State v. Bult, 14265

• Decision Date: 06 June 1984
• Docket Number: No. 14265,14265
• Citation: 351 N.W.2d 731
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Justin Lloyd BULT, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 731

351 N.W.2d 731

STATE of South Dakota, Plaintiff and Appellee, v. Justin Lloyd BULT, Defendant and Appellant.

No. 14265.

Supreme Court of South Dakota.

Argued March 20, 1984.

Decided June 6, 1984.

Mark A. Moreno, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Richard P. Green of Green & Green, DeSmet, for defendant and appellant.

WUEST, Circuit Judge.

Appellant, Justin Bult, was convicted of kidnapping and sexual contact with a child under fifteen. We affirm.

The state's evidence shows at approximately 5:10 p.m., September 15, 1982, fourteen-year-old Duane Hedge, a neighbor of the five-year-old girl who was the victim in this case, saw appellant carry the victim to a blue Nova automobile which was parked in an alley behind the Hedge residence. Hedge knew appellant and positively identified him as the man who had put the girl, who was screaming and crying, into the automobile. After entering his automobile, appellant noticed Hedge, uttered an expletive, and drove away at a high rate of speed. At approximately 5:35 p.m. that afternoon, the victim's mother heard her daughter screaming in the yard. In response to her mother's questions, the young girl, who was upset and hysterical, said that a man had taken her out in the country, and further stated, "Mom, he put his wiener in me." In response to the mother's call, Captain Rand of the Huron Police Department arrived moments later and advised the parents to take the child to the hospital for an examination.

The child was examined between 6:00 and 7:00 p.m. at the Huron Regional Hospital by Dr. Buchanan. At that time the mother observed that the vulva-labia area of the child's genitals was irritated, red, and a little bit swollen. There was a scratch on her right thigh. Dr. Buchanan could not see any direct evidence of penetration, "in other words, no tear." He performed two tests, one to determine evidence of gonorrhea, and the other for sperm. He found neither. He saw a strange abrasion on the right thigh which looked like a rope burn to him.

Captain Rand saw the victim shortly after the examination and observed that she was very upset and nervous. He asked her what had taken place. She told him that a man had walked by her twice, grabbed her off her tricycle, put her in a car and drove out in the country by a corn field where he held her down on the seat, took her clothes off and "tried to put his wienie in her" while she was lying on the seat. After the interview by Rand, the mother changed the child's clothes. She noticed marks on the child's breast and neck areas. The child did not have any marks upon her body, nor was the irritation in the genital area present when she was bathed by her mother the evening before the incident.

About 7:30 p.m. on the evening of the alleged kidnapping, Steven Hofmann, a Beadle County Deputy Sheriff, called appellant and asked him to come to the Regional Correctional Center in Huron. Appellant and Lauren Gamber, his cousin, drove to the correctional center in appellant's blue Nova Chevrolet, which he parked in the parking area. Appellant was advised of his Miranda rights and then interrogated by Captain Rand and Deputy Hofmann shortly after 8:00 p.m. Appellant denied being implicated, but later told the officers that he had picked the little girl off her tricycle, drove her north of the Plains Motel, stopped along the road somewhere, put her in the backseat, took her clothes off and made love to her, took her back about a block from where her tricycle was and told her how to find her tricycle. Appellant refused to sign a written confession.

Shortly after 8:00 p.m. that same evening, the victim's mother took her daughter to the correctional center in order to talk to a social services counselor. Upon reaching the area, the child told her mother that she recognized a car parked outside the correctional center as the one used by her abductor. Later, the child, her mother, the social services counselor, and another person went outside the correctional center, where the child pointed out the car she had recognized earlier, which was the blue Chevy Nova driven by appellant.

A pediatrician testified that a medical examination he performed three days later revealed redness and local irritation of the external genitalia. A witness from the state crime laboratory testified that a hair found on the carpet of appellant's vehicle and a hair sample from the victim were similar with respect to all observable characteristics. He also testified that foreign fiber from the victim's jumpsuit and a fiber taken from the carpet were similar with respect to all observable characteristics and that foreign fibers found on the victim's jumpsuit and non-foreign fibers contained in appellant's orange jacket were similar in all observable characteristics.

