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Date: 09-30-2020
Case Style:
STATE OF SOUTH DAKOTA v. ROGER L. JACKSON
Case Number: 2020 S.D. 53
Judge:
Court: SUPREME COURT OF THE STATE OF SOUTH DAKOTA
Plaintiff's Attorney: JASON R. RAVNSBORG
Attorney General
SARAH L. LARSON
Assistant Attorney General
Defendant's Attorney:
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Description: Rapid City, SD - Criminal Defense Attorney, third-degree rape
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[¶2.] In 2012, K.S. was diagnosed with Benson’s Syndrome, a rare form of
dementia that affects her verbal, visual, and motor skills. K.S. was 52 years old at
the time. She and her husband, Mark, have three adult children. Not long after
her diagnosis, K.S.’s disease progressed to the point that she could not safely
continue living at home. Her family then decided she needed the additional care
that could be provided at Holiday Hills, an assisted living center. K.S. lived at
Holiday Hills for approximately three years until her disease worsened. She had
lost the ability to control her body, would lose her balance, and needed assistance
with eating, getting dressed, and going to the bathroom. K.S. also struggled to
control her bodily functions and had to wear an adult diaper.
[¶3.] In October 2016, K.S.’s family moved her to Bella Vista, a 24-hour care
facility for people with dementia. Upon her arrival, Dr. Priscilla Bade, Bella Vista’s
medical director, evaluated K.S. This evaluation occurred less than one month
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before the charged offense. Dr. Bade testified that during the evaluation, K.S.
answered questions but she “had some difficulty finding the right words.” K.S.
needed step-by-step verbal cues and help with eating. Further, she had trouble
understanding what she was seeing and had issues with incontinence and falling.
Dr. Bade ordered that K.S. receive rehabilitative therapies (occupational, speech,
and physical) to help her learn to do things for herself as best as she could.
[¶4.] Shortly after K.S. began residing at Bella Vista, her family noticed
that a man named Roger Jackson would visit her. Jackson later explained that he
had met K.S. at Holiday Hills when he and his friends were at the facility to play
music for the residents. Jackson related that K.S. enjoyed the music and the two
danced, and that after she moved to Bella Vista, he would play music for her and
read her the Bible. He also brought her small gifts. While K.S.’s family allowed
Jackson to visit her, Mark was suspicious of Jackson’s intentions. Mark had a
conversation with Jackson at Bella Vista in which he explained K.S.’s condition and
told Jackson that he “can visit and play music and that is it.” Mark also explicitly
told Jackson that he could never take her out of the facility and informed staff at
Bella Vista of this directive.
[¶5.] Mark and Kaia, K.S.’s daughter, visited K.S. regularly at Bella Vista,
although both testified that she did not always recognize them. Usually, Kaia and
Mark would not leave town at the same time so that at least one person would be
available for K.S. However, they were both scheduled to be out of town the
weekend of November 18, 2016. Kaia testified that during a visit with her mother
prior to leaving town, Jackson was there and asked her if he could take K.S. on an
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outing over the weekend to get her hair done. Kaia informed him that only family
members are allowed to take K.S. outside the facility.
[¶6.] Despite Kaia’s directive, Jackson took K.S. out of Bella Vista on
November 18. Bella Vista nurse, Stacy Kilber, later explained that she was
unaware that K.S. had left the facility with Jackson because Jackson left with her
when Kilber and the aides were tending to another resident. When she realized
that K.S. was not in her room and could not be located, Kilber called one of the
facility’s alert codes, and staff members began looking for K.S. While they were
searching, Jackson and K.S. walked into the facility. They had been gone for
approximately two hours. After K.S. was returned to her room, Heather Anderson,
the director of nursing, instructed staff to assess her from head to toe.
[¶7.] During the assessment, Bella Vista staff found what appeared to be
discharge in K.S.’s adult diaper. Nurse Kilber also asked her questions, such as:
“Are you safe?”; “Do you feel okay?”; and “Are you having any pain right now?”
Kilber later testified that she did not believe K.S. understood why she was being
examined. Kilber explained that while K.S. could communicate, “she wasn’t
answering the questions that related to what [Kilber] was asking.” Nonetheless,
when Kilber asked K.S. where she had been, K.S. responded, “Where we always go.
To the school.” Kilber also related that she specifically asked K.S. if she had
engaged in any sexual contact and K.S. responded, “I don’t think I would do that.”
Staff collected K.S.’s clothing, and Kilber documented her examination of K.S.,
including her answers to Kilber’s questions.
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[¶8.] Meanwhile, Kaia received a call from law enforcement advising her
that her mother had been located. Because she was not aware that her mother had
been missing, Kaia contacted her father. They soon found out from staff at Bella
Vista that K.S. had left the facility with Jackson, and that upon her return, a nurse
found discharge in K.S.’s undergarment.
[¶9.] Kaia used to work as a police officer for the Rapid City Police
Department. On November 19, 2016, the day after Jackson’s outing with K.S., she
contacted Sergeant Asscherick to explain what had occurred with her mother.
Sergeant Asscherick assigned Officer Chad Strobel to report to Bella Vista with his
training officer, Officer Daniel Anderson. Officer Anderson and Kaia were friends
and Anderson had met K.S. before, so he knew a little bit about K.S.’s mental state.
Kaia provided information about Jackson and K.S.’s relationship to Officer
Anderson by phone while the officers were en route to Bella Vista.
[¶10.] While at Bella Vista, neither of the officers asked K.S. any questions,
but Officer Strobel spoke to staff members and obtained additional information
regarding K.S. He testified that he understood K.S. would undergo a sexual assault
examination at the hospital where additional information would be gathered.
