#26212-a-LSW

2012 S.D. 91

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

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

      v.

ARLEY F. ROACH,                             Defendant and Appellant.


                                   ****

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

                                   ****

                     THE HONORABLE JANINE M. KERN
                                Judge

                                   ****

MARTY J. JACKLEY
Attorney General

MAX A. GORS
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellee.


JOHN R. MURPHY
Rapid City, South Dakota                    Attorney for defendant
                                            and appellant.

                                   ****

                                            CONSIDERED ON BRIEFS
                                            ON AUGUST 27, 2012

                                            OPINION FILED 12/26/12
#26212

WILBUR, Justice

[¶1.]         Arley Roach was convicted by a jury of second-degree rape. Roach

appeals a number of issues involving hearsay and the denial of a requested jury

instruction, a Batson challenge, and an objection regarding the State’s use of the

word “rape” during trial. We affirm.

                  FACTS AND PROCEDURAL BACKGROUND

[¶2.]         Roach and H.S. were involved in an intimate, three-year relationship

characterized by several break-ups. The couple frequently reunited through

consensual sexual intercourse.

[¶3.]         On the evening of February 6, 2011, H.S. tried to end her relationship

with Roach because she had begun a new relationship. That evening and into the

early morning hours of February 7, 2011, the couple exchanged a series of text

messages. Roach sent a text message to H.S. stating that he had finally accepted

the fact that H.S. fell out of love with him. He asked her whether he should leave

her alone. H.S. responded that she did not want him to “bug” her about it. In

response, Roach called H.S. a “fucin whore” “just like [her] mom.” Further, Roach

replied “U [know] ur fucin me 2marow right got [any more] condoms i dont believe u

used one.” H.S. responded “No arley, we arent [okay] not in the god damm mood

rite now stop [okay] gotta go to sleep.” Roach then replied “Oh u can fuc [the] world

[though].” The couple continued to exchange text messages until H.S. turned off her

cell phone.

[¶4.]         On the morning of February 7, 2011, Roach entered H.S.’s apartment,

crawled into bed with H.S., and tried to have sex with her. H.S. refused, got up


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#26212

from the bed, and moved to the couch. Roach continued to try to have sex with her

and H.S. continued to refuse. Roach then picked up H.S. and tried to carry her into

the bathroom. While Roach was trying to carry her to the bathroom, H.S., in an

effort to stop Roach, attempted to grab onto the walls and scraped her thumb on the

corner of a doorway. H.S. asked Roach to stop and to put her down. Roach

eventually complied and H.S. walked into the bathroom to smoke a cigarette. 1

[¶5.]         Once in the bathroom, H.S. again tried to end her relationship with

Roach. During their conversation, Roach became upset when he saw a hickey on

H.S.’s neck. In response to this marking, Roach said that H.S. “c[ould] go fuck the

world but [she] can’t fuck him.” Roach then started to pound his fist into his hand.

H.S. became scared that he was going to harm her. Because Roach stood between

her and the doorway to the bathroom, H.S. walked to the corner of the bathroom

and began to cry. Roach proceeded to undress himself, grabbed a blanket off of a

shelf, and placed it on the floor. Roach then grabbed H.S. and pushed her to the

floor. While being held down by the weight of Roach, H.S. repeatedly told Roach to

stop and that she did not want to have sex with him. H.S. eventually stopped

fighting Roach. Roach penetrated H.S., ejaculated, and left the bathroom.

[¶6.]         At this point, H.S.’s roommate, N.R., arrived home from school. In

Roach’s presence, N.R. asked H.S. what was wrong because H.S. was crying. H.S.

did not respond. In an effort to find out more information, N.R. asked H.S. if Roach

had forced H.S. to have sex with him. H.S. shook her head affirmatively. Roach



1.      H.S. typically smoked cigarettes in the bathroom because the exhaust fan
        removed the smoke from the apartment.

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stated that he had not done anything to H.S. N.R. asked H.S. if Roach had raped

her and H.S. responded yes. N.R. called 911.

[¶7.]          On March 31, 2011, Roach was indicted for second-degree rape and

sexual contact with a person incapable of consenting. The sexual contact charge

was later dismissed by the State. In a part two information, Roach was also

charged as a habitual offender due to a prior felony conviction.

[¶8.]          After a jury trial, 2 Roach was found guilty of second-degree rape and

sentenced to fifteen years in prison with five years suspended.

[¶9.]          Roach raises five issues in this appeal:

               1.     Whether the trial court erred in denying Roach’s proposed
                      jury instruction on consent.

               2.     Whether H.S.’s statements to sexual assault nurse,
                      Amber Mason, were admissible under SDCL 19-16-8
                      (Rule 803(4)).

               3.     Whether the trial court erred in denying Roach’s Batson
                      challenge to the State’s peremptory strike of prospective
                      juror, C.B.B.

