State v. Guzman, 29722-a-PJD

CourtSupreme Court of South Dakota
Writing for the CourtDEVANEY, JUSTICE
Citation2022 S.D. 70
PartiesSTATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. THEODORE GUZMAN, Defendant and Appellant.
Docket Number29722-a-PJD
Decision Date16 November 2022

2022 S.D. 70

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.

THEODORE GUZMAN, Defendant and Appellant.

No. 29722-a-PJD

Supreme Court of South Dakota

November 16, 2022


ARGUED MAY 25, 2022

APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE ROBERT A. MANDEL Judge

CONOR DUFFY of Duffy Law Firm Rapid City, South Dakota Attorneys for defendant and appellant.

MARK VARGO Attorney General, CHELSEA WENZEL Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

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OPINION

DEVANEY, JUSTICE

[¶1.] Theodore Guzman appeals his convictions of first-degree rape and sexual contact stemming from incidents involving two of his children and one of his children's friends. Guzman asserts that the circuit court erred by excluding witness testimony and evidence offered in his case-in-chief; by allowing the State to admit a trial transcript of his testimony from his first trial; by allowing the State to admit other act evidence and expert testimony; and by ordering him to pay certain costs of prosecution. We affirm.

Factual and Procedural Background

[¶2.] Guzman has eight children, including five biological children, two stepchildren, and one adopted child. Only three of the children are relevant to this appeal: N.G., A.G., and L.G. This appeal also concerns N.G.'s friend, A.C. The Guzman family and A.C.'s family had been friends for years, and in the summer of 2017, Guzman, his three children, his girlfriend, and her child lived with A.C.'s family. In November 2017, the timeframe during which Guzman allegedly raped A.C., Guzman was residing in his parents' home with his parents, his sister and her two children, his brother and his brother's partner, two other adult males, and Guzman's three children at issue.

[¶3.] On the November 2017 evening in question, 12-year-old A.C. and her younger siblings stayed the night with N.G. and L.G. at the Guzman home. A.C. explained that on the evening of the sleepover, Guzman allowed her and N.G. to drive his vehicle by taking turns sitting on his lap and steering the vehicle. When Guzman and the girls returned to the Guzman home, he asked A.C. and N.G. to

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help him with the laundry. The laundry room was in the basement. While they were in the laundry room, Guzman asked N.G. to go upstairs and grab something. N.G. complied, leaving Guzman alone with A.C. Guzman then kneeled in front of A.C. and asked her if he could see her private parts. Although she was scared, A.C. replied "no" and "giggled it off."

[¶4.] Later that evening, N.G. slept on the couch in the living room while A.C. and the other children slept on the floor. It was typical for the children, and also Guzman, to sleep in the living room because Guzman's parents, his sister, and an adult male occupied the three upstairs bedrooms. The other adults usually slept in the basement. On the night of A.C.'s rape, Guzman slept in the living room with the children. When Guzman laid down next to A.C., N.G. asked A.C. whether she wanted to sleep on the couch with her. A.C. remained on the floor, explaining there was not enough room on the couch for both her and N.G.

[¶5.] While Guzman was on the floor next to A.C., he showed her photos on his phone of girls' butts and told A.C. not to tell her mom about the photos. A.C. later woke up to Guzman pulling down her pants. A.C. told Guzman to stop, but he proceeded to rub her butt with his penis. A.C. was able to get her pants back up and go back to sleep, but she was awakened two more times by Guzman trying to pull her pants down. While she tried to get away from him the second time, Guzman "bopped" her on her head, and after he finally succeeded in exposing her butt, he inserted his penis. A.C. described how this hurt and "just burned." After being penetrated, A.C. crawled down to the feet area of where the others were

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sleeping and curled up into a ball. She stated that she was crying, and Guzman tried to comfort her by rubbing her back until she fell asleep again.

[¶6.] The following morning, Guzman told A.C. not to tell anyone because his kids needed him. He then drove A.C. and the other children back to A.C.'s house. When they got there, N.G. followed A.C. into her bedroom and said, "I know what's going on. He's doing it to me too." A.C. did not want to discuss the incident and instead acted as though nothing had happened.