[¶11.] Later that same day, the Bella Vista nursing director took K.S. to the
hospital emergency room to complete a sexual assault examination. Kaia, as K.S.’s
power of attorney, provided consent for K.S. to undergo the examination and also
provided limited information to hospital staff regarding K.S.’s disease and the
reason for the examination. Nicole Weyer, a trained nurse and member of the
sexual assault response team, performed the examination. She explained that she
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began by asking K.S. demographic-type questions. According to Weyer, K.S.
answered some of the preliminary questions, but when asked questions concerning
the assault, she was unable to answer so Weyer marked “unsure” for these
responses. During the physical examination of K.S., Weyer observed redness on the
inner sides of her vagina.
[¶12.] Dr. Bade also assessed K.S. on November 19 at Bella Vista. Dr. Bade
related that while K.S. could not give any details about the outing, she smiled and
said that she had fun. However, Dr. Bade explained that K.S.’s communication was
disjointed. “[S]he’d be talking but not with a lot of meaning to it. She only - - she
didn’t know exactly where she was.”
[¶13.] Investigator Mischelle Boal was assigned to the case on November 21,
2016. Although she did not interview K.S., she spoke with Kaia and Mark. She
also interviewed Jackson, who at the time was 70 years old. Jackson described how
he knows K.S. and claimed that K.S. considers him to be her boyfriend, even though
she is married. He denied that the two had an intimate relationship, explaining
that he is impotent. Jackson agreed that he was told by the family not to take K.S.
out of the facility, but explained that he took her out anyway because she wanted to
get some fresh air. Jackson related that he took K.S. for a drive around a local park
and then into the hills, and that they also walked around downtown. He denied
having any sexual contact with K.S. and claimed that he would never take
advantage of her. Jackson told Investigator Boal that he “feel[s] for her” because
she is “[i]n a nursing home and doesn’t understand.” He agreed to provide a DNA
sample.
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[¶14.] Investigator Boal met with Jackson again in February 2017 after
receiving the DNA test results. She informed him that seminal fluid had been
found in K.S.’s undergarment and that the DNA testing showed that K.S.’s husband
could be excluded as the source of the fluid, but Jackson could not. Initially,
Jackson had no explanation for how his seminal fluid got into K.S.’s undergarment,
but then stated that while they were dancing in her room, K.S. initiated a sexual
encounter. According to Jackson, K.S. took her clothes off and went into the
bathroom, where he followed and “tried to make love to” her. Jackson stated that
he tried to put his penis inside K.S.’s vagina, but “didn’t think anything happened”
because he is impotent. He further admitted that he put his fingers inside her
vagina and that he stopped because he “heard something down the hallway[.]”
Jackson explained that K.S. then put her Depends underwear back on, and after
that, he took her out of Bella Vista.
[¶15.] A grand jury indicted Jackson on March 15, 2017, on one count of
third-degree rape in violation of SDCL 22-22-1(3), alleging that Jackson engaged in
an act of sexual penetration with a victim incapable of consenting because of
physical or mental incapacity. Jackson pled not guilty. Prior to trial, Jackson filed
a motion to have the circuit court determine whether knowledge is an element of
the offense. The court denied the motion based on our decision in State v. Schuster,
502 N.W.2d 565 (S.D. 1993), holding that knowledge is not an element of rape of a
person incapable of giving consent because of physical or mental incapacity.
[¶16.] Jackson also filed two motions to dismiss the indictment, but only the
second motion is relevant here. Jackson requested that the court dismiss the
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indictment, claiming that the State’s failure to interview K.S.—the only other
witness to the alleged offense—caused the loss of material exculpatory evidence of
K.S.’s capacity to consent to an act of sexual penetration on the date in question.
Jackson requested an evidentiary hearing on the motion, which the court denied.
The court also declined to dismiss the indictment, finding no due process violation,
but noting that law enforcement’s failure to interview K.S. was nonetheless “fertile
ground for cross-examination[.]”
[¶17.] Also prior to trial, the State and the defense both objected to each
other’s proffered expert testimony, and the court scheduled a Daubert hearing on
the objections. Jackson asserted that the State’s proffered testimony from Dr. Scott
Cherry about his March 2018 evaluation of K.S. was not relevant to whether K.S.
was capable of consenting to an act of sexual penetration on November 18, 2016.
Jackson further objected to any opinion by Dr. Cherry on K.S.’s capacity to consent
on the date of the offense because the State had not provided a report relating such
an opinion. In a similar vein, the State objected to Jackson’s proffered expert
testimony from Dr. Rodney Swenson that “no information exists regarding [K.S.’s]
specific capacity to give consent with respect to this sexual encounter because she
was not questioned about what she understood happened in this encounter.”
(Emphasis added.) According to the State, Dr. Swenson, in essence, had no opinion
and therefore his testimony would not assist the jury.
[¶18.] Prior to the Daubert hearing, the State withdrew its intent to call Dr.
Cherry, indicating that because the relevant inquiry is whether K.S. had the
capacity to consent at the time of the offense and not her present mental capacity, it
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“won’t then broach that subject with [Dr. Cherry].” Therefore, the Daubert hearing
concerned only the State’s objections to Dr. Swenson’s testimony. After considering
the testimony provided by Dr. Swenson at the hearing, the court held that Dr.