               4.     Whether H.S.’s statements to Officer Terviel were
                      admissible under SDCL 19-16-6 (Rule 803(2)).

               5.     Whether the trial court abused its discretion in allowing
                      the use of the word “rape” during trial.

                             ANALYSIS AND DECISION

[¶10.]         1.     Whether the trial court erred in denying Roach’s
                      proposed jury instruction on consent.

[¶11.]         At trial, Roach based his theory of defense on the tumultuous nature of

his relationship with H.S., as well as their method of reconciliation – consensual



2.       Appellate counsel did not represent Roach at the trial level.

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sexual intercourse. He alleged that it was reasonable for him to believe that H.S.

consented to the sexual encounter.

[¶12.]         Roach proposed his jury instruction number two that stated, “[i]f the

Defendant reasonably believed H.S. consented to the sex act, then no rape

occurred.” The trial court considered the jury instruction and denied it. Instead,

the court gave Roach’s third proposed instruction, a “mistake of fact” instruction,

similar to the South Dakota Criminal Pattern Jury Instruction 2-8-1 3 and similar to

the instruction approved by this Court in State v. Woodfork, 454 N.W.2d 332 (S.D.

1990). 4 Roach’s proposed instruction three became jury instruction 17. Instruction

17 provided:




3.       South Dakota Criminal Pattern Jury Instruction 2-8-1 provides:

                      An act is not a crime when committed or omitted under
               an ignorance or mistake of fact which disproves any criminal
               intent.
                      Where a person honestly and reasonably believes certain
               facts, and acts or fails to act based upon a belief in those facts,
               which, if true, would not result in the commission of a crime, the
               person is not guilty.

4.       Woodfork was charged with and convicted of first-degree rape. Woodfork, 454
         N.W.2d at 333. He contended that “the trial court erred in refusing to grant
         his requested instruction relating to the issue of consent.” Id. He requested
         that the jury be instructed with the following instruction:

               It is a defense to a charge of rape that the defendant entertained
               a reasonable and good faith belief that the female person
               voluntarily consented to engage in sexual intercourse. If from
               all the evidence you have reasonable doubt whether the
               defendant reasonably and in good faith believed she voluntarily
               consented to engage in sexual intercourse you must give the
               defendant the benefit of the doubt and find him not guilty.

                                                              (continued . . .)
                                           -4-
#26212

               An act is not a crime when committed or omitted under an
               ignorance or mistake of fact which disproves any criminal
               intent. Where a person honestly believes certain facts, and acts
               or fails to act based upon a belief in those fact[s], which, if true,
               would not result in the commission of a crime, the person is not
               guilty. 5

[¶13.]         This Court has previously provided the standard of review for a trial

court’s instructions to a jury. “A trial court has discretion in the wording and

arrangement of its jury instructions, and therefore we generally review a trial

court’s decision to grant or deny a particular instruction under the abuse of

discretion standard.” State v. Klaudt, 2009 S.D. 71, ¶ 13, 772 N.W.2d 117, 121

(quoting State v. Cottier, 2008 S.D. 79, ¶ 7, 755 N.W.2d 120, 125). This Court has

also stated, however, that

               [a]n accused must be afforded a meaningful opportunity to
               present a complete defense. When a defendant’s theory is
               supported by law and . . . has some foundation in the evidence,
               however tenuous[,] the defendant has a right to present it.
               Nonetheless, [j]ury instructions are to be considered as a whole,
               and if the instructions when so read correctly state the law and

________________________
(. . . continued)
         Id. The trial court refused to give this instruction to the jury. Id. at 334.
         The court instead instructed, and this Court ultimately approved, the
         following mistake of fact instruction:

               An act is not a crime when committed or omitted under an
               ignorance or mistake of fact which disproves any criminal
               intent. Where a person honestly and reasonably believes certain
               facts, and acts or fails to act based upon a belief in those facts,
               which, if true, would not result in the commission of a crime, the
               person is not guilty.

         Id.

5.       Unlike South Dakota Criminal Pattern Jury Instruction 2-8-1 and the
         instruction approved by this Court in Woodfork, jury instruction 17 did not
         contain the words “and reasonably” in the second sentence.

                                             -5-
#26212

               inform the jury, they are sufficient. This is a question of law
               reviewed de novo.

Id. (alterations in original) (internal citations and quotations omitted).

[¶14.]         Further, an “[e]rror in refusing a proposed instruction ‘is reversible

only if it is prejudicial, and the defendant has the burden of proving any prejudice.’”

Id. ¶ 18 (quoting State v. Martin, 2004 S.D. 82, ¶ 21, 683 N.W.2d 399, 406). “This

requires a showing that the alleged error, in all probability, produced some effect

upon the jury’s verdict and was harmful to the substantial rights of the party

assigning it.” Id. (quoting Martin, 2004 S.D. 82, ¶ 37, 683 N.W.2d at 411).

