State v. Moeller

Decision Date22 May 1996
Docket NumberNo. 18108,18108
Citation1996 SD 60,548 N.W.2d 465
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Donald Eugene MOELLER, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Mark W. Barnett, Atty. Gen., Craig M. Eichstadt, Sherri Sundem Wald, Gary Campbell, Asst. Attys. Gen., Pierre, for plaintiff and appellee.

Michael J. Butler of Butler and Nesson, Sioux Falls, and David R. Gienapp of Arneson, Issenhuth, Gienapp & Blair, Madison, for defendant and appellant.

MILLER, Chief Justice.

¶1 In this appeal, Donald Moeller challenges his conviction of first-degree rape and first-degree murder. He was sentenced to twenty-five years in prison on the rape charge. He received a sentence of death by lethal injection for the murder conviction. 1

¶2 This appeal involves, among other issues, a challenge to South Dakota's death penalty which was reenacted in 1979. As set forth in detail later herein, we uphold the constitutionality of this state's death penalty statutes. We reverse the convictions and remand, because prior bad acts evidence was improperly received into evidence and prevented Moeller from receiving a fair trial.


¶3 Rebecca O'Connell (Becky) was a nine-year-old girl who lived with her mother and stepfather in Sioux Falls, South Dakota. Becky was last seen by her parents on the evening of May 8, 1990, when she left their home to buy candy at a nearby convenience store. Later that night, Becky's mother and stepfather reported to the police that she was missing. The following morning, two men found her body in a wooded area in Lincoln County, South Dakota. An autopsy suggested she had been raped, vaginally and anally, and had sustained knife wounds to her neck, shoulder, chest, back, hip, and hands. A forensic pathologist opined that she died as a result of a cut to the jugular vein of her neck.

¶4 Following an investigation of Becky's death, the State charged Donald Moeller with rape in the first degree, felony murder in the first degree, and premeditated murder in the first degree. The jury convicted Moeller on all three counts. As to the murder convictions, the jury recommended a sentence of death and the trial court entered a warrant of execution. Additional facts will be recited herein as they relate to specific issues.


¶Did the trial court abuse its discretion in admitting "prior bad acts" evidence involving three sexual assaults allegedly committed by Moeller in 1973, 1979, and 1990?

¶6 In this country it is a settled and fundamental principle that persons charged with crimes must be tried for what they allegedly did, not for who they are. United States v. Hodges, 770 F.2d 1475, 1479 (9th Cir.1985). The Ninth Circuit Court of Appeals has observed:

Under our system, an individual may be convicted only for the offense of which he is charged and not for other unrelated criminal acts which he may have committed. Therefore, the guilt or innocence of the accused must be established by evidence relevant to the particular offense being tried, not by showing that defendant has engaged in other acts of wrongdoing.

Id. No matter how vile or despicable a person may appear to be, he or she is entitled to a fair trial. Constitutional provisions clearly provide that individuals may only be convicted for the crimes with which they are charged; they may not be subject to criminal conviction merely because they have a detestable or abhorrent background. Id. Our entire system of justice would deteriorate if we did not jealously protect these constitutional safeguards for all citizens.

¶A. Facts

¶8 The State filed a motion to introduce prior bad acts testimony from three individuals who claimed that Moeller attempted to sexually assault them while threatening them with a knife. Their testimony is summarized as follows.

1973 Incident. Testimony of Carolyn Beshaw: In January 1973, when Carolyn Beshaw was twenty-one years old, she worked at the Speedy Car Wash in Sioux Falls, South Dakota. On the morning of January 3, 1973, Beshaw was on her way to work. She had stopped her car at the stoplight near Axtell Park in Sioux Falls. Beshaw heard a women yell, "Get out, get out of my car." She heard a door slam. Then a man, whom she later identified as Donald Moeller, was pushing on the door handle on the passenger side of her car. Moeller was a stranger to her. He opened the door and slid into her car. He was holding a black-handled folding knife with a three-inch blade. Moeller poked Beshaw's leg with the knife and said, "Go down East Eighth and go straight and keep going." Beshaw complied. Beshaw's car stalled and she and Moeller got out of the car. As he held the knife by her ribs, Beshaw lifted the hood and checked the carburetor. Then she and Moeller got back into the car on the passenger's side. Moeller told her to continue driving straight, which she did. When they came upon a cornfield, he held the knife at her hip and told her to take her pants off. She turned the car off and threw the keys out the window. When she refused to remove her clothes, Moeller said, "If you don't, I'll kill you." Beshaw replied, "You will have to kill me, because I won't do it." When she tried to slip out of the car, he grabbed her, held the knife to her neck, and said, "Do it or I'll kill you." She responded, "You'll have to kill me because I ain't going to do it for you or anybody else." Shaking, Moeller just sat and stared. He folded the knife and put it in his pocket. He proceeded to tell Beshaw about his life. She retrieved her keys and told Moeller to get out of her car. Moeller told her to get in the car and pointed at the knife in his pocket. He told her to drive to work, so she drove to the Speedy Car Wash. He instructed her to tell her boss she had had a flat tire. He warned Beshaw that she could look over her shoulder and see him or he could be in the back seat of her car. He walked up the road, saying he was headed to a friend's house. Beshaw told her boss she had had a flat tire. Then, forty-five minutes later, she told him about the man with the knife.