Swenson could “testify about what he understands Benson’s [Syndrome] to be,” and
about his view that K.S.’s mental capacity “perhaps wasn’t as bad as the State
suggests[.]” The court further determined that Dr. Swenson could testify about
“what he found in the medical records” and to his inability to give an opinion as to
her capacity to consent on the date in question. However, the court held that Dr.
Swenson could not testify that he would have been able to give an opinion on K.S.’s
physical or mental incapacity to consent on November 18, 2016, had K.S. been
asked certain questions on that evening or within a few days.
[¶19.] Three days before trial, Jackson filed a motion for a continuance, citing
the need to schedule a new trial on a date when Dr. Cherry would be available to
testify as a defense witness. Defense counsel asserted that the State had failed to
turn over exculpatory evidence, namely that Dr. Cherry held an opinion similar to
Dr. Swenson’s, i.e., that he could not opine on K.S.’s capacity to consent on
November 18, 2016, because he did not assess K.S. on that date. The State objected
to a continuance, arguing, in part, that Dr. Cherry’s inability to render an opinion
was not exculpatory. The court agreed, and also found the proffered testimony to be
cumulative. The court denied the motion for a continuance.
[¶20.] The five-day trial began on June 25, 2018. Mark, Kaia, and K.S.’s
medical care providers testified regarding K.S.’s mental and physical condition on
and near November 18, 2016. On the second day of trial, Jackson requested the
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court reconsider its prior ruling confining witness testimony about K.S.’s capacity to
the October to November 2016 timeframe. In his view, the inability to question
witnesses about K.S., both before and after this limited timeframe, prevented him
from supporting his claim that K.S. demonstrated lucidity on occasions and that she
may have shown some improvement in areas associated with the therapy she had
been receiving after being admitted to Bella Vista. Jackson also highlighted that
K.S.’s husband, Mark, had been allowed to testify about events associated with her
condition occurring long before October 2016. The court declined to reconsider its
previous ruling regarding the relevant timeframes.
[¶21.] Jackson called Dr. Swenson, who testified that after reviewing the
investigative reports and medical records, he did not “find anything that helped
[him] understand whether or not the event that we’re talking about here was a
consensual act between two adults or whether it was a coercive act.” In his view,
K.S. could have been interviewed shortly after the incident even though she has
Benson’s Syndrome because her medical records suggest that she was able to
provide information. The State objected to the phrasing of certain questions asked
of Dr. Swenson. After considering arguments of counsel outside the presence of the
jury, the court allowed defense counsel to ask him the following question relating to
K.S.’s capacity to consent: “[A]fter consideration of the medical records, the police
reports, the other statements[,] as well as your expertise[,] do you have an opinion
as to whether [K.S.] had the capacity to consent on November 18, 2016?” Dr.
Swenson replied, “My opinion is that no information exists regarding [K.S.’s]
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specific capacity to give consent because she was not questioned about what she
understood happened.”
[¶22.] The jury found Jackson guilty of third-degree rape in violation of SDCL
22-22-1(3). The circuit court sentenced Jackson to fifteen years in the penitentiary
with five years suspended. Jackson appeals, asserting the following issues for our
review.
1. Whether the circuit court erred when it denied Jackson’s
motion to dismiss.
2. Whether the circuit court erred when it determined that
knowledge is not an element of SDCL 22-22-1(3).
3. Whether the circuit court abused its discretion in
restricting Dr. Swenson’s testimony.
4. Whether the circuit court abused its discretion when it
denied Jackson’s motion for a continuance.
Analysis and Decision
1. Whether the circuit court erred when it denied Jackson’s motion to
dismiss.
[¶23.] Jackson argues that the circuit court erred in denying his motion to
dismiss the indictment, which was based on his claim that the State violated his
right to due process in failing to interview K.S. on November 18, 2016, or shortly
thereafter.1 In Jackson’s view, a timely interview of K.S. would have produced
1. The State’s brief does not respond to Jackson’s due process argument.
Rather, the State contends that the circuit court properly denied the motion
to dismiss because Jackson failed to cite one of the nine grounds for dismissal
of an indictment under SDCL 23A-8-2. However, Jackson filed two motions
to dismiss—one based on statutory grounds, and one based on a due process
argument. While both motions were denied by the court, it is the court’s
denial of the latter due process motion that Jackson has appealed.
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exculpatory and material evidence; therefore, the failure to investigate irreparably
prejudiced his ability to obtain a fair trial. He also contends that the circuit court
did not have sufficient evidence to decide the motion without holding an evidentiary
hearing.
[¶24.] A defendant has a constitutional right to due process, namely a
criminal prosecution that “comport[s] with prevailing notions of fundamental
fairness.” California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532, 81 L.
Ed. 2d 413 (1984). To be sure, the United States Supreme Court has “long
interpreted this standard of fairness to require that criminal defendants be afforded
a meaningful opportunity to present a complete defense.” Id. Further, “[t]o
safeguard that right, the Court has developed ‘what might loosely be called the area
of constitutionally guaranteed access to evidence.’” Id. (quoting United States v.
Valenzuela-Bernal, 458 U.S. 858, 867, 102 S. Ct. 3440, 3447, 73 L. Ed. 2d 1193
(1982)).
[¶25.] In Valenzuela-Bernal, the United States Supreme Court examined
whether an indictment should be dismissed when the government deports witnesses
before the defense has had an opportunity to interview those witnesses and the
witness testimony could conceivably benefit the defendant. 458 U.S. at 863, 866,
102 S. Ct. at 3444, 3446. Relying on Brady v. Maryland, the Court recognized “that
the suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Id. at 868, 102 U.S. at
3447 (quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196, 10 L. Ed. 2d
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215 (1963)). The court declined to dispense with the materiality requirement even
though the deportation of witnesses meant the defendant “simply had no access to
the witnesses.” Id. at 870, 102 S. Ct. at 3448.
