State v. Running Bird, 22023.

• Decision Date: 24 July 2002
• Docket Number: No. 22023.,22023.
• Citation: 649 N.W.2d 609,2002 SD 86
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Harold RUNNING BIRD, Defendant and Appellant.
• Court: South Dakota Supreme Court

649 N.W.2d 609

2002 SD 86

STATE of South Dakota, Plaintiff and Appellee, v. Harold RUNNING BIRD, Defendant and Appellant.

No. 22023.

Supreme Court of South Dakota.

Considered on Briefs March 25, 2002.

Decided July 24, 2002.

Mark Barnett, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, for plaintiff and appellee.

Michael Stonefield, Paula D. Camp, Office of Public Defender for Pennington County, Rapid City, for defendant and appellant.

GORS, Acting Justice.

[¶ 1.] Harold Running Bird (Running Bird) appeals a final judgment of conviction for kidnapping and second degree rape. We affirm.

FACTS AND PROCEDURE

[¶ 2.] In August of 2000, Katinka Stegeman (Katinka) traveled to Rapid City, South Dakota from Holland. She was twenty-four years old, and came to South Dakota to learn more about the Native American culture.

[¶ 3.] On August 13, Katinka went to the Pennington County fairgrounds and met Harold Running Bird (Running Bird) and Edna Eagleman (Edna). The three drank beer together and later went shopping for a sleeping bag and tent for Katinka. Katinka also purchased more beer to share with a group of other Native Americans she had met at the fairgrounds. Running Bird, Edna and Katinka returned to the fairgrounds around 11:00 p.m. Shortly thereafter, Running Bird helped Katinka put up her tent. Katinka then placed her belongings in her tent, said goodnight to the group, and went to sleep in her tent.

[¶ 4.] Later in the evening, Running Bird entered Katinka's tent. She asked him to leave, and he refused, so she left her tent and walked to the restroom. Katinka stayed in the restroom for one half hour to forty-five minutes. When she returned to her tent, her sleeping bag and all of her personal belongings were gone. This included her two backpacks, which contained her coat, wallet, insurance card, railroad pass, bank card, Dutch money, and telephone card.

[¶ 5.] Upon realizing all of her property was gone, she looked up and saw Running Bird coming towards her. Running Bird told Katinka that he and Edna had moved their campsite and packed up Katinka's belongings. Running Bird then helped Katinka take her tent down, and together they walked to the new campsite, which was down by a creek.

[¶ 6.] As soon as they reached the campsite, Running Bird grabbed Katinka from behind and pushed her into some bushes. Edna then started pushing grass into Katinka's face. Running Bird threatened Katinka that if she did not obey his commands, he would drown her in the creek. Running Bird then rolled Katinka on her back, pulled up her shirt, and fondled her breasts. He then removed her pants by breaking her zipper. Katinka screamed for help, which resulted in Running Bird hitting her in the left eye with his fist. Running Bird then pushed his finger into her vagina and made unsuccessful attempts to enter her vagina with his penis. Subsequently, Running Bird again violated Katinka with his fingers. After a second unsuccessful attempt to enter her vagina with his penis, Running Bird forced his penis into Katinka's mouth.

[¶ 7.] Running Bird then turned to Edna who had lain down next to Katinka. He engaged in sexual acts with Edna. Katinka stayed because she was afraid to get up to leave. Running Bird then continued his attack on Katinka by performing oral sex on her. He then violated her vagina with his penis. Katinka described it as being "very painful." She began screaming as she felt her vagina tearing. Edna also sexually assaulted Katinka by biting her breasts and tongue, and sitting on Katinka's head in an attempt to force Katinka to perform oral sex. [¶ 8.] After Running Bird ejaculated, he got dressed. Katinka also got dressed and began, unsuccessfully, to look for her cellular phone. She then started searching for her original campsite, and in the process she found a police car, which Officer Trent Pettis was driving. Officer Pettis testified that as Katinka approached the police car she was "hysterical" and screaming while waving her arms. He also noticed red marks on her face. Katinka was speaking with an accent, but Officer Pettis understood her to be saying "rape." He then drove her to the hospital.

[¶ 9.] At the hospital Katinka met nurse Leah Walker (Walker). Walker examined Katinka and found scratches and abrasions on her back. Katinka also had bruising and swelling on her face, dried blood in her nose, a laceration on her tongue, and a bruise on her breast.

[¶ 10.] Dr. Raymond Burnett, an obstetrician and gynecologist, also examined Katinka. Dr. Burnett testified that when he first saw Katinka, he thought she had been in a fight since she had bruises on her face and her vagina was bleeding. As a result of her injuries, Dr. Burnett put her under anesthesia to surgically repair her vagina. Katinka had suffered a tear down the midline of her hymen "across the soft tissue called the introitus and down on the skin between the vagina and the anus." She also suffered two other tears in that area. Dr. Burnett needed to use sutures on two of the three tears.

