State v. Ralios

#25251-a-DG

2010 SD 43

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

JULIO JUAREZ RALIOS, Defendant and Appellant.

* * * *

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

* * * *

HONORABLE PATRICIA C. RIEPEL
Judge

* * * *
MARTY J. JACKLEY
Attorney General

MEGHAN N. DILGES
Assistant Attorney General
SHERRI SUNDEM WALD
Deputy Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
JEFF LARSON
Minnehaha County Public
Defender’s Office Attorneys for defendant
Sioux Falls, South Dakota and appellant.

* * * *
ARGUED MARCH 24, 2010

OPINION FILED 06/09/10
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GILBERTSON, Chief Justice

[¶1.] Defendant was convicted of second degree rape in violation of SDCL

22-22-1(2). He appeals the trial court’s denial of his motion to suppress statements

made to police during a custodial interrogation and various evidentiary rulings. We

affirm.

FACTS

[¶2.] Defendant Julio Juarez-Ralios, while using the name “Antonio,” met

E.C. in 2005 in Sioux Falls. The two dated and had a sexual relationship for two

months. They lost contact after the relationship ended until 2007 when they saw

each other at a “Spanish Dance” in Sioux Falls. Defendant telephoned E.C. later

that evening and asked if he could stay at her home as he did not have a ride home.

E.C. allowed Defendant to stay on her couch. He left the next morning without

incident.

[¶3.] On March 8, 2008, while attending a “Spanish Dance” in Sioux Falls,

E.C. saw Defendant again and they exchanged cell phone numbers. Defendant

called E.C. sometime after 3 a.m. on March 9, and once again asked if he could stay

at her home. E.C. let Defendant into her home and provided him with the use of

her couch. E.C. retired to her bedroom with her one-year-old child. Defendant

entered E.C.’s bedroom, sat on her bed, and spoke with her for a few minutes before

asking for sex. E.C. declined. Defendant then held E.C. down on the bed and

despite her protests and resistance raped her while she cried. E.C.’s one-year-old

daughter was in a portable crib at the foot of the bed during the rape and began

crying during the assault. After the rape, Defendant called a taxi and was taken to

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another residence in Sioux Falls. E.C., crying, hyperventilating, and struggling to

speak, called 911 within three minutes of the sexual assault. E.C. named “Antonio”

as the assailant.

[¶4.] Sioux Falls Police Officers Matt Vandervelde and Brian Warwick

arrived at E.C.’s home and quickly determined Defendant had called a taxi, which

had picked him up outside E.C.’s home, and it was taking him to an apartment

building at 901 North Dakota Avenue. Officer Warwick remained at E.C.’s home

and obtained the basic information about the assailant from E.C. He also

photographed the scene and bagged evidence.

[¶5.] Officer Vandervelde departed for the address given to him by the taxi

company that picked Defendant up in front of E.C.’s apartment. Officer

Vandervelde arrived at the location before Defendant and determined that

Defendant was a known acquaintance of the two male occupants of apartment

number three. While standing outside apartment number one, Officer Vandervelde

saw Defendant exit the taxi and begin to walk toward apartment number three.

When Defendant saw Officer Vandervelde, he changed direction and began to walk

away. Officer Vandervelde said “stop” and Defendant complied. Officer

Vandervelde approached Defendant, who identified himself as “Jamie Cruz

Wilkens.” Defendant provided a picture identification card with that name and his

photograph.

[¶6.] Officer Vandervelde returned to E.C.’s apartment where he showed her

three picture identification cards, including the Defendant’s and those of the other

two male occupants of apartment number three. E.C. was able to identify

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Defendant “Antonio” from the photo as her assailant. E.C. was transported to a

local emergency room. She was examined by physician Dr. Shelly Driver. A rape

kit examination was also performed. Dr. Driver determined that E.C. had a

purplish lesion on her neck and was experiencing pain and burning in her pelvic

region. Dr. Driver also noted erythema, or redness in the vaginal opening that

appeared to be new. The examination also revealed a swab of discharge consistent

with the appearance of semen. Dr. Driver noted E.C. was shaken, very upset,

tearful, and slightly anxious. Officer Warwick interviewed E.C. briefly at the

hospital. He also collected the blanket E.C. wrapped herself in after the rape and

the rape kit from the hospital.

[¶7.] Defendant was asked to accompany the police to the Sioux Falls Law

Enforcement Center. Defendant agreed. While in custody, Defendant spoke in

English and appeared to comprehend all directions and requests made of him.

Defendant asked to use the restroom and was escorted there by an officer. When

Defendant asked the officer to leave the room, he was told that the officer could not

leave Defendant unaccompanied. When Defendant tried to wash his hands, the

officer told him not to because police would be obtaining a search warrant for

possible evidence that Defendant had on his hands. Defendant appeared to

understand and complied with the directive. Defendant then waited in an

interrogation room for approximately forty-five minutes before questioning began at

around 5:47 a.m. Defendant slept for part of that time.

