State v. Jackson
| Decision Date | 16 September 2020 |
| Docket Number | #28800 |
| Citation | 949 N.W.2d 395 |
| Court | South Dakota Supreme Court |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Roger L. JACKSON, Defendant and Appellant. |
JASON R. RAVNSBORG, Attorney General, SARAH L. LARSON, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
ALECIA E. FULLER of Pennington County Public Defender's Office, Rapid City, South Dakota, Attorneys for defendant and appellant.
[¶1.] A jury found Roger Jackson guilty of third-degree rape in violation of SDCL 22-22-1(3), which makes it a crime for any person to sexually penetrate a victim incapable of giving consent because of physical or mental incapacity. Jackson appeals, contending that the State violated his right to due process by failing to interview the victim. He further asserts that the circuit court erred in determining that knowledge is not an element of the offense and abused its discretion in restricting his expert's testimony and in denying his motion for a continuance. We affirm.
[¶2.] In 2012, K.S. was diagnosed with Benson's Syndrome, a rare form of dementia
that affects her verbal, visual, and motor skills. K.S. was 52 years old at the time. She and her husband, Mark, have three adult children. Not long after her diagnosis, K.S.’s disease progressed to the point that she could not safely continue living at home. Her family then decided she needed the additional care that could be provided at Holiday Hills, an assisted living center. K.S. lived at Holiday Hills for approximately three years until her disease worsened. She had lost the ability to control her body, would lose her balance, and needed assistance with eating, getting dressed, and going to the bathroom. K.S. also struggled to control her bodily functions and had to wear an adult diaper.
[¶3.] In October 2016, K.S.’s family moved her to Bella Vista, a 24-hour care facility for people with dementia. Upon her arrival, Dr. Priscilla Bade, Bella Vista's medical director, evaluated K.S. This evaluation occurred less than one month before the charged offense. Dr. Bade testified that during the evaluation, K.S. answered questions but she "had some difficulty finding the right words." K.S. needed step-by-step verbal cues and help with eating. Further, she had trouble understanding what she was seeing and had issues with incontinence and falling. Dr. Bade ordered that K.S. receive rehabilitative therapies (occupational, speech, and physical) to help her learn to do things for herself as best as she could.
[¶4.] Shortly after K.S. began residing at Bella Vista, her family noticed that a man named Roger Jackson would visit her. Jackson later explained that he had met K.S. at Holiday Hills when he and his friends were at the facility to play music for the residents. Jackson related that K.S. enjoyed the music and the two danced, and that after she moved to Bella Vista, he would play music for her and read her the Bible. He also brought her small gifts. While K.S.’s family allowed Jackson to visit her, Mark was suspicious of Jackson's intentions. Mark had a conversation with Jackson at Bella Vista in which he explained K.S.’s condition and told Jackson that he "can visit and play music and that is it." Mark also explicitly told Jackson that he could never take her out of the facility and informed staff at Bella Vista of this directive.
[¶5.] Mark and Kaia, K.S.’s daughter, visited K.S. regularly at Bella Vista, although both testified that she did not always recognize them. Usually, Kaia and Mark would not leave town at the same time so that at least one person would be available for K.S. However, they were both scheduled to be out of town the weekend of November 18, 2016. Kaia testified that during a visit with her mother prior to leaving town, Jackson was there and asked her if he could take K.S. on an outing over the weekend to get her hair done. Kaia informed him that only family members are allowed to take K.S. outside the facility.
[¶6.] Despite Kaia's directive, Jackson took K.S. out of Bella Vista on November 18. Bella Vista nurse, Stacy Kilber, later explained that she was unaware that K.S. had left the facility with Jackson because Jackson left with her when Kilber and the aides were tending to another resident. When she realized that K.S. was not in her room and could not be located, Kilber called one of the facility's alert codes, and staff members began looking for K.S. While they were searching, Jackson and K.S. walked into the facility. They had been gone for approximately two hours. After K.S. was returned to her room, Heather Anderson, the director of nursing, instructed staff to assess her from head to toe.
