State v. Townsend, #29164

CourtSupreme Court of South Dakota
Writing for the CourtJENSEN, Chief Justice
Citation959 N.W.2d 605
Parties STATE of South Dakota, Plaintiff and Appellee, v. Ozie Lee TOWNSEND, Defendant and Appellant.
Decision Date05 May 2021
Docket Number#29164

959 N.W.2d 605

STATE of South Dakota, Plaintiff and Appellee,
v.
Ozie Lee TOWNSEND, Defendant and Appellant.

#29164

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS FEBRUARY 16, 2021
OPINION FILED May 5, 2021


JASON R. RAVNSBORG, Attorney General, JOHN M. STROHMAN, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

MARK KADI of Minnehaha County Office of the Public Advocate, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

JENSEN, Chief Justice

959 N.W.2d 608

[¶1.] Ozie Lee Townsend was convicted of second-degree rape and simple assault. He appeals his conviction for second-degree rape, arguing that the circuit court erred in denying his motion for a judgment of acquittal because there was insufficient evidence of "force" as required under SDCL 22-22-1(2). Townsend also asks this Court to review alleged errors at trial under plain error review and raises an ineffective assistance of counsel claim. We affirm.

Facts and Procedural History

¶2.] Around 7:00 p.m. on October 12, 2017, eighteen-year-old K.N. left her apartment to go on a jog in Sioux Falls. It was still light outside, and she was wearing running tights, a t-shirt, and tennis shoes. K.N. ran about two blocks from her apartment when she stopped at a curb and a van pulled up in front of her. K.N. saw a man in the van, whom was later identified as Townsend. She did not know Townsend at the time, but she thought she might have seen him before at the Dollar Store where she worked.

[¶3.] Townsend offered to give K.N. a ride, but she declined. Townsend insisted and offered K.N. marijuana, methamphetamine, and alcohol. K.N. testified that, except for marijuana, she had never used drugs before. However, she wanted to use the drugs and voluntarily got into the front passenger seat of Townsend's van.

[¶4.] Townsend turned on the radio and began to drive. He told K.N. that he was a good person and he would not hurt her. He parked the van about a mile away in a parking lot near Covell Lake. Townsend got out and went to the back of the van to urinate. He walked back up to the driver's side and told K.N. to get into the backseat. K.N. asked him why, but Townsend did not answer and told her again to get into the backseat. K.N. told him she did not want to. Townsend started walking around the van towards the front passenger seat where K.N. was sitting. He opened the rear passenger door, and K.N. exited the front passenger seat and reentered the van through the rear passenger door.

[¶5.] At first, K.N. sat facing forward on the bench in the backseat. Then she turned ninety degrees to face Townsend, who was still standing outside the rear passenger door. Townsend told K.N. to lay down. K.N. told him that she did not want to and moved forward to try to exit the van. K.N. testified that she pushed Townsend with her arm while trying to move past him, but Townsend pushed her shoulder back; and she laid down. On direct examination, K.N. described the push as "like he just nudged [my shoulder] back for me to lay down."

[¶6.] Townsend grabbed K.N.’s thighs and pulled her toward the open door. He pulled her pants and underwear down to her ankles. Then he pulled his pants down and put K.N.’s legs on his shoulders. Townsend began masturbating and rubbing the outside of K.N.’s vaginal area. He vaginally penetrated K.N. and muttered profanities about K.N.’s body parts until he ejaculated. K.N. testified at trial that she felt "pretty pathetic" during the assault. Townsend attempted to help K.N. put her pants back on once he was finished,

[959 N.W.2d 609

but K.N. told him she could do it herself. Townsend told her to get back in the front seat of the van, which K.N. did.

¶7.] Townsend drove K.N. back to the corner where he had picked her up. K.N. asked Townsend for his number. Later, she told law enforcement that she wanted his number so that she could give it to them when she reported the assault. Townsend gave her his number and told her his name was Tony. Before he left, he told K.N. that he wanted to give her something for the sexual encounter and put $7 in her hand. K.N. testified that she felt "pretty numb" at that point.

[¶8.] Once Townsend drove off, K.N. called the Compass Center, an organization that assists victims of sexual assault. When the Compass Center did not answer, she called 911. Two male officers arrived on scene, and K.N. reported the assault. She told the officers that her assailant was driving a bluish van and gave them Townsend's phone number. Officer Chase Vanderhule asked her if any money had been exchanged, and K.N. told him no. K.N. later testified that she lied because she was embarrassed. The officers attempted to call Townsend's number. Someone answered the phone initially, but then the call was disconnected. The officers tried to call the number again, but Townsend's phone appeared to have been turned off.

[¶9.] The officers secured an ambulance to transport K.N. to a hospital for a sexual assault examination. Nurse Wharton, who was trained in sexual assault examinations, performed the exam. She took samples of bodily fluid from K.N. that were sent to the state forensic laboratory for testing. Nurse Wharton observed that K.N. had white fluid inside and outside of her vaginal area and had redness and bruising around her cervix. She stated that these observations were abnormal for an internal pelvic exam and a "rare injury" in her experience. However, she could not provide an opinion on whether the injuries arose from nonconsensual vaginal penetration. Nurse Wharton also found the $7 that Townsend had given K.N. in K.N.’s bra. She testified that K.N. told her that Townsend had given her the money after the assault. Nurse Wharton observed that K.N. was "very stoic" and "very quiet" during the exam.