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[¶8.] Detective Olson of the Sioux Falls Police Department conducted the

interrogation. 1 Before reading Defendant his Miranda warning, Officer Olson said:

“Just to let you know, before you can talk to me, need to let you know about your

Miranda rights. I do want to talk to you and get your side of the story.” Detective

Olson then read the following advisement in an unhurried and steady manner:

“You have the right to remain silent. You can stop questioning at any time.

Anything you say can be used against you. You have the right to consult with an

attorney. If you cannot afford an attorney, one will be provided to you.” After

reading Defendant his Miranda warning, the following colloquy took place between

Defendant and Detective Olson:

Olson: Do you understand the rights I just read to you?

Defendant: [Defendant nods affirmatively]

Olson: Would you be willing to waive your rights and talk to me?

Defendant: I don’t know. I don’t know why I’m here dog.

Olson: Well, that’s if you want to waive your rights and talk to me. I’d
be more than happy to fill you in as far as to what I know.

Defendant: I don’t know what’s going on. I have no idea.

Olson: Okay. Well, would you be able to waive your rights and talk to
me.

Defendant: I came from work to visit a friend.

Olson: [Stops Defendant with a hand gesture] Okay. I need to know if
you’ll waive your rights and talk to me though before we go any
further. Is that all right? You willing to talk to me?

Defendant: Just let me visit my friend.

1. The interview was videotaped and is part of the court record.

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Olson: [Stops Defendant once again with a hand gesture] Okay. Are
you willing to talk to me?

Defendant: Yeah.

[¶9.] While in custody, Defendant gave his name as “Wilkens.” Defendant

was able to give his address, cell phone number, and home telephone number when

asked. Upon request from Detective Olson, Defendant produced a cell phone from

his right pants pocket. Defendant explained that it did not have service as the bill

had not been paid. Detective Olson was able to see past dates, times, and numbers

called on the cell phone. Detective Olson asked Defendant several questions about

past calls that appeared on the cell phone. Defendant appeared to understand all

questions, and his replies were consistent with an understanding of the questions

posed to him.

[¶10.] Defendant initially denied being with any woman that evening, denied

having had sex, claimed to be from Puerto Rico, and denied knowing E.C.

Defendant was able to give an accounting of his past cities of residence and years in

which he resided in Texas, Kansas, and Puerto Rico. When asked about his

immigration status and whether he possessed a valid social security card,

Defendant claimed he was a legal alien and recited a social security number from

memory. He then produced a social security card with that number from his wallet.

[¶11.] Detective Olson told Defendant of the rape allegations and that a

search warrant to collect DNA evidence from his person was being sought.

Defendant asked what would happen next. Detective Olson replied that Defendant

would be arrested. Defendant asked for how long and was told it would be for a

while.

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[¶12.] Defendant then changed his story. He claimed a random woman called

him on his cousin “Chivo’s” cell phone and wanted him to come over for sex and he

did. Defendant claimed he could not remember the woman’s name or address. He

also claimed that after they started having sex, the woman said no, so he stopped.

He later changed his story, stating that the woman thought he was her boyfriend

when she called. Then once the woman realized while the two were having sex that

Defendant was not her boyfriend, she said “stop,” and Defendant immediately

stopped and left after calling a taxi. Initially, he claimed the woman was white;

later in the interview he claimed she was black.

[¶13.] When asked how he called the taxi, Defendant replied that he had

used his cell phone. When confronted with the inconsistency about his cell phone

not working, Defendant changed his story about the cell phone. He claimed he had

used a cell phone belonging to his cousin Billy and that he had left it at Billy’s house

when he was arrested. Detective Olson told Defendant that those cell phone records

would be subpoenaed in addition to Defendant’s cell phone records. Defendant once

again changed his story and said that the woman called the taxi. Detective Olson

replied, “You’ve been lying to me all night, so don’t stop now.”

[¶14.] Defendant continued to insist that the random woman had called him

for sex. Several times during the interview, Detective Olson confronted Defendant

with the inconsistencies in his story. Approximately fifteen minutes after

Defendant waived his Miranda rights and after catching Defendant in several

inconsistencies, Detective Olson stated the police would “match evidence up with

the rape kit,” and it would “show you guys had sex.” Detective Olson then stated it

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was “possible you’re going to get arrested.” Defendant asked “For how long?”

Detective Olson replied: “It’s possible you could end up going to jail for life for

something like this.”

[¶15.] After admitting to having had sex with the random woman, Defendant

was asked if anyone else was in the woman’s home during that time. He replied she

had a baby with her in the home. When asked whether he had held E.C. down

while having sex with her and if she had bruises on her wrists, Defendant stated

the woman who had randomly called him did not have bruises on her wrists. He

then claimed the woman showed him bruises on her wrists and stomach and told

him her boyfriend had caused them.

[¶16.] Detective Olson took a break from the interview and left Defendant in

the interrogation room. Defendant removed the same cell phone he had showed

Detective Olson from his right pants pocket, made a call, and left a voice message.

