State v. Dickerson, #29333, #29337

CourtSupreme Court of South Dakota
Writing for the CourtDEVANEY, Justice
Parties STATE of South Dakota, Plaintiff and Appellee, v. Kevin Xavier DICKERSON, Defendant and Appellant. State of South Dakota, Plaintiff and Appellee, v. Arianna Cherelle Reecy, Defendant and Appellant.
Docket Number#29333, #29337
Decision Date20 April 2022

973 N.W.2d 249

STATE of South Dakota, Plaintiff and Appellee,
Kevin Xavier DICKERSON, Defendant and Appellant.

State of South Dakota, Plaintiff and Appellee,
Arianna Cherelle Reecy, Defendant and Appellant.

#29333, #29337

Supreme Court of South Dakota.

ARGUED MAY 24, 2021
OPINION FILED April 20, 2022

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

CHRISTOPHER MILES of Minnehaha County Public Defender's Office, Sioux Falls, South Dakota, Attorneys for defendant and appellant Kevin Dickerson.

MARK KADI of Minnehaha County Office of the Public Advocate, Sioux Falls, South Dakota, Attorneys for defendant and appellant Arianna Reecy.

DEVANEY, Justice

¶1.] A jury found co-defendants Arianna Reecy and Kevin Dickerson guilty of robbery and burglary and also found Dickerson guilty of aggravated assault against Julio Gomez Rojas. Reecy and Dickerson separately appeal. They both assert that the circuit court erred in precluding any reference to Gomez Rojas's immigration status and in admitting into evidence an exhibit listing transactions purportedly from Gomez Rojas's debit card. Dickerson additionally asserts that the circuit court erred in denying his motion for judgment of acquittal. We consolidate the appeals and reverse and remand.

Factual and Procedural Background

[¶2.] Arianna Reecy worked as an exotic dancer at a bar in Lesterville, South Dakota. In July 2019, Reecy, who went by the name "Kisses," met Julio Gomez Rojas at the bar after he asked her for a private dance. Gomez Rojas explained that he found Reecy attractive and was interested in her. The two began exchanging text messages and also spoke to each other on the phone.

[¶3.] On November 19, 2019, Reecy asked Gomez Rojas, via text message, to lend her money so she could feed her children. He agreed and invited Reecy to come to his apartment. She arrived at approximately 7:30 p.m. but only stayed for three to five minutes. She returned to the apartment building approximately an hour later. As the two went up the stairs to Gomez Rojas's apartment, Reecy's boyfriend, Kevin Dickerson, entered the building unbeknownst to Gomez Rojas. What happened thereafter is disputed. According to Gomez Rojas, after they were inside his apartment, Reecy opened the door for Dickerson to enter, after which Dickerson held him at gun point, assaulted him, and stole his wallet. In contrast, Reecy claimed that after she and Gomez Rojas were inside his apartment, he tried to rape her, and she struck him on the head with a cellular phone before fleeing.

[¶4.] After the incident, Gomez Rojas's neighbors, who had heard him screaming, called 911, and an investigation ensued. Dickerson and Reecy were eventually arrested, and both were charged with first-degree robbery with a dangerous weapon and alternative counts of first-degree burglary.

[973 N.W.2d 253

Dickerson was also charged with alternative counts of aggravated assault, and the State filed a part II information alleging Dickerson to be a habitual offender. Dickerson and Reecy both pled not guilty.

¶5.] Dickerson and Reecy were tried together. On the day prior to trial, the State filed a motion in limine to preclude defense counsel from referring in any manner to Gomez Rojas's immigration status. The State acknowledged that he was an illegal immigrant; however, it claimed that his immigration status was not material to any issue at trial. The State further asserted that the evidence would be more prejudicial than probative. Finally, the State argued that admitting the evidence would potentially place Gomez Rojas in a position of having to invoke his right against self-incrimination.

[¶6.] At the start of the trial, the circuit court heard arguments from counsel on the State's motion and allowed the parties to examine Gomez Rojas for purposes of the court's ruling. Gomez Rojas admitted he was in the United States illegally. He testified that approximately a week after the incident, he consulted with an immigration attorney to learn whether his contacts with law enforcement as a victim of a crime would have any adverse effect on his immigration status. He claimed that the attorney told him he could continue to cooperate with the investigation and that at some point he could apply for a special visa available to victims of crimes, called a U-Visa.1 Gomez Rojas testified that he had not yet applied for a U-Visa, "but if it comes to that point perhaps, yes, of course" he would.

