State v. Moran

• Decision Date: 05 February 2003
• Docket Number: No. 22188.,22188.
• Citation: 657 N.W.2d 319,2003 SD 14
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Douglas Q. MORAN, Jr., Defendant and Appellant.
• Court: South Dakota Supreme Court

657 N.W.2d 319

2003 SD 14

STATE of South Dakota, Plaintiff and Appellee, v. Douglas Q. MORAN, Jr., Defendant and Appellant.

No. 22188.

Supreme Court of South Dakota.

Considered on Briefs November 18, 2002.

Decided February 5, 2003.

Rehearing Denied March 10, 2003.

Lawrence E. Long, Attorney General, Ann C. Meyer, Assistant Attorney General Pierre, South Dakota, Attorneys for plaintiff and appellee.

Terry L. Pechota of Viken, Viken, Pechota, Leach & Dewell, LLP, Rapid City, South Dakota, Attorneys for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] Defendant Douglas Q. Moran, Jr. (Moran) appeals from his conviction of Rape in the Second Degree and Aggravated Assault. We affirm.

FACTS AND PROCEDURE

[¶ 2.] The following version of the facts is what T.B., the victim in this case, testified to at trial. On April 5, 2001, T.B. was visiting friends and drinking beer at Moran's residence in Mission, South Dakota. After Moran and his wife began arguing, T.B. decided to leave the house. As T.B. reached her car, Moran suddenly approached her from behind and pushed her away from the driver's seat. After Moran took T.B.'s keys and forced her into the passenger seat, he drove to a local gas station. At the gas station, Moran pushed T.B. to the floor of her vehicle and told her if she ran away "he'd just bring [her] back to the car." T.B. pleaded with Moran to let her go home.

[¶ 3.] After the gas station, Moran drove to a housing area in White River, South Dakota where he picked up his handicapped uncle, Kermit Bear Heels (Bear Heels). Moran also testified that his young nephew was in the back seat of the car sleeping during most of the evening. T.B. denied the nephew was ever in the car. T.B. testified she was pinned between Moran and Bear Heels in the front seat of her car. The three of them drove around White River and stopped at the Dollar Daze Café. T.B. stayed in the car and tried to escape by running down the street. Moran, however, grabbed T.B. and picked her up over his shoulder.

[¶ 4.] Later that evening and after consuming alcohol throughout the night, Moran parked at a park near a baseball field and told T.B. that the two men were going to "train her," which meant that Moran and his uncle were going to take turns forcing sex upon her. They pulled T.B. out of the vehicle and in doing so, the victim kicked the windshield of her car. Moran threw her on the ground, ripped off her clothes and raped her. During this attack, Moran put his fingers over her mouth and his thumbs underneath her chin, forcing T.B.'s head backwards so that she almost passed out.

[¶ 5.] After Moran finished his assault, he told his uncle "it was his turn." Bear Heels tried to penetrate the victim, but Moran pushed him off after T.B. began crying and screaming. After the three got back into the vehicle, Moran called T.B. a "bitch" and a "whore," because he could not trust women.

[¶ 6.] Moran made T.B. sit on his lap in the car as he sped at high speeds down a gravel road. Moran grabbed her arm and burned her with his hot cigarette on her wrist. At trial, T.B. showed the jury the permanent scar left on her wrist. Sometime during the course of the evening, T.B. also received a human bite mark, which left a large bruise on her breast. These were verified by pictures taken by law enforcement shortly after the incident. After being burned, T.B. told Moran she needed to throw up and he pulled the car over on the dirt road. After vomiting outside the car, T.B. tried once again to escape but Moran grabbed her and forced her back into the car.

[¶ 7.] Moran drove to a big water tank for cattle, an "artesian well." He and his uncle undressed and jumped into the tank. T.B. noticed that Moran had left the car keys by his jeans. She grabbed the keys and sped off for help. T.B. drove to a house, where a man helped her contact the Rosebud police.¹ Subsequently, Moran and Bear Heels were both charged with second-degree rape, aggravated assault, and kidnapping. Bear Heels entered a plea to aggravated assault pursuant to a plea agreement where he would testify against Moran.

[¶ 8.] T.B. was examined by Dr. Dillon, a physician with extensive forensic experience in sexual abuse cases. He testified for the State at trial. This expert related he had conducted a pelvic exam on T.B., and she had one laceration in the tissue of her vaginal vault, which was consistent with "forceful" penetration. Dr. Dillon also testified that T.B. had a human bite mark on her left breast, and a cigarette burn on her inner left wrist. He recalled that there were numerous bruises on her lower back, knees, and both lower legs and arms. There was no seminal fluid found during the course of his examination.

[¶ 9.] At trial, Moran testified that he had twice engaged in consensual sex with the victim. In addition, Moran claimed the victim had burnt her own wrist with a hot cigarette. The jury rejected his testimony and found Moran guilty of Rape in the Second Degree and Aggravated Assault. He was sentenced to twenty-five years for the rape conviction and fifteen for the conviction of Aggravated Assault. He raises the following issues for review:

1. Whether the trial court abused its discretion when it refused to dismiss the charges against Moran because of the State's discovery violations.