Defendant then removed a second cell phone from his left pants pocket and deleted

numbers off of it. Detective Olson returned to the interrogation room and

confronted Defendant, who admitted removing numbers from the cell phone. When

asked about the extra cell phone, Defendant stated it belonged to his cousin “Chivo.”

Detective Olson took both cell phones away from Defendant and left the room after

Defendant requested a glass of water.

[¶17.] After an officer brought Defendant a glass of water, Defendant

requested to use the restroom. Defendant was warned not to wash his hands in

order to allow recovery of any physical evidence under the search warrant. After

returning to the interrogation room, Defendant was observed on video spitting onto

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his hands, rubbing his hands together, and then rubbing the crotch of his pants and

pants legs. He then poured water from a drinking glass onto his hands and

attempted to wash them off. An officer returned to the room and told him to stop.

After the officer left the room, Defendant returned to wiping his hands and crotch

area. The officer returned and warned Defendant that if he continued “dinking

around” with his hands, the officer would handcuff Defendant. The officer left.

Defendant stopped wiping his hands and crotch area and fell asleep in the interview

room. The interview ended with Defendant falling asleep. At no time during the

course of the interview did the Defendant specifically admit having sex with E.C. or

confess to the crime of rape.

[¶18.] Defendant was subsequently determined to be a thirty-three-year-old

illegal alien from Guatemala. He attended six years of formal education while a

child in Guatemala. Defendant was fluent in both Spanish and his first language

Quiche, a Guatemalan dialect. Defendant had lived and worked in the United

States for approximately twelve years at the time of his arrest. Sometime prior to

the arrest, he had been arrested and deported as an illegal alien, but returned

illegally to the United States a second time approximately seven months later. At

the time of his arrest, he was employed in Worthington, Minnesota, at a meat

packing plant using false documents.

[¶19.] Defendant was charged with one count of rape in the second degree.

He entered a not guilty plea, and trial was scheduled. Defendant filed a motion to

suppress his statements to police during the custodial interrogation. Defendant

claimed that his statements were not voluntary and that he did not knowingly or

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intelligently waive his rights because he was unable to understand the meaning of

the word “waiver.” The motion to suppress was denied.

[¶20.] Prior to trial, Defendant also sought exclusion of a recording of the 911

call made by E.C., the videotape of Defendant’s interrogation, and the testimony of

the emergency room physician who treated E.C. Defendant’s motions in limine

were denied. Defendant’s offer of proof during trial of testimony by E.C.’s estranged

mother, that E.C. was overly dramatic and had made a prior rape accusation, was

also denied.

[¶21.] At the conclusion of trial, the jury found Defendant guilty of rape in

the second degree. Defendant was sentenced to twenty years in the South Dakota

State Penitentiary. Defendant appeals. He raises the following issues:

1. Whether the trial court erred in denying Defendant’s motion to
suppress.

2. Whether the trial court erred when it denied Defendant’s motion to
exclude the 911 call, the interrogation video, and the treating
emergency room physician’s testimony, as well as denied
Defendant’s offer of proof.

ANALYSIS AND DECISION

[¶22.] 1. Whether the trial court erred in denying Defendant’s
motion to suppress.

[¶23.] Defendant argues on appeal that he did not know what his Miranda

rights were because he did not speak English well enough to understand the

advisement, was tired from his work schedule, and was sleep deprived at the time of

the interrogation. Without specifically identifying which of the four Miranda rights

he did not understand, Defendant argues the words used by Detective Olson were

beyond his language comprehension and educational levels. Defendant further

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argues that the slight head nod visible on the videotape of the interrogation was

equivocal and did not clearly indicate Defendant understood the advisement given

by Detective Olson. Defendant also argues he did not voluntarily relinquish his

Fifth Amendment rights because he did not speak English well enough to

understand the word “waiver.” The State argues based on Defendant’s background,

experience, and conduct after being advised of his rights and asked if he wished to

waive those rights and speak with Detective Olson, a voluntary, knowing, and

intelligent relinquishment occurred.

[¶24.] “This Court reviews the denial of a motion to suppress alleging a

violation of a constitutionally protected right as a question of law by applying the de

novo standard.” State v. Ludemann, 2010 SD 9, ¶14, 778 NW2d 618, 622 (quoting

State v. Madsen, 2009 SD 5, ¶11, 760 NW2d 370, 374). We review the

voluntariness of a custodial admission and the validity of a defendant’s Miranda

waiver-of-rights separately, but as parallel inquiries. State v. Stanga, 2000 SD 129,

¶8, 617 NW2d 486, 488 (citing 2 S. Childress & M. Davis, Federal Standards of

Review § 11.13, at 11-54, 55 (3d ed. 1999)). The State has the burden to prove by a

preponderance of the evidence that a defendant’s admissions were voluntary. State

v. Tuttle, 2002 SD 94, ¶21, 650 NW2d 20, 30 (citing Nix v. Williams, 467 US 431,

444 n5, 104 SCt 2501, 2509 n5, 81 LEd2d 377, 387-88 n5 (1984); United States v.

