State v. Thomas, 010219 SDSC, 28393-a-SRJ

Docket Nº:28393-a-SRJ
Opinion Judge:JENSEN, JUSTICE
Party Name:STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. CHRISTIAN A. THOMAS, Defendant and Appellant.
Attorney:DOUGLAS N. PAPENDICK of Stiles, Papendick & Kiner Mitchell, South Dakota Attorneys for defendant and appellant. MARTY J. JACKLEY Attorney General JOHN M. STROHMAN Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
Judge Panel:GILBERTSON, Chief Justice, and KERN and SALTER, Justices, concur.
Case Date:January 02, 2019
Court:Supreme Court of South Dakota
 
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2019 S.D. 1

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

CHRISTIAN A. THOMAS, Defendant and Appellant.

No. 28393-a-SRJ

Supreme Court of South Dakota

January 2, 2019

CONSIDERED ON BRIEFS ON NOVEMBER 12, 2018

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT AURORA COUNTY, SOUTH DAKOTA THE HONORABLE PATRICK T. SMITH Judge

DOUGLAS N. PAPENDICK of Stiles, Papendick & Kiner Mitchell, South Dakota Attorneys for defendant and appellant.

MARTY J. JACKLEY Attorney General JOHN M. STROHMAN Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

JENSEN, JUSTICE

[¶1.] Christian Ashley Thomas was convicted by an Aurora County jury of multiple sex crimes involving two minor victims under the age of sixteen. Thomas appeals, arguing the circuit court erred in admitting certain other acts evidence. He also argues the circuit court abused its discretion by denying his motion for a mistrial after he learned during the trial that the bailiff had recently been employed by the State's Attorney. We affirm.

Facts and Procedural History

[¶2.] Thomas was initially charged in 2015 with multiple counts of fourth degree rape, sexual contact with a child, and sexual exploitation of a minor. The charges were alleged to have involved his niece by marriage, K.V. Thomas's wife, Beth Thomas (Beth), is a sister to K.V.'s mother.

[¶3.] The State continued to investigate the case after the initial charges were filed. In January 2016, Thomas was charged by superseding indictment with additional sex offenses involving K.V., as well as sex offenses involving K.V.'s friend, B.B. In February 2017, the State charged Thomas with three counts of fourth degree rape, six counts of sexual contact with a child, five counts of sexual exploitation of a minor, three counts of aiding and abetting fourth degree rape, and one count of aiding and abetting sexual contact with a child for alleged acts committed against K.V. Thomas also faced four counts of fourth degree rape and two counts of sexual contact with a child for alleged acts committed against B.B., and two counts of possession of child pornography. The crimes were alleged to have occurred between 2008 and 2014.

[¶4.] Thomas pleaded not guilty to all the charges and the case proceeded to trial in May 2017. The State presented evidence showing that K.V. began spending significant time at the Thomas household when she was twelve years old. She babysat Thomas's three children, and occasionally lived with the Thomas family. During this time, Thomas started making sexual advances toward K.V. He requested that K.V. show him her breasts and asked to touch K.V.'s breasts. The sexual contact escalated when Thomas drove K.V. back to her home one night after babysitting. During the car ride, Thomas pulled over and asked K.V. to go into the back seat. He performed oral sex on her and had K.V. perform oral sex on him.

[¶5.] Following the incident in Thomas's vehicle, Thomas invited his friend, Larry Unruh, to his house and instructed K.V. to show Unruh her breasts. Thomas then made his home available for Unruh and K.V. to have sex. On some occasions, Thomas, Unruh, and K.V. participated in sex acts together. On one occasion, K.V. was part of a foursome at Thomas's home that involved her, Thomas, Unruh, and Beth. K.V. indicated during the investigation and in her testimony at trial that her sexual interaction with Thomas and Unruh ended before she turned sixteen on November 15, 2012, although she could not easily recall when the events occurred.1

[¶6.] The State also presented evidence showing that Thomas engaged B.B. in sexual conduct at his home. These acts included several occasions when Thomas touched B.B.'s genitals, performed oral sex on her, or had sexual intercourse with her.

[¶7.] Prior to trial, the State filed a notice of intent to introduce evidence of other acts pursuant to SDCL 19-19-404(b). The State sought the admission of several acts, two of which Thomas challenges on appeal: 1) internet searches that used terms associated with an interest in younger females; and 2) Thomas's act of piercing his penis.2

Internet Search Evidence

[¶8.] The State argued for the admission of several searches conducted on pornographic websites recovered from Thomas's computer hard drives. These searches used terms such as "teen," "young," "way too young," and "jailbait." The State argued these searches directly contradicted Thomas's interview with law enforcement in which he stated he preferred older women. The State sought admission of another set of search terms recovered from the hard drives, including "family orgy," "family sex," "taboo," and "incest." The State argued these terms were relevant to one of the charged incidents that involved group sex activity with Beth and K.V. The State argued that all the searches were relevant to show Thomas's motive, intent, and plan to commit the crimes.

[¶9.] Thomas argued that the evidence was irrelevant because the "internet searches were strictly made from mainstream adult pornographic websites and not from any illegal websites. The persons shown on these various websites were of legal age and most likely were role playing." Thomas also argued that even if the evidence was probative, its value was "substantially outweighed by the danger of its prejudicial effect." Thomas also objected to the internet searches on the basis that the State failed to show the dates the searches took place. The State responded that the defense had an adequate opportunity to review the searches with the assistance of a defense expert before the pretrial hearing.

[¶10.] The circuit court found that the internet searches were "relevant to go to motive, intent, and plan. I think they show a specific design to search for teens, preteens, jailbait . . . and incest type family-type searches and the allegations are that the defendant engaged in illegal activity with an underage child and that at least once when his wife was present, that incest was part of the offense." The court further found that the relevance substantially outweighed any prejudice and any prejudice would not be unfair.

[¶11.] At trial, K.V. testified about the event in which she, Thomas, Unruh, and Beth engaged in group sex. Unruh and Beth were also called by the State.3Their testimony included descriptions of this event and other sex abuse by Thomas. Agent Brett Spencer also testified regarding his interview with Thomas in which Thomas stated that he was only attracted to older women.

[¶12.] Agent Toby Russell testified at trial regarding his forensic searches of Thomas's computer hard drives. The State introduced reports generated showing the various searches took place December 2014, and February, March, and April 2015. While there...

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