[¶15.]         Roach argues that the trial court deprived him of his constitutional

rights to due process and a fair trial when it refused to instruct the jury on his

theory of defense – consent. He further asserts that his second proposed instruction

was supported by law and had a foundation in the evidence presented at trial.

Roach maintains that he was prejudiced by the court’s denial of his second proposed

jury instruction because, had the instruction been given to the jury, the verdict

would have been different.

[¶16.]         The State asserts that the jury was properly instructed because, when

the instructions are read as a whole, the law governing the case is correctly stated.

The State contends that lack of consent is not an element of forcible rape under

SDCL 22-22-1(2), and thus, the jury need not be given a specific instruction as to

consent. In citing State v. Faehnrich, 6 the State concedes, however, that if the




6.       In Faehnrich, this Court stated that, “consent may be a defense when there is
         evidence offered and received that the victim did indeed consent; however,
                                                              (continued . . .)
                                           -6-
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victim freely and voluntarily consents without force, coercion, or threat, then

consent is a defense to forcible rape. 359 N.W.2d 895, 900 (S.D. 1984).

[¶17.]         The instructions given to the jury correctly stated the law applicable in

this case. A plain reading of SDCL 22-22-1(2) 7 does not include a consent element.

See State v. Jones, 2011 S.D. 60, ¶ 12, 804 N.W.2d 409, 413 (quoting State v.

Schnaidt, 410 N.W.2d 539, 541 (S.D. 1987) (“When the language of a statute is

clear, certain, and unambiguous, there is no occasion for construction, and this

Court’s only function is to declare the meaning as clearly expressed in the

statute.”)). And, Roach does not present evidence of H.S.’s consent much less any

evidence that would “utterly negate” any element of force, coercion, or threat.

Faehnrich, 359 N.W.2d at 900. At trial, Roach elicited testimony from H.S. on

cross-examination that he and H.S. frequently had sexual intercourse in the

bathroom in the weeks leading up to the event at issue. H.S. also testified on cross-

examination that at least one of the incidences of sexual intercourse included acts of

simulated violence. This evidence, however, does not “utterly negate” any element

of force, coercion, or threat in this case. H.S. received injuries from the encounter,

________________________
(. . . continued)
         that evidence would also have to utterly negate any element of force,
         coercion, or threat.” 359 N.W.2d at 900.

7.       SDCL 22-22-1(2) provides:

               Rape is an act of sexual penetration accomplished with any
               person under any of the following circumstances:
                ...
               (2) Through the use of force, coercion, or threats of immediate
               and great bodily harm against the victim or other persons
               within the victim’s presence, accompanied by apparent power of
               execution[.]

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#26212

which were documented by medical professionals. H.S. also testified as to the

nonconsensual nature of her sexual encounter with Roach. Thus, an instruction

specifically containing the word “consent,” as proposed by Roach in his second

instruction, was not necessary.

[¶18.]       Furthermore, the jury instructions, when read as a whole, correctly

stated the law applicable to this case and allowed Roach “a meaningful opportunity

to present a complete defense.” Klaudt, 2009 S.D. 71, ¶ 13, 772 N.W.2d at 121.

Following rejection of Roach’s instruction number two, the trial court gave the jury

Roach’s proposed “mistake of fact” instruction. In addition to Roach’s “mistake of

fact” instruction, the jury was also given instructions as to the elements of forcible

rape, the presumption of innocence standard, and the reasonable doubt standard.

Thus, when read as a whole, the instructions guided the jury to return a verdict of

not guilty if the jury had a reasonable doubt as to whether Roach believed H.S.

consented to intercourse.

[¶19.]       Finally, Roach has failed to articulate any prejudice he suffered as a

result of the court’s denial of his proposed instruction. Even though Roach’s second

proposed jury instruction was denied, the court gave Roach’s proposed “mistake of

fact” instruction. Additionally, Roach was permitted to elicit testimony from H.S.

on cross-examination that supported his consent defense. He also argued his

consent defense before the jury in his closing argument. Thus, Roach did not suffer

any prejudice from the trial court’s denial of his proposed jury instruction.

[¶20.]       2.     Whether H.S.’s statements to sexual assault nurse, Amber
                    Mason, were admissible under SDCL 19-16-8 (Rule
                    803(4)).


                                          -8-
#26212

[¶21.]          Prior to trial, the State filed a notice to offer hearsay evidence of sexual

assault nurse, Amber Mason, regarding statements H.S. made to Mason during

Mason’s examination of H.S. Mason is a registered nurse with specialized training

in sexual assault at Rapid City Regional Hospital.

[¶22.]          During a motions hearing, the State presented Mason’s testimony.

