State v. Snodgrass

• Decision Date: 24 November 2020
• Docket Number: #29116
• Citation: 951 N.W.2d 792
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Brandon Keith SNODGRASS, Defendant and Appellant.
• Court: South Dakota Supreme Court

951 N.W.2d 792

STATE of South Dakota, Plaintiff and Appellee,

v.Brandon Keith SNODGRASS, Defendant and Appellant.

#29116

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS AUGUST 24, 2020

OPINION FILED November 24, 2020

JASON R. RAVNSBORG, Attorney General, PAUL S. SWEDLUND, Assistant Attorney General, Pierre, South Dakota, ROXANNE HAMMOND, Hughes County State's Attorney, Pierre, South Dakota, Attorneys for plaintiff and appellee.

DAVID W. SIEBRASSE, Pierre, South Dakota, Attorney for defendant and appellant.

JENSEN, Justice

[¶1.] A jury convicted Brandon Snodgrass of eight counts of first-degree child rape in violation of SDCL 22-22-1(1) and four counts of sexual contact with a child in violation of SDCL 22-22-7. Snodgrass appeals, arguing the indictment failed to sufficiently allege the dates, times, and locations of the crimes charged so that he could prepare an adequate defense. Snodgrass also claims that the circuit court abused its discretion in admitting certain other act evidence, admitting the child victim's hearsay statements, and overruling his objections that the State's expert opinions improperly vouched for the testimony of the child witness. Finally, Snodgrass argues that the court erred in denying his motion for a judgment of acquittal and by imposing sentences that violated the Eighth Amendment. We affirm.

Facts and Procedural History

[¶2.] In 2012, Snodgrass began a long-distance relationship with C.M. C.M.’s daughter, E.M., was three-years-old at the time. Snodgrass lived in Pierre, while C.M. lived in North Dakota and Aberdeen until she finished college in 2014. In May 2014, C.M. located employment in Pierre and moved in with Snodgrass at his parents’ home.

[¶3.] Within a few weeks, C.M. rented an apartment for herself, E.M., and Snodgrass, and the three moved in together. C.M. worked full-time while Snodgrass lived with her. Snodgrass worked on and off during their relationship and often watched E.M. when C.M. was working. In 2016, Snodgrass was convicted and incarcerated for possession of a controlled substance.

[¶4.] Prior to Snodgrass's incarceration, E.M. told C.M.’s mother that Snodgrass had inappropriate contact with her. C.M. confronted Snodgrass after learning about E.M.’s claim, but Snodgrass denied any wrongdoing. He explained that he had checked to make sure E.M. cleaned her bottom after E.M. complained that her bottom was itchy and sore. C.M. accepted Snodgrass's explanation at the time.

[¶5.] Snodgrass and C.M. continued their relationship while he was incarcerated. C.M. and E.M. sent letters to Snodgrass and visited him in prison. E.M. said that she missed Snodgrass and looked forward to his return home. Snodgrass moved back into the apartment with C.M. after he was released from prison in September 2017. He began to look after E.M. again and often picked her up after school.

[¶6.] In May 2018, C.M. broke up with Snodgrass after Snodgrass became physical with her when he learned that C.M. had been unfaithful to him. Snodgrass moved out, taking two cell phones and a tablet computer. Snodgrass also took an ottoman that he and C.M. kept in their bedroom. The ottoman contained a large collection of sex toys that he and C.M. had used during their relationship. Snodgrass asked C.M. several times during the summer after they had broken up if he could see or talk to E.M. E.M. was out-of-town visiting her biological father for half of the summer. C.M. denied the requests.

[¶7.] On September 5, 2018, E.M. walked into the kitchen after taking a shower and disclosed to C.M. that Snodgrass had "molested" her. E.M. did not provide many details, but she told C.M. that Snodgrass had touched her "privates" with his hands, his mouth, and his "privates." C.M. immediately contacted law enforcement. Law enforcement scheduled a forensic interview for E.M. the next day with the Central South Dakota Child Assessment Center. Angela Lisburg, a nurse practitioner at the Assessment Center, conducted a physical examination and interview of E.M.

[¶8.] E.M. told Lisburg that the sexual abuse began when she was in kindergarten and continued regularly while Snodgrass was living with C.M. E.M. recalled that the first instance of abuse occurred when Snodgrass used a vibrator to touch her vaginal area inside her underwear. Thereafter, Snodgrass began to use his fingers, his mouth, his penis, and various sex toys to touch and penetrate E.M. vaginally. E.M. described the sex toys in detail. She also described how it felt when Snodgrass abused her. E.M. explained that the abuse occurred most frequently after Snodgrass picked her up from school and when she and Snodgrass were watching tv in the living room while C.M. slept in the bedroom. E.M. also stated that these acts typically occurred on the couch, on a mattress that E.M. slept on in the living room, or on C.M.’s bed.

