State v. Floody

• Decision Date: 22 January 1992
• Docket Number: No. 17366,17366
• Citation: 481 N.W.2d 242
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Levern A. FLOODY, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 242

481 N.W.2d 242

STATE of South Dakota, Plaintiff and Appellee, v. Levern A. FLOODY, Defendant and Appellant.

No. 17366.

Supreme Court of South Dakota.

Argued Oct. 23, 1991.

Decided Jan. 22, 1992.

Mark Barnett, Atty. Gen., Sherri Sundem Wald, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

William A. Delaney III, Northern Hills Public Defender's Office, Deadwood, for defendant and appellant.

WUEST, Justice.

This is a criminal case which was tried before a jury. The jury found defendant Floody (Floody) guilty of two counts of rape in violation of SDCL 22-22-1(4). The trial court entered Judgment of Conviction from which Floody appeals. We affirm.

FACTS

In November 1989, P.C. (Pennie) married W.C. (William). At the time of their marriage, Pennie had a four-year-old son named Kenneth; and William had two children, A.C. age six, and Randy age four. William and Pennie purchased and moved into a home in Lawrence County, South Dakota. The residence had three bedrooms on the main floor and three bedrooms in the basement. Pennie and William shared one of the bedrooms on the main floor. Kenneth and Randy each had a bedroom of their own on the main floor. A.C.'s bedroom was in the basement.

Shortly after the C.s began living in their new home, numerous friends and family began to periodically move in and out of their residence. Floody was one of the family friends who came to live with the C.s. Floody came at the invitation of William sometime in the first or second week of December 1989. When Floody arrived, the C.s allowed him to use the pantry area in the basement as his bedroom.

In February 1990, William was sentenced to one year in the South Dakota State Penitentiary as a result of his guilty plea to possession of a controlled substance. Prior to leaving for prison, William asked Floody to stay with his family and keep an eye on things. Floody was a good family friend who seemed to get along well with the children. A.C. would sit on Floody's lap, curl up under his arm, and watch T.V. A.C. called Floody her "Uncle L.A." and considered him her boyfriend.

On Saturday, March 17, 1990, Pennie was leaving the laundry room when she overheard A.C. tell Randy, "You can take them off if you want" while playing with Randy in his bedroom. Hearing nothing else, Pennie opened the door, and walked into Randy's bedroom. Pennie observed Randy on top of A.C. A.C.'s pants were unzipped and unsnapped, and Randy was tugging on her pants. Not knowing how to handle the situation, she asked a friend, Kathy, to see if she could find any helpful information.

Pennie eventually decided to discuss the incident with A.C. A.C. was nervous and frightened. Pennie asked A.C. if anyone had ever touched her "private parts." ¹ At first, A.C. denied anyone had, but began fidgeting with her fingers. After Pennie assured A.C. she was not at fault, A.C. mentioned Floody's name. Pennie asked A.C. what Floody had done. A.C. said he "rubbed it," meaning her private parts, and stuck his finger "inside of her." A.C. also stated Floody had "sucked on her," and Floody made her "suck on him" although she did not want to. A.C. then began crying. When Pennie asked A.C. when this happened, A.C. responded, "It happens all the time, mommy."

Later, Pennie asked Kathy to talk with A.C. while Pennie listened. Kathy asked A.C. to tell her what had happened. Hesitant at first, A.C. told Kathy that Floody "had sucked on her." A.C. told Kathy she had "to suck on Floody" and "white stuff that tasted yucky came out." A.C. also told Kathy that Floody "stuck his tongue in her mouth." Pennie overheard A.C. tell Kathy "white stuff came out and it tasted yucky." Pennie called the police and reported the incident.

Pennie brought A.C. to the Social Services Office where A.C. was interviewed by Social Worker Pam Knuppe (Knuppe) and Deputy Sheriff Pat Humphrey (Humphrey). Knuppe primarily asked the questions, and Humphrey took notes during the interview. Pennie was not present during the interview.

A.C. told Knuppe and Humphrey that Floody lived with her family. A.C. stated she liked Floody and knew he loved her. A.C. acknowledged and demonstrated that she understood what her "private parts" were. When asked if she had ever been touched in or on her "private parts," A.C. answered "yes, L.A., he always does it and he's 44." A.C. indicated by pointing with her finger Floody had touched her between her legs. When questioned about other touching, A.C. replied Floody touched her chest and bottom with his hand every few days when it was dark outside. A.C. told the interviewers she was frightened when Floody touched her, and had told Floody she did not want to do it.