[¶10.] On October 17, 2017, around 2:00 p.m., Detective Erin McGillivray met K.N. to continue the investigation. K.N. told Detective McGillivray that she entered the van voluntarily after Townsend offered her drugs and alcohol, but she was sober on the night of the assault. She also told Detective McGillivray that Townsend assaulted her in the backseat of a bluish van when he pushed her down, pulled her pants down, and had sex with her without her consent. K.N. estimated that the sexual assault lasted approximately ten to fifteen minutes. Detective McGillivray testified that K.N. told her she was crying throughout the assault and that Townsend gave her $7 after he dropped her off.

[¶11.] At approximately 3:00 p.m. that afternoon, Detective McGillivray called the phone number K.N. provided for Townsend. Townsend answered and confirmed his identity. Detective McGillivray told him that she was investigating an incident at a park and may have provided K.N.’s first name. Townsend responded that "he didn't know [K.N.] and that nothing happened in a park." Then he hung up. After the call, Detective McGillivray stepped away from her desk for a few minutes. When she returned, she had four missed calls from Townsend but no new messages.

[¶12.] Within the hour, Detective McGillivray stepped away from her desk again and returned to find two more missed calls from Townsend. She called back. Townsend did not pick up, but shortly thereafter

[959 N.W.2d 610

he called back and spoke to Detective McGillivray a second time. Again, Townsend denied any knowledge of the assault or K.N. However, he admitted that he had two vans. He stated one van was green, but he would not provide the color of the other van. Detective McGillivray never confirmed the color of Townsend's other van.

¶13.] Townsend was indicted on March 2, 2018, on four counts: (1) rape in the second-degree, (2) simple assault—recklessly causing bodily injury, (3) simple assault—physical menace, (4) simple assault—causing injury, not serious. The State also filed a part II habitual offender information. A three-day jury trial began on May 28, 2019. The State offered K.N.’s testimony as well as the testimony of Officer Vanderhule, Detective McGillivray, and Nurse Wharton. Stacey Smith, a state forensic scientist, also testified that the DNA obtained from K.N.’s person matched Townsend's DNA profile, and the match "would not be expected to occur more than once among unrelated individuals in the world population." The State played a six-minute audio recording of Detective McGillivray and Townsend's second phone conversation before the jury.

[¶14.] At the close of the State's evidence, Townsend made a motion for a judgment of acquittal on all counts. He argued there was insufficient evidence of force, coercion, or threats to establish a prima facie case of second-degree rape under SDCL 22-22-1(2). In support, Townsend argued K.N. testified that he had never verbally threatened her with any kind of harm, a "nudge" was insufficient to establish force under the statute, and the medical examination could not confirm whether there had been nonconsensual vaginal penetration. Additionally, Townsend argued there was insufficient evidence of injury to support convictions on the three simple assault charges, asserting that the injuries to K.N.’s genitalia were associated with sexual activity and were not qualifying bodily injuries under SDCL 22-18-1. The State responded that K.N.’s testimony about the assault and Nurse Wharton's testimony pertaining to K.N.’s injuries were sufficient to make a prima...

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3 practice notes
  • State v. Dempsey, Docket No. 48594
    • United States
    • United States State Supreme Court of Idaho
    • July 2, 2021
    ...the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence."); State v. Townsend , 2021 S.D. 29, ¶ 29, 959 N.W.2d 605 (S.D. 2021) ("[Arguments that] ask the jury to place themselves in the shoes of the victim or make an appeal to the jury to protect the comm......
  • State v. Dempsey, Docket No. 48594
    • United States
    • Idaho Supreme Court
    • July 2, 2021
    ...the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence."); State v. Townsend , 2021 S.D. 29, ¶ 29, 959 N.W.2d 605 (S.D. 2021) ("[Arguments that] ask the jury to place themselves in the shoes of the victim or make an appeal to the jury to protect the comm......
  • Dakotans for Health v. Barnett, #29597
    • United States
    • Supreme Court of South Dakota
    • May 5, 2021
    ...by courts or adopted by departments, commissions, boards, officers of the state, or its subdivisions pursuant to authority so to do.[959 N.W.2d 605 Consequently, laws include the state constitution and statutes "enacted" by the Legislature and by a vote of the voters.[¶10.] Pursuant to Arti......
3 cases
  • State v. Dempsey, Docket No. 48594
    • United States
    • United States State Supreme Court of Idaho
    • July 2, 2021
    ...the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence."); State v. Townsend , 2021 S.D. 29, ¶ 29, 959 N.W.2d 605 (S.D. 2021) ("[Arguments that] ask the jury to place themselves in the shoes of the victim or make an appeal to the jury to protect the comm......
  • State v. Dempsey, Docket No. 48594
    • United States
    • Idaho Supreme Court
    • July 2, 2021
    ...the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence."); State v. Townsend , 2021 S.D. 29, ¶ 29, 959 N.W.2d 605 (S.D. 2021) ("[Arguments that] ask the jury to place themselves in the shoes of the victim or make an appeal to the jury to protect the comm......
  • Dakotans for Health v. Barnett, #29597
    • United States
    • Supreme Court of South Dakota
    • May 5, 2021
    ...by courts or adopted by departments, commissions, boards, officers of the state, or its subdivisions pursuant to authority so to do.[959 N.W.2d 605 Consequently, laws include the state constitution and statutes "enacted" by the Legislature and by a vote of the voters.[¶10.] Pursuant to Arti......

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