Roach objected to the testimony arguing that the testimony was hearsay and not

admissible under SDCL 19-16-8 (Rule 803(4)). In a subsequent hearing, the trial

court ruled generally that the portions of H.S.’s statements to Mason that were

related to diagnosis and treatment were admissible at trial under SDCL 19-16-8

(Rule 803(4)). The trial court, however, did not specify which statements were

admissible under SDCL 19-16-8 (Rule 803(4)) and which were not. 8

[¶23.]          At trial, Mason testified about the method she utilizes in the

examination of rape victims. Specifically, she stated,

                I do an interview history on them. I basically ask them to tell
                me everything that happened from beginning to the end; any
                positions you were in; anything that they said to you; where
                they touched you; absolutely anything that will help me find any
                injuries, trauma, anything like that in the exam so they don’t



8.       In its ruling, the trial court noted that,

                there is no indication that the statements of the victim to Nurse
                Mason were made with the clear understanding that they were
                for medical treatment or diagnosis. Accordingly, the [c]ourt will
                not admit the identity information elicited.

                . . . The rest of the information elicited by Nurse Mason as it
                relates to diagnosis and treatment is admissible. . . . [S]o, in
                essence, the [c]ourt is telling you that the information provided
                by Nurse Mason relevant to medical diagnosis and treatment is
                admissible.

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#26212

             have to keep repeating it during the exam for me so I can just
             kind of know where to look.

[¶24.]       Mason further stated that she records the conversation she has with

the victim in a “narrative.” Mason testified that this narrative serves a medical

purpose because it provides guidance to Mason in helping her locate injuries on the

victim. Mason testified that she took H.S.’s narrative prior to the physical exam. In

quoting H.S.’s narrative, Mason testified,

             [H.S.] told me that she had broke up with her boyfriend and he
             came into - - over to her house uninvited, that she was in the
             bathroom and he was wanting to have sex with her. She kept
             telling him that she didn’t want anything. He pulled a blanket
             off of a shelf and laid it on the floor. She said that she didn’t
             want anything. She just kept saying “No.”

             And then in the middle of it, she had recalled that she was
             forced into the bathroom. She didn’t walk willingly into the
             bathroom, and she injured her thumb being forced into the
             bathroom.

             She had also stated that at one point, she just stopped fighting
             because she just wanted it to get over with. In the middle of it,
             she grabbed her cell phone. She was pushing buttons and – just
             random buttons trying to call anybody so that somebody would
             be able to hear what was going on.

Mason further stated,

             A. Yes. There’s an abrasion on her thumb.
             Q. And is that what she - - maybe she told you about on her left
             thumb?
             A. Yes.
             Q. Okay. Do you recall what [H.S.] told you about how she
             received all of her injuries?
             A. She told me that she was forced onto the floor where she was
             fighting for awhile for him to stop. And then she finally just
             gave up and she was laying on her back on the floor.

Mason also testified that,



                                         -10-
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             Q. I want to – before I move on, I want to ask you, did [H.S.] tell
             you about penetration?
             A. Yes.
             Q. And - - and does that serve a medical purpose to find out
             about whether somebody was penetrated or not?
             A. Yes.
             Q. And what does penetration mean? Can you explain that?
             A. Penetration is just the penis being inserted into the vagina.
             Q. And what did [H.S.] tell you about penetration?
             A. She told me that he had sex with her. He forced her to have
             sex with him.

Roach interposed no objection to the foregoing testimony.

[¶25.]       On appeal, Roach argues that some of the statements made by Mason

at trial were not relevant for medical diagnosis or treatment, were cumulative to

H.S.’s in-court testimony, and thus, were inadmissible hearsay. The State argues

that H.S.’s statements to Mason are admissible under SDCL 19-16-8 (Rule 803(4)).

[¶26.]       Admissibility of evidence pursuant to SDCL 19-16-8 (Rule 803(4)) is

reviewed under an abuse of discretion standard. See United States v. Sumner, 204

F.3d 1182, 1185 (8th Cir. 2000). “‘Hearsay’ is a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” SDCL 19-16-1(3) (Rule 801(c)); State v. Shepard,

2009 S.D. 50, ¶ 14, 768 N.W.2d 162, 166. “Hearsay is not admissible except as

provided by law or by chapters 19-9 to 19-18, inclusive, or by other rules prescribed

by the Supreme Court.” SDCL 19-16-4 (Rule 802). One such exception is SDCL 19-

16-8 (Rule 803(4)), which provides:

             Statements made for purposes of medical diagnosis or treatment
             and describing medical history, or past or present symptoms,
             pain, or sensation, or the inception or general character of the
             cause or external source thereof are not excluded by § 19-16-4 in
             so far as reasonably pertinent to diagnosis or treatment, even
             though the declarant is available as a witness.

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#26212


“The crucial question under this rule . . . is whether the out-of-court statements

were ‘reasonably pertinent’ to diagnosis or treatment.” Olesen v. Class, 962 F.

Supp. 1556, 1565 (D.S.D. 1997) aff’d in part, rev’d in part, 164 F.3d 1096 (8th Cir.

1999).

