State v. Thompson, 19540

• Citation: 560 N.W.2d 535,1997 SD 15
• Decision Date: 16 January 1997
• Docket Number: No. 19540,19540
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Robert Lee THOMPSON, Defendant and Appellant. . Considered on Briefs on
• Court: Supreme Court of South Dakota

Page 535

560 N.W.2d 535

1997 SD 15

STATE of South Dakota, Plaintiff and Appellee, v. Robert Lee THOMPSON, Defendant and Appellant.

No. 19540.

Supreme Court of South Dakota.

Considered on Briefs on Jan. 16, 1997.

Decided Feb. 19, 1997.

Mark Barnett, Attorney General, Paul Cremer, Assistant Attorney General, Pierre, for plaintiff and appellee.

Michael J. McGill, Beresford, Thomas H. Frieberg & Gregory T. Brewers of Frieberg, Rudolph and Peterson, Beresford, for defendant and appellant.

GILBERTSON, Justice.

¶1 Robert Lee Thompson appeals from his convictions of first-degree rape, sexual contact with a child under the age of sixteen, indecent exposure, and disseminating harmful material to minors. We affirm Thompson's conviction of rape, the primary charge against him. We also affirm all other convictions with the sole exception of the conviction of sexual contact, which we reverse and remand with instruction.

FACTS AND PROCEDURE

¶2 Robert Lee Thompson [hereinafter Thompson] is an uncle to the three children pertinent to this appeal. Thompson was charged with sexual misconduct involving his three nieces, identified as C.B., V.B., and Ch.B. ¹ These children were ages 6, 9, and 10, respectively, when the alleged abuse occurred during a four-month period from January to April 1992. During this time, Thompson was babysitting the girls in the mobile home in North Sioux City where he and his wife resided. Mrs. Thompson worked outside the home during this time and was not present when the alleged abuse occurred.

¶3 The accusations of abuse which gave rise to the charges involved in this appeal began in March of 1994 when C.B.'s father arrived home from work on a Friday evening, bringing with him videotapes for his daughters to watch. That evening, when the girls were getting ready for bed, C.B. told her father that her Uncle Bob made her watch dirty movies. Later that evening, C.B.'s father related this conversation to his wife and to his sister-in-law, V.B.'s and Ch.B.'s mother.

¶4 On March 23, 1994, C.B. was interviewed by Kathy O'Brien, a licensed social worker with experience in interviewing abused children. This interview was at the request of Chief of Police for North Sioux City, Avery (Skip) Ensley. C.B. informed O'Brien that Robert Thompson had exposed her to pornographic material and to body parts. She made no disclosure of physical contact at that time.

¶5 On March 28, 1994, Ensley completed his request for an arrest warrant based on three charges: disseminating harmful materials to minors, indecent exposure, and sexual contact with a child under the age of sixteen. The sexual contact charge was the only felony charge. On March 28, 1994, Thompson was a Nebraska resident and could not be extradited to South Dakota unless a felony was charged.

¶6 On April 8, 1994, Ensley interviewed Thompson at the Dixon County Sheriff's office in Ponca, Nebraska. Thompson resided in Ponca and drove himself to the interview at the request of a Ponca County sheriff's deputy. Thompson was questioned by Ensley in a closed-door room for approximately one hour and fifteen minutes. Prior to questioning, Ensley informed Thompson he was not under arrest and was free to leave. He did not advise Thompson of his Miranda rights at any time during the questioning. Ensley recorded a portion of the interview. There was one break, during which Ensley stepped out of the room. During this interview, Thompson admitted that he had exposed C.B. to a pornographic movie and that he had masturbated in her presence. He also admitted C.B. had touched his penis. Following these admissions, and at the close of the interview, Ensley asked Thompson to provide a written statement, which he did. The written statement included only the admissions involving masturbation and the pornographic movie, however, and did not include any statement about the unlawful touching. While Thompson was putting his admissions into written form, the sheriff's deputy who had called Thompson was also in the room. At all other times during the interview, no one was in the room with Thompson and Ensley.

¶7 On April 15, 1994, C.B. was examined by a medical doctor, Dr. John Shelso. Dr. Shelso found signs of vaginal penetration during the physical examination and from an examination of photographs (magnified colposcopic slides) he took.

