State v. Patterson

• Decision Date: 01 November 2017
• Docket Number: #27736,#27738
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. JOSEPH R. PATTERSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

2017 S.D. 64

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. JOSEPH R. PATTERSON, Defendant and Appellant.

#27736

#27738

SUPREME COURT OF THE STATE OF SOUTH DAKOTA

ARGUED OCTOBER 2, 2017

November 1, 2017

#27736, #27738-a-GAS

APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT LINCOLN COUNTY, SOUTH DAKOTA

THE HONORABLE BRADLEY G. ZELL Judge

MARTY J. JACKLEY

Attorney General

ROBERT MAYER

Deputy Attorney General

PAUL S. SWEDLUND

GRANT M. FLYNN

Assistant Attorneys General

Pierre, South Dakota

Attorneys for plaintiff

and appellee.

ELLERY GREY of

Grey & Eisenbraun Law

Rapid City, South Dakota

and

MICHAEL J. BUTLER

Sioux Falls, South Dakota

Attorneys for defendant

and appellant.

SEVERSON, Justice

[¶1.] Joseph Patterson appeals from a final judgment of conviction for second-degree murder. Patterson claims the circuit court erred in: (1) allowing the State to present other acts evidence to the jury; (2) permitting the State to argue a factual theory of guilt and motive not supported by the record; (3) allowing the State to present expert testimony which was impermissibly intrusive; (4) refusing to allow Patterson to present additional instances of alleged child abuse committed by a possible third-party perpetrator; and (5) failing to grant Patterson's motion for acquittal. Patterson also argues the South Dakota Supreme Court does not have jurisdiction to consider certain issues presented on notice of review by the State.

Background

[¶2.] On October 9, 2013, Ashley Doohen (Doohen) picked up her two-year-old son, T.R., from daycare and brought him back to her apartment. Doohen and T.R. shared the apartment with Doohen's boyfriend, Joseph Patterson (Patterson). Doohen planned to leave T.R. in Patterson's care while she went to a nearby gym. When Doohen left, T.R. was watching TV, eating fruit snacks, and appeared to be in a good mood. At the time, T.R. was in the process of being potty-trained, and had received the fruit snacks as a reward for successfully using the bathroom.

[¶3.] Shortly after Doohen arrived at the gym, she noticed two missed calls from Patterson. When Doohen called Patterson back, Patterson informed Doohen that T.R. was not breathing and nonresponsive. Doohen told Patterson to hang up and call 911. Patterson attempted to call 911, but misdialed. He connected on the second attempt and informed the dispatcher that T.R. was choking on a fruit snack.

Patterson told the dispatcher he had gotten the fruit snack out of T.R.'s mouth, but that T.R. was turning blue.

[¶4.] Doohen was away from her apartment for approximately fifteen minutes. When she arrived back, she began performing CPR on T.R. Shortly thereafter, Sioux Falls Police Officer Cody Schulz arrived at the apartment to find Patterson near the entrance waving and screaming. Patterson told Officer Schulz that a child was choking, that the mother was doing CPR, and that Officer Schulz needed to help the child. When Officer Schulz reached the apartment, he had Doohen stop CPR so he could examine T.R. Officer Schulz did not notice any obstruction of T.R.'s airway, but did notice a sweet smell, and a sticky substance around T.R.'s mouth, appearing to be from candy.

[¶5.] Paramedics arrived moments later, and T.R. was taken to Sanford Medical Center. Officer Schulz then interviewed Patterson about the incident. Patterson claimed when Doohen left for the gym, he left T.R. alone and went to the bathroom. Patterson stated that when he returned, he found T.R. lying slumped over and unresponsive on the couch. Patterson explained to Officer Schulz that he tried to assist T.R., and had removed a piece of gummy candy from the child's mouth. A piece of chewed gummy candy containing T.R.'s DNA was later retrieved from the floor of Doohen and Patterson's apartment.

[¶6.] When T.R. arrived at the hospital, a CT scan revealed intracranial hemorrhaging. An examination of T.R.'s eyes further revealed widespread retinal hemorrhaging. Two days later, on October 11, 2013, T.R. was declared brain dead,and taken off of life support. An autopsy showed four subcutaneous hemorrhages on T.R.'s scalp consistent with blunt force trauma.

[¶7.] Based upon T.R.'s injuries, Patterson was charged with second-degree murder, first-degree manslaughter, and aggravated battery of a child. On September 29, 2015, after a trial, a jury convicted Patterson on all counts. On November 19, 2015, Patterson was sentenced to life in prison for second-degree murder, and 25 years to be served concurrently for aggravated battery of an infant. The trial court did not issue a sentence for manslaughter, finding the murder and manslaughter convictions arose from the same conduct.

