#26773-rev & rem-JKK

2014 S.D. 85

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

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

      v.

PATRICK WHITE FACE,                         Defendant and Appellant.


                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                  PENNINGTON COUNTY, SOUTH DAKOTA

                                   ****

                     THE HONORABLE WALLY EKLUND
                                Judge

                                   ****

MARTY J. JACKLEY
Attorney General

PATRICIA ARCHER
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellee.


THOMAS M. DIGGINS
Pennington County Public
 Defender’s Office
Rapid City, South Dakota                    Attorneys for defendant
                                            and appellant.

                                   ****
                                            CONSIDERED ON BRIEFS
                                            ON AUGUST 25, 2014

                                            OPINION FILED 12/10/14
#26773

KONENKAMP, Justice

[¶1.]        In a case where two separate and distinct incidents of abuse were

alleged in a one-count indictment, the jury found Patrick White Face guilty of

aggravated child abuse under SDCL 26-10-1. But the jurors were not instructed

that to reach a verdict they would have to agree unanimously on at least one of the

two allegations. In some circumstances, multiple instances of child abuse can be

subsumed in one count, because separate incidents may be part of a continuous

course of conduct. Yet here the State took the position that White Face could be

found guilty based on either incident if not both. With the case so postured, there is

no way to determine from the verdict whether all twelve jurors agreed upon the

commission of the same act in order to convict White Face of the charged offense.

Some jurors may have believed him guilty of the first incident and others may have

thought him guilty of the second. Based on the language of the indictment and the

way the State presented its case to the jury, we conclude that White Face was

denied the right to a unanimous jury verdict.

                                    Background

[¶2.]        On March 24, 2011, White Face was caring for his six-week-old

daughter, Pamela, and eighteen-month-old son, Phoenix, while the children’s

mother, Dana Fast Horse, was at work. White Face gave Pamela a bath and, as he

would later recount, while putting a diaper on her, he heard what he described as a

“snap” or “pop.” He noticed that something appeared wrong with Pamela’s leg. He

took her to the emergency room. Dr. Donald Oliver treated Pamela, diagnosed her

with a fractured femur, and placed her leg in a Pavlik harness to promote healing.


                                         -1-
#26773

Dr. Oliver conducted a number of tests, none of which provided an explanation for

Pamela’s broken femur. No bruising and no other broken bones or injuries were

found. He questioned White Face about Pamela’s care. White Face explained that

he was changing Pamela’s diaper when he heard a “snap” or “pop.” Based on his

thirty-plus years of experience as a pediatrician, Dr. Oliver believed that an infant

with no abnormalities, such as Pamela, would not have been injured in the way

White Face described. Dr. Oliver concluded that Pamela’s injury was a “non-

accidental” trauma.

[¶3.]        Law enforcement authorities and the Department of Social Services

(DSS) were contacted, and an officer and a caseworker came to the hospital. By this

time, Dana had arrived, as well. Investigator Dan Wardle interviewed White Face

and Dana about Pamela’s care. White Face relayed the same story to Investigator

Wardle as he did to Dr. Oliver. DSS created a protective plan: instead of removing

Phoenix and Pamela from White Face’s and Dana’s care, DSS asked White Face to

agree to leave the home and have no contact with the children. He agreed. But

that night he went home and continued to live with Dana and the children.

[¶4.]        Four days later, on March 28, 2011, White Face was again caring for

Pamela and Phoenix while Dana was working. Around 5:00 p.m., Dana returned

home from work. She checked on Pamela and found her sleeping on the bed.

According to Dana, Pamela appeared normal. Shortly thereafter, Judy Lefholz, a

nurse with the Bright Start Home Visiting Program, arrived for a visit. Judy had

been working with Dana on parenting, nutrition, and in providing support since

Dana’s pregnancy with Phoenix. During the visit she did not see Pamela because


                                          -2-
#26773

Dana told her Pamela was sleeping. She was unaware that DSS had a protective

plan in place and that White Face was not to be in the home. Nor did she know he

was in the bedroom with Pamela and Phoenix. Dana later testified that she did not

tell Judy about the protective plan or that White Face was in the room with the

children because she was worried DSS would take her children away.

