State v. Manning

• Decision Date: 01 February 2023
• Docket Number: 29933-a-JMK
• Citation: 2023 S.D. 7
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. JERREN DONALD MANNING, Defendant and Appellant.
• Court: South Dakota Supreme Court

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2023 S.D. 7

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. JERREN DONALD MANNING, Defendant and Appellant.

No. 29933-a-JMK

Supreme Court of South Dakota

February 1, 2023

CONSIDERED ON BRIEFS OCTOBER 3, 2022

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN COUNTY, SOUTH DAKOTA THE HONORABLE GREGG C. MAGERA Judge

THOMAS J. COGLEY Aberdeen, South Dakota Attorney for defendant and appellant.

MARTY J. JACKLEY Attorney General PAUL S. SWEDLUND Solicitor General Pierre, South Dakota Attorneys for plaintiff and appellee.

KERN Justice

[¶1.] In May 2019, a jury found Jerren Manning guilty of two counts of first- degree rape and two counts of sexual contact with a child under the age of sixteen. The court sentenced Manning only on the rape convictions, imposing two consecutive sixty-year terms in the state penitentiary. Manning appeals raising multiple issues including that there was insufficient evidence to support his convictions, that the submission of the sexual contact charges to the jury violated the prohibition against double jeopardy, that the court allowed improper bolstering of witnesses, that the courtroom was improperly closed to the public during voir dire, and that he was denied effective assistance of counsel. Further, Manning claims that his sentence is cruel and unusual in violation of the Eighth Amendment and constitutes an abuse of discretion. We affirm.

Facts and Procedural History

[¶2.] In 2017, Jeremy and Amanda Ahoe lived in Aberdeen along with their three children, A.A. age eight, B.A. age six, and S.A age three. Jeremy owned a construction and rental company and Amanda worked as a certified nursing assistant. Manning who was married with one child, also lived and worked in Aberdeen. Jeremy and Manning were close friends, with Jeremy serving as the best man in Manning's wedding. Manning would often pick up A.A. and B.A. after school and babysit all three children at the Ahoe home for a few hours until one of their parents got home from work or Manning had to leave for work. At times, Manning watched the children up to four days a week.

[¶3.] On multiple occasions, Jeremy would come home after work and find Manning alone with B.A. in her upstairs bedroom while his other two daughters were in different parts of the house. In the fall of 2018, Jeremy came home from work early one day and discovered that the door to his office, located on the main floor of their home, was closed. He opened the door and found B.A. and Manning alone in the office. Although he was suspicious, Jeremy did not immediately confront Manning about the situation, but instead returned to work.

[¶4.] Later that evening, Jeremy asked B.A. about being alone in the office with Manning. B.A. eventually disclosed to both her parents that Manning had touched her, but she did not describe the extent of the touching. Amanda stated that B.A. was "sad and overwhelmed" when she talked about what happened. Jeremy and Amanda debated back and forth about what to do with this information and decided not to call law enforcement. Amanda, however, did call the school and inform them that Manning was no longer permitted to pick up the children.

[¶5.] On the afternoon of October 4, 2018, Officer Jordan Mejeske of the Aberdeen Police Department was contacted by the principal of the Ahoe girls' elementary school, who informed him that a student had reported a possible sexual assault of her sister. Officer Mejeske went to the school and talked to the principal, the school counselor, and the reporting student's teacher, but did not meet with either A.A. or B.A. He then contacted the Central South Dakota Child Assessment Center (CAC) to set up a forensic interview for B.A. He also contacted Amanda and told her that law enforcement would be investigating the report and that she should not discuss the situation with the children.

[¶6.] B.A. was interviewed and examined on October 11, 2018, at the CAC by Angela Lisburg, a family nurse practitioner. During the interview, B.A. stated that Manning had touched her more than one time. B.A. explained that sometimes Manning would do the touching upstairs at their house, and sometimes downstairs in her dad's office. B.A. said that Manning would touch her with his private part, that sometimes it would go in her bottom, and that Manning put his private part in her bottom more than one time. She stated that Manning would pull her clothes "half down" when he put his private part in her bottom. Lisburg asked B.A. how it felt when Manning's private part was in her bottom, to which she replied, "Not that really bad, but it does hurt." According to B.A., Manning would be on his knees and B.A. would sometimes be laying down on her back and sometimes on her stomach. She said that sometimes she was on her tummy on the chair in the office and Manning would give her his phone so that she could play a game. While she was on the phone, he would put his private part in her bottom.

