denied Defendant's motion for a new trial based on prosecutorial misconduct and compromise verdict.

We affirm the trial court on all issues.


[¶ 6.] Boston argues that the trial court erred in denying his motions for judgment of acquittal. Our inquiry is whether the State set forward sufficient evidence from which the finder of fact could reasonably find the defendant guilty. State v. Gonzalez, 2001 SD 47, ¶ 7, 624 N.W.2d 836, 838. The question is "whether there is sufficient evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt; in making this determination, the Court will accept the evidence, and the most favorable inference fairly drawn therefrom, which will support the verdict." Id. (quoting State v. Heftel, 513 N.W.2d 397, 399 (S.D.1994)). This Court will not resolve conflicts in the evidence nor pass on the credibility of the witnesses. These functions are the exclusive province of the jury. Heftel, 513 N.W.2d at 399. "We afford the strongest presumption in favor of the jury's determination of credibility." Id. (quoting State v. Arguello, 502 N.W.2d 548, 552 (S.D.1993)

(additional citations omitted)).

[¶ 7.] Boston argues that the State's circumstantial evidence was insufficient to support his conviction. Relying heavily on the testimony of his expert, Boston argues first that it is unlikely that the victim died by manual strangulation as the State's pathologist testified. Boston asserts that the cause of death was a combination of alcohol and drug poisoning because the victim had high levels of alcohol and Paxil in his system at death. However, the jury could have disregarded the expert's testimony because the Defendant's expert was discredited when it was revealed that he did not read the articles upon which he relied for this assertion. Further, the case studies upon which the expert relied had facts not in evidence in this case. For example, in one of the case studies, the victim died from drug and alcohol overdose but had two other drugs in addition to Paxil and alcohol in his system. Furthermore, it is the exclusive province of the jury to pass on the credibility of the witnesses, and the jury was free to accept or reject all or part of the testimony presented by the conflicting experts. Belhassen v. John Morrell & Co., 2000 SD 82, ¶ 17, 613 N.W.2d 531, 537 (quoting Kester v. Colonial Manor of Custer, 1997 SD 127, 24, 571 N.W.2d 376, 380) (additional citation omitted).

[¶ 8.] Second, Boston argues that the evidence proves that it was physically impossible to carry out the crime for which he was convicted. Specifically, he argues that the victim was alive at the time he was placed in the bathtub. He asserts that therefore Boston had to strangle and have sexual contact with the victim while he was in the bathtub. However, this assertion rests on the assumption that the victim died while he was in the bathtub. Neither expert testified definitively that Gitter died in the bathtub. Rather, they testified that his injuries occurred while he was still alive.

[¶ 9.] The evidence at trial was sufficient to support the conviction. The State's expert testified that the victim died from manual strangulation. Boston argues that there were no external injuries on the victim to support the finding that the victim was strangled. However, the State's expert testified that external injuries usually occur when the victim is struggling. The evidence at trial, including the Defendant's own statements, indicated that Gitter was extremely inebriated and therefore would not have been struggling. Furthermore, the Defendant's expert conceded that the materials he relied upon indicate that when an adult is unconscious from extreme intoxication, strangulation could occur without external or internal neck injuries.

[¶ 10.] Boston next argues that there was no evidence of sexual contact to prove the underlying crime for the felony murder conviction. He argues first that the experts testified that there was no blood or semen found and that had there been semen it could not have simply been washed away. However, Boston's expert testified to the contrary stating that semen could be removed in such a way. Furthermore, Defendant's pictures show that he changed his own clothing at some point during his interaction with the victim. The pictures reveal his unclothed stomach and the fact that at the time he took the pictures, Boston was not wearing the bloody shoes police found later in his bedroom. The jury could also have inferred sexual contact based on Defendant's actions before he called the police. He removed pornographic material depicting women's buttocks from his apartment, washed the entrance rug, did some laundry, and changed his clothes. In other words, that he was attempting to conceal the crime. We have noted that concealment may be evidence of guilt or consciousness of guilt. State v. Frazier, 2001 SD 19, ¶ 41, 622 N.W.2d 246, 260. Furthermore, Defendant changed his story throughout the investigation, creating a reasonable inference that he was attempting to conceal the crime. Finally, the bizarre circumstances of this death could have led the jury to the reasonable conclusion that there was either an attempt or sexual contact. Specifically, the Defendant took off all of the victim's clothes, removed articles of his own clothing, placed the victim in the bathtub, admitted that he touched the victim's buttocks with his hands and took pictures of the naked victim focused primarily on his backside while he was either unconscious or dead. Based on the evidence presented by the State, the jury could have reasonably found either an attempt or sexual contact.

[¶ 11.] There is no showing that the trial court erred in denying Boston's motions for judgment of acquittal.


[¶ 13.] Prior to trial, the State filed a motion to admit evidence of Boston's bisexuality at trial. The trial court granted the motion to the extent that the State was allowed to introduce Boston's statement to Agent John Walker of the DCI that Boston was bisexual and Boston's subsequent denial of that fact to...

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