State v. Willis

Decision Date19 June 1985
Docket NumberNo. 14644,14644
Citation370 N.W.2d 193
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Kenneth A. WILLIS, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Jeffrey P. Hallem, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Steve Miller, Sioux Falls, for defendant and appellant.

HENDERSON, Justice.

ACTION

This is a criminal appeal from a judgment and sentence in Minnehaha County, entered on a jury verdict, which found Kenneth A. Willis guilty of two alternative counts of rape in the first degree. We affirm.

FACTS

On December 22, 1983, Kenneth A. Willis, defendant-appellant herein, was indicted on four counts of first-degree rape. 1 Arraignment was held the next day and appellant pleaded not guilty. At this time, the State also filed a Habitual Offender Information Part II.

On June 5, 6, and 7, 1984, appellant's trial was conducted. We reconstruct the following factual scenario giving rise to this criminal case, as supported by the testimony.

Appellant Willis was a residential instructor at Sioux Vocational School for the Handicapped in Sioux Falls. His responsibilities in this position "were to assist the students, to enhance them to move out into the community and live on their own." S.R., the alleged victim, lived in the residential unit in which appellant worked. S.R. is 29 years old, mentally retarded, and a client at the school. C.F. is also a client at Sioux Vocational School, mentally retarded, and 19 years old.

In the early evening of November 18, 1983, appellant, S.R., and C.F. left the school in one of its vans and went to appellant's apartment to retrieve some board games. Along the way, C.F. got out of the van at a laundromat. Appellant and S.R. continued in the van to appellant's apartment and upon arrival, both entered. S.R. stood in the kitchen and appellant proceeded to the bedroom from which he asked S.R. if she wanted to have sex with him. S.R., scared and confused, either said "no" or failed to respond. In any event, the two picked up the games, got back into the school van, and headed back to the school. This much is undisputed.

At this point, the testimony becomes conflicting. S.R. testified that while on the way back, appellant unzipped her pants, uncrossed her legs, and put his hand down her pants. He continued to ask her to have sex with him and she told him to knock it off and tried to scare him away with a lit cigarette. Before reaching the school, appellant drove the van down a gravel road and parked it. Here, appellant and S.R. had sexual intercourse but S.R. said she tried to resist his advances, attempted to push him off, and screamed "rape."

Appellant, however, testified that during the drive back to the school, he again asked her to have sex and she responded "no." Appellant stated that before reaching the school, S.R. said she was ready to have sex with him and that at this point, he turned down the gravel road and parked. Appellant testified he then asked her if she was sure and S.R. responded "yes" and asked where they could do it. Both then removed their own pants and had intercourse on the back seat. He also testified that S.R. did not say no, did not yell or hit him. Appellant Willis also specifically denied the groping incident that S.R. stated occurred during the drive back.

After this, appellant and S.R. returned to the residential unit at the school. There, S.R. told one staff member that appellant had raped her and told another staff member that appellant had sex with her in the van. She was emotional and crying. Neither staff member, however, mentioned anything about this or questioned appellant. Appellant left the school that night near the end of his shift.

The next morning, Saturday, November 19, 1983, appellant returned to the school for his assigned shift. Here, again, the testimony conflicts about what transpired that morning. S.R. testified that appellant questioned her about her telling other clients of the sex act and that he had sexual contact with her that morning but not intercourse. Appellant denied the questioning and any such contact.

At trial, the State elicited testimony from C.F., another client at Sioux Vocational School, that appellant had sex with her two days before the first date in question. Through pretrial motions, motions to reconsider, and objections at trial, appellant's counselor persistently fought the introduction of this testimony as bad acts evidence and not within the exceptions of SDCL 19-12-5. The trial court allowed the introduction of this testimony, however, and also denied appellant's attempt to elicit testimony concerning S.R.'s use of birth control pills.

The jury found appellant Willis guilty of first-degree rape in regard to the incidents on November 18 and innocent of the charges stemming from the alleged acts on November 19.