[¶27.]        At the pretrial hearing, the trial court did not make a definitive ruling

on the specific portions of Mason’s narrative that are now at issue: those statements

that were not related to diagnosis and treatment. Upon review, it appears that

some portions of Mason’s narrative were relevant to medical diagnosis and

treatment and some portions were not. The trial court never made a specific

pretrial ruling as to admissibility of each portion of the narrative, and Roach did not

renew his objection at trial as to the portions of Mason’s testimony that were not

related to medical diagnosis and treatment. We have said on previous occasions

that “[t]he ‘failure to object at trial constitutes a waiver of that issue on appeal.’”

State v. Motzko, 2006 S.D. 13, ¶ 4 n.2, 710 N.W.2d 433, 436 n.2 (quoting State v.

Moran, 2003 S.D. 14, ¶ 21, 657 N.W.2d 319, 325). Because Roach failed to renew

his objection at trial to the portions of Mason’s testimony that were not related to

medical diagnosis and treatment, he waived this issue. Thus, this Court will not

review the issue on appeal.

[¶28.]        3.     Whether the trial court erred in denying Roach’s Batson
                     challenge to the State’s peremptory strike of prospective
                     juror, C.B.B.

[¶29.]        During voir dire, Roach’s counsel presented questions to the

prospective jurors regarding the presumption of innocence. C.B.B., a Native

American prospective juror, stated that her understanding of the presumption of

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innocence was that the defendant is innocent until proven guilty. In response to

counsel’s request to elaborate on her affirmative response to the question about

whether it would be hard for her to look at Roach as having done nothing wrong,

C.B.B. responded, “Seeing him sitting there looking innocent, but you really don’t

think he did something wrong.” After questioning C.B.B. about her responses to

Roach’s counsel’s questions, the State exercised one of its peremptory strikes on

C.B.B.

[¶30.]       Roach raised a Batson challenge to the State’s peremptory strike of

C.B.B. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

Based on C.B.B.’s responses to its inquiries, the State responded that it did not

believe that C.B.B. could be a fair and impartial juror. In relying on its detailed

notes and observations of the proceedings, the trial court ruled that, based on

C.B.B.’s confused responses to both counsel as to the standards for a criminal trial

and C.B.B.’s demeanor throughout the proceedings, the State presented race-

neutral reasons for the strike.

[¶31.]       On appeal, Roach argues the State failed to articulate a race-neutral

explanation for striking C.B.B., and therefore, Roach’s conviction should be vacated.

Specifically, he asserts that the State struck C.B.B. and, yet, chose to retain

another juror, R.W., who incorporated C.B.B.’s response as to the meaning of

presumption of innocence in his response to counsel’s voir dire questions.

[¶32.]       This Court reviews a trial court’s ruling on a Batson challenge for clear

error. State v. Mulligan, 2007 S.D. 67, ¶ 34, 736 N.W.2d 808, 820 (citing Batson,

476 U.S. at 98 n.21, 106 S. Ct. at 1724 n.21). Additionally,


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             [t]his [C]ourt’s function under the clearly erroneous standard is
             to determine whether the decision of the lower court lacks the
             support of substantial evidence, evolves from an erroneous view
             of the applicable law or whether, considering the entire record,
             we are left with a definite and firm conviction that a mistake
             has been made.

State v. Overbey, 2010 S.D. 78, ¶ 11, 790 N.W.2d 35, 40 (quoting In re H.L.S., 2009

S.D. 92, ¶ 11, 774 N.W.2d 803, 807-08).

[¶33.]       The test for examining a Batson challenge consists of three steps. “[A]

defendant must first establish a prima facie case of purposeful discrimination by

showing he or she is a member of a cognizable racial group and the State used its

peremptory challenges to remove members of the defendant’s race from the

potential jury candidates.” Mulligan, 2007 S.D. 67, ¶ 33, 736 N.W.2d at 820

(quoting State v. Owen, 2007 S.D. 21, ¶ 45, 729 N.W.2d 356, 369). “A criminal

defendant may object to race-based exclusions of jurors effected through peremptory

challenges whether or not the defendant and the excluded juror share the same

race.” Id. (quoting Honomichl v. Leapley, 498 N.W.2d 636, 639 (S.D. 1993)). “The

burden then shifts to the State to provide a race-neutral explanation for the use of

its peremptory challenges.” Id. (quoting Owen, 2007 S.D. 21, ¶ 45, 729 N.W.2d at

369). “The trial court will then have the duty to determine if the defendant has

established purposeful discrimination.” Id. (quoting State v. Farmer, 407 N.W.2d

821, 823 (S.D. 1987)).