[¶5.]        After Judy left, Dana went to the bedroom and noticed that Pamela

had been moved and something was seriously wrong. Her skin was gray; her eyes

were rolled back; she was barely breathing. Dana asked White Face what happened

and if Pamela had eaten. He replied that Pamela had only eaten a small amount

for the day. Dana called her sister, whose boyfriend ultimately rushed Dana and

Pamela to the hospital. White Face stayed home with Phoenix. White Face was

later contacted by Investigator Jon Kirk, who asked him to come to the police

station to answer questions. Investigator Kirk did not place White Face under

arrest, and after the interview, White Face joined Dana at the hospital.

[¶6.]        At the hospital, Pamela was in a coma and, according to Dr. Oliver,

had a life-threatening blood sugar level. She was intubated and put on a ventilator.

Dr. Oliver conducted multiple tests, but could not determine the cause of Pamela’s

condition. She was air-lifted to the Children’s Hospital in Denver, Colorado. Her

treating physician at the Children’s Hospital, Dr. Curtis Ford, later explained that

Pamela arrived with multi-organ system failure and needed life support. She

continued to have low blood sugar and also suffered repeated seizures, severe liver

damage, and brain injuries. After several days, Pamela’s medical team, Dana, and

White Face decided to take Pamela off life support. She was not expected to live,


                                         -3-
#26773

but after the life support was removed, she continued to sustain herself. Her

prospects for quality of life, however, would never be the same: she had permanent

brain damage and continuing seizures. She would require long-term occupational

and physical therapy.

[¶7.]        In April 2011, White Face was indicted on a charge of aggravated child

abuse in violation of SDCL 26-10-1, occurring on March 24, 2011. Defense counsel

filed multiple motions, including a motion to require the State to specify character

and other act evidence it intended to introduce at trial. The motion was granted,

but the State did not submit a notice of other acts evidence. In August 2011, a new

indictment issued charging White Face with aggravated child abuse between March

24, 2011 and March 28, 2011. The State then dismissed the earlier indictment.

[¶8.]        During a status hearing in January 2013, Attorney Thomas Diggins of

the Pennington County Public Defender’s Office informed the circuit court that

White Face’s original counsel had resigned from her position in the office and that

he and co-counsel, Attorney Jamy Patterson, would represent White Face. Before

trial, Attorney Diggins indicated counsels’ intent to proceed and not request a

continuance. White Face confirmed he was comfortable moving forward with his

current attorneys. During the trial, the State presented testimony from Drs. Oliver

and Ford, Investigators Kirk and Wardle, Dana, Dana’s sister, and Judy Lefholz.

[¶9.]        Dr. Oliver testified about the care he provided to Pamela on March 24

for her fractured leg, including the tests he ran to rule out bone abnormalities and

signs of other trauma. He believed Pamela’s fractured leg was caused by “non-

accidental” trauma. He explained that Pamela did not test positive for any


                                         -4-
#26773

abnormalities, was otherwise a healthy infant, and a broken femur would not occur

in the way White Face described. In regard to the March 28 incident, Dr. Oliver

expressed concern that it was also caused by non-accidental trauma because “the

child suffered extreme harm twice in the father’s care.”

[¶10.]       Dr. Ford testified about both Pamela’s leg fracture and the care he

provided when she arrived at the Children’s Hospital with multi-organ system

failure. He detailed for the jury the various tests he and his team conducted. He

concluded that the cause of Pamela’s organ failure and resulting brain injury was

lack of oxygen to the brain from something obstructing Pamela’s airway, not

allowing her to breathe. Dr. Ford explained the various ways Pamela’s airway

could have been blocked, including smothering. Because White Face was her sole

provider during both incidents, Dr. Ford testified that “[i]t gives a pattern of who

was around Pamela at the time[.]” Because Pamela had a brain injury four days

after the injury to the leg, Dr. Ford expressed concern, stating, “We have a very

vulnerable, very young infant, who has two serious and one very life-threatening

injury within a short period of time. And both are very rare under normal

circumstances to occur.” Pamela suffered, he said, “[t]wo very serious injuries and

two very rare things to happen to a child” under the care of the same person. In Dr.