[¶7.] During the assessment, Bella Vista staff found what appeared to be discharge in K.S.’s adult diaper. Nurse Kilber also asked her questions, such as: "Are you safe?"; "Do you feel okay?"; and "Are you having any pain right now?" Kilber later testified that she did not believe K.S. understood why she was being examined. Kilber explained that while K.S. could communicate, "she wasn't answering the questions that related to what [Kilber] was asking." Nonetheless, when Kilber asked K.S. where she had been, K.S. responded, Kilber also related that she specifically asked K.S. if she had engaged in any sexual contact and K.S. responded, "I don't think I would do that." Staff collected K.S.’s clothing, and Kilber documented her examination of K.S., including her answers to Kilber's questions.
[¶8.] Meanwhile, Kaia received a call from law enforcement advising her that her mother had been located. Because she was not aware that her mother had been missing, Kaia contacted her father. They soon found out from staff at Bella Vista that K.S. had left the facility with Jackson, and that upon her return, a nurse found discharge in K.S.’s undergarment.
[¶9.] Kaia used to work as a police officer for the Rapid City Police Department. On November 19, 2016, the day after Jackson's outing with K.S., she contacted Sergeant Asscherick to explain what had occurred with her mother. Sergeant Asscherick assigned Officer Chad Strobel to report to Bella Vista with his training officer, Officer Daniel Anderson. Officer Anderson and Kaia were friends and Anderson had met K.S. before, so he knew a little bit about K.S.’s mental state. Kaia provided information about Jackson and K.S.’s relationship to Officer Anderson by phone while the officers were en route to Bella Vista.
[¶10.] While at Bella Vista, neither of the officers asked K.S. any questions, but Officer Strobel spoke to staff members and obtained additional information regarding K.S. He testified that he understood K.S. would undergo a sexual assault examination at the hospital where additional information would be gathered.
[¶11.] Later that same day, the Bella Vista nursing director took K.S. to the hospital emergency room to complete a sexual assault examination. Kaia, as K.S.’s power of attorney, provided consent for K.S. to undergo the examination and also provided limited information to hospital staff regarding K.S.’s disease and the reason for the examination. Nicole Weyer, a trained nurse and member of the sexual assault response team, performed the examination. She explained that she began by asking K.S. demographic-type questions. According to Weyer, K.S. answered some of the preliminary questions, but when asked questions concerning the assault, she was unable to answer so Weyer marked "unsure" for these responses. During the physical examination of K.S., Weyer observed redness on the inner sides of her vagina.
[¶12.] Dr. Bade also assessed K.S. on November 19 at Bella Vista. Dr. Bade related that while K.S. could not give any details about the outing, she smiled and said that she had fun. However, Dr. Bade explained that K.S.’s communication was disjointed.
[¶13.] Investigator Mischelle Boal was assigned to the case on November 21, 2016. Although she did not interview K.S., she spoke with Kaia and Mark. She also interviewed Jackson, who at the time was 70 years old. Jackson described how he knows K.S. and claimed that K.S. considers him to be her boyfriend, even though she is married. He denied that the two had an intimate relationship, explaining that he is impotent. Jackson agreed that he was told by the family not to take K.S. out of the facility, but explained that he took her out anyway because she wanted to get some fresh air. Jackson related that he took K.S. for a drive around a local park and then into the hills, and that they also walked around downtown. He denied having any sexual contact with K.S. and claimed that he would never take advantage of her. Jackson told Investigator Boal that he "feel[s] for her" because she is "[i]n a nursing home and doesn't understand." He agreed to provide a DNA sample.
[¶14.] Investigator Boal met with Jackson again in February 2017 after receiving the DNA test results. She informed him that seminal fluid had been found in K.S.’s undergarment and that the DNA testing showed that K.S.’s husband could be excluded as the source of the fluid, but Jackson could not. Initially, Jackson had no explanation for how his seminal fluid got into K.S.’s undergarment, but then stated that while they were dancing in her room, K.S. initiated a sexual encounter. According to Jackson, K.S. took her clothes off and went into the bathroom, where he followed and "tried to make love to" her. Jackson stated that he tried to put his penis inside K.S.’s vagina, but "didn't think anything happened" because he is impotent.
He further admitted that he put his fingers inside her vagina and that he stopped because he "heard something down the hallway[.]" Jackson explained that K.S. then put her Depends underwear back on, and after that, he took...
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