[¶ 11.] Running Bird was eventually located at a construction work site in Box Elder. He was taken to Rapid City and was interviewed by Officer Brian Mueller (Officer Mueller). Additionally, Running Bird's car was searched and seized. In the car police found Katinka's belongings.

[¶ 12.] Running Bird was charged with second-degree rape, simple assault, and two counts of kidnapping. A jury trial was held on February 26-28, 2001. The jury was unable to reach a verdict, and a mistrial was declared. A retrial commenced on April 23, 2001.

[¶ 13.] At the retrial Dr. Burnett testified as to Katinka's injuries. He stated, "it's my medical opinion that from my past experience and from seeing the way this woman presented herself, that this was a traumatic episode of intercourse." He did not give an opinion on whether the intercourse was consensual or nonconsensual, but only as to the forcefulness of the sexual act. Additionally, the interview between Running Bird and Officer Mueller was videotape recorded, played for the jury and introduced (over objection) as an exhibit.

[¶ 14.] At the conclusion of the State's case, Running Bird made a motion for judgment of acquittal for the kidnapping counts. The trial court denied this motion. Running Bird renewed the motion at the conclusion of his own case, which again was denied. The jury returned guilty verdicts for second degree rape and kidnapping. The trial court sentenced Running Bird to serve 75 years in prison on the kidnapping conviction and 25 years in prison on the rape conviction, with sentences to be consecutive.¹

[¶ 15.] Running Bird appeals on the following issues:

(1) Whether the trial court should have granted Running Bird's motions for judgment of acquittal on the kidnapping charges.

(2) Whether the trial court should have given Running Bird's proposed jury instructions.

(3) Whether the videotaped interview of Running Bird by Officer Mueller was erroneously admitted into evidence.

(4) Whether the trial court should have allowed Dr. Burnett's testimony that Katinka's injuries resulted from a "traumatic episode of intercourse."

ANALYSIS AND DECISION

[¶ 16.] 1. Whether the trial court should have allowed Running Bird's motions for judgment of acquittal on the kidnapping charges.

[¶ 17.] Running Bird was charged with kidnapping in violation of SDCL 22-19-1(2) and 22-19-1(3). Both counts alleged that Running Bird seized, confined, inveigled, decoyed, abducted, or carried away Katinka, and held or detained her. Count I charged that the kidnapping was done to facilitate the commission of any felony or flight thereafter (SDCL 22-19-1(2)), while Count II charged that the kidnapping was done to inflict injury on, or to terrorize Katinka (SDCL 22-19-1(3)).²

[¶ 18.] At the conclusion of both the State's case and Running Bird's case, Running Bird made a motion for judgment of acquittal on the kidnapping counts. The trial court denied both motions.

[¶ 19.] Our standard of review is well established:

The standard of review for denial of a motion for judgment of acquittal is whether the "evidence was sufficient to sustain the convictions." "When reviewing sufficiency of the evidence, this [C]ourt, considers the evidence in a light most favorable to the verdict." "A guilty verdict will not be set aside if the state's evidence and all favorable inferences that can be drawn therefrom support a rational theory of guilt." "We do not resolve conflicts in the evidence, pass on the credibility of the witnesses, determine the plausibility of an explanation, or weigh the evidence."

State v. Verhoef, 2001 SD 58, ¶ 22, 627 N.W.2d 437, 442 (internal citations omitted).

[¶ 20.] Running Bird claims that the kidnapping charges are invalid because the only confinement of Katinka occurred during the rape. He argues Katinka willingly and voluntarily walked with him to the new campsite where the rape occurred. Running Bird further contends that, under the Curtis/Reiman test, the confinement was merely incidental to the rape.

[¶ 21.] The Curtis/Reiman test has its origin in State v. Reiman, 284 N.W.2d 860 (S.D.1979). In Reiman, two men abducted a woman from a parking lot and took her to a building. At the building they were joined by two other men. All four men raped the woman. This Court determined that two of the four co-defendants could not be charged with kidnapping since their acts of confinement were restricted to holding the victim down on a mattress to facilitate the rape. We stated that "[w]e find it unreasonable to sustain a conviction for kidnapping which is unsupported by evidence aside from acts incidental only to another crime." Id. at 873. This Court explained that the two co-defendants' movement of the victim was merely incidental to the rape and did not substantially increase the risk of harm that was present. Id. at 873-74. [¶ 22.] The next case discussing this subject was State v....