State v. McDermott, 29874-a-PJD

CourtSupreme Court of South Dakota
Writing for the CourtDEVANEY, JUSTICE
Citation2022 S.D. 69
PartiesSTATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. BENJAMIN MCDERMOTT, Defendant and Appellant.
Docket Number29874-a-PJD
Decision Date16 November 2022

2022 S.D. 69

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.

BENJAMIN MCDERMOTT, Defendant and Appellant.

No. 29874-a-PJD

Supreme Court of South Dakota

November 16, 2022


CONSIDERED ON BRIEFS OCTOBER 3, 2022

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT CLAY COUNTY, SOUTH DAKOTA THE HONORABLE TAMI BERN Judge

NICOLE J. LAUGHLIN Sioux Falls, South Dakota Attorney for defendant and appellant.

MARK VARGO Attorney General

JACOB R. DEMPSEY Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

OPINION

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DEVANEY, JUSTICE

[¶1.] Defendant appeals his jury conviction of third-degree rape. He contends that the evidence was insufficient to sustain the conviction because "[t]he DNA evidence raised significant doubt that penetration could have occurred." He thus requests that this Court reverse the circuit court's denial of his motion for judgment of acquittal. Because there is sufficient evidence in the record, including the testimony from the victim and the doctor that examined her after the rape, we affirm.

Factual and Procedural Background

[¶2.] On October 29, 2020, J.O. and her sister decided to go to a bar in downtown Vermillion. At the time, they were living in separate, but adjacent, dormitories at the University of South Dakota. Their respective roommates decided to join them, and they traveled together to the Charcoal Lounge. Shortly after arriving, J.O.'s sister decided to leave because she did not feel well. She told the girls to call her when they needed a ride home. While at the bar, J.O. consumed a number of alcoholic beverages, and when the bar closed at 2:00 a.m., J.O. called her sister for a ride home.

[¶3.] After being picked up by J.O.'s sister, the girls decided to get food via the drive-through at McDonald's. A white pickup was ahead of their vehicle in the drive-through line, and one of the girls recognized the male occupants from talking to them outside the bar. Benjamin McDermott and his friend Cory were in the bed of the pickup. They had come from Sioux City to visit a group of friends at an apartment in Vermillion and ended up at the Charcoal Lounge at the same time as

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J.O. and her friends. While one of the girls was talking to other occupants in the pickup, McDermott and Cory got out, walked to the girls' car, and began talking to them. When the vehicles in the drive-through line began moving, J.O.'s sister told the boys to either move out of the way or get into her vehicle. They both climbed into the backseat of the car. McDermott sat next to J.O., and they began flirting. According to J.O., McDermott repeatedly commented that the two of them were on a date. He shared his McDonald's order with her, and she reciprocated by feeding him fries.

[¶4.] While McDermott and Cory were inside the girls' vehicle, the white pickup left without them. The boys, having lost their ride, indicated that they needed a place to spend the night, and J.O. and her roommate invited them to sleep in their dorm room. J.O.'s sister dropped J.O., her roommate, and the boys off, and after they entered the dorm room, the group began to get ready for bed. J.O. changed into a t-shirt and shorts, telling the boys not to look while she changed. The dorm room had a set of bunkbeds and a futon alongside the bottom bunk. J.O. opened the futon into a bed position where Cory slept. She testified that she asked McDermott to sleep on the futon with Cory, or on the floor, but he kept saying that he would sleep in the bed with her. After he kept asking, J.O. agreed to let him sleep in her bed. Before McDermott climbed into bed with J.O., he took off his shirt and pants but left on his boxers. McDermott turned off the dorm room lights, and J.O. turned on a fan.

[¶5.] The group did not fall asleep right away. J.O.'s roommate was on her phone texting her boyfriend, and Cory was on his phone browsing social media.

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They both testified that the fan was loud, and they did not hear anything happening. At some point, McDermott kissed J.O. She testified that she was okay with him kissing her and that she kissed him back. They continued kissing, and McDermott put his hands on her stomach and then moved his hands underneath her clothes. When he tried to move his hand lower, she told him no and that she "had a tampon in." She testified that he did not stop right away, but after she turned and faced the wall and told him she wanted to go to sleep, he stopped touching her. J.O. eventually fell asleep.

[¶6.] The next thing J.O. remembered was waking up with McDermott's penis inside her vagina. She was lying on her left side and he was lying on his left side behind her with his body against her. Her shirt was lifted, and her shorts and underwear were around her thighs. She was scared and confused and wanted it to stop. She told McDermott to stop, but she did not recall if he said anything to her in response. She then felt him kissing her neck, and while he was doing so, he gave her a hickey. She explained that she rolled onto her back so that he would stop. He then grabbed her hand and placed it on his penis and moved her hand up and down. She pulled her hand away. During all of this, she was telling him to stop. He finally did.

[¶7.] J.O. testified that after lying in the bed awake trying to forget about what had happened, she realized she could not, so she grabbed her phone, quietly got out of bed, and went to the bathroom. While in the bathroom, she could not locate her tampon inside her vagina and did not know if it had been taken out or if it was still inside of her. J.O. then called her sister and told her that she had been

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raped. Her sister told her to come to her room in the adjacent dormitory. By this time, it was approximately 4:30 a.m. From there, the two contacted the University Police Department, who then contacted law enforcement.

[¶8.] Detective Robin Hower responded, and after obtaining information from J.O. about the incident, he directed J.O. to go to the hospital for a sexual assault examination. During the exam, hospital staff interviewed her and collected oral, vaginal-cervical, and anal swabs. They also swabbed the hickey on her neck and collected her underwear for testing. During the examination, Dr. Ray Mortinsen observed that J.O.'s tampon was shoved, along with its attached string, against her cervix at the end of the vaginal canal. He had to use forceps to remove it. The tampon and her clothing were collected as evidence, and the swabs were sent to the State Forensic Laboratory for DNA testing.

[¶9.] While J.O. was at the hospital, Detective Hower, Sergeant Armando Barash, and Bryant Jackson from the University Police Department went to J.O.'s dorm room. They entered the room and found Cory asleep on the futon and McDermott asleep on the bottom bunk. They observed that Cory was fully clothed, and McDermott was topless with a bedsheet over his lower half. They woke the boys and told them to get dressed while the officers waited outside. Cory came out of the room first, and because it took a while for McDermott to come out, Detective Hower reentered. He told McDermott that a sexual assault had been reported against him. McDermott later claimed that he was startled and confused by the accusation.

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[¶10.] Jackson first interviewed McDermott, and when he began questioning him about the previous evening's events, McDermott asked to use the bathroom. Because of the nature of the accusation, Jackson requested to see McDermott's genitals before he used the bathroom. McDermott consented, and Jackson did not see anything out of the ordinary during his inspection. After Detective Hower searched the dorm room, he interviewed McDermott. McDermott denied having sex with J.O.; however, he admitted that he had rubbed J.O.'s vaginal area. He claimed that he stopped when she said she was menstruating. He consented to a penile swab, and Detective Hower collected two swabs and had them sent to the State Forensic Laboratory for DNA testing.

[¶11.] On December 15, 2020,...

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