[¶7.] Counsel for both Reecy and Dickerson argued that Gomez Rojas's immigration status is relevant and probative to his bias and motivation to lie. Counsel for Dickerson emphasized that credibility is the central issue in the case and to exclude the evidence would violate Dickerson's Sixth Amendment right to confront and cross-examine Gomez Rojas. Counsel for Reecy highlighted that it is immaterial that Gomez Rojas has not yet applied for a U-Visa because he sought information from an immigration attorney shortly after the incident who made him aware that he could apply for it in the future. Reecy's counsel further claimed that because rape is a deportable offense, the evidence is necessary and relevant to Reecy's defense that Gomez Rojas tried to rape her and then had to come up with a different story of what transpired to avoid deportation.

[¶8.] The circuit court granted the State's motion in limine. It noted serious public policy concerns associated with allowing evidence of a victim's immigration status, including that it might deter people from reporting crimes. The court also relied upon Gomez Rojas's testimony that no one had promised him anything in exchange for his testimony. The court thus concluded that his immigration status was of limited relevance and was more prejudicial than probative. The court further expressed

[973 N.W.2d 254

a concern that allowing admission of such evidence would require a minitrial as to Gomez Rojas's status.

¶9.] During the three-day trial, multiple witnesses testified, including Gomez Rojas, his neighbors, Reecy, and multiple law enforcement officers. The jury also watched surveillance videos from the apartment complex showing Reecy and Dickerson enter and exit the building; listened to a recording of a 911 call; and observed the photographs documenting a wound above Gomez Rojas's left eyebrow and bruises on Reecy's arm and neck.

[¶10.] Gomez Rojas testified about his relationship with Reecy. He admitted that he was attracted to her and had hopes that their relationship would turn physical. He claimed that he had lent Reecy $200 when she first came to his apartment on the evening of the incident. He testified that she was in his apartment for only a few minutes but promised to return. He believed it was possible something sexual would happen when she returned.

[¶11.] Gomez Rojas then related that after he and Reecy entered the apartment during her second visit, he locked the door and sat down on his sofa. He claimed that Reecy asked him if anyone else was home. He said no, and thereafter, Reecy unlocked the door to the apartment, after which she moved away from the door and a male (later identified as Dickerson) with a mask on his face charged into the apartment. Gomez Rojas testified that he did not recognize Dickerson. He further testified that Dickerson grabbed him by the back of the neck, pointed a gun at him, and demanded money.

[¶12.] According to Gomez Rojas, Dickerson then ordered Reecy to search the apartment for money, and Dickerson grabbed Gomez Rojas's wallet from a table, opened it, and threw it on the floor after noticing that it contained no cash. Gomez Rojas claimed that he was able to wrangle free of Dickerson's grip, but Dickerson then struck him on the left side of his head with the gun. He testified that he fell on the floor after being hit but got up and retreated to the bathroom. Gomez Rojas also testified that he screamed for help and waited to exit his bathroom until he stopped hearing noises.

[¶13.] When Gomez Rojas came out of his bathroom, he noticed that his neighbors, Sylvia Paragonzalez and Sofia Parada, were inside his apartment. They had heard a scream coming from his apartment and attempted to enter but could not open the door. Sylvia and Sofia also claimed that they saw a black male and a female exit Gomez Rojas's apartment and run down the stairs. Neither recalled seeing a mask covering the man's face or a gun. They were then able to enter the apartment where they found Gomez Rojas bleeding from an injury on the side of his head. According to Gomez Rojas, Sylvia and Sofia asked him if he wanted them to call 911 and he said yes; but according to Sofia, she and her sister decided to call the police. After Sofia called 911, the dispatcher asked her questions about the incident. Sofia translated these questions to Gomez Rojas in Spanish. She then translated Gomez Rojas's answers in English. She relayed that two people entered the apartment, assaulted Gomez Rojas, and left with his wallet. She further relayed Gomez Rojas's descriptions of them and his statement that he recognized the female but not the male.

[¶14.] Officer Christian O'Brien arrived at the apartment in response to the 911 call and interviewed Gomez Rojas. He observed that Gomez Rojas had a large gash above his left eyebrow and that the area around the wound had started to swell. During the interview, Gomez Rojas provided many details...

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