Ford’s assessment, Pamela’s broken leg and brain injury were non-accidental in

nature.

[¶11.]       Dr. John Plunkett, a forensic pathologist, testified for the defense that,

based on his review of the medical records, there was no way to determine if

Pamela’s broken femur was caused by accidental or non-accidental trauma: “It’s an


                                          -5-
#26773

unusual event, but it does occur.” He further opined that Pamela’s medical

condition on March 28 could have been caused by her abnormally low blood sugar.

Smothering, he said, would not have caused her blood sugar to be so low, and

therefore, smothering was not the cause of her resulting brain injury. He disagreed

with Dr. Ford’s opinion that lack of oxygen was the precipitating cause of Pamela’s

seizures and multi-organ system failure. Rather, he opined that the cause could not

be determined.

[¶12.]       During the settling of the jury instructions, defense counsel requested

that the jury be instructed that they must determine guilt or innocence on each

incident, the one on March 24 and the one on March 28. In particular, counsel

stated,

             Originally, this case only had the March 24th incident. The
             State was then going to use the March 28th incident and there
             was a 404(b) issue, and then it got dismissed. When it was
             refiled, it was refiled and says, between the dates of March 24th
             and March 28th, inclusive. The State has been very clear in
             their presentation of what they believe the evidence is, that they
             are asking the jury to convict Mr. White Face for these two acts,
             that these two acts constitute aggravated child abuse.

             The charging document is interesting in and of itself, but in
             essence, there is a concern without a jury instruction there could
             be seven jurors that believe March 24th happened and five
             jurors that believe March 28th happened, and together you come
             and you have twelve. And if that is the case, then the State has
             not proven their case as the law would require and it would be
             an injustice to Mr. White Face.

             So I believe that the jury needs to be instructed that in order to
             come back with a unanimous vote for guilty of aggravated child
             abuse, they need to all unanimously, each on their own, find
             that the State has proven beyond a reasonable doubt that March
             24th occurred and that beyond a reasonable doubt March 28th
             occurred because if they don’t, there could be that problem as
             well as the State in essence was able to try to do a 404(b) type

                                         -6-
#26773

             litigation without actually having fully litigated that theory in
             the process.

The State responded,

             The State is — on the record the State is alleging from the get-
             go of this case from the time this indictment was filed that we
             are alleging that child abuse occurred between the dates of
             March 24, 2011, and March 28, 2011. The defense essentially is
             trying to say there should have been two separate child abuse
             counts filed and that was not the choice that the State made. I
             have provided authority to the court, if the court would take it
             as part of the record. It’s a document I’ve provided to counsel as
             well as the clerk. It essentially says that when there’s a pattern
             of physical trauma inflicted on a child in a relatively short
             period of time — and the other cases list similar type situations
             where the State — there does not need to be jury unanimity
             regarding the individual acts.

             In this case the State has properly charged the crime over a
             course of time. The defense is trying to say we have to prove
             those individually and that’s just not the case here.

The court refused White Face’s requested jury instruction.

[¶13.]       The jury returned a verdict of guilty on the single count of aggravated

child abuse. Defense counsel asked the court to poll the jury and ask “if each juror

found the State has proved beyond a reasonable doubt that both the March 24th

incident was aggravated child abuse . . . and the March 28th incident was

aggravated child abuse.” The court declined and replied that it would poll the jury

in its standard fashion. The court later imposed a sentence of twenty-five years in

prison, with five years suspended, and ordered restitution of $437,603.07.