[¶7.] A.C. did not immediately disclose the rape because she was scared. In the time that followed the sleepover, A.C.'s parents described her as "kind of angry and standoffish." A couple weeks after the sleepover, A.C. was following her mom around the house and pacing back and forth. At some point, she finally told her mother that she needed to tell her something. A.C. then stated, "Mom, he did it." A.C.'s mom asked her who and what she was referring to, and A.C. told her that Guzman had sex with her. A.C. then began crying. After comforting A.C., her mom called the police and the officer who arrived advised A.C.'s mom not to ask her any more questions. A.C.'s mom then took her to the emergency room to be examined. A.C. tested negative for sexually transmitted infections and was referred to the pediatrics department for a physical examination. On December 11, 2017, Tifanie Petro, a forensic interviewer at the Children's Home Child Advocacy Center, completed an interview with A.C. during which A.C. disclosed the details of what had happened with Guzman.

[¶8.] Following A.C.'s disclosure, Guzman's children were removed from his care by the Department of Social Services (DSS) on December 13, 2017. Guzman's

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nine-year-old son, A.G., was placed in a foster home separate from his sisters, ten-year-old N.G. and eight-year-old L.G., who were placed in a foster home for girls. Given N.G.'s statement to A.C. the morning after A.C.'s rape, Petro conducted a forensic interview with N.G. While N.G. did not disclose any sexual abuse in that interview, around Christmas of 2017, she told her foster mom that Guzman had sexually abused her. N.G. claimed she had lied about the sexual abuse in the first interview because she was scared and thought that her dad would "go away for a long time." Petro interviewed N.G. again on January 5, 2018. This time N.G. disclosed multiple instances of sexual abuse by Guzman.

[¶9.] In describing the abuse, N.G. first related that Guzman had shown her a pornography website on his phone and told her to watch it. N.G. then explained one incident of sexual abuse that occurred when she and Guzman were driving to the store. Guzman had pulled down his pants in the vehicle and placed her hand on his penis, forcing her to stroke it. Another incident occurred while living at Guzman's parents' home. N.G. was lying on her aunt's bed when Guzman entered the room and got into bed with her. Both N.G. and Guzman were under the covers, and N.G.'s back was facing Guzman's stomach. Although N.G. attempted to keep her pants on, Guzman pulled her pants down and began touching her vagina with his penis.[1] While this was occurring, L.G. entered the room to get items out of the closet. Guzman penetrated N.G.'s vagina, causing her to say "ow." L.G. turned to look at N.G., but N.G. remained quiet because Guzman had told her to "shut up"

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and because she did not want L.G. to know what had happened. L.G. then left the room. Guzman later told N.G. that she was "filling in for his girlfriend."

[¶10.] In July 2018, L.G. told her foster mom and N.G. that Guzman had previously raped her. Petro conducted a forensic interview with L.G. during which L.G. disclosed one incident of sexual abuse. L.G. was approximately six years old when the abuse occurred and was living at her aunt's (Guzman's sister's) house with her siblings and Guzman. At this house, the children and Guzman slept in the living room together. One night while L.G. was sleeping next to Guzman with her back facing his stomach, L.G. woke to Guzman putting his penis in her "back spot" which she described as the part used for "pooping." L.G. explained that he put it in and out multiple times. She also explained that she was scared and did not know what to do, but she remembers waking up one of her sisters to go to the bathroom with her and telling her what had happened. L.G. could not recall which sister she spoke to, but she explained that this sister took her back to the other side of the floor where that sister had been sleeping.

[¶11.] Guzman was initially indicted by a Pennington County grand jury in March 2018 on one count of first-degree rape of A.C. In August 2018, the grand jury issued a superseding indictment adding two counts of first-degree rape (one pertaining to acts with N.G. and the other with L.G.) and one count of sexual contact with N.G. Guzman's first jury trial occurred in January 2020. Prior to trial, Guzman filed a motion in limine to preclude the State from eliciting duplicitous evidence. The State acknowledged duplicitous evidence is often an issue in sexual abuse cases due to the repetitive and pervasive nature of the alleged

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abuse that can occur. Upon the circuit court's suggestion, the State drafted a proposed jury instruction that would explain to the jurors that they must unanimously agree on the acts supporting each charge, and in its opening statement, the State referenced only two instances of sexual abuse pertaining to N.G. However, during the trial, N.G. testified to an additional instance of abuse beyond the two instances charged.[2] Guzman objected, raising his concern regarding duplicitous evidence. After a discussion between the court and counsel outside the presence of the jury regarding the nature of N.G.'s testimony, Guzman withdrew his objection, obviating the need for a ruling on the matter. The circuit court did, however, provide the jury a unanimity instruction at the close of trial.

[¶12.] Aside from N.G.'s...

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