Matlock, 415 US 164, 178 n14, 94 SCt 988, 996 n14, 39 LEd2d 242, 253 n14 (1974)).

On review, we consider the totality of the circumstances surrounding the

interrogation as factual determinations, id. ¶20 (citing Miller v. Fenton, 474 US

104, 116, 106 SCt 445, 452-53, 88 LEd2d 405 (1985)), giving deference to the trial

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court’s findings of fact, State v. Cottier, 2008 SD 79, ¶19, 755 NW2d 120, 128 (citing

State v. Johnson, 2007 SD 86, ¶29, 739 NW2d 1, 11). However, the issue of whether

the interrogation was ultimately voluntary is a legal question. Tuttle, 2002 SD 94,

¶20, 650 NW2d at 30.

[¶25.] A valid waiver requires a “knowing and intelligent relinquishment or

abandonment of a known right or privilege.” Edwards v. Arizona, 451 US 477, 482-

83, 101 SCt 1880, 1884, 68 LEd2d 378 (1981) (quoting Johnson v. Zerbst, 304 US

458, 464, 58 SCt 1019, 1023, 82 LEd 1461 (1938)). “To establish that a defendant

validly waived his Miranda rights ‘the State must show by a preponderance of the

evidence that (1) the relinquishment of the defendant’s rights was voluntary and (2)

the defendant was fully aware that those rights were being waived and of the

consequences of waiving them.’” Cottier, 2008 SD 79, ¶18, 755 NW2d at 128

(quoting Tuttle, 2002 SD 94, ¶9, 650 NW2d at 26). The determination is based

“upon the particular facts and circumstances surrounding that case, including the

background, experience, and conduct of the accused.” Edwards, 451 US at 481, 101

SCt at 1884, 68 LEd2d 378 (quoting Johnson, 304 US at 464, 58 SCt at 1023, 82

LEd 1461). “For a waiver determination, a court should consider a defendant’s age,

experience, intelligence, and background, including familiarity with the criminal

justice system, as well as physical and mental condition.” Tuttle, 2002 SD 94, ¶7,

650 NW2d at 25-26 (citing Fare v. Michael C., 442 US 707, 724-25, 99 SCt 2560,

2571-72, 61 LEd2d 197 (1979)). As the United States Supreme Court recently held:

In determining whether police officers adequately conveyed the
four warnings, we have said, reviewing courts are not required
to examine the words employed “as if construing a will or
defining the terms of an easement. The inquiry is simply

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whether the warnings reasonably ‘conve[y] to [a suspect] his
rights as required by Miranda.’ ”

Florida v. Powell, ___ US___, ___, 130 SCt 1195, 1204, ___ LEd2d ___ (2010)

(quoting Duckworth v. Eagan, 492 US 195, 203, 109 SCt 2875, 2880, 106 LEd2d 166

(1989)).

[¶26.] In the instant case, there is nothing on the videotape to suggest

Defendant did not understand English sufficiently to comprehend the Miranda

rights advisement given to him by Detective Olson. Furthermore, Defendant does

not specify which of the four Miranda advisements he did not understand. 2

Defendant’s argument that many of the legal terms in the Miranda warnings such

as “waive,” “exercise,” “appointed,” and “counsel,” require the equivalent of a tenth

or even twelfth grade education is misplaced given that Detective Olson did not use

any of these words when giving Defendant his Miranda warnings. Instead,

Detective Olson used the following statements:

Just to let you know, before you can talk to me, need to let you
know about your Miranda rights. I do want to talk to you and
get your side of the story. You have the right to remain silent.
You can stop questioning at any time. Anything you say can be
used against you. You have the right to consult with an

2. The four Miranda advisements that must be communicated to a suspect prior
to any custodial interrogation are:

1[.] that he has the right to remain silent, 2[.] that anything he
says can be used against him in a court of law, 3[.] that he has
the right to the presence of an attorney, and 4[.] that if he
cannot afford an attorney one will be appointed for him prior to
any questioning if he so desires.

Powell, ___ US at ___, 130 SCt at 1203, ___ LEd2d ___ (quoting Miranda v.
Arizona, 384 US 436, 479, 86 SCt 1602, 1630, 16 LEd2d 694 (1966)).

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attorney. If you cannot afford an attorney, one will be provided
to you.

[¶27.] Defendant was able to converse with Detective Olson in English, give

his address, explain that he no longer lived at the address on his driver’s license,

and describe where he had been during the evening. He was also able to give street

addresses to the taxi driver as well as to Detective Olson that morning. Defendant’s

slight head nod is barely discernable on the videotape as Defendant was facing

Detective Olson, but he was in profile in relation to the video camera. Detective

Olson testified at the suppression hearing that he observed a small head nod from

Defendant when he asked if Defendant understood his rights.

[¶28.] As demonstrated on the videotape, the words utilized by Detective

Olson were also similar to the Defendant’s own vocabulary. Defendant had a basic

command of the English language that enabled him to explain past events, give

names of bars and dance halls along with their street addresses and locations, and

give a detailed history of when and where he lived in the past. Defendant was also

able to explain that his cell phone was not working because he had not paid the bill

and that he had borrowed several cell phones from friends or relatives that evening.

