#25951-a-SLZ

2011 S.D. 71

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                    ****
STATE OF SOUTH DAKOTA,                     Plaintiff and Appellee,

      v.

LUCAS WAUGH,                               Defendant and Appellant.


                                    ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SIXTH JUDICIAL CIRCUIT
                   MELLETTE COUNTY, SOUTH DAKOTA

                                    ****

                     THE HONORABLE MARK BARNETT
                                Judge

                                    ****

MARTY J. JACKLEY
Attorney General

FRANK GEAGHAN
Assistant Attorney General
Pierre, South Dakota                       Attorneys for plaintiff
                                           and appellee.

BRAD A. SCHREIBER
KRISTEN N. BARRY of
The Schreiber Law Firm, Prof. LLC
Pierre, South Dakota                       Attorneys for defendant
                                           and appellant.

                                    ****

                                           CONSIDERED ON BRIEFS
                                           ON OCTOBER 03, 2011

                                           OPINION FILED 11/02/11
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ZINTER, Justice

[¶1.]        Lucas Waugh was charged with the attempted rape of Vicki Stroup

and the rape of C.B., a minor (Minor). The incidents occurred one after the other

within walking distance of each other. The circuit court joined the cases for trial,

and a jury found Waugh guilty of both offenses. Waugh appeals joinder and the

sufficiency of evidence to support the convictions. We affirm.

                            Facts and Procedural History

[¶2.]        Both incidents occurred in the early morning hours of September 23,

2009, in White River. After finishing work on September 22, Stroup and her friend,

June Becker, drank a few beers at Stroup’s home. Later, Stroup’s nephew drove

Stroup, Becker, and others including Waugh to a bar. Stroup was acquainted with

Waugh’s mother. Stroup also knew Waugh, but she did not interact with him that

evening. Stroup’s nephew subsequently drove Stroup and Becker back to Stroup’s

home. Becker stayed at Stroup’s for a short time and then Becker went home. Soon

thereafter, Stroup went to bed, leaving the kitchen light on.

[¶3.]         Sometime before 4:11 a.m., while Stroup was sleeping, Waugh entered

Stroup’s home and bedroom without her knowledge or permission. Stroup awoke to

something poking the upper-inside of her thigh, near her vagina. Stroup’s

sweatpants and underwear had been pulled down. Stroup observed Waugh

standing next to her bed holding his penis. Stroup immediately exclaimed: “What

the f*** are you doing” and that she was calling the police. Stroup went to the

kitchen, opened her cell phone, and observed that it was 4:11 a.m. She immediately

called 911. While Stroup was on the phone, Waugh walked into the kitchen, he

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looked directly at Stroup, and he said her name. He then flipped up the hood on his

sweatshirt and walked out the door.

[¶4.]          The incident involving Minor occurred shortly thereafter within

walking distance of Stroup’s home. Earlier in the afternoon of September 22,

Minor, a sixteen-year-old, left school early and went to her friend L.D.’s house. At

the time, L.D. and Waugh were dating. Waugh was at L.D.’s home periodically

throughout that afternoon and evening. Waugh, L.D., and Minor were all drinking.

Minor decided to stay overnight with L.D. L.D. testified that Waugh and Minor

were flirting that night. When Minor fell asleep, L.D. was sitting next to Minor on

the bed and Waugh was on a nearby couch.

[¶5.]          Minor later awoke to find Waugh lying on top of her with his penis

inside her vagina. Her shorts and underwear had been pulled down. Minor said,

“I’m not L.D.” Waugh replied, “I know.” Minor testified that Waugh hit her,

bruising her face and causing a bump on her head. Waugh also placed his hand

over Minor’s mouth. Minor testified that it then “got all black” (apparently losing

consciousness), and when she woke up, no one else was in the room. Minor dressed,

used the restroom, and went home. L.D. testified that she heard the front door shut

around 4:30 a.m. Minor called the police and reported the incident from her home.

[¶6.]          The sheriff and a deputy responded to Stroup’s call first. The deputy

interviewed Stroup and searched Stroup’s home, while the sheriff searched for

Waugh. The deputy found an item on Stroup’s bedroom floor that belonged to

Waugh. After completing the investigation at Stroup’s home, the deputy met with

the sheriff.