2. Whether the trial court abused its discretion when it denied Moran's motion to dismiss because the victim's vehicle was released without notice to Moran.

3. Whether the trial court abused its discretion when it denied Moran's motion of judgment of acquittal because of lack of sufficient and credible evidence.

4. Whether the trial court abused its discretion when it allowed the State to elicit certain testimony from Dr. Dillon at trial.

5. Whether the State gave an improper opening statement.

6. Whether the trial court abused its discretion when it allowed the State to elicit trial testimony that Moran's codefendant, Bear Heels, had pled guilty to aggravated assault.

7. Whether the trial court abused its discretion when it imposed consecutive sentences.

8. Whether the State improperly harassed and elicited improper testimony from Moran during cross-examination.

9. Whether the trial court abused its discretion when it answered a question that the jury posed during deliberations.

STANDARD OF REVIEW

[¶ 10.] A violation of a discovery order and the court's resultant choice of, or failure to grant a remedy, is reviewed under an abuse of discretion standard. State v. Guthrie, 2001 SD 89, ¶¶ 7-11, 631 N.W.2d 190, 193-95. Additionally, the trial court has the inherent power to fashion an appropriate sanction for discovery violations in criminal cases. Guthrie, 2001 SD 89, ¶ 11, 631 N.W.2d at 194-95.

[¶ 11.] This Court reviews a motion for judgment of acquittal by deciding "whether [the] State set forth sufficient evidence from which the jury could reasonably find the defendant guilty of the crime charged." State v. Frazier, 2002 SD 66, ¶ 8, 646 N.W.2d 744, 748 (citing State v. Holzer, 2000 SD 75, ¶ 10, 611 N.W.2d 647, 650).

[¶ 12.] Trial courts retain broad discretion in ruling on the admissibility of an expert's opinion. State v. Guthrie, 2001 SD 61, ¶ 30, 627 N.W.2d 401, 414 (additional citations omitted). Decisions to admit or deny opinion evidence will not be reversed unless there is a clear showing of an abuse of discretion. Id.

[¶ 13.] The standard of review for prosecutorial misconduct is abuse of discretion. State v. Corey, 2001 SD 53, ¶ 19, 624 N.W.2d 841, 845. Under this standard, "not only must error be demonstrated, but it must also be shown to be prejudicial error." State v. Perovich, 2001 SD 96, ¶ 11, 632 N.W.2d 12, 15-16 (citing State ex rel Dep't of Transp. v. Spiry, 1996 SD 14, ¶ 11, 543 N.W.2d 260, 263) (additional citations omitted). "The test is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion." Id. (citing State v. Goodroad, 1997 SD 46, ¶ 9, 563 N.W.2d 126, 129) (citing State v. Rufener, 392 N.W.2d 424, 426 (S.D.1986)).

[¶ 14.] This Court has stressed in State v. Walton, that the "trial court retains broad discretion concerning the limitation of cross examination," and it will only be reversed when there is a clear showing of prejudice. 1999 SD 80, ¶ 25, 600 N.W.2d 524, 530.

[¶ 15.] Under our standard of review, we construe jury instructions as a whole to learn if they provided a full and correct statement of the law. Sommervold v. Grevlos, 518 N.W.2d 733, 739 (S.D.1994); Frazier v. Norton, 334 N.W.2d 865, 870 (S.D.1983); Mueller v. Mueller, 88 S.D. 446, 451, 221 N.W.2d 39, 42 (1974). Misleading, conflicting, or confusing instructions create reversible error. Schaffer v. Edward D. Jones & Co., 1996 SD 94, ¶ 19, 552 N.W.2d 801, 808; Wallahan v. Black Hills Elec. Co-op., Inc., 523 N.W.2d 417, 423 (S.D.1994). Nonetheless, an appellant must show not only that a particular instruction was erroneous, but also that it was prejudicial, meaning the jury probably would have returned a different verdict if the faulty instruction had not been given. Davis v. Knippling, 1998 SD 31, ¶ 4, 576 N.W.2d 525, 526-7; LDL Cattle Co., Inc. v. Guetter, 1996 SD 22, ¶ 32, 544 N.W.2d 523, 530; Sybesma v. Sybesma, 534 N.W.2d 355, 359 (S.D.1995) (quoting Chambers v. Dakotah Charter, Inc., 488 N.W.2d 63, 64 (S.D.1992)).

ANALYSIS AND DECISION

[¶ 16.] 1. Whether the trial court abused its discretion when it refused to dismiss the charges against Moran because of the State's discovery violations.

[¶ 17.] Moran argues that the State refused to provide discovery to which he was entitled and as a result, his preparation for trial was adversely affected, his right to a speedy trial was prevented, and his right to a fair trial was materially prejudiced. Specifically, Moran complains he was not given adequate discovery on all ambulance crew reports,...