[¶14.]       White Face appeals asserting error in: (1) awarding restitution; (2)

denying White Face’s request to instruct the jury to make separate findings for the

two separate offenses charged in the one-count indictment; (3) failing to vacate the

conviction based upon the duplicitous indictment and the lack of unanimity in the

                                          -7-
#26773

verdict; (4) denying a motion for two new trials; (5) denying effective assistance of

counsel; and (6) failing to recognize the State’s prejudicial misconduct by dismissing

the original indictment and obtaining a second indictment alleging two criminal

acts in a single count. 1

               Lack of Unanimity in the Verdict

[¶15.]         White Face contends that the indictment against him was duplicitous,

because it charged two separate incidents in a single count of aggravated child

abuse. One “vice of duplicity is that because the jury has multiple offenses to

consider under a single count, the jury may convict without reaching a unanimous

agreement on the same act, thereby implicating the defendant’s right to jury

unanimity.” State v. Muhm, 2009 S.D. 100, ¶ 29, 775 N.W.2d 508, 517. White Face

concedes he failed to raise the issue of duplicity in the indictment before trial as

required by SDCL 23A-8-3(3). In accord with this statute, defects in an indictment

“must be raised prior to trial[.]” See id. Thus, the issue of a defective indictment

was waived.




1.       Standard of Review: “Whether an indictment is . . . duplicitous is a question
         of law reviewed de novo.” State v. Muhm, 2009 S.D. 100, ¶ 18, 775 N.W.2d
         508, 514. We review claims of a violation of due process de novo, and thus,
         whether a unanimity instruction was required to ensure a defendant’s due
         process rights is a question of law. State v. Tiegen, 2008 S.D. 6, ¶ 14, 744
         N.W.2d 578, 585 (employing de novo standard of review to a claimed
         constitutional error). We review a court’s refusal of a requested jury
         instruction for an abuse of discretion. State v. Webster, 2001 S.D. 141, ¶ 7,
         637 N.W.2d 392, 394. We similarly review a court’s denial of a defendant’s
         motion for a new trial for an abuse of discretion. State v. Zephier, 2012 S.D.
         16, ¶ 15, 810 N.W.2d 770, 773.

                                            -8-
#26773

[¶16.]       White Face next argues that his failure to timely raise the duplicitous

indictment issue did not absolve the circuit court of its duty to ensure that any

verdict was unanimous. Both the United States and South Dakota Constitutions

grant an accused the right to a jury trial. U.S. Const. amends. VI, XIV; S.D. Const.

art. VI, § 7. By statute in South Dakota, verdicts in criminal cases must be

unanimous. SDCL 23A-26-1. White Face asserts that the court abused its

discretion when it denied his requested jury instruction on unanimity. He further

contends that even if the court did not abuse its discretion when it denied his

proposed instruction, the circuit court had a duty to instruct the jury that it must

unanimously find White Face guilty of “at least one of the charges in the duplicitous

count.” See Muhm, 2009 S.D. 100, ¶ 32, 775 N.W.2d at 519.

[¶17.]       In response, the State argues that no specific unanimity instruction

was required because this case did not involve a single-act offense, but instead

presented a “course of conduct.” In the State’s view, “the jury did not have to

unanimously agree on any one particular act, but had to unanimously agree that

the State proved the overall offense of aggravated child abuse.” The State contends

that if error did occur and was not waived, the error was harmless, because “it is

likely the jury found beyond a reasonable doubt that [White Face] committed

aggravated child abuse on both dates presented by the evidence.”

[¶18.]       We first review whether the circuit court erred when it refused White

Face’s requested instruction. “Trial courts possess broad discretion in instructing

the jury.” State v. Pellegrino, 1998 S.D. 39, ¶ 9, 577 N.W.2d 590, 594. With a

proper request, however, “defendants are entitled to instructions on their defense


                                          -9-
#26773

theories if evidence supports them.” Id. But no abuse of discretion will be found “in

the refusal of a proposed jury instruction that does not represent a correct

statement of the law.” State v. Downing, 2002 S.D. 148, ¶ 27, 654 N.W.2d 793, 801

(per curiam). White Face’s proposed instruction was not a proper statement of the

law, because it required unanimity on both incidents as if they were charged as

separate counts. White Face was not indicted on two counts of aggravated child

abuse, and therefore, the State was not required to prove beyond a reasonable doubt

that he committed aggravated child abuse on March 24 and March 28: the evidence

could have supported a conviction on either incident. The circuit court did not

abuse its discretion when it denied White Face’s requested instruction.

