State v. Weasel
| Docket Number | 30087-a-SPM |
| Decision Date | 02 August 2023 |
| Citation | 2023 S.D. 41 |
| Parties | STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. VANDON PRETTY WEASEL, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
ARGUED APRIL 26, 2023
APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT LAWRENCE COUNTY, SOUTH DAKOTA THE HONORABLE MICHELLE K. COMER Judge
ELLERY GREY of Grey & Eisenbraun Law Rapid City, South Dakota Attorneys for defendant and appellant.
MARTY J. JACKLEY Attorney General, ERIN E. HANDKE Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
[¶1.] Vandon Pretty Weasel was convicted of ten counts of sexual contact with a child under age sixteen and one count of first-degree rape. At his trial, the State introduced evidence from Debra Hughes, a mental health practitioner, who had served as the victim's counselor. The State did not notify Pretty Weasel that Hughes would give expert testimony. On appeal, Pretty Weasel alleges this failure of notice was prejudicial and asserts that Hughes' testimony improperly bolstered the victim's testimony. We affirm.
[¶2.] Pretty Weasel and his wife, Jennean, were married in 2012. Five children were living in their house at the time of the events that give rise to this case. Jennean has two children with Pretty Weasel and two with Vincent Barrios. A.D., the victim in this case, is the child of Jennean and Barrios and was twelve years old at the time of trial. Also living with the family from the fall of 2015 until the spring of 2020 was Pretty Weasel's child from another relationship, K.P who was sixteen years old at the time of trial.
[¶3.] On the morning of March 10, 2020, Jennean noticed that A.D was acting "very, very upset" and was refusing to go to school. Jennean thought something was not right, so she took her daughter on a drive to talk. While on this drive A.D. told her mother that Pretty Weasel had been touching her inappropriately and doing so for a very long time.
[¶4.] Jennean went home and confronted her husband, who said he was sorry. She told him he needed to leave, and he moved out of the house. The next day, Jennean filed a report with the police in Deadwood and met with Detective Tom Derby, who set up a forensic interview for A.D.
[¶5.] Brandi Tonkel, a forensic interviewer at the Children's Home Child Advocacy Center (CAC), conducted the interview. During the interview, A.D. disclosed extensive sexual contact. She stated that Pretty Weasel had touched her "all around down there" and that it occurred almost "every night."
[¶6.] After the forensic interview, Detective Derby, who had listened to the interview, asked Jennean if she would agree to conduct a recorded phone call with Pretty Weasel to see if they could obtain additional evidence to support A.D.'s disclosures. Jennean agreed to do so. During this phone call Pretty Weasel told Jennean that he felt "so fricking guilty." When Jennean asked him why he did what he did to A.D., he said he thought she was Jennean. Jennean then asked, "[s]o you touched her inappropriately?" to which Pretty Weasel responded,
When pressed about how often this happened, Pretty Weasel said, He said he did not remember how old A.D. was when it started and that it only happened when Jennean was gone. Pretty Weasel said he never had sex with A.D. or put his fingers in her. He said he did not touch her but stated, "[w]ell, she put my hand there."
[¶8.] A grand jury indicted Pretty Weasel on twelve counts of sexual contact with a minor under age sixteen (two counts for each year from 2015-2020) and one count of first-degree rape occurring sometime in 2020.
[¶9.] Before trial, Pretty Weasel filed a motion to require the State to provide a summary of any expert opinion it intended to use at trial pursuant to SDCL 23A-13-4. Pretty Weasel also filed a motion for a subpoena duces tecum seeking any counseling records involving A.D., followed by an in-camera review by the court to determine relevancy. Without objection from the State, the circuit court granted both motions. The court signed a subpoena duces tecum on February 11, 2022, directing Hughes to produce all counseling records for A.D. and provide them to the court by February 14, 2022. Hughes was ill and unable to deliver the documents by that date. Instead, both parties received the counseling records on the first day of trial, after jury selection.
[¶10.] Jennean was the State's first witness, and she explained how A.D. disclosed the abuse to her and how she reported it to law enforcement. She also discussed the recorded phone call she conducted with Pretty Weasel under the guidance of Detective Derby. A recording of the phone call and a transcript were received into evidence, and the recording was played for the jury.
[¶11.] On cross-examination, Jennean acknowledged that A.D. had previously told her that K.P. had touched her inappropriately. Jennean explained that the family attended counseling with Hughes because of K.P.'s conduct, and sometimes A.D. did not want to attend. The defense also asked Jennean if A.D. had told Hughes that she did not like Pretty Weasel because he spanked her as a form of discipline. Jennean acknowledged that A.D. may have said that to Hughes but later testified that A.D. had not expressed to her personally that A.D. was upset about being spanked.
[¶12.] On redirect, Jennean testified that Hughes had diagnosed A.D. with PTSD (post-traumatic stress disorder). The State then asked her whether Hughes ever mentioned that A.D. was unable to tell the difference between what K.P. had done to her and what Pretty Weasel had done. Pretty Weasel objected to the question based on "improper 702, unnoticed 702," and invading the province of the jury, but the court overruled the objection. Jennean responded that she did not recall what Hughes had told her.
[¶13.] The State also asked Jennean if Hughes had reported to her that A.D. wanted to dress in a particular way that would make her less attractive as a female. The defense objected as "speculation and foundation and confrontation[,]" but the objection was overruled. Jennean responded, The State later asked if A.D. exhibited any behavior where she tried to make herself look unappealing. Jennean answered that A.D. had experienced trauma multiple times from two different people and that she was very insecure, wanted to cut off her hair, and would only wear loose and baggy clothing.
[¶14.] A.D. testified about telling her mother that Pretty Weasel had been touching her. She said she told her mother Pretty Weasel had been touching her but did not "tell her the detailed stuff[.]" A.D. testified that the touching had been going on for a long time at a frequency that "felt like every day." She thought the touching started around age four with just "a backrub and stuff[,]" but then as she got older, he touched her inappropriately "[d]own in the area" or "private area." The State clarified with her that she meant her vagina.
[¶15.] When the abuse started, A.D. did not know it was wrong and thought it was "a normal thing." She realized it was wrong when she was around seven or eight years old after watching some videos. She said it would happen a lot, "[l]ike every day." A.D. stated that Pretty Weasel only touched her with his hands, and he mostly would rub her vagina but sometimes "put his fingers between it." Sometimes she would be sleeping and would awake to him touching her. A.D. said after she realized it was wrong, it made her feel upset and gross when he would touch her. She said she told Pretty Weasel that she did not like it, and there was one time when she tried to stop him physically, she kicked her feet and elbowed him, and he stopped. The touching would typically occur at night when her mother was working.
[¶16.] A.D. also discussed one incident where Pretty Weasel had asked her if she was interested in touching a boy's private part, but she said no. A.D. discussed another time when she had wanted a stuffed animal, and he asked her, "[w]hat's in it for me?" She knew this meant that he wanted to touch her. He took her pants and underwear off and her legs were over his shoulders. He put his head between her legs and kissed up and down her legs and then kissed her private area. After this incident, he took her to the store and purchased the stuffed animal she wanted. A.D. thought she was in about second grade when this happened.
[¶17.] A.D. testified that Pretty Weasel told her that he was sorry for what he had done to her and that he had apologized to her a lot of times. However, she did not believe him because he kept doing these things to her. He had told her not to tell anyone about what he was doing because it would destroy the family.
[¶18.] A.D. also discussed the prior incidents where her stepbrother K.P. touched her inappropriately on her private part. He had done this two times, and she had told her mother about the touching. On...
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