[¶8.] Patterson appeals his conviction, claiming the circuit court erred in:

1. Allowing the State to present other acts evidence to the jury.

2. Permitting the State to argue a factual theory of guilt and motive not supported by the record.

3. Allowing the State to present expert testimony which was impermissibly intrusive.

4. Refusing to allow Patterson to present additional instances of alleged child abuse committed by a possible third-party perpetrator.

5. Failing to grant Patterson's motion for acquittal.

Analysis

1. Whether the circuit court erred in permitting the State to present other acts evidence to the jury.

[¶9.] During Patterson's trial, Jasmin Leach (Leach), Patterson's former girlfriend, testified regarding three instances where Patterson allegedly abused her two minor sons. Leach stated the first incident occurred in 2010. Leach claimed that when her three-year-old son would not stop crying in the back seat of a car,Patterson ripped the child from his car seat, threw the child against the back tire, pointed at the child, and threatened to call the police if the child did not stop crying.

[¶10.] Leach described a second incident which allegedly took place in 2011. Leach stated she heard her son crying, and when she investigated, found Patterson forcing the child to do sit-ups hanging from the top level of a bunk bed. As Leach and Patterson began to argue, the child began to scream, and Leach stated Patterson slapped the child. Leach testified that later the same day, she came home to find Patterson applying ice to welts on her child's buttocks. When Leach asked Patterson about the welts, Patterson stated "You don't think I feel bad about this? I've been searching online all day about how to get rid of these welts." Leach testified that Patterson also applied olive oil to the welts. Photos of the welts taken two days after the alleged abuse were admitted at trial over Patterson's objection. Leach was also permitted to testify that Patterson was "very verbally, emotionally, and physically abusive."

[¶11.] Patterson objected to the admission of these "other bad acts" in written briefs before trial. He also objected both before and after Leach testified. The circuit court admitted the evidence, determining it could be used for the limited purpose of proving Patterson's motive, or a lack of mistake or accident in T.R.'s death. The circuit court provided the jury with a limiting instruction to this effect. Patterson claims the evidence introduced through Leach's testimony amounted to propensity evidence, which inflamed the jury and unduly prejudiced him.

[¶12.] We review a circuit court's decision to admit other acts evidence under the abuse of discretion standard. State v. Toohey, 2012 S.D. 51, ¶ 11, 816 N.W.2d120, 127. "An abuse of discretion 'is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary and unreasonable.'" State v. Birdshead, 2015 S.D. 77, ¶ 51, 871 N.W.2d 62, 79 (quoting Kaberna v. Brown, 2015 S.D. 34, ¶ 13, 864 N.W.2d 497, 501). "We afford broad discretion to [circuit courts] in deciding whether to admit or exclude evidence. However, '[w]hen a [circuit] court misapplies a rule of evidence, as opposed to merely allowing or refusing questionable evidence, it abuses its discretion.'" Kurtz v. Squires, 2008 S.D. 101, ¶ 3, 757 N.W.2d 407, 409 (alteration in original) (quoting State v. Packed, 2007 S.D. 75, ¶ 24, 736 N.W.2d 851, 859).

[¶13.] To obtain a new trial due to erroneously admitted evidence, "a defendant must prove not only that the trial court abused its discretion in admitting the evidence, but also that the admission resulted in prejudice." State v. Reay, 2009 S.D. 10, ¶ 31, 762 N.W.2d 356, 366. "Prejudice, sufficient to require relief, must 'in all probability' have 'produced some effect upon the final result and affected rights of the party assigning it.'" State v. Golliher-Weyer, 2016 S.D. 10, ¶ 12, 875 N.W.2d 28, 32 (quoting Reay, 2009 S.D. 10, ¶ 46, 762 N.W.2d at 369).

[¶14.] "Generally, evidence of crimes or acts other than the ones with which the defendant is charged are inadmissible, unless certain exceptions apply." Birdshead, 2015 S.D. 77, ¶ 57, 871 N.W.2d at 81. "Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." SDCL 19-19-404(b)(1). However, in a criminal case, "[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan,knowledge, identity, absence of mistake, or lack of accident." SDCL 19-19-404(b)(2). A circuit court is required to perform a two-part balancing test to determine whether certain evidence of a defendant's other acts are admissible. Birdshead, 2015 S.D. 77, ¶ 57, 871 N.W.2d at 81. "First, the court must determine whether the other-act evidence is relevant to some material issue in the case other than character (factual relevancy). Second, the court must determine whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice (logical relevancy)." Id.

[¶15.] At a motion hearing on September 14, 2016, the circuit court considered whether to admit the three previous instances of alleged...