[¶26.] In Trombetta, the United States Supreme Court again examined the
concept of constitutionally guaranteed access to evidence, and more specifically
“addressed the government’s duty to take affirmative steps to preserve evidence on
behalf of criminal defendants.” 467 U.S. at 486, 104 S. Ct. at 2533. The Court
recognized that although it is well established that the State may not destroy
evidence in an effort to circumvent Brady requirements, it is “[l]ess clear from our
access-to-evidence cases” the “extent to which the Due Process Clause imposes on
the government the additional responsibility of guaranteeing criminal defendants
access to exculpatory evidence beyond the government’s possession.” Id.
[¶27.] According to the Court, “[t]he absence of doctrinal development in this
area reflects, in part, the difficulty of developing rules to deal with evidence
destroyed through prosecutorial neglect or oversight.” Id. Further, “[w]henever
potentially exculpatory evidence is permanently lost, courts face the treacherous
task of divining the import of materials whose contents are unknown and, very
often, disputed.” Id. Courts also face difficulty in fashioning a remedy.
[¶28.] Ultimately, the Court determined that “[w]hatever duty the
Constitution imposes on the States to preserve evidence, that duty must be limited
to evidence that might be expected to play a significant role in the suspect’s
defense.” Id. at 488, 104 S. Ct. at 2534. Further, “[t]o meet this standard of
constitutional materiality,” the defendant must establish that the evidence
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“possess[es] an exculpatory value that was apparent before the evidence was
destroyed, and be of such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means.” Id. at 489, 104 S. Ct. at
2534 (emphasis added); accord United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392,
49 L. Ed. 2d 342 (1976) (discussing the constitutional standard of materiality); State
v. Lyerla, 424 N.W.2d 908, 911 (S.D. 1988) (applying Trombetta). Once this
standard of constitutional materiality has been shown, a failure to preserve such
evidence for use by a defendant is a due process violation.
[¶29.] In Arizona v. Youngblood, the United States Supreme Court addressed
what due process requires in situations involving only potentially useful evidence.
488 U.S. 51, 57, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281 (1988). It concluded that “the
Due Process Clause requires a different result when we deal with the failure of the
State to preserve evidentiary material of which no more can be said than that it
could have been subjected to tests, the results of which might have exonerated the
defendant.” Id. In regard to potentially useful evidence, a defendant must show
bad faith on the part of the government when the loss of evidence is attributable to
the government. Id. at 58, 109 S. Ct. at 337; accord Illinois v. Fisher, 540 U.S. 544,
549, 124 S. Ct. 1200, 1203,157 L. Ed. 2d 1060 (2004) (internal citation omitted)
(noting that the applicability of the bad faith requirement depends on “the
distinction between ‘material exculpatory’ evidence and ‘potentially useful’
evidence”).
[¶30.] The reason for the difference, the Court remarked, “stems from our
unwillingness to read the ‘fundamental fairness’ requirement of the Due Process
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Clause as imposing on the police an undifferentiated and absolute duty to retain
and to preserve all material that might be of conceivable evidentiary significance in
a particular prosecution.” Youngblood, 488 U.S. at 58, 109 S. Ct. at 337 (internal
citation omitted). We have concluded the same. See, e.g., State v. Danielson, 2012
S.D. 36, ¶ 37, 814 N.W.2d 401, 412; State v. Bruce, 2011 S.D. 14, ¶ 13, 796 N.W.2d
397, 402; State v. Bousum, 2003 S.D. 58, ¶ 15, 663 N.W.2d 257, 262.2
[¶31.] Relying on the above cases, Jackson contends that he need not prove
bad faith on the part of the State because “it is obvious that any statements by K.S.
would be expected to play a significant role in his defense.” Jackson notes the
progressive nature of K.S.’s disease and emphasizes that the four-month delay
between the date of the alleged offense and his indictment prevented him from
obtaining evidence from K.S.3 In Jackson’s view, due process requires dismissal in
this case because he was reliant on law enforcement’s efforts to gather pertinent
information and the significance of K.S.’s statements “was apparent at the time of
the investigation[.]”
2. Jackson contends that this Court’s past decisions in Danielson, Bruce, and
Bousum have incorrectly said that bad faith is required in any case of lost or
destroyed evidence. While these cases may not have drawn a clear
distinction between cases involving material exculpatory evidence and
evidence that is only potentially useful, a review of the facts in each case
reveals that each involved only potentially useful evidence and thus required
a showing of bad faith in order to establish a due process violation.
3. Jackson’s reliance on State v. Larson, 2009 S.D. 107, 776 N.W.2d 254 is
misplaced. Larson did not involve an alleged delay in charging an offense
due to a failure to investigate. Rather, the issue in Larson was the failure to
have a probable cause determination within 48 hours of Larson’s arrest and
the loss of potentially exculpatory evidence as a result. Id. ¶ 7, 776 N.W.2d
at 257.
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[¶32.] Jackson’s conclusory statements about the nature of the evidence at
issue support only an assumption that an interview of K.S. would have produced
evidence favorable to his defense, and he has not identified how an evidentiary
hearing on his motion would have elevated this assumption. It is just as likely that
an interview on or near November 18, 2016 would have produced evidence to
support the prosecution.