[¶7.] B.A. stated that there was one time her daddy "noticed" that she was alone in the office with Manning. That time, she was in the office laying down on her back with the door to the office closed. Her dad came into the house, so she had to pull her pants up and Manning put his private part back in his pants before her dad came into the office. Lisburg asked B.A. if Manning or her dad said anything, and B.A. replied "no."

[¶8.] Lisburg also asked B.A. about the touching that happened upstairs, and B.A. stated that "it's the same thing" as happened downstairs. B.A. explained that the touching upstairs would occur in her bedroom on the bed and that it happened more than one time. B.A. described lying on her back on the bed, with Manning kneeling on the floor. Later in the interview, B.A. indicated that Manning would tell her to "lay down and lift yourself up." When later asked to clarify this, B.A. said "I would be lifting my legs up and he would tell me to put them on his shoulder."

[¶9.] B.A. recounted that on one occasion she was upstairs looking for a battery when Manning came into the room and told her to come lie down on her bed. She told him no. Lisburg asked B.A. to describe this incident in more detail. B.A. said that Manning picked her up and told her that if she did not lie down he would not come over again. She said she was scared because he said it in a mean voice. She said that her sister was coming upstairs, and she pulled her pants up. When asked to clarify what Manning did in the bedroom, she said he "did the same thing as he does every single time."

[¶10.] Lisburg asked B.A. if anything ever came out of Manning's private part, and B.A. responded that white stuff would come out and go on Manning's hands. He would have to wash his hands a lot to get it off. Sometimes it would spill on the ground next to the chair in the office and Manning would use a baby wipe to clean it up. He would then flush the baby wipe down the toilet. Lisburg asked B.A. to describe what Manning's body would be doing when his private part was in her bottom. B.A. responded that it would be "going forward." B.A. also stated that sometimes Manning would tell her not to tell her dad.

[¶11.] After the interview, several items of physical evidence and samples believed to contain potential DNA evidence were collected from the Ahoe home. Investigators swabbed both the office chair and floor in Jeremy's office and sent the samples to the state laboratory in Pierre for testing.

[¶12.] A Brown County grand jury indicted Manning specifying the type of crime and location of the offenses to wit: Count 1-first-degree rape in violation of SDCL 22-22-1(1) (anal penetration/office); Count 2-first-degree rape in violation of SDCL 22-22-1(1) (anal penetration/ bedroom); Count 3-sexual contact with a child under the age of sixteen in violation of SDCL 22-22-7 (penis to buttocks/office); Count 4-sexual contact with a child under the age of sixteen in violation of SDCL 22-22-7 (penis to buttocks/bedroom).

[¶13.] A two-day jury trial began on May 22, 2019. After opening statements^[*], the State called Officer Majeske, Kristina Dreckman (a forensic scientist from Pierre), Amanda, Jeremy, A.A., B.A., and Lisburg. Manning called his ex-wife and testified on his own behalf.

[¶14.] Amanda testified about Manning's willingness to babysit the girls, stating that he once offered to watch them overnight. The offer arose after Manning heard that she and Jeremy wanted to attend a concert in Sioux Falls. Although Manning offered to stay overnight with the girls, Amanda testified that she was not comfortable leaving them with a male for this length of time. After they had decided not to go because they did not have a babysitter, Manning kept "pushing the idea of babysitting them." He even told Amanda that he thought about buying the tickets for them so that they could attend.

[¶15.] Amanda also testified that on one occasion Manning came over to help her clean the house, something he had never done before. He told her that he felt obligated to help her because he had stayed at their home after he and his wife had an argument. Amanda relayed that Manning cleaned the kitchen and was scrubbing the floors when she left for work that day. The children later told her that Manning cleaned the office as well. Amanda testified that she found rugs from the office hanging outside after they had apparently been hosed down.

[¶16.] Jeremy testified about the times he had found B.A. and Manning alone in the office and bedroom together. Regarding the occasion where he found Manning alone with B.A. in the office, he testified that when he opened the door B.A. ran to the other side of the room, prompting him to ask Manning "what's going on?" to which Manning "didn't really reply." ...