Defendant’s ability to answer appropriately questions posed to him indicated he had

a significant ability to understand and speak English.

[¶29.] Defendant showed sufficient intelligence to offer up alternative

versions of the events in order to avoid admitting that he knew E.C. and had been

at E.C.’s home, as well as to provide another explanation for why he would be found

to have engaged in sex shortly before his arrest. The few times Defendant showed

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slight confusion appeared to be in an attempt to avoid answering questions or when

caught in a lie by Detective Olson.

[¶30.] Based on the totality of the circumstances, including Defendant’s basic

command of the English language and his intelligence level, we agree with the trial

court’s determination that Defendant was able to understand the Miranda

warnings. We can find no error in the trial court’s determination that Defendant

understood he could remain silent, he could stop the interrogation at any time,

anything he said could be used against him, and that he had the right to speak with

an attorney, or a court appointed one if he was unable to afford one on his own.

[¶31.] Defendant argues he did not voluntarily relinquish his Fifth

Amendment rights because he did not speak English well enough to understand the

word “waiver.” Defendant further argues his response of “yeah” was meaningless

conversation filler rather than a verbal acknowledgement in response to Detective

Olson’s request for a waiver. Defendant also argues that Detective Olson’s failure

to ask the question without the use of the word “waiver,” a word Defendant claims

he did not understand, was reversible error. The State argues that under the

totality of the circumstances, including Detective Olson’s action of raising his hand

to stop Defendant from speaking coupled with his question as to whether Defendant

would waive his rights and speak with him, there was a sufficient waiver request.

It further argues that Defendant’s words and conduct showed he waived his rights

voluntarily, knowingly, and intelligently when he agreed to speak with Detective

Olson.

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[¶32.] An express verbal or written waiver from a defendant is not required

to satisfy the constitutional requirements of a knowing, intelligent, and voluntary

waiver. Tuttle, 2002 SD 94, ¶9, 650 NW2d at 26 (citing Miranda v. Arizona, 384 US

436, 475, 86 SCt 1602, 1628, 16 LEd2d 694 (1966)). If a defendant gives an

ambiguous or equivocal response to a request for a waiver of Miranda rights,

further questioning is permissible. Berghuis v. Thompkins, No. 08-1470, 2010 WL

2160784, at *13 (holding that “after giving a Miranda warning, police may

interrogate a suspect who has neither invoked nor waived his or her Miranda

rights.”). A valid Miranda waiver can be inferred when the defendant understands

the rights and engages in “a course of conduct reflecting a desire to give up those

rights.” Tuttle, 2002 SD 94, ¶16, 650 NW2d at 29 (quoting North Carolina v.

Butler, 441 US 369, 373, 99 SCt 1755, 1757, 60 LEd 286 (1979)). After ascertaining

that a defendant knows and understands his Miranda rights, an officer may use a

compound question such as “do you wish to waive these rights and do you want to

talk to me at this time?” that encapsulates the concept that waiving the right to

remain silent may be accomplished by agreeing to answer questions. Id. ¶18, 650

NW2d at 29. An affirmative response to the compound question can then constitute

a voluntary and knowing waiver. Id.

[¶33.] As discussed above, we agree with the trial court that Defendant had

sufficient knowledge and intelligence to understand his rights and the implications

of waiving those rights, thus satisfying the knowing and intelligent element of a

waiver. As to whether Defendant gave a positive response to Detective Olson

indicating a knowing, intelligent, and voluntary waiver, we also agree with the trial

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court. Detective Olson made it clear he was telling Defendant that he could only

speak with Detective Olson if Defendant was “willing to waive [his] rights and talk

to [Detective Olson].” Detective Olson asked the compound question three times.

Each time Detective Olson asked the question, Defendant attempted to tell

Detective Olson something about the events of the evening and Detective Olson

stopped Defendant by raising his hand and asking the question once again.

Detective Olson was not badgering Defendant as suggested by Defendant. Instead,

Detective Olson was properly seeking to clarify Defendant’s response of “I don’t

know,” an equivocal response to the question. Defendant argues his statement

indicated that he did not understand the question, rather than indicating the

Defendant did not know whether he wished to relinquish his rights. However, the

tape indicates Defendant did not appear confused, ask for clarification, or complain

that he did not understand the question. Instead, he maintained he did not know

why he was at the police station.

[¶34.] On the fourth try, Detective Olson asked Defendant if he was willing to

talk with him, and Defendant answered “yeah.” While not phrased in the

compound as it was the three times prior, it is apparent from the context and the

timing that this was the same question posed to Defendant three times before the

final request. Defendant’s answer to the question was an affirmative and

unequivocal positive response to the question repeatedly posed by Detective Olson.

A simple “yeah” in agreement as stated by Defendant was enough to express a

waiver verbally. See Tuttle, 2002 SD 94, ¶10, 650 NW2d at 27. Furthermore,

Defendant’s willingness to answer questions about the potential charges against

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him showed a course of conduct reflecting a desire to give up his Miranda rights in

order to gain more information and provide exculpatory information in order to

secure a quick release.