[¶33.] Because an interview of K.S. on or near November 18 could have, at
most, provided potentially useful evidence, Jackson must show bad faith on the part
of the State. This he has not done. There is no evidence that law enforcement’s
decision not to interview K.S. was made in a calculated effort to gain a tactical
advantage or to suppress exculpatory evidence. The record reveals that on and near
November 18, 2016, K.S. was in fact questioned by her medical providers about her
contact with Jackson, and these providers testified to her mental and physical
capabilities on or near this relevant timeframe.4 The testimony from law
4. For example, Nurse Kilber described her interactions with K.S. at Bella
Vista. She indicated that K.S. “a lot of time thought that she was a worker
and she would get confused about what she was doing.” Kilber further
explained that “she would be at the door or going down to the dining room
and trying to assist people. And she just didn’t really know kind of what was
going on on a daily basis.” Kilber described that K.S. would walk normally
some days and lose her balance on others. She had difficulty with “her ability
to take a skill and do multiple steps.” She had difficulty getting dressed. She
had object recognition issues. For example, if she was given a spoon, she
would need to be shown how to use it because she would forget that a spoon
was for eating.
The director of nursing, Heather Anderson, described K.S. as “very pleasant,
very nice.” She further explained that even though K.S. would not remember
her name when she attended to her, “You could grab her hand and she’d just
go along with you. She had, like, this innocence . . . . She had such a pretty
(continued . . .)
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enforcement revealed that their decision not to interview K.S. was based on their
understanding of her mental condition gleaned from her family and her medical
providers, including those conducting the sexual assault examination who related
K.S.’s inability to answer pertinent questions. Given the absence of bad faith here,
the circuit court properly denied Jackson’s motion to dismiss the indictment.
2. Whether the circuit court erred when it determined that knowledge
is not an element of SDCL 22-22-1(3).
[¶34.] Jackson asserts the circuit court erred in refusing to instruct the jury
that a defendant’s knowledge of an alleged victim’s incapacity to consent is an
element that must be proven to establish guilt under SDCL 22-22-1(3). Jackson
acknowledges that a mens rea requirement is not contained within the language of
this statute and further recognizes that in Schuster, we specifically held that
knowledge is not an element of rape as described in this subsection. See 502
N.W.2d at 569.5 However, Jackson asks us to revisit our holding in Schuster in
light of State v. Jones, 2011 S.D. 60, ¶ 15, 804 N.W.2d 409, 414. In Jones, we held
that despite the absence of a mens rea requirement in SDCL 22-22-1(4), the State
must prove that the defendant knew or reasonably should have known the victim
was too intoxicated to consent. According to Jackson, the concern identified by the
majority opinion in Jones—the risk of criminalizing “a broad range of apparently
________________________
(. . . continued)
smile. And she was just childlike. I mean, you could ask her to do things;
she would do them.”
5. Although the Schuster opinion refers to SDCL 22-22-1(2), the numbering of
the subsections under SDCL 22-22-1 has since changed. The identical
language examined in Schuster is now related in SDCL 22-22-1(3).
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innocent conduct”—applies with equal force in interpreting whether SDCL 22-22-
1(3) necessarily includes a knowledge element.
[¶35.] “Statutory interpretation is a question of law subject to de novo
review.” Jones, 2011 S.D. 60, ¶ 8, 804 N.W.2d at 412 (quoting State v. Davis, 1999
S.D. 98, ¶ 7, 598 N.W.2d 535, 537). Relevant here, the Legislature has defined rape,
in part, as “an act of sexual penetration accomplished with any person . . . (3) If the
victim is incapable, because of physical or mental incapacity, of giving consent to
such act[.]” SDCL 22-22-1(3).
[¶36.] Courts confronting the issue whether a criminal offense includes a
mens rea element look to “[t]he language of the statute [as] the starting place in
[the] inquiry[.]” Staples v. United States, 511 U.S. 600, 605, 114 S. Ct. 1793, 1797,
128 L. Ed. 2d 608 (1994) (emphasis added); see also Jones, 2011 S.D. 60, ¶ 11, 804
N.W.2d at 413 (quoting State v. Nagel, 279 N.W.2d 911, 915 (S.D. 1979)) (“Whether
criminal intent or guilty knowledge is an essential element of a statutory offense is
to be determined by the language of the act in connection with its manifest purpose
and design.”). However, our inquiry on this issue is not limited to the interpretation
of the text of SDCL 22-22-1(3). Unlike our traditional analysis governing other
issues of statutory interpretation, the constitutional right to due process may
require courts to read a mens rea element into a statute defining a criminal offense
even though it is silent on this issue.
[¶37.] Indeed, we recently acknowledged the established rule that “‘[t]he fact
that [a] statute does not specify any required mental state . . . does not mean that
none exists’ because generally ‘a guilty mind is a necessary element in the
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indictment and proof of every crime.’”6 State v. Armstrong, 2020 S.D. 6, ¶ 33, 939
N.W.2d 9, 17 (emphasis added) (quoting Elonis v. United States, 575 U.S. 723, ___
135 S. Ct. 2001, 2009, 192 L. Ed. 2d 1 (2015)). However, this general rule favoring a
mens rea element yields in certain instances, including perhaps most notably, when
addressing sex offenses where a victim’s status impacts the ability to provide
consent. See Morissette v. United States, 342 U.S. 246, 251 n.8, 72 S. Ct. 240, 244
n.8, 96 L. Ed. 288 (1952) (noting “[e]xceptions [to the common law mens rea
presumption] came to include sex offenses, such as rape, in which the victim’s
actual age was determinative despite defendant’s reasonable belief that the girl had
reached age of consent”).