[¶34.]       In this case, the trial court found that the State articulated a race-

neutral explanation for the use of its peremptory challenge. The court based this

finding on its observations of C.B.B.’s confusion in her responses as to the standards

in criminal trials and her demeanor throughout the proceedings. We acknowledge

                                          -14-
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that the trial court is in a better position to judge the credibility of C.B.B. This

Court will give great deference to the trial court’s finding that the State exercised a

race-neutral strike. See id. ¶ 34 (quoting Batson, 476 U.S. at 98 n.21, 106 S. Ct. at

1724 n.21 (“[T]he trial judge’s findings in the context under consideration here

largely will turn on evaluation of credibility, therefore a reviewing court ordinarily

should give those findings great deference”)). Thus, because the trial court was in

the best position to judge C.B.B.’s credibility and demeanor throughout the

proceedings, the finding of the trial court that the strike was a race-neutral strike is

affirmed.

[¶35.]         4.    Whether H.S.’s statements to Officer Terviel were
                     admissible under SDCL 19-16-6 (Rule 803(2)).

[¶36.]         At trial and prior to H.S. taking the stand, Officer Terviel testified on

behalf of the State. Officer Terviel responded to N.R.’s 911 call on February 7,

2011. He testified as to his observations of H.S. When Officer Terviel began to

testify as to his conversation with H.S. regarding what had happened, Roach

objected to this testimony arguing that it was hearsay. His objection was overruled

without explanation. The following day at trial, the State supplemented the record

and stated that the testimony of Officer Terviel was admissible under the excited

utterance exception to the hearsay rule under SDCL 19-16-6 (Rule 803(2)). 9

Following this exchange, the court did not make any findings on the record


9.       SDCL 19-16-6 (Rule 803(2)) provides:

               A statement relating to a startling event or condition made
               while the declarant was under the stress of excitement caused
               by the event or condition, is not excluded by § 19-16-4, even
               though the declarant is available as a witness.

                                           -15-
#26212

regarding the admission of Officer Terviel’s testimony under SDCL 19-16-6 (Rule

803(2)). On appeal, Roach, relying on State v. Orelup, argues that the trial court

erred when it admitted Officer Terviel’s testimony under SDCL 19-16-6 (Rule

803(2)) yet did not make any findings on the record. See 492 N.W.2d 101, 106 (S.D.

1992) (finding that the trial court erred by admitting the testimony of two witnesses

under SDCL 19-16-6 (Rule 803(2)) when the record did not indicate that the court

found that the victim’s statements were related to a startling event and made under

the stress of excitement).

[¶37.]       This Court reviews evidentiary rulings of the trial court under an

abuse of discretion standard. State v. Graham, 2012 S.D. 42, ¶ 16, 815 N.W.2d 293,

301. “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. Fisher, 2011 S.D.

74, ¶ 32, 805 N.W.2d 571, 578 (quoting State v. Krebs, 2006 S.D. 43, ¶ 26, 714

N.W.2d 91, 101).

[¶38.]       To be admissible pursuant to the excited utterance exception to the

hearsay rule, a hearsay statement must “relate ‘to a startling event or condition

made while the declarant was under the stress of excitement caused by the event or

condition.’” State v. Midgett, 2004 S.D. 57, ¶ 31, 680 N.W.2d 288, 295 (quoting

SDCL 19-16-6 (Rule 803(2)). “The reliability of the statement stems from the

influence of the event that overrides any reflective capability essential for

fabrication.” State v. Floody, 481 N.W.2d 242, 250 (S.D. 1992). “Thus, ‘the critical

inquiry is whether the statements were made while the declarant was still under

the influence of the experience.’” Id. (quoting State v. Logue, 372 N.W.2d 151, 159


                                          -16-
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(S.D. 1985)). “The lapse of time between the startling event and the out-of-court

statement although relevant is not dispositive in the application of [R]ule 803(2).”

United States v. Iron Shell, 633 F.2d 77, 85 (8th Cir. 1980).

[¶39.]       The State has cited the record in support of the trial court’s admission

of Officer Terviel’s testimony under SDCL 19-16-6 (Rule 803(2)). The trial court,

however, did not make findings as to whether the statements at issue were made

under the stress of excitement of the event.

[¶40.]       In Midgett, we said,

             [t]he problem here is that the trial court did not determine
             whether each statement at issue was made under the stress of
             excitement caused by this event. Although the State argues
             that [the officer] indicated [that the victim] “seemed to—
             appeared to be shaken,” he also testified that she “just seemed
             hesitant about coming over to talk to me. She just kind a stayed
             back.” Therefore, while [the victim] may have been under the
             requisite stress of excitement when she made some of the
             statements to [the officer], we cannot, from the State’s limited
             citation to the record, make that assessment for all the
             statements.