[¶35.] The relevant question is not whether Defendant understood the

meaning of the word “waiver.” The question is whether Defendant understood that

by agreeing to speak with Detective Olson, Defendant would be giving up his

Miranda rights. We find no error in the trial court’s conclusion of law that

Defendant’s waiver was intelligent, knowing, and voluntary.

[¶36.] 2. Whether the trial court erred when it denied
Defendant’s motion to exclude the 911 call, the
interrogation video, and the treating emergency room
physician’s testimony, as well as denied Defendant’s offer
of proof.

[¶37.] Defendant argues the trial court made erroneous evidentiary rulings

when it admitted the audio tape of the 911 call, the interrogation video, and the

emergency room treating physician’s testimony. He also claims error when the trial

court refused his offer of proof of comments made by E.C.’s mother to police on the

morning of the assault. Defendant argues that those comments, that E.C. was

overly dramatic and had made a rape accusation in the past, were necessary to

show the police were aware that a more thorough investigation of E.C.’s allegation

was required. Defendant claims the errors are of such a magnitude that he was

denied his right to a fair trial.

[¶38.] For the standard of review, Defendant cites to a Nebraska Supreme

Court case that holds “[i]n a jury trial of a criminal case, an erroneous evidentiary

ruling results in prejudice to a defendant unless the State demonstrates that the

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error was harmless beyond a reasonable doubt.” State v. Jackson, 258 Neb 24, 601

NW2d 741, 749-50 (1999) (citing State v. Harrold, 256 Neb 829, 593 NW2d 299

(1999); State v. Chojolan, 253 Neb 591, 571 NW2d 621 (1997)). However, our

standard of review is different from that employed by the Nebraska Supreme Court.

“We presume the evidentiary rulings made by a trial court are correct, and review

those rulings under an abuse of discretion standard.” State v. Fool Bull, 2008 SD

11, ¶10, 745 NW2d 380, 385 (quoting State v. Mattson, 2005 SD 71, ¶13, 698 NW2d

538, 544). “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. Shaw,

2005 SD 105, ¶18, 705 NW2d 620, 625 (quoting State v. Henry, 1996 SD 108, ¶10,

554 NW2d 472, 473 (quoting State v. Moriarity, 501 NW2d 352, 355 (SD 1993);

State v. Devall, 489 NW2d 371, 374 (SD 1992)). See State v. Williams, 2008 SD 29,

¶13, 749 NW2d 435, 440. Any evidentiary errors by the trial court must be

prejudicial in nature to warrant reversal on appeal. Fool Bull, 2008 SD 11, ¶14, 745

NW2d at 385. Error is prejudicial when, in all probability, it produced some effect

upon the final result and affected rights of the party assigning it. Id.

Audio recording of the 911 Call

[¶39.] At trial, over the objections of Defendant, the trial court admitted the

audio recording of E.C.’s 911 call as an excited utterance under SDCL 19-16-6 (FRE

803(2)), 3 an exception to the hearsay rule. Defendant argues the admission of the

3. SDCL 19-16-6 (FRE 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
[(FRE 802)], even though the declarant is available as a witness.”

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recording was within the constraints of SDCL 19-16-6 (FRE 803(2)), but was

cumulative as E.C. had already testified to her highly emotional state and the fact

that she believed Defendant had raped her. Defendant argues the cumulative

evidence was more prejudicial than probative per the provisions of SDCL 19-12-3

(FRE 403), and was designed to evoke the jury’s passion. Defendant argues the

state’s attorney’s reference to the 911 audio tape during closing arguments by

asking “Does that sound to you like a woman who has just engaged in consensual

sex?” was an improper appeal to the jury’s passion.

[¶40.] The State argues the evidence was not cumulative on the issues of

identity and consent. Defendant claimed that he did not know E.C., and that he

had consensual sex with a woman whose name he could not remember. The State

sought to have the audio tape admitted in order to prove that the sex between E.C.

and Defendant occurred and that it was not consensual.

[¶41.] SDCL 19-12-3 (FRE 403) provides: “Although relevant, evidence may

be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury, or by considerations

of undue delay, waste of time, or needless presentation of cumulative evidence.” To

be excluded under SDCL 19-12-3 (FRE 403), the evidence must be unfairly

prejudicial and not just prejudicial to a defendant’s case. State v. Holzer, 2000 SD

75, ¶27, 611 NW2d 647, 655. “Unfair prejudice means evidence that has the

capacity to persuade by illegitimate means.” Id. (citing State v. Brings Plenty, 459

NW2d 390, 399 (SD 1990)).

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[¶42.] Defendant argued to the trial court that the 911 tape was overly

emotional and sought to persuade the jury by illegitimate means by evoking

emotion and passion in the jury. The trial court engaged in the required balancing

test on the record and outside the presence of the jury and admitted the 911

recording. A review of the 911 call shows E.C. was crying and coughing as she

reported “he forced me to have sex.” She also conveyed that she had scratched

Defendant in order to get him off of her, that he called a taxi, and that he left her

apartment. E.C. was also able to give Defendant’s name as “Antonio,” and inform

law enforcement that he was no longer in the apartment.

