State v. FASTHORSE

#25047-a-JKM

2009 SD 106

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

VINCENT CHAD FASTHORSE, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT
OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

HONORABLE GLEN A. SEVERSON
Judge

* * * *

MARTY J. JACKLEY
Attorney General

ANDREW KNECHT
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.

TRACI SMITH
Office of Minnehaha County
Public Defender Attorneys for defendant
Sioux Falls, South Dakota and appellant.

* * * *

ARGUED ON OCTOBER 6, 2009

OPINION FILED 12/09/09
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MEIERHENRY, Justice

[¶1.] A jury found Vincent Fasthorse guilty of kidnapping, aggravated

assault, and rape. Fasthorse appeals. We affirm.

FACTS AND BACKGROUND

[¶2.] On September 14, 2007, Fasthorse attended a house party at his

uncle’s residence. A.S. was also at that party. As the party was ending, A.S. and

Fasthorse agreed he would give her a ride to her boyfriend’s house. Fasthorse,

however, drove A.S. past her boyfriend’s house and continued to a country road

where he turned onto a trail that led into a cornfield.

[¶3.] After parking the car, Fasthorse attempted to kiss A.S. She recoiled

from his advance and got out of the vehicle. She tried to escape by running back to

the country road. Fasthorse ran after her and was able to catch her by tripping her.

Fasthorse forced A.S. to return to the vehicle and into the back seat. He then raped

her twice. After the second rape, A.S. fled and ran toward the country road where

she was picked up by a Good Samaritan who gave her a ride home. A.S.

subsequently went to the hospital emergency room where she was examined by a

physician. The physician, as part of the examination, performed a rape kit. A.S.

suffered injuries in addition to those directly associated with the rape. The police

were contacted, and an officer interviewed her about what had taken place. At all

times A.S. maintained that Fasthorse was the person responsible for the rape and

injuries she sustained.

[¶4.] At trial, Fasthorse claimed A.S.’s rendition of the facts was not

supported by forensic evidence. A.S. told the medical personnel attending to her

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injuries that she had not had sex with any other person in the 72 hours preceding

the rape. Fasthorse argued DNA evidence contradicted A.S.’s testimony, in that,

the sperm cell fraction from her underwear revealed DNA from at least three

contributors. The test revealed the presence of equal concentrations of DNA from

both Fasthorse and A.S.’s boyfriend. Equal DNA concentrations indicated the two

sexual encounters likely occurred within 12 to 24 hours of each other. This

scientific evidence stood in contrast to A.S.’s statements to medical staff that she

had not had sexual intercourse in the 72 hours before the rape. The trial court did

not allow Fasthorse to cross-examine A.S. or medical personnel about the

discrepancy between A.S.’s claim regarding her lack of sexual activity and DNA

evidence. Fasthorse was able, however, to cross-examine the State’s DNA expert

concerning A.S.’s conflicting testimony.

[¶5.] At the time of trial, A.S. was serving a sentence in the county jail for

maintaining a drug house. Fasthorse argued A.S.’s conviction on drug charges was

relevant to impeach her credibility concerning prior drug use, bias, or her motive in

testifying against Fasthorse. The trial court prohibited Fasthorse from introducing

evidence of the conviction on the basis that it was irrelevant or without proper

foundation.

ISSUES

1. Whether there was sufficient evidence to support the jury verdict
finding Fasthorse guilty of kidnapping and aggravated assault.

2. Whether the method of selecting potential jurors denied Fasthorse
due process rights under the Sixth and Fourteenth Amendments to
the United States Constitution, and Article VI, Section 7 of the
South Dakota Constitution.

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3. Whether limiting Fasthorse’s cross-examination of A.S. denied him
the right to a fair trial pursuant to Article VI, Sections 2 and 7 of
the South Dakota Constitution, and the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution.