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[¶7.]        Around 5:30 a.m., while the sheriff and deputy were still searching for

Waugh, they received the report of the Minor incident at L.D.’s home. When the

officers arrived at L.D.’s home to investigate, Waugh ran from L.D.’s home and

eluded the officers. Later that morning, a relative brought Waugh to the police

station.

[¶8.]        Minor was examined at a hospital, and the sheriff collected a penile

swab from Waugh. Examination of the penile swab disclosed the presence of semen

and DNA profiles matching Minor and Waugh.

[¶9.]        The State filed separate complaints for the Stroup and Minor

incidents. Regarding Stroup, Waugh was charged with first-degree burglary,

aggravated assault, and attempted second-degree rape. Regarding Minor, Waugh

was charged with first-degree burglary, aggravated assault, and second-degree

rape. At the conclusion of the preliminary hearing involving Stroup, the circuit

court dismissed the aggravated assault charge. At the conclusion of the preliminary

hearing involving Minor, the court dismissed the charges of aggravated assault and

first-degree burglary. Waugh pleaded not guilty to the remaining charges of rape

(involving Minor), attempted rape (involving Stroup), and first-degree burglary

(involving Stroup).

[¶10.]       Following the circuit court’s joinder of the charges for trial, a jury

found Waugh guilty of the rape of Minor and the attempted rape of Stroup, but not

guilty of first-degree burglary of Stroup’s home. Waugh appeals, arguing that the

cases were improperly joined and that there was insufficient evidence to support the

rape and attempted rape convictions.

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                               Joinder of Informations

[¶11.]       Waugh contends that joinder was improper because the victims and

some of the details of each incident were dissimilar. A circuit court’s decision to join

charges is reviewed under an abuse of discretion standard. State v. Thompson,

1997 S.D. 15, ¶ 14, 560 N.W.2d 535, 538. “An abuse of discretion refers to a

discretion exercised to an end or purpose not justified by, and clearly against reason

and evidence.” Kostel v. Schwartz, 2008 S.D. 85, ¶ 12, 756 N.W.2d 363, 370.

[¶12.]       Joinder of informations is permitted where the offenses “could have

been joined in a single . . . information.” SDCL 23A-11-1. Offenses may be joined in

a single information under the following circumstances.

             Two or more offenses may be charged in the same . . .
             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-6-23. “[The] statute contains three tests which permit joinder of

offenses.” State v. Shape, 517 N.W.2d 650, 654 (S.D. 1994). “The first test allows

joinder if the offenses were of the same or similar character.” Id. “The second test

allows for joinder of offenses which are based on the same act or transaction.” Id. at

655. “The third test allows joinder if the charges are based on acts which constitute

a common scheme or plan.” Id.

[¶13.]       “If the requirements of SDCL 23A-6-23 for joinder are met, then the

burden of proof falls to the party opposing joinder to establish sufficient prejudice to

justify severance of the joined counts.” State v. Sabers, 442 N.W.2d 259, 263 (S.D.


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1989) (citing SDCL 23A-11-2). The quantum of prejudice that must be shown is

high.

             Any joinder of offenses is apt to involve some element of
             prejudice to the defendant, since a jury is likely to feel that a
             defendant charged with several crimes must be a bad individual
             who has done something wrong. However, if the notion of
             involuntary joinder is to retain any validity, a higher degree of
             prejudice, or certainty of prejudice, must be shown before relief
             will be in order.

State v. Dixon, 419 N.W.2d 699, 703 (S.D. 1988). “A showing of prejudice requires

more than a showing of a better chance of acquittal at a separate trial.” United

States v. Bohr, 581 F.2d 1294, 1301 (8th Cir. 1978). The higher showing is required

to offset the purpose of joinder, judicial efficiency. Dixon, 419 N.W.2d at 703.

