State v. Schuster, 17855

• Decision Date: 11 January 1993
• Docket Number: No. 17855,17855
• Citation: 502 N.W.2d 565
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Shawn SCHUSTER, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 565

502 N.W.2d 565

STATE of South Dakota, Plaintiff and Appellee, v. Shawn SCHUSTER, Defendant and Appellant.

No. 17855.

Supreme Court of South Dakota.

Considered on Briefs Jan. 11, 1993.

Decided June 23, 1993.

Mark Barnett, Atty. Gen. and Scott Bogue, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Leah C. Piersol, Deadwood, for defendant and appellant.

AMUNDSON, Justice.

Shawn Schuster (Schuster) appeals from his conviction of felony rape as defined in SDCL 22-22-1(2). ¹ We affirm.

FACTS

On Friday, May 10, 1991, twenty-three year old Schuster drove sixteen-year old D.T., her boyfriend Brian Meyers (Meyers), and Norman Schnitger (Schnitger) to a party at Orman Dam. Although D.T. was sixteen years old, the evidence showed her to have the mental capacity of only an eight or nine year old.

At some point in the evening, Schuster and D.T. left the party and moved to another location along the shore of the reservoir. Next, Schuster removed D.T.'s shorts and underwear and sexually penetrated her mouth and vagina. While Schuster alleged that the penetration occurred with D.T.'s consent, D.T. testified that the penetration was against her will. Schuster then abandoned D.T. near the dam without her shorts, underwear, and one of her tennis shoes.

Brad Bechen (Bechen), who was fishing near the dam, subsequently discovered D.T. half-naked and trembling in the brush along the shoreline. D.T. was visibly upset and stated that she had been raped. Bechen placed a blanket around D.T., talked to her for approximately one hour, and then transported her to the Belle Fourche Police Station where she reported being raped by Schuster.

Schuster was placed in protective custody by Belle Fourche Police Officer Curt Nulle (Nulle) in the early morning hours of May 11, 1991. Nulle advised Schuster of his Miranda rights at 3:32 a.m. prior to interrogating him. Nulle gave Schuster a second Miranda advisement at 4:24 a.m. when Schuster was placed under arrest for rape. Throughout the entire length of the interrogation by Nulle, Schuster asked for and was denied an attorney on at least twelve occasions.

After his arrest, Schuster was transported to the hospital and placed in the custody of Deputy Sheriff Steven Evans (Evans). There Evans requested that Schuster give hair and clothing samples for a rape kit. Schuster claims that he first refused to give the samples without talking to an attorney, but changed his mind when Evans commented that he would get a court order and obtain the samples anyway. Evans testified that he did not recall Schuster requesting an attorney but that he did recall telling Schuster that he could probably obtain a court order to get the samples. After this exchange, Schuster signed a consent form and the samples were taken.

Later, Evans again gave Schuster a Miranda warning. Schuster indicated that he understood his Miranda rights and wished to waive them. Evans then began to question Schuster regarding the events of the prior evening. During this taped interview, Schuster stated that he had attempted vaginal intercourse with D.T., but failed because he could not get an erection; that he could not remember if he penetrated D.T. with his fingers; and, that D.T. had pulled down his pants and performed oral sex on him. This interview was preserved on tape.

On August 14, 1991, Schuster was indicted by the Butte County Grand Jury for rape in the first degree, SDCL 22-22-1(1), forcible rape, or in the alternative, rape in the first degree, SDCL 22-22-1(2), rape where the victim lacks mental capacity to give consent. Schuster plead not guilty to all charges.

Trial before a jury commenced on December 4, 1991. The jury returned a verdict of not guilty as to rape in the first degree, SDCL 22-22-1(1), and guilty as to the alternative charge, rape in the first degree, SDCL 22-22-1(2). Schuster appeals his conviction.

ISSUES

1. Whether the trial court erred by refusing to give defendant's proposed jury instructions regarding defendant's subjective understanding of the victim's ability to give consent?

2. Whether the trial court erred in refusing to suppress bodily samples taken from defendant?

3. Whether the trial court erred in admitting the defendant's statement made during his second interrogation?

ANALYSIS

1. Jury Instructions

Schuster first alleges that the trial court erred in refusing to give two proposed jury instructions regarding his knowledge or understanding of D.T.'s ability to give consent to sexual intercourse. Schuster alleges that such error occurred through the court's refusal to give two different instructions proposed by Schuster: (1) an instruction pertaining to the definition of legal consent and (2) an instruction on mistake of fact. Schuster maintains that he should not be found guilty under SDCL 22-22-1(2) unless the jury concludes that he knew D.T. lacked the ability to consent to sexual intercourse.