[¶38.] We recognized such an exception in Schuster, where we rejected the
identical argument made by Jackson here—that a defendant’s knowledge of the
victim’s inability to give consent because of physical or mental incapacity is an
element of the crime despite the absence of statutory language expressing a mens
rea requirement. 502 N.W.2d at 569. We found persuasive the reasoning of other
courts “that the perpetrator’s knowledge is not an issue in the rape of a person
incapable of giving consent” because the crime is analogous to statutory rape of an
underaged person, which does not require knowledge of the victim’s age. Id. (citing
State v. Sullivan, 298 N.W.2d 267, 273 (Iowa 1980) (finding the public policy of
6. In State v. Armstrong, we required a mens rea element in crimes charged
under SDCL 22-22-45, a statute that does not address the commission of a
sexual offense, but instead criminalizes the act of communicating a threat to
commit such an offense. 2020 S.D. 6, ¶¶ 36–37, 939 N.W.2d 9, 18. Our cases
pertaining to criminal statutes of this nature often implicate First
Amendment concerns. See id.
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protecting those with mental incapacity to “outweigh the danger of mistake”); State
v. Meyer, 226 P.2d 204, 207–08 (Wash 1951) (noting “certain types of statutory
crimes in the commission of which the perpetrator acts at his peril”)).
[¶39.] After noting that we had previously declined to require defendants to
have knowledge of an alleged rape victim’s age, we likewise declined to require a
defendant to have knowledge of an alleged rape victim’s inability to consent due to
physical or mental incapacity. Id. (citing State v. Fulks, 83 S.D. 433, 436–437, 160
N.W.2d 418, 420 (1968)). In so holding, we implicitly recognized that a victim’s
mental incapacity, like a victim’s minority, falls within the realm of the traditional
exceptions to the general presumption in favor of requiring a mens rea element in
order to satisfy due process. See id. (citing Fulks, 83 S.D. at 436–437, 160 N.W.2d
at 420). Therefore, the holding in Schuster controls, and the circuit court properly
declined to instruct the jury that knowledge is an element of SDCL 22-22-1(3).
[¶40.] Moreover, neither our subsequent case law nor the legislative history
surrounding SDCL 22-22-1 support a requirement of knowledge as an element of
SDCL 22-22-1(3). Although Jackson suggests that Jones called Schuster into doubt,
we disagree.7 The Court in Jones, while interpreting SDCL 22-22-1(4),
distinguished the rape of an allegedly intoxicated victim from “typical statutory
rape cases [where] nonconsent is conclusively presumed because of age or physical
7. We recognize the different outcomes in Jones and Schuster despite the
similarity of the statutory text used by the Legislature in subsections (3) and
(4) of SDCL 22-22-1. However, neither party has asked us to reconsider our
holding in Jones, and it is unnecessary to do so in determining the question
here—whether to require a mens rea element in cases charged under SDCL
22-22-1(3). Because Schuster was properly decided, we decline to re-examine
its holding.
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or mental incapacity.”8 2011 S.D. 60, ¶ 14, 804 N.W.2d at 414 (emphasis added). In
addition, we note that while amending SDCL 22-22-1 multiple times after Schuster
(in 1994, 2000, and 2005), the Legislature did not include language in SDCL 22-22-
1(3) imposing a mens rea requirement. Perhaps even more telling, the Legislature
has not amended this subsection after the Court’s decision in Jones (despite another
amendment to SDCL 22-22-1 in 2012).
3. Whether the circuit court abused its discretion in restricting Dr.
Swenson’s testimony.
[¶41.] Jackson claims that the court “tied his hands and directly impeded his
ability to put on a defense” by precluding Dr. Swenson from testifying about
capacity to consent to sexual activity as opposed to other types of capacity; in
prohibiting Dr. Swenson from testifying to what questions he believed K.S. should
have been asked; and by limiting Dr. Swenson’s testimony to his review of K.S.’s
condition during the October to November 2016 timeframe. Jackson further asserts
that had the court not restricted Dr. Swenson’s testimony, Dr. Swenson would have
testified about K.S.’s interactions with treatment providers after November 2016 as
evidence of her lucidity, awareness, and reasoned thinking. In his view, this
evidence would have supported his theory that K.S. may have had the capacity to
consent on November 18, 2016, despite the progressive nature of her disease.
8. To the extent Jackson suggests otherwise, the Court’s holding in Jones did
not mandate an actual knowledge requirement. Instead, the Court held that
in cases charged under SDCL 22-22-1(4), “the State must prove the defendant
knew or reasonably should have known that the complainant’s intoxicated
condition rendered her incapable of consenting.” 2011 S.D. 60, ¶ 15, 804
N.W.2d at 414 (emphasis added).
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[¶42.] A circuit court has broad discretion regarding the admission of expert
testimony. State v. Kryger, 2018 S.D. 13, ¶ 19, 907 N.W.2d 800, 809. Therefore, we
review the circuit court’s decision to exclude expert testimony for an abuse of
discretion. State v. Wills, 2018 S.D. 21, ¶ 24 n.5, 908 N.W.2d 757, 765 n.5. Under
SDCL 19-19-702:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) The expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b) The testimony is based on sufficient facts or data;
(c) The testimony is the product of reliable principles and
methods; and
(d) The expert has reliably applied the principles and
methods to the facts of the case.
