State v. Seidel, 123020 SDSC, 29182-a-PJD

Docket Nº:29182-a-PJD
Opinion Judge:DEVANEY, JUSTICE.
Party Name:STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. RICHARD SEIDEL, Defendant and Appellant.
Attorney:JASON R. RAVNSBORG Attorney General PAUL S. SWEDLUND Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee. TIMOTHY J. BARNAUD Belle Fourche, South Dakota Attorney for defendant and appellant.
Judge Panel:GILBERTSON, Chief Justice, and KERN, JENSEN, and SALTER, Justices, concur.
Case Date:December 30, 2020
Court:Supreme Court of South Dakota

2020 S.D. 73

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

RICHARD SEIDEL, Defendant and Appellant.

No. 29182-a-PJD

Supreme Court of South Dakota

December 30, 2020

CONSIDERED ON BRIEFS AUGUST 24, 2020

APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT PERKINS COUNTY, SOUTH DAKOTA THE HONORABLE ERIC J. STRAWN Judge.

JASON R. RAVNSBORG Attorney General PAUL S. SWEDLUND Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

TIMOTHY J. BARNAUD Belle Fourche, South Dakota Attorney for defendant and appellant.

DEVANEY, JUSTICE.

[¶1.] Richard Seidel appeals his convictions for kidnapping, rape, aggravated assault, and commission of a felony with a firearm. He claims that the circuit court abused its discretion in limiting defense counsel's closing argument; that the prosecutor engaged in misconduct during closing argument; and that the circuit court erred in denying his motion for judgment of acquittal. He also claims that his sentence is cruel and unusual in violation of the Eighth Amendment. We affirm.

Factual and Procedural Background

[¶2.] J.S. separated from her husband, Richard Seidel, sometime in 2015 after he had an affair, and in September 2017, she filed for divorce. While they were separated, J.S. continued to work as a bookkeeper for a company owned by Richard-Bison Grain Company. On November 2, 2017, when J.S. arrived at Bison Grain, Richard and an employee, Doug Lewton, were present. At around 11:45 a.m., Richard told Doug to take his lunch break "like [he] normally do[es]." Doug later explained that he thought Richard's statement was odd because he did not take a lunch break at a set time, but he nevertheless left Bison Grain. Richard disputes what happened next; however, we restate the evidence and testimony "in a light most favorable to the jury's verdict." See State v. Huber, 2010 S.D. 63, ¶ 2, 789 N.W.2d 283, 286.

[¶3.] After Doug left, Richard and J.S. were alone at Bison Grain, and according to J.S., Richard asked her to help him process a transaction on the computer in the scale room. J.S. complied, and as she was typing, Richard slipped a zip tie around her neck, tightened it, and began choking her. She begged him to stop making it tighter. Richard then pushed J.S. to the ground and took her cell phone. J.S. blacked out shortly thereafter.

[¶4.] When J.S. awoke, she realized she was on her stomach on the floor of the scale room and the zip tie was still around her neck. She noticed that she had urinated and defecated, and her wrists and ankles were bound with zip ties. J.S. saw that Richard had a gun, and she thought he was going to kill her. According to J.S., Richard stood her up and put her in the backseat of his pickup, after which she blacked out again.

[¶5.] When J.S. awoke, she could hear the pickup traveling down a gravel road. Richard drove J.S. to their marital home outside of Bison where he continued to live after the couple had separated. He parked the pickup in the garage, then cut the zip tie from J.S.'s ankles and had her walk into the house while he pointed a gun at her back. As the two walked to the bedroom, J.S. noticed a white garbage bag with black draw strings on the kitchen counter. In the bedroom, J.S. noticed a rope tied to the bottom part of the headboard. Although Richard did not use the rope on J.S., she feared that he planned to rape and kill her.

[¶6.] Once in the bedroom, Richard used a utility knife to cut off J.S.'s coat, shirt, and bra. He also removed her jeans and underwear and took her into the master bathroom to shower and clean off the urine and feces. After the shower, Richard shaved J.S.'s pubic area with an electric razor. He then had J.S. perform oral sex on him at gunpoint. Next, he returned J.S. to the bedroom and bent her over the bed. She asked him to use a lubricant if he was going to do anything anally. J.S. explained that Richard used lubrication from a tube in a bag under the bed and penetrated her both vaginally and anally. During the anal penetration, J.S. defecated, which upset Richard, so he took her to the shower again. Afterward, Richard told her that she needed to listen to him about their divorce. J.S. promised that she would stop the divorce, hoping this would prevent Richard from killing her. Richard then appeared to calm down. He cut the zip ties from her wrists but reminded her he had a gun and told her to put on other clothing.