"Jury 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." State v. Johnston, 478 N.W.2d 281, 283 (S.D.1991). Jury Instruction 11 listed the elements necessary for a rape under SDCL 22-22-1(2) as: "1. That the defendant at the time and place alleged in the Indictment accomplished an act of sexual penetration with [D.T.]; and 2. That [D.T.] was incapable, because of mental incapacity, of giving consent to such act of sexual penetration." This language mirrors the language of SDCL 22-22-1(2).

Rape is an act of sexual penetration accomplished with any person under any of the following circumstances:

* * * * * *

(2) If the victim is incapable, because of physical or mental incapacity, of giving consent to such act[.]

SDCL 22-22-1(2) (1990).

Schuster argues that Jury Instruction 11 was erroneous in failing to include as an element his knowledge or understanding of D.T.'s inability to give consent. However, the perpetrator's knowledge of the victim's incapacity is not listed as an element in the rape statute itself. SDCL 22-22-1(2). Absent a clearly expressed legislative intent to the contrary, the statute's language must be considered conclusive. State v. Galati, 365 N.W.2d 575, 577 (S.D.1985) (citing Consumer Product Safety Comm'n v. GTE Sylvania, 447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980)). "Courts may not interpret or construe a statute in a manner inconsistent with the plain language employed by the legislature." Galati, 365 N.W.2d at 577.

The statute is clear on its face. A person is guilty of rape where the actor accomplishes sexual penetration with a person who is physically or mentally incapable of consenting to such act. SDCL 22-22-1(2). The section of the rape statute pertaining to persons incapable of consent makes no mention of, and thus does not require, knowledge on the part of the perpetrator. The precedent established by holdings of the court regarding SDCL 22-22-1(2) has made no reference to the knowledge of the perpetrator as an element of crime and has simply required evidence showing the victim incapable of giving consent. See State v. Willis, 370 N.W.2d 193 (S.D.1985); State v. Fox, 72 S.D. 119, 31 N.W.2d 451 (1948).

Iowa has a statute regarding the rape of persons who are incapable of consent which is similar to SDCL 22-22-1(2). The Iowa statute reads:

A person commits sexual abuse in the third degree when the person performs a sex act under any of the following circumstances:

* * * * * *

2. The act is between persons who are not at the time cohabiting as husband and wife and if any of the following are true:

a. The other participant is suffering from a mental defect or incapacity which precludes giving consent.

Iowa Code Ann. Sec. 709.4(2)(a) (West Supp.1992). In interpreting its statute, the Iowa Supreme Court compared rape of a person incapable of giving consent to rape of a person due to age status. State v. Sullivan, 298 N.W.2d 267, 273 (Iowa 1980). "This crime does not require knowledge or intent. As in the case of sexual abuse due to age status, the policies in support of protecting those who suffer mental incapacities outweigh the danger of mistake." Id. (citations omitted).

Likewise, the Washington Supreme Court has held that its statute regarding the rape of persons incapable of giving consent does not require the perpetrator's knowledge of the victim's incapacity. State v. Meyer, 37 Wash.2d 759, 226 P.2d 204, 207-08 (1951).

It was not necessary that respondent prove that appellants knew that the female was of such unsoundness of mind as to be incapable of consenting to the acts of sexual intercourse. There are certain types of statutory crimes in the commission of which the perpetrator acts at his peril. If knowledge is not made a prerequisite by the statute defining the crime, its absence is not a defense, nor is it an element to be proved by the state. The part of the statute pursuant to which the appellants were prosecuted does not make any reference to knowledge of mental condition. It has been decided under similar statutes that knowledge is not an element of the offense.

Id. (citations omitted) (emphasis added). Because the perpetrator's knowledge was not specifically required by the statute, the court refused to require it as an element of that type of rape. Id.

Our statute, SDCL 22-22-1(2), is similar to the statutes of Iowa and Washington. Accordingly, we find persuasive the holdings of those states that the perpetrator's knowledge is not an issue in the rape of a person incapable of giving consent. Rape of a person incapable of giving consent, SDCL 22-22-1(2), is analogous to the statutory rape of a person less than sixteen years old, SDCL 22-22-1(4), 22-22-1(5) (1990). We have held that the perpetrator's knowledge of the girl's age is immaterial and his reasonable belief that she was over the age of consent is not a defense in statutory rape cases. State v. Fulks, 83 S.D. 433, 436-37, 160 N.W.2d 418, 420 (1968). We...