Appellant took the stand in his own behalf and denied the charges. He testified that his statement to the officers had been made to get them "off his back." Appellant's mother and Lauren Gamber testified as alibi witnesses. Appellant also called Dr. Buchanan, who said that he had found no positive evidence of any sexual contact. Appellant's father also testified as to certain distances for the purposes of establishing an alibi.

Appellant claims that the court erred in denying his motion for a judgment of acquittal because (a) there was insufficient proof as a matter of law of the corpus delecti, and (b) there was insufficient corroboration as a matter of law of appellant's admission to the officers. The thrust of his claims is that absent the admission there is no proof of "sexual contact," thereby negating the sexual contact charge, and that absent the admission there is no corroboration of the kidnapping charge because the state failed to prove that the defendant's purpose was to facilitate the commission of a felony (the sexual contact charge), which is one of the elements of kidnapping. SDCL 22-19-1. So the crux of those contentions is, was there enough evidence to show "sexual contact"?

A motion for judgment of acquittal is made pursuant to SDCL 23A-23-1. The trial court must consider the evidence in the light most favorable to the nonmoving party when ruling on a motion for judgment of acquittal and must give the nonmoving party the benefit of all reasonable inferences in its favor. State v. Decker, 317 N.W.2d 138 (S.D.1982); State v. Gallegos, 316 N.W.2d 634 (S.D.1982); State v. Vogel, 315 N.W.2d 321 (S.D.1982). A motion for judgment of acquittal is properly denied if the state has introduced evidence from which, if believed, the jury may reasonably find the defendant guilty of the crime charged. State v. Blakey, 332 N.W.2d 729 (S.D.1983); State v. Decker, supra; State v. Miller, 313 N.W.2d 460 (S.D.1981); State v. Myott, 246 N.W.2d 786 (S.D.1976); State v. Peck, 82 S.D. 561, 150 N.W.2d 725 (1967). The state may prove all elements of the crime with circumstantial evidence. State v. Wilson, 297 N.W.2d 477 (S.D.1980).

Sexual contact is defined by SDCL 22-22-7.1 as "any touching, not amounting to rape, of the breasts of a female or the genitalia or anus of any person with the intent to arouse or gratify the sexual desire of either party." There was sufficient evidence introduced by the state to establish the sexual contact element of SDCL 22-22-7. There was the statement of the victim to her mother, "Mom, he put his wiener in me." In addition, the vulva-labia area of the genitals was irritated, red, and swollen immediately after the incident, a condition that had not been present the night before. The pediatrician testified that the girl's external genitals revealed redness and local irritation two days later. Considered with the state's other evidence--but excluding the admission--there was sufficient evidence to prove "sexual contact" and appellant's purpose was to facilitate the commission of that felony, one of the elements of kidnapping. SDCL 22-19-1.

Prior to trial, appellant moved to suppress the oral admissions given to the law enforcement officers. After a hearing at which the officers and appellant testified, the trial court entered its findings of fact and conclusions of law that the state had proven beyond a reasonable doubt that appellant understood his Miranda rights and knowingly and intelligently and voluntarily waived the same. The trial court further held that the state had proven beyond a reasonable doubt that the oral admissions were voluntary and not the result of coercion, threat or promise. The admission was received in evidence at trial over appellant's continuing objection. Appellant contends that the trial court erred in overruling the motion to suppress and appellant's objections at the trial.

In examining the issue of the voluntariness of a confession or admission, this court has stressed that the trial court's finding of voluntariness will not be overturned unless it is clearly erroneous. State v. Hintz, 318 N.W.2d 915 (S.D.1982); State v. Lyons, 269 N.W.2d 124 (S.D.1978). This court has also stressed that it will consider the evidence addressed in a light most favorable to support the denial of an appellant's suppression motion. State v. Hintz, supra; State v. Kiehn, 86 S.D. 549, 199 N.W.2d 594 (1972). Unlike the idea of voluntariness, waiver of constitutional rights implies knowledge. State v. Hartley, 326 N.W.2d 226 (S.D.1982). Whether appellant waived his constitutional rights must be answered using the totality of the circumstances approach. That is, considering appellant's age, experience, education, background, and intelligence, did he understand the Miranda warnings and the nature of his constitutional rights and did he knowingly and intelligently forego his right to remain silent and to have the assistance of counsel? Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979); North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); Miranda v....