ANALYSIS

Kidnapping and Aggravated Assault Convictions

[¶6.] We review the sufficiency of the evidence to sustain Fasthorse’s

convictions for kidnapping and aggravated assault in the light most favorable to the

verdicts. State v. Carter, 2009 SD 65, ¶44, 771 NW2d 329, 342. The question is

whether “there is evidence in the record which, if believed by the fact finder, is

sufficient to sustain a finding of guilt beyond a reasonable doubt.” Id. (quoting

State v. Buchholz, 1999 SD 110, ¶33, 598 NW2d 899, 905). On review, this Court

will not resolve conflicts in the evidence, assess the credibility of witnesses, or

reweigh the evidence. Id. (citing State v. Shaw, 2005 SD 105, ¶19, 705 NW2d 620,

626). “If the evidence, including circumstantial evidence and reasonable inferences

drawn therefrom, sustain[s] a reasonable theory of guilt, a guilty verdict will not be

set aside.” Id. (citing Shaw, 2005 SD 105, ¶19, 705 NW2d at 626); State v. Guthrie,

2001 SD 61, ¶48, 627 NW2d 401, 421 (examining the totality of the evidence in

evaluating a conviction).

[¶7.] The crime of kidnapping in South Dakota can be accomplished by

“confin[ing] another person for a substantial period of time, with . . . the . . .

purpose[] . . . [t]o facilitate the commission of any felony[.]” SDCL 22-19-1. This

statute in relevant part provides:

Any person who, either unlawfully removes another person from
the other’s place of residence or employment, or who unlawfully
removes another person a substantial distance from the vicinity

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where the other was at the commencement of the removal, or
who unlawfully confines another person for a substantial period
of time, with any of the following purposes: . . . (2) To facilitate
the commission of any felony or flight thereafter[.]

Id. We have previously determined that the confinement contemplated by SDCL

22-19-1 must be in addition to that used to effectuate the rape and not “merely

incidental” to it. State v. Curtis, 298 NW2d 807 (SD 1980); State v. Reiman, 284

NW2d 860 (SD 1979). We have referred to this additional confinement requirement

as the Curtis-Reiman test. The Curtis-Reiman test is “meant to prevent the

injustice which would occur if a defendant could be convicted of kidnapping where

the only restraint utilized was that necessary to complete the act of rape.” State v.

Reyes, 2005 SD 46, ¶41, 695 NW2d 245, 258. Attendant with this test is the “need

for some increased risk of harm” as a result of the kidnapping. Id.

[¶8.] Fasthorse claims he could not have been convicted of kidnapping

because the only confinement of A.S. was incidental to the rape. A.S. testified

Fasthorse was to drive her to her boyfriend’s house. Fasthorse, however, did not

stop at the boyfriend’s house but instead drove past the house and into the country

without taking notice of A.S.’s objections. Fasthorse then secluded her in a

cornfield, ran after her when she tried to escape, tripped her, dragged her back to

the vehicle, and forced her into the back seat. All these actions went beyond those

associated with confinement incidental to the rape. See Curtis, 298 NW2d 807;

Reiman, 284 NW2d 860. Additionally, taking A.S. to a remote location increased

the risk of harm to her. Reyes, 2005 SD 46, ¶41, 695 NW2d at 258 (“‘Most

movement of rape victims by their attackers is designed to seclude the victim from

possible assistance and to prevent escape – which inevitably increases the risk of

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harm to the victim.’” (quoting State v. Running Bird, 2002 SD 86, ¶26, 649 NW2d

609, 614-15)). See also State v. Lykken, 484 NW2d 869 (SD 1992) (stating the

Curtis-Reiman test is “not meant to allow a rapist a free kidnapping because he also

commits a rape”). After viewing these facts in the light most favorable to the jury’s

verdict, we conclude Fasthorse’s confinement of A.S. was more than incidental to

the rape. Therefore, the jury had a sufficient basis to find Fasthorse guilty of

kidnapping and the verdict is affirmed.

[¶9.] Aggravated assault in South Dakota is governed by SDCL 22-18-1.1,

which provides in relevant part that “any person who: (1) attempts to cause serious

bodily injury to another, or causes such injury, under circumstances manifesting

extreme indifference to the value of human life . . . is guilty of aggravated assault.”