[¶9.] In describing the abuse, E.M. said that "white stuff" would come out of Snodgrass's "private part." She said that it would either go inside of her or on a towel that Snodgrass put underneath them. Snodgrass told E.M. that "clear stuff" would come out of her if she liked what he was doing. E.M. also reported that Snodgrass put an "aloe" lotion on her privates, so it would be easier for him to "go inside of her." E.M. told Lisburg that Snodgrass had torn her "private part" once. She explained she knew about the injury because there was blood on the toilet paper when she wiped herself, and it hurt for several days afterward. When E.M. told Snodgrass about the injury, he told her that she should make up a story if anyone asked about it. E.M. also told Lisburg that Snodgrass threatened to hurt E.M. or people she loved if she told anyone about what he was doing.

[¶10.] Lisburg conducted a physical examination of E.M., which included her external genitalia. The exam was normal, showed no signs of scarring, and revealed that E.M.’s hymen was intact. Lisburg concluded that the physical examination did not confirm or exclude the possibility that E.M. had been sexually abused.

[¶11.] After Lisburg interviewed E.M., law enforcement went to the apartment to collect evidence. At this time, C.M. gave law enforcement a bottle of lubricant that she found underneath a couch cushion a few weeks before E.M. reported the abuse. C.M. found it when she moved the couch out of the apartment to make room for a new couch. C.M. did not think much about the lubricant when she found it, but she thought it was "odd that it was in the couch."

[¶12.] Law enforcement also obtained a search warrant for Snodgrass's parents’ home, where Snodgrass had been staying after he moved out of C.M.’s apartment. Law enforcement retrieved Snodgrass's two cell phones and his Samsung tablet during the search. The ottoman containing a large assortment of sex toys was also located in the basement room where Snodgrass was staying. E.M. later identified nine toys from the ottoman that Snodgrass had used to abuse her. These nine toys were sent to the State Crime Laboratory. Several of the toys contained DNA from more than one contributor, but there was an insufficient sample to identify each contributor. However, laboratory analysis confirmed that DNA from both C.M. and E.M. was on the tip of one of the sex toys. At trial, the laboratory analyst explained that the samples she tested would likely have come from touch DNA, saliva, or vaginal fluid. The analyst further explained that her forensic tests could not differentiate between touch DNA and vaginal fluid.

[¶13.] Snodgrass was arrested on September 11, 2018. A week later, he was indicted by a Hughes County grand jury on eight counts of first-degree rape and four counts of sexual contact with a child under age sixteen. The State alleged that four of the first-degree rape charges occurred from May 28, 2014 to July 4, 2016. The indictment alleged the other four rapes occurred from September 14, 2017 to May 25, 2018, after Snodgrass's release from prison. The indictment alleged one count of digital penetration, one count of penile penetration, one count of oral penetration, and one count of penetration with an object during each time period. The four sexual contact counts pertained to the State's allegation that Snodgrass used a vibrator on E.M. The indictment alleged two of the counts occurred before Snodgrass's incarceration, and two of the counts occurred after his release. The State also filed a part II habitual offender information alleging that Snodgrass had previously been convicted of three felonies.

[¶14.] At a pretrial hearing, the State sought permission, under SDCL 19-19-404(b), to introduce data found on Snodgrass's electronic devices. This other act evidence included "extraction reports" from each device showing pornographic search terms and internet histories created on the devices from April to September 2018. The State argued that some of the search terms and web histories were relevant to intent, motive, and lack of mistake because they demonstrated Snodgrass's sexual interest in young girls.¹ The State argued that other searches and web histories were relevant to show pattern and intent because they involved many of the same acts of abuse that E.M. reported.²

[¶15.] Additionally, the State sought to introduce several pornographic images found on the three devices, most of which were images of prepubescent girls. The State also sought to offer three photos of E.M. wearing only her underwear, in which E.M. was lying on a mattress and on the living room couch. Snodgrass's tattooed feet are visible in two of these photos, suggesting that Snodgrass took them. In a fourth photo, taken just minutes after a photo of E.M. on the mattress, there are three sex toys on the mattress near where E.M. had been lying. E.M. separately identified all three of the sex toys as devices that Snodgrass had used to sexually abuse her. The circuit court ruled, over Snodgrass's objection, that the entirety of the extraction reports and the images were admissible as...