A.C. stated Floody touched her in his bedroom and in the shop. A.C. described to Knuppe and Humphrey how Floody would bring her into his bedroom and lay her on his bed. Floody would take her pants and underpants off and then rub her between her legs and on her "hiney" with his hand. A.C. stated Floody would touch her "on the inside" with his "pinky."

A.C. also described the touching which occurred in the shop. A.C. stated she was sitting down and Floody was on his knees by the chair. Again, A.C. stated Floody touched her "inside" with his "pinky." She stated sometimes she took her own clothes off, and sometimes Floody took them off. A.C. was able to describe the sex acts in detail, recounting what she had described to Pennie and Kathy.

Knuppe asked A.C. when the touching by Floody occurred. A.C. thought one time it happened before Christmas. A.C. did not know the last time Floody touched her, but she thought it was on a weekend, while Pennie was visiting William in prison. ² She stated the touching occurred when Pennie was away and she was left with a baby-sitter. A.C. denied anyone else had ever touched her in the manner Floody did.

At trial, A.C. testified: she knew Floody, he had previously lived at her house, and he slept in the basement in a bedroom close to hers. A.C. identified her "private parts" as being between her legs. She described how Floody touched the inside of her "private parts" with his "pinky finger" and his mouth even though she did not want him to. She further testified: she saw Floody's "private parts"; Floody touched her mouth with his "private parts"; Floody would make her "suck on his private parts" even though she did not want to; when she would "suck on his private parts, white stuff would come out that tasted yucky"; and Floody sucked on her "private parts." Again, A.C. denied that anyone other than Floody had ever touched her private parts. A.C. did not know how many times Floody touched her private parts, but she knew "it happened a lot of times."

Floody testified on his own behalf. He acknowledged he arrived in South Dakota the second week of December and moved into the C. family residence; he had a bedroom in the basement; and A.C. felt very close to him and had told him she loved him. Floody also testified that shortly after William was incarcerated, he was out of state for approximately one week. Floody denied he ever touched A.C. in an improper sexual manner or molested her in any way.

Floody was convicted of two counts of rape in violation of SDCL 22-22-1(4). ³ Floody appeals raising the following issues:

(1) Whether the indictment, by failing to set out the exact dates, times and places of the purported rapes violated Floody's right to due process and right not to be put in double jeopardy.

(2) Whether the trial court in admitting expert testimony regarding child sexual abuse syndrome improperly admitted expert testimony that implied A.C. was telling the truth.

(3) Whether the trial court erred in supplying for the jury during its deliberation the definitions of "fellatio" and "cunnilingus."

(4) Whether the trial court properly admitted certain statements made by A.C. under exceptions to the hearsay rule.

(5) Whether the trial court improperly admitted evidence of Floody's other crimes or bad acts.

(6) Whether statutes permitting an adversarial hearing before an expert is appointed to assist an indigent defendant in his defense violated Floody's right to due process and to equal protection of the law.

We affirm.

I.

Floody contends the indictments on which he stood trial were so vague he could not properly prepare for trial and assert a conviction as a bar to further prosecution. 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. 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).

The indictment under which Floody was charged, included two counts of rape in the first degree in violation of SDCL 22-22-1(4). ⁴ The defense filed a motion for bill of particulars. In its response, the State informed Floody the alleged incidents of rape took place between the first and second week of December 1989 through March 17, 1990. The State also indicated the specific parts of A.C.'s body involved were the mouth and vagina. Floody filed a motion to dismiss alleging the indictment was so vaguely drawn that it violated his right to due process and right not to be placed in double jeopardy, rights secured to him by the fifth and fourteenth amendments of the United States Constitution ⁵ and article VI, sections 2 and 9 of the South Dakota Constitution. ⁶

A. Double Jeopardy.

We addressed the same double jeopardy argument in a similar factual scenario in Wurtz. Wurtz was charged with four separate counts of sexual contact with a child, all alleged to have occurred between December 15, 1986 and March 1, 1987. The Wurtz information merely set forth the dates between which the acts allegedly...