During trial, appellant admitted having sexual intercourse with S.R. on the night of November 18, 1983. Testimony at trial, by two experts, was not in conflict concerning S.R.'s I.Q., the two experts agreeing that S.R. was mentally retarded. A doctor's examination of S.R. on the evening of November 19, 1983, revealed that S.R.'s vagina was lacerated which laceration was consistent with sexual intercourse within the preceding 48 hours.

On June 12, 1984, appellant pleaded guilty to the Habitual Offender Information Part II, and on June 19, 1984, he was sentenced to 25 years in the State Penitentiary. To this judgment and sentence, pursuant to SDCL 23A-32-2, appellant appeals as of right.

DECISION
I. DID THE TRIAL COURT ERR IN ADMITTING TESTIMONY CONCERNING

OTHER CRIMES, WRONGS, OR ACTS? WE HOLD THAT IT

DID NOT.

Prior to trial, the State filed a motion requesting a ruling on the admissibility of evidence regarding appellant's similar offense against another female client (C.F.) at Sioux Vocational School. At the hearing on the motion, C.F. testified that on November 15, 1983, appellant entered her apartment at the school because another student was throwing a tantrum. Appellant told C.F. to go sleep on the couch. After calming the situation, appellant awakened C.F. on the couch and, without speaking or threatening her in any way, had sex with her once or twice and then told her she would lose her privileges if she told anyone. C.F. testified that she did not physically or verbally resist appellant's acts. 2

By a Conditional Order dated April 27, 1984, the trial court ruled that upon proper foundation, the above testimony was admissible under SDCL 19-12-5 "for purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident" and its probative value was not substantially outweighed by the danger of unfair prejudice under SDCL 19-12-3. 3 The trial court's jury instructions, however, stated that "[t]his evidence was admitted solely for your consideration as to whether it tends to show that the [appellant] intended to commit the offense with which he is charged." 4 It is to be noted that appellant requested this instruction; therefore, it is an invited error. Furthermore, appellant has not raised this particular instruction as an issue herein.

As stated above, appellant's counsel steadfastly resisted the admissibility and introduction of this testimony (of other crimes, wrongs or acts) and here claims the trial court erred in finding the testimony relevant to one of the factors set out in SDCL 19-12-5. 5

SDCL 19-12-5 provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Thus, under this statute, evidence of other crimes or wrongs is inadmissible to show bad character and that the defendant acted in conformity therewith on the date in question. However, such evidence is admissible if it is relevant to one of the stated exceptions, State v. Rose, 324 N.W.2d 894, 895 (S.D.1982), and that exception or element is in issue. This Court's standard of review is abuse of discretion. State v. Pedde, 334 N.W.2d 41, 43 (S.D.1983).

Appellant argues that the "other acts evidence" was not relevant to any of the above exceptions. He has three rationales. First, intent is not in issue because intent is not an element of rape. State v. Houghton, 272 N.W.2d 788, 791 (S.D.1978). Second, identity is not in issue because appellant testified at trial that he had sex with S.R. on the date in question. And third, the common plan or scheme--or modus operandi exception--is not in issue because this is just another method to prove identity and identity is not in issue. Id. at 792.

The State argues that the testimony was relevant to show a common plan or scheme to engage in compelled sexual intercourse with retarded women over whom he had control and thus, this negates the consent defense which was a material issue. State v. Esposito, 192 Conn. 166, ---, 471 A.2d 949, 953 (1984). See also, Williams v. State, 110 So.2d 654, 663 (Fla.1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959); People v. Oliphant, 399 Mich. 472, 250 N.W.2d 443 (1976).

We hold that the trial court did not abuse its discretion in receiving the evidence concerning the incident with C.F. Such incident was not remote in time and had a direct bearing on the plan, design, and modus operandi of appellant. When the act of sexual intercourse by appellant with S.R. and C.F. are compared, a close parallel can be drawn to establish a common plan, design, or modus operandi. S.R. and C.F. were both mentally retarded adult females; both were under the influence of appellant, as well as his supervision, and lived in the same apartment of the upper eight-plex at the Sioux Vocational School...

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