State v. Fowler, 19144

• Decision Date: 22 May 1996
• Docket Number: No. 19144,19144
• Citation: 1996 SD 78,552 N.W.2d 92
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Randy Alan FOWLER, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 92

552 N.W.2d 92

1996 SD 78

STATE of South Dakota, Plaintiff and Appellee, v. Randy Alan FOWLER, Defendant and Appellant.

No. 19144.

Supreme Court of South Dakota.

Considered on Briefs May 22, 1996.

Decided June 26, 1996.

Mark Barnett, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, for plaintiff and appellee.

Phillip O. Peterson of Frieberg, Rudolph & Peterson, Beresford, for defendant and appellant.

GILBERTSON, Justice.

¶1 Randy Fowler appeals from a judgment of conviction of rape in the second degree. We affirm.

FACTS AND PROCEDURE

¶2 On June 8, 1991, Randy Fowler, a twenty-three-year old, uniformed police officer for North Sioux City, South Dakota, responded to a complaint of a loud party and disturbance at the Joan Doe ¹ residence. Mrs. Doe was hosting a going-away party for her daughter Jane, aged seventeen and a recent high school graduate, before Jane left for Air Force basic training. Jane had pre-enlisted the previous year. Three other North Sioux City police officers were also called to the scene where they discovered approximately 60 persons present. A large number of these persons, including Jane, were drinking alcohol, despite apparently being underage. Several arguments and fights had started between some persons at the party. Fowler directed his attention toward Jane and her friend, talking to the two girls while Scott Price, the chief of police, visited with Mrs. Doe. The officers dispersed the party-goers, advising them against drinking and driving, and no arrests were made.

¶3 Following this call to the Does', Chief Price directed the officers to return to the station where he warned them against any type of fraternization while on duty. At the conclusion of his warning, Price looked at Fowler and pointed his finger at him.

¶4 Later that same evening, in response to a second complaint, Fowler returned to the Doe residence. Jane was emotionally distraught when he arrived. Fowler and Jane entered his patrol car to talk, ostensibly for the purpose of Fowler calming Jane down. When Fowler returned to his patrol, Jane accompanied him in the patrol car. Fowler parked near a water utility building and the two continued to talk for approximately two hours about Jane's entering the military and her future plans. Fowler had been in the military and advised Jane as to what she could expect in basic training. When Fowler's shift ended at 2 a.m., he dropped Jane off at an elementary school parking lot while he returned to the station to exchange the patrol car for his personal vehicle and end his shift. Fowler had told Jane he would take her home. When Fowler returned, instead of driving Jane home, he drove to a gravel road near the edge of town and parked his vehicle. At this point, the facts are in dispute.

¶5 Fowler claimed the two enjoyed consensual sexual intercourse and Jane offered a very different version of the facts. Jane maintained Fowler told her he could keep her from entering the military by informing about her drinking that evening. Jane further maintained Fowler told her he would not do so if she submitted to sexual intercourse with him. When Jane refused, Fowler began rubbing her leg and pulled his pants down. He then grabbed her head and pushed it between his legs, forcing her to perform oral sex on him. Jane stated this lasted "a couple seconds." Fowler then removed his pants and moved to the passenger side of the car where Jane was sitting and raped her vaginally. Jane reported he held her arms down while she cried. Fowler then drove Jane home.

¶6 Jane did not tell anyone about the rape at that time. Two days later, Mrs. Doe took Jane to the Sioux City, Iowa bus station where Jane boarded a bus to Sioux Falls to leave for basic training. Fowler arrived at the bus station with his ex-girlfriend in his car. As he approached the station, Jane told her mother to keep him away from her. Within ten or fifteen minutes, Jane left on the bus. During that time Jane kept her distance from Fowler. Fowler claimed Jane's mother stayed in her car at this time while he and Jane said their good-byes and kissed.

¶7 At the Sioux Falls airport on June 11, a group of Jane's friends arrived to say good-bye. Fowler procured a ride to Sioux Falls with two of Jane's friends and Mrs. Doe, stating Jane wanted him to be at the airport. Fowler presented Jane with a rose at the airport, which she accepted without speaking, and then turned and walked away. Fowler claimed the two kissed and cried while the others walked on ahead. On the way home from Sioux Falls, Jane's friends, Mrs. Doe, and Fowler stopped at a fast-food restaurant. While in the restaurant, with the others in the restroom, Fowler told Jane's friend that he and Jane had been intimate. Fowler had also told other police officers that the two would be dating, boasting that "she was really good" and "had no tan lines."