[¶43.] “South Dakota courts determine the admissibility of scientific evidence
in accordance with Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
S. Ct. 2786, 125 L. Ed. 2d 469 (1993).” State v. Lemler, 2009 S.D. 86, ¶ 22, 774
N.W.2d 272, 280. Jackson, as the party seeking to admit Dr. Swenson’s testimony,
bears the burden of demonstrating that the proffered testimony is “based on
scientifically valid principles” that will satisfy the reliability demands. Id. ¶ 23
(citation omitted).
[¶44.] Based on our review of the Daubert hearing, the circuit court properly
determined that Jackson failed to establish the admissibility of Dr. Swenson’s
testimony as to different types of capacity to consent. During the hearing, Dr.
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Swenson explained that he relied on his training and experience, and in part, on the
publication—Assessment of Older Adults with Diminished Capacity: A Handbook for
Psychologists. This handbook, according to Dr. Swenson, “addresses basically all of
the types of capacity issues that people like [Dr. Swenson] are faced with when we
evaluate patients like [K.S.].” Dr. Swenson also testified about different types of
consent (e.g., consent to medical treatment, consent to sex) and different types of
capacities to consent (e.g., capacity to handle one’s finances, capacity to consent to
sex). However, Dr. Swenson did not dispute the circuit court’s conclusion “that
there are no generally accepted approaches or criteria for the assessment of consent
to sexual activity[.]” Notably, despite the court’s ruling, Jackson was able to elicit
testimony from Dr. Swenson at trial that K.S.’s inability to clothe, feed, or care for
herself did not “equate[] to a lack of capacity to consent.”
[¶45.] In addition, Jackson has not established that the circuit court abused
its discretion in precluding Dr. Swenson from testifying about the specific questions
he believed K.S. should have been asked related to her capacity to consent to sexual
activity. The court aptly noted that Dr. Swenson was conflating the defense of
consent, which is often raised to negate the element of coercion in cases involving
second-degree rape, with the statutory element at issue here, namely whether an
alleged victim had the capacity to consent. The essential element the State must
prove under SDCL 22-22-1(3) is whether K.S. was “incapable, because of physical or
mental incapacity, of giving consent to such act.” Whether K.S.’s actions or words
on November 18, 2016, may have indicated that she consented to sexual activity is
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not relevant to this inquiry. Therefore, the court properly excluded testimony that
would have confused the issue before the jury.
[¶46.] Finally, Jackson has not established that the court abused its
discretion in restricting the medical records about which Dr. Swenson could testify.
Although the State was allowed to put on evidence related to the progression of
K.S.’s disease prior to October 2016, this evidence was relevant to show why K.S.
began residing at Holiday Hills and how Jackson deliberately sought her
whereabouts after she moved to Bella Vista. The court’s limitation of evidence
relating to K.S.’s continued deterioration as time went by was reasonable given that
the parties do not dispute the progressive nature of K.S.’s disease. Moreover,
although Jackson was restricted from admitting specific evidence related to K.S.’s
mental state after November 2016, he was nonetheless able to utilize records from
the October and November 2016 timeframe to suggest that despite her disease, K.S.
had demonstrated lucid moments both prior to and shortly after the offense in
question.9
9. For example, Dr. Bade testified that as a result of her initial assessment, she
rated K.S. at a three on a scale of one to fifteen reflecting a “brief inventory of
mental status.” According to Dr. Bade, K.S. underwent a “Short Portable
Mental Status Questionnaire” on November 7, 2016, and gave only two
correct answers, with eight incorrect answers, indicating “severe intellectual
impairment.” Yet, she rated K.S. at a 4.2 on a scale of one to six for the Allen
Cognitive Level, which pertains to a person’s ability to function. Dr. Bade
further related that as of November 18, 2016, K.S.’s therapist believed that
therapy was helping to improve K.S.’s mood, her adjustment to Bella Vista,
orientation, and her ability to think more clearly. In addition, a progress
note dated November 21, 2016 (three days after the charged offense) stated
that K.S. “did not struggle as much today to express her thoughts as much as
her thought process is tangential. She struggles in her word finding, but
today this was better.”
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4. Whether the circuit court abused its discretion when it denied
Jackson’s motion for a continuance.
[¶47.] Three days prior to trial, Jackson filed a motion to continue based upon
events that had transpired with respect to the State’s proffer, and later withdrawal,
of Dr. Cherry’s anticipated testimony. On appeal, Jackson asserts that the court’s
denial of his continuance motion was improper and therefore warrants a reversal of
his conviction and a remand for a new trial. Although he did not cast the issue
before the circuit court in this same light, Jackson now poses a two-fold question for
this Court—whether prosecutorial misconduct occurred, and if so, whether the
misconduct affected the jury verdict or harmed his substantial rights.
[¶48.] According to Jackson, the State engaged in misconduct by initially
representing that Dr. Cherry would opine on K.S.’s lack of capacity to consent on
November 18, 2016, while at the same time objecting to Jackson’s proffered
testimony from Dr. Swenson that it was not possible to make this determination
because no one had properly questioned her in a timely manner. Jackson then
points to the State’s later failure to fully disclose the reason why the State withdrew
Dr. Cherry as a witness (i.e., that he had an opinion similar to Dr. Swenson’s) until
just days before trial. Jackson asserts that this conduct violated counsel’s “ethical
obligations, two court orders,” and “Jackson’s due process rights pursuant to
Brady.” There are several problems with Jackson’s argument.
[¶49.] First, Brady is inapplicable here. “We have noted on numerous
occasions that the Brady rule only applies to situations where the defendant
discovers after trial that the prosecutor had material evidence that was not
disclosed during the trial.” State v. Fool Bull, 2009 S.D. 36, ¶ 38, 766 N.W.2d 159,
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168 (quoting State v. Fender, 2001 S.D. 27, ¶ 11, 623 N.W.2d 49, 52) (citing State v.