2004 S.D. 57, ¶ 31, 680 N.W.2d at 295. Similar to the trial court in Midgett, the

trial court in the present case did not determine whether each statement at issue

was made under the stress of excitement of the event. However, unlike Midgett, the

State has cited to stress of excitement evidence within the record. Officer Terviel,

who arrived at H.S.’s apartment at 11:09 a.m. – 39 minutes after the forcible

encounter occurred and three or four minutes after he received notice from dispatch

of the incident, testified that he observed that H.S. “appeared to have been recently

crying” and was “visibly upset.” He also noted that H.S. was holding her abdomen

area. Officer Terviel further testified that, while he was speaking to N.R., he “could


                                         -17-
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hear [H.S.] crying.” When Officer Terviel began to question H.S. about the alleged

rape, H.S. “appeared to be visibly shaken, alternate - - alternately crying, sobbing,

and appeared quite upset.” Specifically, Officer Terviel testified that

               A. [s]he - - she told me that she continually told [Roach] no, but
               he told her he just wanted to have sex with her one more time.
               Q. Did she break down at any point during this conversation?
               A. Yes sir. Again, she - - she would cry on and off throughout
               the conversation.

Officer Terviel’s investigation involving H.S. lasted approximately 49 minutes. 10

[¶41.]         Officer Terviel’s observations and H.S.’s demeanor throughout Officer

Terviel’s investigation indicate that H.S.’s excited statements were the product of

the startling event she was continuing to experience at the time she spoke with

Officer Terviel rather than the product of reflection. While the trial court did not

make findings as to the stress of excitement of the event on the record as discussed

in Orelup, the State has cited stress of excitement evidence in the record to warrant

the trial court’s admission of Officer Terviel’s testimony under the excited utterance

exception to the hearsay rule. Therefore, the trial court was within its discretion to

admit the testimony of Officer Terviel under SDCL 19-16-6 (Rule 803(2)).

[¶42.]         5.    Whether the trial court abused its discretion in allowing
                     the use of the word “rape” during trial.

[¶43.]         Finally, Roach contends that the trial court abused its discretion in

overruling his two objections and allowing the use of the word “rape” during the

trial. He argues that he was prejudiced by its use. Roach further asserts that the

use of the term was a legal conclusion which invaded the province of the jury.


10.      Following the investigation, H.S. was taken to Rapid City Regional Hospital–
         a 10 minute commute. H.S. was seen by medical professionals at 12:07 p.m.

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#26212

Additionally, he contends that the trial court suggested that it would instruct the

jury as to the use of the word “rape” at trial, but a specific instruction was never

given. This Court reviews the trial court’s denial of Roach’s objection to the use of

the word “rape” at trial under an abuse of discretion standard. See State v.

Mattson, 2005 S.D. 71, ¶ 13, 698 N.W.2d 538 (“[This Court] presume[s] the

evidentiary rulings made by a trial court are correct, and review[s] those rulings

under an abuse of discretion standard.”).

[¶44.]       This is the first time this Court has addressed whether allowing the

use of the word “rape” throughout trial is an abuse of discretion. Other jurisdictions

have had the opportunity to address this issue. See State v. Goss, 235 S.E.2d 844,

849 (N.C. 1977) (finding that the use of the term “rape” by the victim was clearly a

“convenient shorthand term” and not an impermissible legal conclusion); State v.

Wonser, 537 P.2d 197, 199 (Kan. 1975) (finding that the trial court did not err in

allowing the repeated use of the word “rape” by witnesses, the prosecuting attorney,

and defense counsel when referring to an element of the offense of indecent liberties

with a child and stating that “the parties were simply designating the act by its

common name”); State v. Amick, No. COA8-760, 2009 WL 1056557, at *3 (N.C. Ct.

App. Apr. 21, 2009) (stating that the victim’s use of the word “rape” was not an

impermissible legal conclusion, but rather “a ‘convenient shorthand term’ to

describe the victim’s version of events”); People v. Haynes, No. A122908, 2010 WL

4132618, *6-7 (Cal. Dist. Ct. App. Oct. 21, 2010) (stating that it was not an abuse of

discretion for the court to allow the prosecutor to ask the victim questions using the

word “rape” and for the victim to use the word “rape” in response because victim’s


                                          -19-
#26212

responses were shorthand for describing what had occurred). See also State v.

Mireles, No. A03-699, 2004 WL 1244077, *4 (Minn. Ct. App. June 8, 2004) (finding

that there was no prosecutorial misconduct in the prosecution’s use of the word

“rape” to describe the offense). But see Arnold v. State, 304 S.E.2d 118, 123 (Ga. Ct.

App. 1983) (stating that in this case, which turned on the identity of the assailant

rather than on whether the rape occurred, the “[u]nrestricted use of the word

[“rape”] may be objectionable, absent some jury instruction that the question of

whether or not any rape occurred was for [the jury’s] determination”).

[¶45.]       On a review of the record, the words “rape” or “raped” are used by both

parties in voir dire, direct and cross-examination of witnesses, and closing

arguments. Prior to Roach’s first objection, “rape” or “raped” was used several

times by both the State and Roach. Notably, even after his second objection, Roach

used “rape” or “raped” in his cross-examination of H.S. and his closing argument.

