State v. Plastow

• Decision Date: 23 December 2015
• Docket Number: No. 27374.,27374.
• Citation: 873 N.W.2d 222
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. Alvin PLASTOW, Defendant and Appellee.
• Court: South Dakota Supreme Court

873 N.W.2d 222

STATE of South Dakota, Plaintiff and Appellant,

v.Alvin PLASTOW, Defendant and Appellee.

No. 27374.

Supreme Court of South Dakota.

Argued Oct. 6, 2015.

Decided Dec. 23, 2015.

Marty J. Jackley, Attorney General, Jared C. Tidemann, Paul S. Swedlund, Assistant Attorneys General Pierre, South Dakota and Aaron F. McGowan, Minnehaha County State's Attorney, Sara E. Show, Minnehaha County Deputy State's Attorney, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.

Lyndsay E. DeMatteo, Minnehaha County Public Advocate's Office, Sioux Falls, South Dakota, Attorneys for defendant and appellee.

ZINTER, Justice.

[¶ 1.]The State, by way of intermediate appeal, challenges the circuit court's suppression of Alvin Plastow's admission that he raped a three-year old girl.The circuit court suppressed the admission in accordance with our cases holding that a conviction cannot stand on an admission alone: the admission must be corroborated with independent evidence establishing the corpus delicti of the offense.¹Many state and federal courts have adopted a more flexible rule.Instead of requiring evidence of the corpus delicti, those courts allow evidence of the admission's trustworthiness to corroborate the admission and establish guilt.For the reasons stated in this opinion, we adopt the trustworthiness standard as an alternative method of corroborating admissions.However, under Supreme Court precedent, we apply this change prospectively.We therefore affirm.

Facts and Procedural History

[¶ 2.]Alvin Plastow spent fifteen years in prison after pleading guilty to raping a five-year-old African American female (N.H.).After his release from prison, Plastow lived with his girlfriend, Elizabeth Paige(mother of N.H.), Teerra Raglan, and Raglan's three-year-old African American daughter (S.G.).S.G.'s father, Michael Grace, frequently visited the home.

[¶ 3.]At some point, Grace observed Plastow stroking S.G.'s face while S.G. was sitting on Plastow's lap.Aware of Plastow's criminal history, Grace became suspicious and later telephoned Plastow, asking him if he had ever inappropriately touched S.G. Plastow admitted to putting his hand down S.G.'s pants, but claimed he did not penetrate her.After the telephone call, Grace asked S.G. where Plastow touched her, she pointed to her genitals, buttocks, and face.

[¶ 4.]Grace reported these occurrences to the police.During a subsequent investigation, in a police officer's presence, Grace asked S.G. where Plastow had touched her.S.G. pointed to her genitals.At another point, S.G. approached the police officer and grabbed her genitalia, saying: "He touched me down here."

[¶ 5.]A detective conducted a follow-up interview.During the interview, Plastow admitted that he was attracted to children, especially African American females.He also admitted that after getting out of prison, he struggled with thoughts of children.Plastow specifically admitted raping S.G. on two occasions, once when he was helping her in the bathroom and once in a bedroom.Regarding the bathroom incident, Plastow indicated that he attained an erection while placing his index finger in between S.G.'s vaginal lips.He also indicated that he masturbated while thinking of this incident.Regarding the bedroom incident, Plastow indicated that he ran his finger between S.G.'s vaginal lips, but denied "reaching S.G.'s hole."Plastow also admitted taking a picture of S.G.'s partially naked body with his cell phone during the bedroom incident.Plastow saved the picture and admitted to masturbating while viewing it.Plastow indicated that the picture would be on his phone.

[¶ 6.]Grace had previously given Plastow's phone to the police.They searched the phone and found a picture of S.G. in "Dora the Explorer" pajamas with pink polka dots.Another contemporaneously taken picture was of a prepubescent female's partially naked body from the waist to mid-thigh with her pants pulled down.The visible portions of the pants resembled S.G.'s pink polka dot pajamas.

[¶ 7.]S.G. gave a statement about these events to a forensic interviewer at Child's Voice, a child advocacy center.S.G. confirmed the inappropriate touching; however, a corresponding physical examination could neither confirm nor refute that a rape occurred.

[¶ 8.]The State charged Plastow with two counts of first-degree rape and two counts of possession of child pornography.Plastow filed a pre-trial motion to sever the rape and pornography counts.He also moved to suppress his admissions, arguing the State could not present independent corroborating evidence showing the corpus delicti of a rape.

