State v. Packed, 24040.

CourtSupreme Court of South Dakota
Citation736 N.W.2d 851,2007 SD 75
Docket NumberNo. 24040.,24040.
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Fred PACKED, Jr., Defendant and Appellant.
Decision Date18 July 2007
736 N.W.2d 851
2007 SD 75
STATE of South Dakota, Plaintiff and Appellee,
v.
Fred PACKED, Jr., Defendant and Appellant.
No. 24040.
Supreme Court of South Dakota.
Argued April 24, 2007.
Decided July 18, 2007.

[736 N.W.2d 853]

Frank Geaghan, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and appellee.

Timothy J. Rensch, Rensch Law Office, APLC, Rapid City, SD, Attorney for defendant and appellant.

KONENKAMP, Justice.


[¶ 1.] Defendant was convicted in a jury trial of first degree rape and sexual contact with a child who lived in his home. He was sentenced to life plus twenty-five years. Because we conclude that several trial errors deprived him of a fair trial, we reverse and remand for a new trial.

Background

[¶ 2.] E.S.B., who was eight at the time of the incidents in question, lived with Shanna and Fred Packed, Jr. (defendant). The child referred to them as "mom" and "dad," but Shanna is actually E.S.B.'s maternal grandmother. According to Shanna, E.S.B.'s natural mother, Betty DuBray, and natural father, Gordon DuBray, "didn't want her," and so the child moved in with Shanna when she was two. In the summer of 2003, Shanna, defendant, and E.S.B. lived in a brown house in Martin, South Dakota. Her natural mother and father lived at Sunrise Housing Addition, several miles away.

[¶ 3.] Around June 6, 2003, Shanna was hospitalized in Rapid City, South Dakota with a broken jaw. According to Shanna, defendant drove her to Rapid City. Shanna recounted that while she was in the hospital, defendant was E.S.B.'s primary caretaker. During this same time, defendant said he was working two jobs. When Shanna returned from the hospital, she noticed some blood in E.S.B.'s underwear and questioned her about it. E.S.B. denied that anything had happened to her and said that the underwear belonged to her sister. Shanna did nothing further.

[¶ 4.] Later that summer or early fall, Shanna, defendant, and E.S.B. moved into a blue house in Sunrise Housing Addition. They were now living close to E.S.B.'s natural mother, Betty. In September 2003, Shanna and Betty noticed "a light green stain" on E.S.B.'s underwear. She and Betty questioned E.S.B. about it. According to Shanna, Betty angrily asked E.S.B. who had been messing around with her. When E.S.B. gave no response, Betty asked if "Gordon" or "Fred" had been messing around with her, to which E.S.B. replied that Fred (defendant) had. According to Betty, she did not do anything with this information, except leave the room upset.

[¶ 5.] In January 2004, the Department of Social Services (DSS) received a report about alleged abuse of E.S.B. A social worker investigated by first speaking with E.S.B. at her school in Allen, South Dakota. E.S.B. was in the third grade. She told the DSS worker that defendant had touched her sometime between Halloween

736 N.W.2d 854

and Thanksgiving and her mom, Shanna, had found baby oil when they moved. She also told the social worker that her younger sister was there and saw it all happen. Although the authorities first thought E.S.B. was describing abuse that had occurred recently, they later realized that E.S.B. was speaking about an incident of improper touching that had happened while she was living in the brown house the previous summer.

[¶ 6.] Law enforcement officers continued their investigation. They spoke with Shanna and attempted to collect the underwear and baby oil as evidence. The underwear had been washed, but Shanna gave it to them anyway. She also gave them the bottle of baby oil. Shanna told the officers that when she noticed the stain in the underwear she told defendant about it and he told her to take E.S.B. to the doctor. Shanna also told the authorities about a neighbor boy who had called her, swore at her, and said rude things to her, all while claiming he was E.S.B.'s boyfriend. Sheriff John Walker gave the information about the neighbor boy, D.H., to Martin City Police Chief Shane Valendra. Nothing else was done with regard to this information by Sheriff Walker or Police Chief Valendra.

[¶ 7.] Police Chief Valendra and Sheriff Walker took E.S.B. and her younger sister to Rapid City for a forensic interview and medical examination. Lora Hawkins conducted a forensic interview of E.S.B. and Dr. Lori Strong, a pediatrician specializing in the field of child abuse, examined her. The videotape recording of E.S.B.'s interview shows a shy and reticent child, who volunteered little information. Each bit of detail about the incidents had to be painstakingly obtained with careful, age-appropriate questions. The interview lasted approximately forty-five minutes. When the questions centered on inconsequential activities, E.S.B. answered without reluctance. However, when questioned about defendant and inappropriate touching, E.S.B.'s demeanor noticeably changed. Her answers were reserved and given in a low voice.