The prevalence of the use of the word “rape” by both sides lends credence to fact

that the word “rape” was not used as a legal conclusion, but rather as shorthand to

describe the events that occurred.

[¶46.]       Further, while the court did not give a specific jury instruction as to

the use of the words “rape” or “raped,” the court did give specific instructions as to

the elements of forcible rape under SDCL 22-22-1(2) that must be proven beyond a

reasonable doubt, the definition of reasonable doubt, and the presumption of

innocence. Roach did not suffer prejudice because the jury was properly instructed,

thus avoiding confusion, if any, that the use of the word “rape” may have caused.




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Therefore, the court did not abuse its discretion in denying Roach’s objection to the

use of the word “rape” during trial.

                                   CONCLUSION

[¶47.]       The trial court properly denied Roach’s proposed jury instruction on

consent. The instructions that were given to the jury accurately stated the law and

were not prejudicial to Roach. Additionally, because Roach did not object to

Mason’s testimony at trial, he failed to preserve that issue on appeal. The trial

court also correctly denied Roach’s Batson challenge to the State’s peremptory

strike of juror, C.B.B. Further, while the trial court did not make specific findings

on the record, the State has cited to stress of excitement evidence in the record to

warrant the trial court’s admission of Officer Terviel’s testimony under the excited

utterance exception to the hearsay rule. Lastly, the trial court did not abuse its

discretion in denying Roach’s objection to the use of the word “rape” during trial.

Therefore, based on the foregoing, we affirm.

[¶48.]       GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices,

concur.

[¶49.]       KONENKAMP, Justice, concurs specially.



KONENKAMP, Justice (concurring specially).

[¶50.]       This case illustrates one of the pitfalls inherent in our rule in SDCL

19-9-3 (Rule 103(a)). The rule provides in part: “Once the court makes a definitive

ruling on the record admitting or excluding evidence, either at or before trial, a

party need not renew an objection or offer of proof to preserve a claim of error for


                                         -21-
#26212

appeal.” SDCL 19-9-3 (Rule 103(a)) (emphasis added); see also Papke v. Harbert,

2007 S.D. 87, ¶ 54 n.16, 738 N.W.2d 510, 528 n.16. Our rule gives no further

guidance on what constitutes a “definitive ruling.” Overreliance on this provision

may be hazardous to preserving an objection for appeal.

[¶51.]       Here, the defense sought a pretrial order to exclude, among other

things, the testimony of Nurse Amber Mason about statements the victim made

regarding the identity of the alleged assailant and other remarks not pertinent to

medical diagnosis. The court granted the request, in part, saying it “will not admit

the identity information elicited.” Defense counsel also asked the court for

“clarification on the purported statements the State is seeking to introduce, as not

all statements of the alleged victim supposedly made to Ms. Mason are pertinent to

medical diagnosis or treatment.” The court responded:

             The court finds that the rest of . . . the information elicited by
             Nurse Mason as it relates to diagnosis and treatment is
             admissible. Now I note in your response, [defense counsel], that
             you are asking for clarification regarding what statements the
             victim made to the nurse as pertinent to medical diagnosis or
             treatment so, in essence, the court is telling you that the
             information provided to Nurse Mason relevant to medical
             diagnosis and treatment is admissible. The identity question
             the court finds to be inadmissible.

Then the court asked counsel if its response provided “sufficient direction.” The

State answered affirmatively, and defense counsel replied, “We do rely on our letter

dated August 12th.” But that letter, again, only sought the same “clarification” and

commented that “not all statements the alleged victim supposedly made to Ms.

Mason are pertinent to medical diagnosis or treatment.”




                                         -22-
#26212

[¶52.]       Was there a definitive ruling? In fairness to defense counsel, in a

sense the ruling was definitive: it was not conditional or provisional. Apparently,

the trial court intended its ruling to be its final word on the subject. But was the

court saying that all the nurse’s testimony, except on identity, was pertinent to

medical diagnosis or treatment? Or was the court saying that it would admit the

nurse’s testimony pertaining only to medical diagnosis or treatment? These are

close questions. As explained in the Committee Notes to the federal counterpart to

SDCL 19-9-3 (Rule 103(a)), the rule “imposes the obligation on counsel to clarify

whether an in limine or other evidentiary ruling is definitive when there is doubt on

that point.” See Fed. R. Evid. 103(a) advisory committee’s note.

[¶53.]       On appeal, counsel thoroughly parses Nurse Mason’s testimony,

arguing that portions were not at all related to diagnosis or treatment. But the

trial court was never given the opportunity to hear these specific objections. If it

had, the matter may have been easily corrected. Defense counsel should have

brought this issue back to the court’s attention at trial. As the Committee Notes

explain, “Even where the court’s ruling is definitive, nothing in the [rule] prohibits

the court from revisiting its decision when the evidence is to be offered.” Id. Since

the court was not given an opportunity to rule on the specific concerns now before

us, we must declare the issue waived.




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