State v. Darby
| Decision Date | 12 September 1996 |
| Docket Number | No. 19317,19317 |
| Citation | 1996 SD 127,556 N.W.2d 311 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Anthony John DARBY, Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Mark Barnett, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, for plaintiff and appellee.
Jeff Larson, Minnehaha County Public Defender, Sioux Falls, for defendant and appellant.
¶1 Anthony John Darby was found guilty of three counts of first degree rape and sentenced on each count to 100 years imprisonment with forty years suspended. The sentences are to run concurrently. Darby appeals the judgment and sentences. We affirm.
¶2 Following a "good touch/bad touch" presentation by a Sioux Falls police officer at her school, eight-year old A.W. told her teacher she had been sexually abused by her step-father, Darby. It was also learned that A.W.'s ten-year old sister, A.L., had been sexually abused by him. The matter was referred to law enforcement wherein Detective Bailey and Lieutenant Folkerts of the Sioux Falls Police Department contacted Darby at his residence. Darby had undergone knee surgery the previous day and was using a crutch when he opened the door to the two officers. Although the officers were in plain clothes, they identified themselves to him and showed him their badges. Detective Bailey informed Darby his stepdaughters had made allegations of a sexual nature against him. The detective further informed Darby that he was not under arrest nor would he be placed under arrest that day. Darby admitted that sexual activity between himself and the two girls had occurred over the past year with the last incident occurring three days earlier. Mrs. Darby arrived home about that time and the officers asked him if he would be willing to go to the Public Safety Building and speak with them further. Darby indicated he had no vehicle available to him and, because of his knee surgery, didn't feel he was capable of driving anyway. He agreed to accept a ride from the officers and accompanied them to the police station for further questioning.
¶3 At the police station, Darby was told that he was not under arrest, would not be arrested that day and that he was free to leave. He and officer Bailey entered an interrogation room where, in the next hour and a half, he confessed in a videotaped interview to between eight to ten incidents of sexual activity with his stepdaughters over the past year. These incidents all took place in the residence and involved each girl alone with Darby or both girls together with him, and included sexual touching, masturbation, cunnilingus, and fellatio. He related he encouraged the girls to touch one another on several occasions, and on one occasion, masturbated while watching them. These incidents also included penile, digital, and battery-powered vibrator penetration of the girls. During the course of this interview, the police learned that Mrs. Darby, mother of A.W. and A.L., had prior knowledge of the sexual acts being perpetrated against her daughters by her husband. Following this interview, the police drove Darby home.
¶4 The next day, Darby was arrested for sexual abuse of his step-daughters. A grand jury indicted him with three counts of first degree rape, one count of third degree rape, and three counts of sexual contact with a child. Darby pled not guilty to all counts. At a January 8, 1995 motions hearing, he withdrew his not guilty plea and entered a plea of guilty on Counts 4, 5, and 7. The trial judge granted Darby's motion to dismiss Count 6 on the grounds that his plea of guilty to Count 7 barred prosecution on Count 6 due to protection against double jeopardy. Darby was ordered to stand trial on the remaining three counts of first degree rape of A.W. Following a three-day jury trial, he was found guilty on all three counts. The trial judge sentenced him to serve 100 years with 40 years suspended on each count, sentences to be served concurrently. Darby was also sentenced to serve 15 years each on Counts 4, 5, and 7, to be served consecutively to one another but concurrently with the 60-year sentences.
¶5 Darby appeals the final judgment and sentencing in this case, raising the following issues:
1. Whether the trial court erred in denying Darby's motion to make definite and certain or to dismiss?
2. Whether Darby's guilty plea to Count 4 (sexual contact) barred the State from prosecuting the first-degree rape counts?
3. Whether Darby's confession should have been suppressed as involuntarily given and given while in custody?
4. Whether the trial court erred in denying Darby's requests for excusing certain jurors for cause and/or additional peremptory challenges?
¶6 1. Whether the trial court erred in denying Darby's motion to make definite and certain or to dismiss?