[¶ 8.] E.S.B. told Hawkins that defendant had touched her four times in her room in the brown house while her mom was in the hospital. She also said that he touched her "peaches" with his hand. Later during the interview she said that defendant had laid on top of her with her pants down and touched her "peaches" with his "hot dog." This was after E.S.B. repeatedly stated that her pants were up, as were his, and that he never went inside her underwear. During the interview, Hawkins left to speak with Sheriff Walker and Police Chief Valendra to see if there was anything they wanted her to explore. When she returned, she questioned E.S.B. about the baby oil and whether her younger sister was in the room when the touching occurred. E.S.B. denied that her younger sister was there and had no information about the baby oil. Nothing was asked of her about D.H., the neighbor boy.

[¶ 9.] Defendant was indicted on charges of first degree rape of a child under ten and sexual contact with a child under sixteen "on or between June, 2003 and January 6, 2004." Defendant moved for a bill of particulars, which was granted. The State filed the bill limiting the time of the alleged offense to "on or between June 6-11, 2003." At trial, upon motion of the defense, the time frame was further limited to "on or between June 6-9, 2003." When the indictment was read to the jury, the State agreed to modify the time frame to comply with the agreed dates. Also, in the court's preliminary jury instructions, the dates recited were "on or between June 6-9, 2003."

736 N.W.2d 855

[¶ 10.] Before trial, the State moved in limine to preclude defendant from presenting evidence of a third-party perpetrator. Defense counsel responded that what he intended to introduce was not necessarily third-party perpetrator evidence. He intended to cross examine Shanna, Sheriff Walker, and E.S.B. about the neighbor boy, D.H., and how Shanna and Betty had concerns about E.S.B. "running around" with him. This line of questioning, counsel asserted, supported his theory of the defense that E.S.B. was fabricating the allegations against defendant to avoid getting in trouble for having a boyfriend. The court granted the State's motion in limine, concluding that nothing linked D.H. to the alleged crimes, and thus, as third-party perpetrator evidence, it was inadmissible.

[¶ 11.] While testifying at trial, E.S.B. was even more reticent than when she was interviewed by the forensic interviewer. On a number of occasions, the State had to repeat its questions before she would respond. On the specifics of the rape charge, she said that while her underwear was down and defendant's pants and underwear were down, defendant touched her "middle" with his "middle." Shanna and Betty also testified. They described how they found the stains in E.S.B.'s underwear and questioned her about it. Shanna was asked about D.H. by defense counsel in an offer of proof outside the presence of the jury. She acknowledged that she had concerns. Betty admitted to angrily questioning E.S.B. with Shanna there.

[¶ 12.] Sheriff Walker testified that he felt Shanna was uncooperative during the investigation. He believed that she was attempting to protect defendant. Again outside the presence of the jury, defense counsel asked Sheriff Walker whether one of the reasons he believed Shanna was uncooperative was because she mentioned that D.H. claimed to be E.S.B.'s boyfriend. Sheriff Walker agreed that such contributed to his opinion, but that there were other factors.

[¶ 13.] Dr. Strong told the jury that E.S.B.'s examination was normal. However, she explained that the majority of children who are sexually abused have normal physical examinations. She testified that it would not be unusual to see such reluctance in testifying for a child of E.S.B.'s age. Forensic examiner Hawkins testified about her interview and how in her opinion E.S.B. was molested at least twice, even though she claimed to have been touched four times. Hawkins explained that she believed E.S.B.s' revelation was not a "purposeful disclosure." E.S.B., according to Hawkins, loved defendant and "it is hard to separate the person from the actions sometimes." The video from her interview with E.S.B. was played for the jury.

[¶ 14.] Defendant presented the testimony of his previous attorney, Alvin Pahlke. Apparently, Shanna had taken E.S.B. to see Pahlke for a private interview during the time he was representing defendant. Pahlke testified that E.S.B. told him that defendant did not touch her "peaches" and she wanted him to come home.

[¶ 15.] In its final instructions to the jury, the court included an instruction, over defendant's objection, stating that although "[t]he Indictment charges that the offense was committed `on or between' a certain date[,] . . . [i]t is sufficient if the evidence establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged."

[¶ 16.] Defendant was found guilty of both charges, admitted to being a habitual offender, and was sentenced to...

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