Id. Fasthorse argues on appeal that the evidence presented at trial was insufficient

to sustain an aggravated assault conviction. He claims the evidence did not show

A.S. had suffered “serious bodily injury” as required by SDCL 22-18-1.1.

[¶10.] Fasthorse argues serious bodily injury “means an injury which is grave

and not trivial, and which gives rise to apprehension of danger to life, health, and

limb.” State v. Bogenreif, 465 NW2d 777, 780 (SD 1991) (quoting State v. Janisch,

290 NW2d 473, 476 (SD 1980)). Furthermore, Fasthorse claims A.S.’s injuries did

not constitute serious bodily injury. Fasthorse suggests A.S.’s relatively short

three-hour hospital stay, the nurse’s description of A.S.’s condition as “good” except

for some minor scratches and abrasions, and lack of life-threatening injuries

demonstrate that no serious bodily injuries were present. Fasthorse’s argument,

however, overlooks the definition of aggravated assault which includes “attempts to

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cause serious bodily injury . . . under circumstances manifesting extreme

indifference to the value of human life.”

[¶11.] Trial testimony established that Fasthorse punched, choked, and

threatened to shoot and kill A.S. He also tripped her and dragged her back to the

vehicle. This evidence was sufficient for the jury to determine that Fasthorse

“attempt[ed] to cause serious bodily injury . . . under circumstances manifesting

extreme indifference to the value of human life” to A.S. See Carter, 2009 SD 65,

¶44, 771 NW2d at 342. The jury’s verdict finding Fasthorse guilty of aggravated

assault is affirmed.

Systematic Exclusion of Jurors

[¶12.] Fasthorse claims the method of selecting jurors at his trial amounted

to a systematic violation of his due process rights under the Sixth and Fourteenth

Amendments to the United States Constitution, as well as Article VI, Section 7 of

the South Dakota Constitution. Fasthorse’s claims are similar to those raised and

recently addressed in State v. Wright. 2009 SD 51, 768 NW2d 512. As in Wright,

Fasthorse is unable to establish that the jury selection process systematically

excluded people on the basis of race. Thus, he has failed to show a violation of his

due process rights.

Cross-Examination of Witnesses

[¶13.] Fasthorse argues he was denied a fair trial guaranteed by the Sixth

Amendment to the United States Constitution and Article VI, Section 7 of the South

Dakota Constitution because he was not permitted to confront and cross-examine

witnesses testifying against him. Fasthorse cites to Bogenreif, wherein we said

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“‘[e]xposure of a witness’ motivation in testifying is a proper and important function

of the constitutionally protected right of cross-examination.’” 465 NW2d at 782

(quoting Delaware v. Van Arsdall, 475 US 673, 106 SCt 1431, 89 LEd2d 674 (1986)).

Specifically, Fasthorse claims he was denied his constitutional right to cross-

examine A.S. about her post-rape arrest stemming from a drug charge and her

statements to medical personnel that she had not had sexual relations with anyone

in the 72 hours leading up to the rape.

[¶14.] We review evidentiary rulings by trial courts under the abuse of

discretion standard. Carter, 2009 SD 65, ¶31, 771 NW2d at 338. The trial court’s

rulings “are presumed correct” on review. Id. (quoting State v. Larson, 1998 SD 80,

¶10, 582 NW2d 15, 17). We have stated “a trial court’s ruling on limiting cross-

examination will be reversed on appeal only when there is a clear abuse of

discretion as well as a showing of prejudice to the defendant.” Id. (citing State v.

Koepsell, 508 NW2d 591, 595 (SD 1993)). Prejudice to the defendant “results when

‘a reasonable jury probably would have a significantly different impression if

otherwise appropriate cross-examination had been permitted.’” Id. (citing State v.

Johnson, 2007 SD 86, ¶35, 739 NW2d 1, 13 (quoting Koepsell, 508 NW2d at 595)).

