State v. Roach

• Decision Date: 26 December 2012
• Docket Number: No. 26212.,26212.
• Citation: 2012 S.D. 91,825 N.W.2d 258
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Arley F. ROACH, Defendant and Appellant.
• Court: South Dakota Supreme Court

825 N.W.2d 258

2012 S.D. 91

STATE of South Dakota, Plaintiff and Appellee,

v.Arley F. ROACH, Defendant and Appellant.

No. 26212.

Supreme Court of South Dakota.

Considered on Briefs Aug. 27, 2012.

Decided Dec. 26, 2012.

Marty J. Jackley, Attorney General, Max A. Gors, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

John R. Murphy, Rapid City, South Dakota, Attorney for defendant and appellant.

WILBUR, Justice.

[¶ 1.] Arley Roach was convicted by a jury of second-degree rape. Roach appeals a number of issues involving hearsay and the denial of a requested jury instruction, a Batson challenge, and an objection regarding the State's use of the word “rape” during trial. We affirm.

FACTS AND PROCEDURAL BACKGROUND

[¶ 2.] Roach and H.S. were involved in an intimate, three-year relationship characterized by several break-ups. The couple frequently reunited through consensual sexual intercourse.

[¶ 3.] On the evening of February 6, 2011, H.S. tried to end her relationship with Roach because she had begun a new relationship. That evening and into the early morning hours of February 7, 2011, the couple exchanged a series of text messages.Roach sent a text message to H.S. stating that he had finally accepted the fact that H.S. fell out of love with him. He asked her whether he should leave her alone. H.S. responded that she did not want him to “bug” her about it. In response, Roach called H.S. a “fucin whore” “just like [her] mom.” Further, Roach replied “U [know] ur fucin me 2marow right got [any more] condoms i dont believe u used one.” H.S. responded “No arley, we arent [okay] not in the god damm mood rite now stop [okay] gotta go to sleep.” Roach then replied “Oh u can fuc [the] world [though].” The couple continued to exchange text messages until H.S. turned off her cell phone.

[¶ 4.] On the morning of February 7, 2011, Roach entered H.S.'s apartment, crawled into bed with H.S., and tried to have sex with her. H.S. refused, got up from the bed, and moved to the couch. Roach continued to try to have sex with her and H.S. continued to refuse. Roach then picked up H.S. and tried to carry her into the bathroom. While Roach was trying to carry her to the bathroom, H.S., in an effort to stop Roach, attempted to grab onto the walls and scraped her thumb on the corner of a doorway. H.S. asked Roach to stop and to put her down. Roach eventually complied and H.S. walked into the bathroom to smoke a cigarette.¹

[¶ 5.] Once in the bathroom, H.S. again tried to end her relationship with Roach. During their conversation, Roach became upset when he saw a hickey on H.S.'s neck. In response to this marking, Roach said that H.S. “c[ould] go fuck the world but [she] can't fuck him.” Roach then started to pound his fist into his hand. H.S. became scared that he was going to harm her. Because Roach stood between her and the doorway to the bathroom, H.S. walked to the corner of the bathroom and began to cry. Roach proceeded to undress himself, grabbed a blanket off of a shelf, and placed it on the floor. Roach then grabbed H.S. and pushed her to the floor. While being held down by the weight of Roach, H.S. repeatedly told Roach to stop and that she did not want to have sex with him. H.S. eventually stopped fighting Roach. Roach penetrated H.S., ejaculated, and left the bathroom.

[¶ 6.] At this point, H.S.'s roommate, N.R., arrived home from school. In Roach's presence, N.R. asked H.S. what was wrong because H.S. was crying. H.S. did not respond. In an effort to find out more information, N.R. asked H.S. if Roach had forced H.S. to have sex with him. H.S. shook her head affirmatively. Roach stated that he had not done anything to H.S. N.R. asked H.S. if Roach had raped her and H.S. responded yes. N.R. called 911.

[¶ 7.] On March 31, 2011, Roach was indicted for second-degree rape and sexual contact with a person incapable of consenting. The sexual contact charge was later dismissed by the State. In a part two information, Roach was also charged as a habitual offender due to a prior felony conviction.

[¶ 8.] After a jury trial,² Roach was found guilty of second-degree rape and sentenced to fifteen years in prison with five years suspended.

[¶ 9.] Roach raises five issues in this appeal:

1. Whether the trial court erred in denying Roach's proposed jury instruction on consent.

2. Whether H.S.'s statements to sexual assault nurse, Amber Mason, were admissible under SDCL 19–16–8 (Rule 803(4)).

3. Whether the trial court erred in denying Roach's Batson challenge to the State's peremptory strike of prospective juror, C.B.B.