[¶7.] J.S. walked from the bedroom to the laundry room to get dressed. At some point, she placed part of a zip tie that had been cut from her wrist on top of the refrigerator. According to J.S., Richard put her cut-up clothing in a white garbage bag and placed her underwear and the bedding in the washing machine. Thereafter, they left the house and drove to the airport where Richard stored his private plane. When they arrived, J.S. noticed that the door to the hangar was open and the blocks were removed from the plane's tires, neither of which were typical. At the airport, Richard cut the zip tie from J.S.'s neck and placed it in the white garbage bag. He got out of the pickup, taking the bag with him, and told J.S. to return in 20 minutes. He warned her that if she told the sheriff what happened he would shoot himself.

[¶8.] J.S. left the airport in the pickup after she saw Richard fly away in the plane. She then went to Bison Grain to get her cell phone. J.S. sent a snapchat message to her daughter-in-law Kristen Seidel around 1:30 p.m. informing her that she was "scared" and if she was "not back by 2," Kristen should "come look for [her]." J.S. testified that she returned to the airport to pick up Richard and drove him to another house they owned by Bison Grain. She explained that after she dropped Richard off, he got into his Cadillac and drove off. In an attempt to have things appear normal, J.S. got into her own vehicle (a red dually pickup) and drove to the post office and bank.

[¶9.] At approximately 1:50 p.m., J.S. returned to Bison Grain, and Kristen was there waiting for her. Kristen described J.S. as "pretty distraught" and noted that she was crying. J.S. told Kristen what had happened. Despite Kristen's urging, J.S. resisted telling law enforcement, claiming she did not want Richard to kill himself. Doug came in from the shop at this point, and both he and Kristen convinced J.S. to report what had occurred. Kristen took J.S. to the police station in Doug's pickup because J.S. did not want Richard to see her pickup leave Bison Grain or see it parked outside the police station.

[¶10.] J.S. was too afraid to go into the police station, so Kristen went inside. After learning that the sheriff was not in town, Kristen asked a deputy to speak to J.S. outside in Doug's pickup. When Deputy Matthew Kindsvogel first approached J.S., he observed that she was crying and frantic in her movements and that she had a red mark on her neck. The deputy recorded his conversation with J.S. wherein she related what Richard had done to her. Deputy Kindsvogel photographed the marks on J.S.'s neck, wrists, and elbow and determined that J.S. should be seen by medical personnel. Kristen then took J.S. to a medical clinic in Bison. A physician assistant at the clinic observed that J.S. had broken blood vessels in her eyes, petechiae (pinpointed, round spots caused by broken capillaries) on her right forehead, abrasions on her elbow, and ligature marks on her wrists and neck. He also observed that J.S. had bloody post nasal drip in her throat, and because of the trauma to her neck, he recommended that J.S. be taken to the emergency room at the hospital in Spearfish for an examination.

[¶11.] At approximately 5:30 p.m., Kristy Schumacher, a nurse specially trained in conducting examinations of sexual assault victims, examined J.S. During her initial assessment, Nurse Schumacher observed a ligature mark on J.S.'s neck which had "several stripes going vertically within it" consistent with the teeth of a zip tie. She also observed that the whites of both of J.S.'s eyes were red from "hemorrhaging in the eye sclera." The nurse further observed broken capillaries on the right side of J.S.'s forehead and eye. Although the nurse did not observe visible injuries to J.S.'s vagina or anus, she noted that J.S.'s vaginal and anal openings were very tender based on J.S.'s reaction of holding onto the bed railing tightly and crying during the examination.

[¶12.] While at the Spearfish hospital, Dr. Matthew Finke also examined J.S.'s injuries. Dr. Finke reported that J.S. had a subconjunctival hematoma on the lateral part of her left eye. He also reported that because of the hemorrhaging in her eye and J.S.'s reported tenderness around "the laryngeal cartilage, which is kind of the Adam's apple" part of the neck, he ordered a CT angiogram of the head and neck to rule out airway and vessel issues. The test indicated normal vessels and no fracture of the laryngeal cartilage.

[¶13.] After law enforcement's initial contact with J.S., officers located Richard as he was driving toward Bismarck, North Dakota. Law enforcement also obtained search warrants for Richard's residence, airplane, pickup, and Bison Grain. During a search of the residence, law enforcement found J.S.'s jeans and undergarments in the dryer and bed linens in the washing machine. They also found a bag containing sex paraphernalia and lubricant on a shelf in the closet of the master bedroom. Officers found a box of white garbage bags with black draw strings in a closet and a portion of a zip tie on the top of the refrigerator. Although the officers did not find the specific garbage bag taken by Richard when he flew away in his airplane, they did uncover a portion of a zip tie on the floor inside the...

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