[¶19.]       Did the trial court have a duty sua sponte to properly instruct the jury

on unanimity? A defendant has a due process right to a unanimous jury verdict.

See Muhm, 2009 S.D. 100, ¶ 29, 775 N.W.2d at 517. Contrary to the State’s claim,

White Face did not waive this issue. Defense counsel made clear to the court that

unanimity was a concern and requested an instruction on jury unanimity.

Moreover, multiple courts have held that a trial court has a duty to instruct sua

sponte on unanimity when the evidence requires, and a defendant’s failure to assert

the issue does not constitute a waiver. See State v. Crane, 804 P.2d 10, 16 (Wash.

1991) (issue can be raised for the first time on appeal); see also People v. Dieguez, 89

Cal. App. 4th 266, 275 (2001); Cody v. State, 361 P.2d 307, 320 (Okla. Crim. App.

1961); Ngo v. State, 175 S.W.3d 738, 748 (Tex. Crim. App. 2005); State v. Lomagro,

335 N.W.2d 583, 590 n.3 (Wis. 1983).




                                          -10-
#26773

[¶20.]       When evidence of several acts is presented at trial, any one of which

could constitute the basis for the single offense charged, trial courts can take one of

two actions: (1) require the prosecution to elect the transaction on which it relies for

the conviction, or (2) give a unanimity instruction telling the jurors that they must

unanimously agree that the defendant committed the same act or acts or that the

defendant committed all the acts offered in evidence. Muhm, 2009 S.D. 100, ¶ 32,

775 N.W.2d at 518-19 (either or rule) (citing 1A Charles A. Wright et al., Federal

Practice and Procedure § 145 (4th ed. 2014)); State v. Weaver, 964 P.2d 713, 720

(Mont. 1998). Unanimity is at risk when the evidence at trial suggests more than

one distinct crime or the jury has multiple offenses to consider under a single count.

Muhm, 2009 S.D. 100, ¶ 29, 775 N.W.2d at 517. In these circumstances, “a general

verdict may not reveal whether the jury unanimously found the defendant guilty of

one offense or more offenses, or guilty of one offense and not guilty of others.” Id.;

see also State v. Brende, 2013 S.D. 56, ¶ 13, 835 N.W.2d 131, 137.

[¶21.]       But the above requirements are not implicated, even though the

evidence suggests more than one distinct crime, when the case falls within a

continuing course of conduct. People v. Vargas, 204 Cal. App. 3d 1455, 1464 (1988).

Under the continuing course of conduct doctrine, when “the evidence establishes a

pattern of physical trauma inflicted upon a child within a relatively short period of

time, a single course of conduct is involved and no justification exists for departing

from the well-established rule . . . that jury unanimity is not required” on the

underlying conduct constituting child abuse. Id. Here, the State contends that

neither an election nor a unanimity instruction was required because it charged


                                          -11-
#26773

White Face with one count of aggravated child abuse alleged to have occurred over a

period of time and presented the case as a continuous course of conduct. In the

State’s view, the abuse was continuous because, after White Face broke Pamela’s

femur and was not to be in the home, he smothered Pamela on March 28 to keep her

quiet so as not to be discovered by the Bright Start nurse working with Dana.

[¶22.]       Much of the analytical difficulty in child abuse cases lies in

determining when multiple acts constitute separate offenses and when they

encompass a single offense. Juror unanimity is not required when the crime

charged involves a continuous course of conduct or a series of related acts over a

period of time, and aggravated child abuse under SDCL 26-10-1 can be such a

crime. People v. Napoles, 104 Cal. App. 4th 108, 115 (2002). Our statute provides:

“Any person who abuses, exposes, tortures, torments, or cruelly punishes a minor in

a manner which does not constitute aggravated assault, is guilty of a Class 4

felony.” SDCL 26-10-1. Although abuse, torture, torment, and cruelly punish are

not defined in the statute, a plain reading of this language indicates that the

primary purpose is to criminalize acts of child abuse, whether it occurs in single or

multiple acts. The terms do not contemplate that abuse will in all instances be

complete upon a single act. This is because in child abuse cases it is possible that

several acts, considered individually, might not amount to a commission of the

offense, but the cumulative effect of the multiple injuries constitutes a crime.