[¶43.] While emotional and upset during the call, E.C. was not hysterical or

so overcome by emotion as to evoke passion sufficient to overcome reason and

evidence. The tape was one piece of evidence, in addition to E.C.’s live testimony

that the sex was not consensual. We can find no error, much less prejudicial error

in the trial court’s evidentiary ruling on the 911 tape.

Videotape of Defendant’s interrogation

[¶44.] Defendant next argues the interrogation videotape should have been

excluded because in it Detective Olson repeatedly states that Defendant was lying.

Defendant claims this resulted in Detective Olson testifying as to Defendant’s

credibility and violating the province of the jury. See State v. Raymond, 540 NW2d

407, 409-10 (SD 1995). The State argues the trial court’s two limiting instructions

to the jury, that it was the exclusive judge of the credibility of witnesses and not to

consider Detective Olson’s statements when determining Defendant’s credibility,

were sufficient.

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[¶45.] The jury was instructed as follows: Jury Instruction No. 5 stated in

relevant part: “Furthermore, a particular item of evidence is sometimes received for

a limited purpose. I shall tell you when that occurs, and instruct you on the

purposes for which the item can and cannot be used.” Jury Instruction No. 22

stated in relevant part: “You are the exclusive judges as to whether an admission

was made by the defendant and if the statement is true in whole or in part. . . . It is

for you to determine what weight, if any, to give to a purported admission.” Finally,

Jury Instruction No. 24 stated: “You have viewed a video of an interrogation of the

defendant. Questions and statements by police are not evidence. Statements made

by the defendant are evidence.”

[¶46.] Defendant cites to State v. Elnicki, 105 P3d 1222 (Kan 2005), in

support of his argument that the videotape should have been excluded. However, in

that case no limiting instruction was provided to the jury with regard to the officer’s

accusations during the interrogation that Elnicki was lying. Id. at 1229.

Furthermore, the Kansas Supreme Court did not ultimately render a decision as to

whether the admission of the officer’s videotaped accusations was reversible error.

Id. at 1236. Instead, the effects of several cumulative errors required reversal. Id.

In the instant case, the trial court instructed the jury multiple times that Detective

Olson’s statements on the videotape were not evidence to be considered by the jury.

[¶47.] We presume the jury follows the trial court’s limiting instructions.

State v. Honomichl, 410 NW2d 544, 547 (SD 1987) (citing State v. Maves, 358

NW2d 805 (SD 1984); State v. No Heart, 353 NW2d 43 (SD 1984)). Given the jury

instructions provided, the jury was capable of determining Defendant’s credibility

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for itself without reliance on Detective Olson’s statements to that effect on the

videotape. 4

Testimony of the treating emergency room physician

[¶48.] Defendant next argues that the emergency room treating physician’s

testimony in response to the question by the state’s attorney whether E.C. appeared

“to be consistent with other individuals who come in and are alleging that they have

been sexually violated?” was irrelevant and therefore inadmissible due to the form

of the question. The State argues the testimony was admissible under SDCL 19-15-

2 (FRE 702), was limited to the victim’s injuries, and did not give an opinion as to

Defendant’s guilt.

[¶49.] SDCL 19-15-2 (FRE 702) provides: “If scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the form of an opinion or

otherwise.” We have previously held that “a medical doctor’s testimony that does

not give an opinion as to defendant’s guilt and only states that the victim’s injuries

did not indicate consent, does not invade the province of the jury.” State v. Moran,

2003 SD 14, ¶44, 657 NW2d 319, 330 (citing State v. Running Bird, 2002 SD 86,

¶40, 649 NW2d 609, 617).

4. As an alternative, the entire issue could have been avoided if the videotape
had been redacted to eliminate Detective Olson’s statements that Defendant
was lying. However, at oral argument, Defendant asserted that the context
of the interview would have been lost with redaction. Thus no motion for
redaction was made. Had there been one, whether to redact and to what
extent was within the sound discretion of the trial court.

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[¶50.] Defendant cites to Brown v. Commonwealth, 812 SW2d 502, 503-4 (Ky

1991), for the position that “consistent with abuse” is looked upon with disfavor by

the Kentucky Supreme Court. However, in that case the issue was whether a child

sex abuse victim’s behavior “was consistent with” Child Sexual Abuse

Accommodation Syndrome. Id. That court ruled that because the syndrome was

not a “generally accepted medical concept,” the testimony was not admissible. Id. at

504. It did not hold that the phrase “consistent with abuse” was reversible error.

Id.

[¶51.] Dr. Driver was testifying to the specific physical findings on E.C.’s

body at the time the question was posed. The entire question was as follows:

Your examination of her and what you testified to as to – her
indication that her pelvic area was burning, that she had this
slight area of erythema in the 6:00 region, the fact that she had
this swab of discharge, that was consistent with the appearance
of semen, did she appear to you to be consistent with other
individuals who come in and are alleging that they have been
sexually violated?