Furthermore, the trial court’s decision to exclude certain subjects on cross-

examination is subject to the following test:

The correct inquiry is whether, assuming that the damaging
potential of cross-examination were fully realized, a reviewing
court might nonetheless say that the error was harmless beyond
a reasonable doubt. Whether such an error is harmless in a
particular case depends upon a host of factors, all readily
accessible to reviewing courts. These factors include the
importance of the witness’ testimony in the prosecution’s case,
whether the testimony was cumulative, the presence or absence

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of evidence corroborating or contradicting the testimony of the
witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the
prosecution’s case.

Id. (citing Koepsell, 508 NW2d at 595 (quoting Van Arsdall, 475 US at 684, 16 SCt

at 1438 (citing Harrington v. California, 395 US 250, 89 SCt 1726, 23 LEd2d 284

(1969)))).

[¶15.] In this case, the trial court determined that cross-examination of A.S.

about her arrest on a drug charge was not relevant to her testimony about the rape.

When asked how this information was relevant at trial, Fasthorse’s counsel offered

that it was relevant to A.S.’s “ability to recall events.” The trial court found

Fasthorse was trying to attack A.S.’s character in an impermissible manner. We

agree with the trial court. The inference Fasthorse was attempting to make about

A.S.’s familiarity with drugs and her drug-using lifestyle was not relevant to

whether she was raped. Nevertheless the jury was made aware that she had been

convicted of a felony. She testified that she was a convicted felon, and the trial

court instructed the jury that her conviction could be considered in judging her

credibility. Under these circumstances, Fasthorse has failed to show that the trial

court abused its discretion.

[¶16.] The second excluded topic on cross-examination dealt with the

discrepancy between the DNA evidence and A.S.’s testimony and statements about

not having sexual intercourse with anyone 72 hours prior to the rape. The trial

court did not allow Fasthorse to question A.S. about her prior sexual conduct. The

trial court originally excluded this evidence based on SDCL 23A-22-15, which

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prohibits evidence of a rape victim’s prior sexual conduct. The statute provides in

relevant part:

In prosecutions for a sex offense under chapter 22-22, evidence
of specific instances of a victim’s prior sexual conduct shall not
be admitted nor reference made thereto before the jury or jury
panel, except as provided in this section. Whenever a party
proposes to offer evidence concerning a victim’s prior sexual
conduct, the court shall first conduct a hearing in the absence of
the jury and the public to consider and rule upon the relevancy
and materiality of the evidence.

Id. The trial court ruled A.S.’s statements about her recent sexual activity were not

relevant and the proper foundation had not been laid for the introduction of such

evidence. At the time of the trial court’s ruling, there had been no showing of its

relevance because the DNA test results indicating multiple DNA contributors had

not been introduced. At that point in the trial, the relevance and foundation had

not been established. Consequently, Fasthorse has not shown that the trial court

abused its discretion.

[¶17.] Even if the trial court’s ruling was in error, Fasthorse cannot

demonstrate he was prejudiced by the limited cross-examination. The results of the

DNA tests were eventually presented to the jury, which revealed the presence of

DNA from A.S., her boyfriend, Fasthorse, and an unknown contributor. Counsel for

Fasthorse admitted in appellate oral argument she could have asked to re-open

A.S.’s cross-examination on this subject once relevance and foundation were

established. Fasthorse chose not to as a matter of trial strategy. Even so,

Fasthorse’s theory of the case was fully presented to the jury in closing argument,

including the impeaching nature of the DNA evidence. Fasthorse has not shown “a

reasonable jury probably would have [come] to a significantly different impression”

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had he been able to cross-examine A.S. on the DNA results or the specifics of her

drug conviction. Johnson, 2007 SD 86, ¶35, 739 NW2d at 13. Therefore, the trial

court is affirmed on this issue.

[¶18.] The trial court is affirmed on all issues.

[¶19.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER,

Justices, and SABERS, Retired Justice, concur.

[¶20.] SABERS, Retired Justice, sitting for SEVERSON, Justice, disqualified.

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