[¶14.]       Furthermore, “a trend is developing that ‘the most important

consideration is whether evidence of one offense would have been admissible at a

trial of the other offense[.]’” Id. at 702 (quoting 1 Wright, Federal Practice and

Procedure, Joinder of Offenses & Defendants, § 143 (1982)) (citing State v. Hoffman,

106 Wis. 2d 185, 316 N.W.2d 143 (1982); State v. Hall, 103 Wis. 2d 125, 307 N.W.2d

289 (1981); State v. McGuire, 218 Neb. 511, 357 N.W.2d 192 (1984)). “When

evidence of one crime is admissible in the trial of another crime, . . . there is no

prejudice in trying the two charges at the same time.” United States v. Tyndall, 263

F.3d 848, 850 (8th Cir. 2001) (analyzing the federal-rule counterparts to South

Dakota’s joinder and prejudice statutes).

[¶15.]        In this case, the circuit court granted State’s motion for joinder

because the court found that the offenses were similar and parts of a common

scheme. With respect to similarity, the circuit court observed that both incidents

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occurred at approximately the same time in bedrooms that were within walking

distance of each other. Waugh and the victims were also known to and recognized

by each other, and both victims had been with Waugh that evening shortly before

the assaults. The court finally observed that both victims were awakened in bed to

find their pants or shorts and undergarments pulled down.

[¶16.]        There were also additional similarities. Waugh knew the location of

Stroup’s home and was in L.D.’s home periodically throughout the evening. Waugh

had social contact with both Minor and Stroup shortly before the incidents. During

that contact, all three parties were drinking in the company of each other.

Considering the connection of all three parties, the closeness of the time and

location of the offenses, and the similar manner of executing the sexual assaults,

the circuit court did not abuse its discretion in finding the acts to be of a similar

character. We have affirmed joinder “where separately charged offenses are closely

related in location and manner of execution[.]” Thompson, 1997 S.D. 15, ¶ 16, 560

N.W.2d at 539.

[¶17.]        Moreover, we see no undue prejudice because the evidence of each

incident could have been admitted in the trial of the other. Other acts evidence is

admissible in rape cases to negate the defense of consent, and to prove intent,

motive, common plan or design. SDCL 19-12-5 (Rule 404(b)) (providing that

“[e]vidence of other crimes, wrongs, or acts is not admissible to prove 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 . . ., intent . . ., [or] plan, . . .”);

see also State v. White, 538 N.W.2d 237, 243-44 (S.D. 1995) (affirming the admission

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of other acts evidence under SDCL 19-12-5 (Rule 404(b)) to negate the defense of

consent in a rape case).

[¶18.]        In this case, evidence of each incident would have been admissible in

the trial of the other under the common plan exception to SDCL 19-12-5 (Rule

404(b)). As previously noted, Waugh knew the location of both homes; Waugh had

social contact with both women immediately before the incidents; the rape of Minor

occurred shortly after the unsuccessful attempt to rape Stroup; and, Waugh was

aware that both Minor and Stroup had been drinking that evening. From this

evidence, jurors could have found that Waugh had a common plan to sexually

assault victims who Waugh knew had been drinking that evening.

[¶19.]        Additionally, Waugh’s defense for each incident made each act

admissible in the trial of the other under the intent and motive exceptions in SDCL

19-12-5 (Rule 404(b)). With respect to Stroup, Waugh’s defense was that he did not

attempt to commit rape because he had no specific intent to rape Stroup. He

contended that he committed no direct act toward completion of a rape: he was

merely standing in her bedroom fondling his genitals. With respect to Minor,

Waugh conceded intent to have sexual intercourse, but contended that it was

consensual.

[¶20.]        Therefore, evidence of Waugh’s non-consensual entry of Stroup’s home

and his non-consensual removal of Stroup’s pants just before the Minor incident

would have been admissible to negate Waugh’s defense that his sexual intercourse

with Minor was consensual. Similar acts evidence may be admitted to negate the

defense of consent. White, 538 N.W.2d at 244. And, the Minor incident involving

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non-consensual intercourse occurring immediately after Waugh’s failed attempt to

have sex with Stroup would have been admissible in the Stroup trial to prove that

he did intend to have sexual intercourse with Stroup. Similar acts are admissible to

prove intent, motive, common plan or design in rape cases. Id. Concededly, the

similarities in this case are not as great as those discussed in White and the other

cases cited therein. However, the incidents in this case occurred one after the other

shortly after Waugh had social encounters with both women who he observed

drinking alcohol. We consider remoteness and similarity together when

determining whether another crime, wrong, or act is admissible. State v. Fisher,

2010 S.D. 44, ¶ 28, 783 N.W.2d 664, 673. “[L]ess similarity may be required where

the prior act is closer in time to the charged incident.” Id. These incidents were

closely related in time and were similar in many respects. We conclude that Waugh

failed to establish unfair prejudice because the evidence of each incident would have

been admissible in the trial of the other.