¶8 On April 28, 1994, V.B. and Ch.B. were interviewed by O'Brien. ² Neither girl made any allegation of physical contact by Thompson during this first interview, although they would do so at a later interview by O'Brien.

¶9 Dr. Gary Carlton conducted a physical examination of V.B. and Ch.B. on May 2, 1994. He made findings suggestive of vaginal and rectal penetration of V.B., and of vaginal penetration of Ch.B.

¶10 On May 9, 1994, an information was filed charging Thompson with the crimes of sexual contact with a child under the age of sixteen (SDCL 22-22-7), indecent exposure (SDCL 22-24-1), and disseminating harmful material to minors (SDCL 22-24-28). On June 20, 1994, a second information was filed charging Thompson with the crimes of first-degree rape (SDCL 22-22-1(1)) and second-degree rape (SDCL 22-22-1-(2)). A trial commenced on charges stemming from these two informations but was later held to be a mistrial. ³ On August 14, 1995, a third information was additionally filed charging Thompson with first-degree rape (SDCL 22-22-1(1)) of C.B. Thompson pled not guilty to all charges. All of the informations were joined into one trial by jury which commenced October 30, 1995.

¶11 The jury found Thompson guilty of first-degree rape, sexual contact with a child under the age of sixteen, indecent exposure, and disseminating harmful materials to minors. All of these charges involved C.B. It acquitted Thompson of a second charge of first-degree rape and second-degree rape, charges that involved V.B. and Ch.B. In a subsequent proceeding, Thompson was found guilty of being a habitual offender. He was sentenced January 8, 1996 to life imprisonment in the state penitentiary on the conviction of first-degree rape. Concurrent with the life sentence was a sentence of twenty years for sexual contact with a child under the age of sixteen. Thompson also received consecutive sentences of one year in the county jail and a fine of $1,000 each on the convictions of indecent exposure and disseminating harmful material to minors.

¶12 Thompson appeals his convictions, raising the following issues:

1. Whether the trial court abused its discretion in improperly joining the charges or failing to grant Thompson's motion to sever?

2. Whether the trial court erred in failing to suppress evidence of an admission by Thompson?

3. Whether the trial court erred in denying Thompson's motions to dismiss, for a judgment of acquittal, and for a new trial on the sexual contact charge where the only evidence supporting the charge was Thompson's uncorroborated admission?

ANALYSIS AND DECISION

¶131. Whether the trial court abused its discretion in improperly joining the charges or failing to grant Thompson's motion to sever?

¶14 We review a trial court's decision to join or sever charges under an abuse of discretion standard. State v. Busack, 532 N.W.2d 413, 417 (S.D.1995). An abuse of discretion "arises only where the party requesting severance of joined counts can make 'a clear showing of prejudice to substantial rights.' " Id. (quoting State v. Shape, 517 N.W.2d 650, 654 (S.D.1994)).

¶15 SDCL 23A-11-1 provides for joinder of informations at trial:

A court may order two or more indictments or informations, or both, to be tried together if the offenses, and the defendants, if there is more than one, could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution were under a single indictment or information.

SDCL 23A-6-23 provides the standard for whether more than one information or indictment may be joined:

Two or more offenses may be charged in the same indictment or information in separate counts for each offense, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

SDCL 23A-11-2 sets forth guidelines to the trial court where it appears joinder may result in prejudice to the defendant or to the State:

If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the prosecuting attorney to deliver to the court for inspection in camera any statements or confessions made by the defendants which the state intends to introduce in evidence at the trial.

¶16 In Busack, we held that joinder may be appropriate "[w]here separately charged offenses are closely related in location and manner of execution...." 532 N.W.2d at 417; State v. Closs, 366 N.W.2d 138, 140 (S.D.1985). This test for finding joinder appropriate where the separately charged offenses are closely related in location and manner of execution has been broadly construed. Shape, 517 N.W.2d at 654 (citing State v. Dixon, 419 N.W.2d 699, 702 (S.D.1988)).

¶17 In Closs, this Court found no abuse of discretion by the trial court in joining for trial two informations charging the defendant with two separate incidents of burglary and theft, where the charges were of the same or similar character, the incidents had occurred only one month apart and were closely related in time, place and manner of execution. 366 N.W.2d at 140. More recently, in Busack, we found no abuse of discretion by the trial court in joining for trial defendant's...