¶8 After Jane left for basic training, Fowler frequently arrived at Mrs. Doe's doorstep, in uniform and with his patrol car, or would call on the telephone, asking for Jane's address. Within a few days, Mrs. Doe, annoyed at the unwelcome attention and suspicious that something had occurred between Jane and Fowler, contacted Chief Price who agreed to speak with Fowler. Within two weeks, Jane was permitted to call home from basic training. By this time, Mrs. Doe had spoken with Jane's friend and Mrs. Doe told her daughter that Fowler had claimed he had engaged in sexual relations with Jane. At that point, Jane told her mother to press charges and she would give her the details later. Mrs. Doe went to the station to press charges, but testified the matter progressed no further. Shortly thereafter, Mrs. Doe learned that Fowler was no longer with the North Sioux City police force.

¶9 In June 1994, Fowler was charged with second-degree rape of Jane Doe. He was brought to trial on a charge of violating SDCL 22-22-1(2). The trial was moved to Mitchell on a change of venue motion by Fowler. Following a two-day jury trial in January 1995, Fowler was found guilty as charged by unanimous verdict. On March 13, 1995, Fowler was sentenced to twenty years in the state penitentiary. See State v. Fowler, 1996 SD 79, 552 N.W.2d 391.

¶10 Fowler appeals his conviction raising the following two issues:

1. Whether the trial court improperly admitted Fowler's employment and educational history for purposes of impeachment?

2. Whether Fowler's due process rights were violated by the State's suppression of evidence and the trial court's permitting testimony from evidence not properly disclosed to Fowler?

ANALYSIS AND DECISION

¶11 1. Whether the trial court improperly admitted Fowler's

employment and educational history for purposes of

impeachment?

¶12 Fowler claims the trial court improperly admitted evidence of his educational and employment history in that such evidence was irrelevant to the rape trial. Fowler further claims such evidence was improperly admitted as character evidence. The decision to admit evidence into trial is within the discretion of the trial court. We review such decisions under an abuse of discretion standard of review. State v. White, 538 N.W.2d 237, 242 (S.D.1995). " 'An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.' In applying the abuse of discretion standard, 'we do not determine whether we would have made a like decision, only whether a judicial mind, considering the law and the facts, could have reached a similar decision.' " State v. Wilkins, 536 N.W.2d 97, 99 (S.D.1995) (citations omitted).

¶13 Fowler took the witness stand in his own defense at trial. On direct examination, Fowler briefly stated his educational and employment history. Fowler stated he had received an associate degree in police science technology from Western Iowa Tech and had attended three years of undergraduate college. Fowler also stated he worked while attending college and had held positions as a North Sioux City police officer and an East Central Drug Task Force undercover agent. Fowler was questioned as to when he held both of these positions. On cross-examination, the prosecution went through Fowler's educational and employment history with him, from a resume prepared by Fowler for employment purposes and from Fowler's employment application to the North Sioux City police force. This questioning produced inconsistencies between Fowler's direct testimony and the written documents.

¶14 During cross-examination on this subject, Fowler's attorney objected to questions regarding Fowler's leaving a military history question blank on his employment application to the police force. Fowler admitted on cross-examination that he had served eight months in the United States Marine Corps before being given a general discharge, which was changed several years later to an honorable discharge. Fowler's attorney objected on grounds that the inquiry was beyond the scope of direct examination. The trial court overruled this objection. When the State offered the application form as an exhibit, Fowler's attorney objected on grounds of relevancy. The trial court denied admission of the application form, stating the court need not be overburdened with exhibits and that the State had its questions and answers on the record.

¶15 Following additional questioning regarding Fowler's educational and employment history, the State offered Fowler's prepared resume as an exhibit. Fowler had had difficulty recalling jobs he had held and when he had held them. Fowler's attorney objected on grounds of relevancy. The State explained Fowler's resume was offered for impeachment purposes in that it contained information contrary to Fowler's testimony. The resume was received into evidence.

¶16 Although Fowler claims on appeal this evidence was improperly admitted as character evidence under SDCL 19-14-10, this issue was not raised either as grounds for...