¶7 Darby motioned the trial court to order the State to make the allegations against him more specific as to the dates of the alleged violations, or to dismiss the charges on grounds of his right to protection against double jeopardy. As noted above, following acceptance by the trial court of Darby's plea of guilty to Counts 4, 5, and 7, the trial court dismissed Count 6 on the basis of double jeopardy. The trial court denied the motion as to Counts 1 through 3 and ordered him to stand trial. Darby appeals the trial court's ruling on Counts 1 through 3. Because an examination of the counts under which he was indicted is necessary to this appeal, they are set forth in pertinent part below:
COUNT 1
That on or between December 1, 1993 to December 4, 1994 in the County of Minnehaha, State of South Dakota, ANTHONY JOHN DARBY then and there did commit the crime of Rape in the First Degree by accomplishing an act of sexual penetration with [A.W.], when said victim was less than ten years of age, namely, of the age of 8, which conduct on the part of the Defendant was in violation of SDCL 22-22-1(1), contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of South Dakota.
The language in Counts 2 and 3 is identical to that of Count 1.
COUNT 4
That on or between December 1, 1993 to December 4, 1994 in the County of Minnehaha, State of South Dakota, ANTHONY JOHN DARBY then and there did while being over the age of sixteen years and more than three years older than the victim, knowingly engage in sexual contact with another person, to wit: [A.W.], who was not the Defendant's spouse and who was under the age of sixteen years, in violation of SDCL 22-22-7, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of South Dakota.
COUNT 5
That on or between February 12, 1994 to December 4, 1994 in the County of Minnehaha, State of South Dakota, ANTHONY JOHN DARBY then and there did commit the crime of Rape in the Third Degree by accomplishing an act of sexual penetration with [A.L.], where the victim was more than ten years of age but less than sixteen years of age, and where the Defendant was at least three years older than the victim, which conduct on the part of the Defendant was in violation of SDCL 22-22-1(5), contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of South Dakota.
COUNT 6
That on or between December 1, 1993 and December 4, 1994 in the County of Minnehaha, State of South Dakota, ANTHONY JOHN DARBY did while being over the age of sixteen years and more than three years older than the victim, knowingly engage in sexual contact with another person, to-wit: [A.L.], who was not the Defendant's spouse and who was under the age of sixteen years, in violation of SDCL 22-22-7, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of South Dakota.
COUNT 7
That on or about December 4, 1994, in the County of Minnehaha, State of South Dakota, ANTHONY JOHN DARBY did while being over the age of sixteen years and more than three years older than the victim, knowingly engage in sexual contact with another person, to wit: [A.L.], who was not the Defendant's spouse and who was under the age of sixteen years, in violation of SDCL 22-22-7, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of South Dakota.
¶8 "An indictment is sufficient if it 'contains the elements of the offense charged such that it apprises the defendant with reasonable certainty of the accusations against him, and it must enable him to plead an acquittal of conviction as a bar to future prosecutions for the same offense.' " State v. Floody, 481 N.W.2d 242, 246 (S.D.1992); State v. Basker, 468 N.W.2d 413, 416 (S.D.1991); Accord State v. Wurtz, 436 N.W.2d 839, 843 (S.D.1989); State v. Logue, 372 N.W.2d 151, 155 (S.D.1985); State v. Swallow, 350 N.W.2d 606, 608 (S.D.1984). 1
¶9 At the outset, we note that the allegations in this case came to light because the victim under these three counts, A.W., told her teacher on December 7, 1994 that she had been sexually abused by Darby. He was interviewed by police officers that same afternoon. At that time, he admitted the abuse to the officers indicating it had occurred over the past year, with at least eight to ten incidents, including two with A.W.'s sister, A.L. He further stated the last incident had occurred three days earlier. Thus, the dates set forth in Counts 1 through 3 of the indictment, December 1, 1993 to December 4, 1994, were provided to the State by Darby himself.
¶10 SDCL 23A-6-9 supports the sufficiency of the information provided in Darby's indictment. This statute provides: "The precise time at which an offense was committed need not be stated in an indictment or information, but it may be alleged to have been committed at any time before the filing thereof,...
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