Knecht, 1997 S.D. 53, ¶ 18, 563 N.W.2d 413, 420; State v. Fox, 313 N.W.2d 38, 40
(S.D. 1981); State v. Moves Camp, 286 N.W.2d 333, 339 (S.D. 1979); State v. Sahlie,
277 N.W.2d 591, 596 (S.D. 1979)). There is no dispute that Jackson learned—prior
to trial—that Dr. Cherry could not offer an opinion on K.S.’s capacity to consent on
November 18, 2016, for a similar reason expressed by Jackson’s expert.
[¶50.] Second, while defense counsel alluded to “significant concerns” about
the State’s representations to the circuit court and counsel when withdrawing Dr.
Cherry as a witness, counsel did not argue that the State committed prosecutorial
misconduct.10 Nevertheless, even if Jackson had more clearly framed his
prosecutorial misconduct claim before the circuit court, we must view it from the
standpoint of the remedy he sought but did not obtain—a continuance of the trial to
allow him to present this testimony from Dr. Cherry.
[¶51.] Jackson argues that the circuit court’s denial of his motion to continue,
made three days before the scheduled trial date, effectively prevented him from
being able to call Dr. Cherry. He also contends that he was prejudiced by the
court’s denial of a continuance because Dr. Cherry’s testimony “would have been
10. In response to the concerns Jackson raised in conjunction with his
continuance motion, the State maintained that a misunderstanding had
occurred between counsel for the State and Dr. Cherry. The State explained
that Dr. Cherry believed the State’s request for an opinion on K.S.’s capacity
on “the date in question” referred to the date the doctor interviewed K.S.,
rather than the date of the alleged offense. According to the State, this
misunderstanding did not come to light until after the circuit court ordered
the State to provide a written report from Dr. Cherry as to his opinion of
K.S.’s capacity on the date of the offense. Counsel for the State further
explained that the State would not have filed a notice of intent to offer Dr.
Cherry’s testimony knowing that he could not provide such an opinion.
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enormously useful for the jury’s understanding of the facts of the case” and the
testimony would have “corroborated the defense expert opinion regarding the lack of
[an] interview with K.S.” Jackson notes that nothing in the record indicates that
the State would have been prejudiced by a continuance. He further claims that his
request was not motivated by procrastination, bad planning, dilatory tactics, or bad
faith; rather, he made the motion because the State’s lack of candor regarding Dr.
Cherry’s opinion resulted in Jackson’s late discovery of the reason Dr. Cherry was
withdrawn.
[¶52.] The decision to grant or deny a continuance “is within the sound
discretion of the [circuit] court and its rulings will not be disturbed absent a clear
showing of abuse of discretion.” State v. Onken, 2008 S.D. 112, ¶ 21, 757 N.W.2d
765, 771 (quoting State v. Lang, 354 N.W.2d 723, 724 (S.D. 1984)). “An abuse of
discretion refers to a discretion exercised to an end or purpose not justified by, and
clearly against reason and evidence.” State v. Waugh, 2011 S.D. 71, ¶ 11, 805
N.W.2d 480, 483 (citation omitted).
[¶53.] When a continuance is sought to obtain the testimony of an
unavailable witness, three requirements must be established: (1) the testimony
must be material; (2) the party seeking the continuance must have used due
diligence to secure the witness’s attendance or deposition; and (3) “it must be
reasonably certain the presence of the witness or [the] testimony will be procured by
the time to which the trial would be postponed.” State v. Karlen, 1999 S.D. 12, ¶ 24,
589 N.W.2d 594, 600 (quoting State v. Letcher, 1996 S.D. 88, ¶ 30, 552 N.W.2d 402,
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407). “[I]f the defendant has failed to establish any of the three requirements, the
court has not abused its discretion in denying the continuance.” Id.
[¶54.] In denying the continuance here, the circuit court noted that the
circumstances surrounding the State’s withdrawal of Dr. Cherry as a witness were
“a little odd” and that “it would have been more helpful if the State had a written
report so they knew precisely what the doctor was going to say.” However, contrary
to Jackson’s assertion, the court found the proffered testimony from Dr. Cherry—
that he was unable to render an opinion as to K.S.’s capacity on the date in
question—was not exculpatory. The court further determined that Dr. Cherry’s
testimony would be cumulative to the testimony proffered by Dr. Swenson.
[¶55.] From our review, the record supports the court’s determination that
Dr. Cherry’s testimony would have been essentially the same as Dr. Swenson’s in
the sense that both proclaimed an inability to opine on K.S.’s capacity to consent on
the date in question without having assessed her close to that timeframe. Jackson’s
proffered use of Dr. Cherry’s testimony was primarily to bolster the anticipated
testimony from his own expert witness. Moreover, it is clear from the trial record
that notwithstanding the inability to call Dr. Cherry, Jackson was able to present to
the jury his theory that law enforcement’s failure to interview K.S. raises
reasonable doubt as to whether she had the capacity to consent to sexual relations.
In fact, Jackson’s counsel was able to argue this theory extensively throughout trial,
not only through Dr. Swenson’s testimony, but also through the cross-examination
of the State’s other witnesses.
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[¶56.] Because of the cumulative nature of Jackson’s proffered testimony
from Dr. Cherry, it was not material to Jackson’s defense. Therefore, the circuit
court did not abuse its discretion in denying Jackson’s motion for a continuance.
Outcome: Affirmed
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