4. Whether H.S.'s statements to Officer Terviel were admissible under SDCL 19–16–6 (Rule 803(2)).

5. Whether the trial court abused its discretion in allowing the use of the word “rape” during trial.

ANALYSIS AND DECISION

[¶ 10.] 1. Whether the trial court erred in denying Roach's proposed jury instruction on consent.

[¶ 11.] At trial, Roach based his theory of defense on the tumultuous nature of his relationship with H.S., as well as their method of reconciliation—consensual sexual intercourse. He alleged that it was reasonable for him to believe that H.S. consented to the sexual encounter.

[¶ 12.] Roach proposed his jury instruction number two that stated, “[i]f the Defendant reasonably believed H.S. consented to the sex act, then no rape occurred.” The trial court considered the jury instruction and denied it. Instead, the court gave Roach's third proposed instruction, a “mistake of fact” instruction, similar to the South Dakota Criminal Pattern Jury Instruction 2–8–1 ³ and similar to the instruction approved by this Court in State v. Woodfork, 454 N.W.2d 332 (S.D.1990).⁴ Roach's proposed instruction three became jury instruction 17. Instruction 17 provided:

An act is not a crime when committed or omitted under an ignorance or mistake of fact which disproves any criminal intent. Where a person honestly believes certain facts, and acts or fails to act based upon a belief in those fact[s], which, if true, would not result in the commission of a crime, the person is not guilty.⁵

[¶ 13.] This Court has previously provided the standard of review for a trial court's instructions to a jury. “A trial court has discretion in the wording and arrangement of its jury instructions, and therefore we generally review a trial court's decision to grant or deny a particular instruction under the abuse of discretion standard.” State v. Klaudt, 2009 S.D. 71, ¶ 13, 772 N.W.2d 117, 121 (quoting State v. Cottier, 2008 S.D. 79, ¶ 7, 755 N.W.2d 120, 125). This Court has also stated, however, that

[a]n accused must be afforded a meaningful opportunity to present a complete defense. When a defendant's theory is supported by law and ... has some foundation in the evidence, however tenuous[,] the defendant has a right to present it. Nonetheless, [j]ury instructions are to be considered as a whole, and if the instructions when so read correctly state the law and inform the jury, they are sufficient. This is a question of law reviewed de novo.

Id. (alterations in original) (internal citations and quotations omitted).

[¶ 14.] Further, an “[e]rror in refusing a proposed instruction ‘is reversible only if it is prejudicial, and the defendant has the burden of proving any prejudice.’ ” Id. ¶ 18 (quoting State v. Martin, 2004 S.D. 82, ¶ 21, 683 N.W.2d 399, 406). “This requires a showing that the alleged error, in all probability, produced some effect upon the jury's verdict and was harmful to the substantial rights of the party assigning it.” Id. (quoting Martin, 2004 S.D. 82, ¶ 37, 683 N.W.2d at 411).

[¶ 15.] Roach argues that the trial court deprived him of his constitutional rights to due process and a fair trial when it refused to instruct the jury on his theory of defense—consent. He further asserts that his second proposed instruction was supported by law and had a foundation in the evidence presented at trial. Roach maintains that he was prejudiced by the court's denial of his second proposed jury instruction because, had the instruction been given to the jury, the verdict would have been different.

[¶ 16.] The State asserts that the jury was properly instructed because, when the instructions are read as a whole, the law governing the case is correctly stated. The State contends that lack of consent is not an element of forcible rape under SDCL 22–22–1(2), and thus, the jury need not be given a specific instruction as to consent. In citing State v. Faehnrich,⁶ the State concedes, however, that if the victim freely and voluntarily consents without force, coercion, or threat, then consent is a defense to forcible rape. 359 N.W.2d 895, 900 (S.D.1984).

[¶ 17.] The instructions given to the jury correctly stated the law applicable in this case. A plain reading of SDCL 22–22–1(2)⁷ does not include a consent element. See State v. Jones, 2011 S.D. 60, ¶ 12, 804 N.W.2d 409, 413 (quoting State v. Schnaidt, 410 N.W.2d 539, 541 (S.D.1987) (“When the language of a statute is clear, certain, and unambiguous, there is no occasion for construction, and this Court's only function is to declare the meaning as clearly expressed in the statute.”)). And, Roach does not present evidence of H.S.'s consent much less any evidence that would “utterly negate” any element of force, coercion, or threat. Faehnrich, 359 N.W.2d at 900. At trial, Roach elicited testimony from H.S. on cross-examination that he and H.S. frequently had sexual intercourse in the bathroom in the weeks leading up to the event at issue. H.S. also testified on cross-examination that at least one of the incidences of sexual intercourse included acts of simulated violence. This evidence, however, does not “utterly negate” any element of force, coercion, or threat in this case. H.S. received injuries from the encounter, which were documented by medical professionals. H.S. also testified as to the nonconsensual nature of her sexual encounter with Roach....