1979 Incident. Testimony of Kenneth Moore: In 1979, Moeller lived next door to Kenneth Moore, then age thirteen, in a trailer park in Wright, Wyoming. Moore had waved at Moeller a few times on his way to school. On February 10, 1979, Moore noticed Moeller outside working on his car. Moore was interested in car mechanics, and he and Moeller struck up a conversation. Moeller invited Moore into his trailer, where they talked and played cards. Moore's father gave him permission to eat dinner at Moeller's home. Moore noticed a black buck knife lying on the table in Moeller's kitchen. When Moore began to open the knife, Moeller told him not to play with it because it was very sharp. He demonstrated by slicing through paper with the knife. After dinner, Moeller gave Moore two glasses of wine. Then Moeller made a $100 bet that Moore could not drink five glasses of wine in two minutes. Moore did, but Moeller did not pay him the money. Moeller then offered to take him to Gillette, Wyoming, where he could help Moeller repair a car. Moeller insisted that Moore receive written permission from his father. Moore's father came to Moeller's trailer with a note, giving his son permission to take the trip. Moore's father returned to his trailer. Moore and Moeller resumed playing cards. When Moore complained of the heat in the trailer, Moeller let him use his robe. Moore removed all his clothes, except for his underwear, and put on the robe. Moeller instructed Moore to place a jar of Vaseline on the nightstand in Moeller's bedroom, stating he would explain the need for the Vaseline later. Then Moeller asked Moore if he had ever ejaculated, and Moore replied that he had not. Moeller offered to bet Moore $50 that he could not ejaculate. Moore refused the bet. Moeller then bet him $50 that he could not escape if Moeller tied his hands behind his back. Moeller tied Moore's hands behind his back and placed a dog chain around his neck, while Moore knelt on the bed. Once Moore was tied, Moeller said, "I want to have sex with you." Moore refused and Moeller stuck the buck knife to Moore's throat and said, "You either have a choice, you can do oral sex with me or let me make --- have sex with you through your rear end or I'll kill you." Moore asked Moeller to remove the dog chain so he could breathe. Moeller laid his knife down and removed the dog chain from Moore's neck. Moore then jumped off the bed and ran for the front door. Moeller grabbed the knife and made a cut two inches long and a quarter inch deep in Moore's leg. As Moore struggled to open the door, Moeller approached with the knife. Moore slammed against the door and fell into the snow. Moeller grabbed Moore's waist and legs, but Moore escaped into his trailer. Moore told his father, "That son-of-a-bitch tried to kill me."

1990 Incident. Testimony of Tracy Warner: In November or December of 1989, Tracy Warner met Moeller when he gave an acquaintance of hers a ride to Warner's home. She did not see Moeller again until January 20, 1990. At around 10:00 p.m. on that date, Warner heard a knock at her door. After yelling, "Come in," she turned to see Moeller inside her door. She remembered Moeller's face but could not remember his name. Moeller sat down and asked if Warner liked to go out, drink or dance. She replied, "No." Moeller asked if he could come back another time, and she told him he could, as long as he only wanted to watch television. At around 11:00 p.m. that same night, Warner heard a tap on the door and then someone entered. It was Moeller. He asked if he could watch television with her, and she said it was okay. Moeller had brought a bottle of Jack Daniels whiskey with him and handed a soft drink to Warner. He walked out of the living room towards the kitchen, then returned to the living room with a knife. It was a folding knife, with a three and a half inch...

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