[¶ 9.]At an evidentiary hearing on the motion to suppress, the State indicated that S.G. would not testify; no representative from Child's Voice would testify; and Grace would not testify.The State indicated that other than the photograph, it had no independent evidence corroborating Plastow's admissions.The circuit court severed the charges and suppressed Plastow's admissions.The court reasoned that the photograph alone did not establish the corpus delicti of rape.The State appeals raising two issues:

(1) Whether the circuit court relied on an overly strict application of the corpus delicti rule in suppressing Plastow's admissions.

(2) Whether the corpus delicti rule should be reformed or abandoned in South Dakota.

Decision

[¶ 10.]The circuit court ruled that State v. Thompson controlled and that under Thompson, suppression was required because the State could not show the corpus delicti of rape independent of Plastow's admissions.1997 S.D. 15, ¶ 36, 560 N.W.2d 535, 543.The State argues that the circuit court misapplied the corpus delicti rule because, in conclusion of law 7, it concluded: "The State has not provided and will not present at trial independent evidence, outside of Plastow's admissions, for each element of the crime of rape."(Emphasis added.)The State asserts that it need not show independent evidence of each element of the crime to admit an admission.We agree.

[¶ 11.]The corpus delicti rule is generally applied in one of two situations: (1) challenges to the admissibility of an admission, or (2) challenges to the sufficiency of the evidence.CompareState v. Best,89 S.D. 227, 235, 232 N.W.2d 447, 452(1975)(involving a challenge to the admission of a defendant's statement before proving the corpus delicti), and State v. Lowther,434 N.W.2d 747, 754(S.D.1989)(involving a claim that the state failed to set forth sufficient corroborative evidence before it introduced a defendant's admissions), with State v. Bates,76 S.D. 23, 28, 71 N.W.2d 641, 644(1955)(involving the claim that there was insufficient evidence to justify submission of the case to the jury), State v. Garza,337 N.W.2d 823, 824(S.D.1983)(involving the claim that there was insufficient evidence of the corpus delicti to corroborate appellant's confession and sustain the conviction), and Thompson,1997 S.D. 15, ¶ 34, 560 N.W.2d at 542(stating the "question ultimately is a challenge to the sufficiency of the evidence.").

[¶ 12.]This is an admissibility case, and in admissibility cases, the admissibility of an extrajudicial admission is conditioned on its corroboration by evidence independent of the defendant's extrajudicial statements.Best,89 S.D. at 235, 232 N.W.2d at 452.The corroborative evidence need only show the corpus delicti; i.e., evidence establishing "(1) the fact of an injury or loss, and (2) the fact of someone's criminal responsibility for the injury or loss."Id.Therefore, under our corpus delicti rule, the admissibility of Plastow's statements was not conditioned on the State's production of independent evidence of each element of the offense charged against Plastow.The State need only have shown that S.G. was raped by someone.The circuit court's conclusion of law 7 incorrectly stated the rule.²

[¶ 13.]The State further argues that had the circuit court applied the correct rule, it would have admitted Plastow's admissions.The State contends that the independent evidence in this case established a reasonable probability that S.G. was raped.Plastow, however, argues that the State failed to identify sufficient independent evidence that established the corpus delicti of rape.Plastow contends that standing alone, the picture appearing to be S.G.'s genitalia does not raise a reasonable inference that she was raped.

[¶ 14.]Best sets forth the quantum of evidence required to admit extrajudicial statements.89 S.D. at 236, 232 N.W.2d at 453.

A prima facie showing of the corpus delicti of the crime charged must be made before a defendant's extrajudicial statements, admissions or confessions may be received in evidence (citations omitted).To establish the corpus delicti ..., it [is] only necessary for the [State] to show a reasonable probability the criminal act of another caused [the crime charged].The corpus delicti may be established by circumstantial evidence, and by the reasonable inferences to be drawn from such evidence (citations omitted).While slight evidence is sufficient to establish the corpus delicti, it must be proved entirely independent of and without considering the defendant's extrajudicial statements (citations omitted).

Id.(quotingPeople v. Cantrell,8 Cal.3d 672, 105 Cal.Rptr. 792, 504 P.2d 1256, 1260(1973) ).³In this case, the State indicated that Grace, S.G., and the forensic interviewer would not testify.The State further indicated at the motions hearing that the only evidence it had to corroborate the crime of rape was the photograph that appeared to be S.G., naked from the waist down.We agree with the circuit court that the photograph, standing alone, did not create a reasonable inference that S.G. was raped.⁴Therefore, under our current caselaw, the circuit court properly suppressed Plastow's admissions.

[¶ 15.]This case highlights the injustice that may arise under our corpus delicti rule.S.G. was only three and...