[¶21.]       The two incidents in this case were closely related in time and location,

and the incidents were similar considering Waugh’s prior interaction with both

women and the removal of their clothing while they were sleeping. Because there

was evidence of similarity and common plan, and because there was insufficient

evidence of unfair prejudice, the circuit court did not abuse its discretion in joining

the charges for trial.

                              Sufficiency of the Evidence

[¶22.]       Waugh contends that the evidence was insufficient to support the

verdicts. “In determining the sufficiency of the evidence on appeal, our review is

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limited to determining whether there is evidence in the record which, if believed by

the fact finder, will sustain a finding of guilt beyond a reasonable doubt.” State v.

Hanson, 456 N.W.2d 135, 139 (S.D. 1990). “We must accept the most favorable

inferences that can be drawn from the evidence in support of a verdict.” Id. This

Court does not “resolve conflicts in the evidence, assess the credibility of witnesses,

or reevaluate the weight of the evidence.” State v. Corean, 2010 S.D. 85, ¶ 53, 791

N.W.2d 44, 61. “No guilty verdict will be set aside if the evidence, including

circumstantial evidence and reasonable inferences drawn therefrom, sustains a

reasonable theory of guilt.” State v. Buchholz, 1999 S.D. 110, ¶ 33, 598 N.W.2d 899,

905.

[¶23.]        With respect to the attempted rape of Stroup, an attempt to commit a

crime occurs when one “does any act toward the commission of the crime, but fails

or is prevented or intercepted in the perpetration of that crime[.]” SDCL 22-4-1.

“[T]o prove an attempt, the prosecution must show that defendant (1) had the

specific intent to commit the crime, (2) committed a direct act toward the

commission of the intended crime, and (3) failed or was prevented or intercepted in

the perpetration of the crime.” State v. Reed, 2010 S.D. 66, ¶ 7, 787 N.W.2d 1, 3.

“The term ‘act’ presupposes some direct act or movement in execution of the design,

as distinguished from mere preparation, which leaves the intended offender only in

the condition to commence the first direct act toward consummation of his design.”

Id. ¶ 8. However, “it is not necessary that the last further act necessary to the

actual accomplishment of the crime be taken to be a requisite to make an

attempt[.]” Id.

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[¶24.]         Waugh argues that the State did not establish that Waugh had the

specific intent to rape Stroup and that Waugh committed no direct act toward the

commission of attempted rape.* We disagree. The jury heard evidence that Waugh

entered Stroup’s house shortly before 4:11 a.m. without her consent, entered her

bedroom, repositioned Stroup at the end of her bed, removed her pants and

underwear, and poked the inside of Stroup’s upper thigh near her vagina. When

she fully awoke, she observed Waugh in her presence by her bed holding his penis.

Waugh’s acts were overt sexual behavior sufficient for a reasonable trier of fact to

have found that Waugh intended to rape Stroup.

[¶25.]         With respect to the rape of Minor, Waugh argues that Minor consented

to the sexual intercourse. “[C]onsent may be a defense [to rape] where there is

evidence offered and received that the victim did indeed consent; however, that

evidence would also have to utterly negate any element of force, coercion, or threat.”

State v. Faehnrich, 359 N.W.2d 895, 900 (S.D. 1984).

[¶26.]         In this case, Minor testified that she did not consent and she wanted to

scream but Waugh held his hand over her mouth. Minor also testified that Waugh

physically hit her. Waugh argues that Minor’s testimony was not credible, but we

do not pass on the credibility of Minor’s testimony. Moreover, Minor’s testimony

was corroborated by her physical injuries, including a bruise on her face and a

bump on her head. A reasonable trier of fact could have found that the sexual

intercourse was not consensual.


*        Waugh also argues that Stroup’s testimony regarding attempted rape is less
         than convincing, but we do not pass on the credibility of witnesses.

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[¶27.]      Affirmed.

[¶28.]     GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON and

WILBUR, Justices, concur.




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