Vargas, 204 Cal. App. 3d at 1461. On the other hand, “child abuse is not invariably

charged as a course of conduct offense; one act or omission constituting abuse may

be sufficient for conviction.” Napoles, 104 Cal. App. 4th at 116. Based on the


                                         -12-
#26773

language of SDCL 26-10-1, we think the Legislature intended for the offense of child

abuse to include both a single act of abuse, as well as a continuing course of abusive

acts. 2 Thus, a unanimity instruction in child abuse cases will be required in some

instances but not others.

[¶23.]         In determining when to give the unanimity instruction, trial courts

“must ask whether (1) there is a risk the jury may divide on two discrete crimes and

not agree on any particular crime, or (2) the evidence merely presents the possibility

the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a

single discrete crime. In the first situation, but not the second, [the court] should

give the unanimity instruction.” People v. Russo, 25 Cal. 4th 1124, 1135 (2001). In

assessing the evidence, the defendant’s acts should be viewed in a “commonsense

manner,” taking into account “whether the acts occurred in ‘a separate time frame’”

or separate “‘identifying place.’” State v. Marko, 27 P.3d 228, 231 (Wash. Ct. App.

2001) (quoting State v. Petrich, 683 P. 2d 173, 177 (Wash. 1984)).

[¶24.]         For several reasons, we conclude that this case presents the first

situation, where a special unanimity instruction was required. First, the evidence

and expert opinion did not suggest a pattern of continuous abuse but two discrete

incidents — the infant’s broken femur and, days later, her sudden systemic failure.

Other than stating that one of the reasons for concluding that both the child’s




2.       In State v. Augustine, in the context of double jeopardy, we said, “Each time
         an adult abuses a child, it is a separate, isolated impulse; not an inherently
         continuous offense. Individual acts of child abuse, especially when not shown
         to be inflicted simultaneously, constitute successive violations of SDCL 26-10-
         1 . . . .” 2000 S.D. 93, ¶ 24, 614 N.W.2d 796, 799.

                                           -13-
#26773

injuries were not accidental was because the child was alone with White Face,

neither Dr. Oliver nor Dr. Ford opined that the injuries inflicted upon Pamela on

March 24 and March 28 formed a pattern of abuse or constituted battered child

syndrome. See, e.g., Vargas, 204 Cal. App. 3d at 1462 (burns, bruises, contusions,

whipping injuries, and bites within a 10-day period); Steichen v. Weber, 2009 S.D. 4,

¶ 13, 760 N.W.2d 381, 389. And the risk of division among the jurors was a

significant potential here because the mechanism of injury to the child was not

clear. Circumstantially, the evidence pointed to White Face: he was alone with the

infant on both occasions when her traumatic incidents occurred. But jurors could

have easily divided on which incident, if not both, the defendant was responsible

for.

[¶25.]       Second, the State invited the jury to convict on either incident, if not

both, thus elevating the risk the jury could divide on the two offenses and not all

agree on one particular offense. In closing argument, one of the prosecutors

remarked: “I believe the State’s shown beyond any reasonable doubt on both the

March 24th and the March 28th incident that there was a violation of the statute

involving child abuse. You think — one or the other is good enough, you can still

find guilty on one or the other or both. I think the totality of the circumstances as a

whole, it’s child abuse.” Under these circumstances, we cannot be reasonably

certain that White Face was found guilty by a unanimous jury.

[¶26.]       We conclude that the State presented two incidents of trauma, each of

which could have formed the basis of aggravated child abuse under SDCL 26-10-1,

and the instructions given only informed the jury that the verdict must be


                                         -14-
#26773

unanimous. The circuit court erred by not providing the jury with a special

unanimity instruction requiring it to agree on the act supporting the conviction or

find that White Face had committed both acts of child abuse. In view of our

decision, we need not reach White Face’s remaining appellate issues.

[¶27.]       Reversed and remanded for a new trial.

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

WILBUR, Justices, concur.




                                        -15-