Dr. Driver’s response was a simple “yes.” We can find no error in the trial court’s

ruling on this testimony.

Denial of Defendant’s offer of proof

[¶52.] Defendant’s final issue is that the trial court erred when it refused his

offer of proof as to statements made by E.C.’s mother. After E.C. was taken to the

emergency room, E.C.’s mother was called to care for E.C.’s one-year-old daughter.

While at the apartment, E.C.’s mother asked something to the effect of whether

E.C. was accusing someone of rape again and then stated that E.C. had always been

overly dramatic. Defendant argues the statements went to the thoroughness of the

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police investigation in that the mother’s comments should have alerted the police

that it was possible that E.C. had fabricated the rape story. Defendant argues this

“impeachment” testimony should have been allowed and failure to do so violated his

right to due process.

[¶53.] The State argues that Defendant sought a ruling on the offer of proof

but did not provide the trial court with the substance of the witness’s testimony

other than the general statements that E.C. was overly dramatic and had reported

she had been raped in the past. 5 The State notes that the trial court read E.C.’s

Department of Social Services file. It then determined E.C. and her mother were

estranged when parental rights were terminated when E.C. was fourteen, and that

little to no contact between the two had occurred in the ensuing seven years. The

trial court concluded E.C.’s mother lacked first hand knowledge of a rape allegation

E.C. made to a counselor sometime around the age of fifteen while she was in foster

care. By the time E.C. reported the allegation, the mother’s parental rights had

been terminated and the two were estranged. Some limited contact between E.C.

and her mother was re-established shortly after the birth of E.C.’s daughter, who

was approximately one-year-old at the time of the rape, but it was limited to giving

E.C.’s mother some visitation with E.C.’s daughter a few of hours a month, some

holiday visitation, and some telephone contact.

5. We note that in some previous cases before this Court, the trial court has
required the witness to testify as part of the offer of proof to ascertain the
exact nature of the testimony the party making the offer wishes to present.
In other cases, the trial court has accepted an attorney’s representation as to
the nature of that testimony. Such a determination is best left to the
discretion of the trial court.

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[¶54.] According to Defendant, the final offer of proof made to the trial court

was two-fold. First, to allow E.C.’s mother to testify that E.C. had always been

overly dramatic and had a need for attention. Second, Defendant offered the

mother’s statements to police the night of the rape as an indication that the police

should be careful and more thoroughly investigate E.C.’s rape allegation. It is

unclear from the record what the exact content of these statements would have been

given Defendant’s concession that he could not ask about the prior rape allegation.

Defendant proposed questioning Officer Warwick as to whether the mother said

anything that indicated further investigation was necessary. In the alternative,

Defendant proposed a leading question to the mother as to whether she said

anything to the investigating officers that should have tipped them off that they

needed to investigate the rape allegation more thoroughly. Defendant argued he

wanted to offer the testimony in order to establish that there was a need for a more

thorough investigation. However, Defendant had already attempted to show during

the live testimony of the responding officers during the State’s case-in-chief that the

police had failed to conduct a thorough investigation of E.C.’s allegations before

focusing the investigation on Defendant.

[¶55.] After Defendant’s first offer, the trial court determined that under

SDCL 19-9-3 (FRE 103(a)), the substance of the evidence was not made known to it

by Defendant. 6 The vague description of the testimony E.C.’s mother would have

6. SDCL 19-9-3 (FRE 103(a)) provides in relevant part:

(continued . . .)
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purportedly given did not provide the trial court with the foundation for the

testimony or its substance. The trial court also determined that the testimony

about E.C.’s supposed overly dramatic personality was inadmissible under SDCL

19-12-4 (FRE 404(a)) 7 as it was evidence of a character trait that was being offered

to show E.C. behaved in conformity with that trait on the night of the rape. The

trial court further found the testimony about a prior rape allegation was

inadmissible under the rape shield law and that the mother telling officers E.C. had

cried rape before was not the same as telling law enforcement to investigate the

case more thoroughly.

[¶56.] Defendant renewed his offer of proof the following day after providing

the trial court with additional information about the amount of contact between

E.C. and her mother in order to establish the foundation for the purported

_________________________
(. . . continued)
Error may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is
affected, and:
...
2) In case the ruling is one excluding evidence, the substance
of the evidence was made known to the court by offer or
was apparent from the context within which questions
were asked.

7. SDCL 19-12-4 (FRE 404(a))provides in relevant part:

Evidence of a person’s character or a trait of his character is not
admissible for the purpose of proving that he acted in conformity
therewith on a particular occasion, except:
...
(2) Evidence of a pertinent trait of character of the victim of
the crime offered by an accused, or by the prosecution to
rebut the same[.]

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statements. The trial court once again refused the offer after determining that the

mother lacked firsthand knowledge of the prior rape, and that there was no

foundation for the mother’s testimony.

[¶57.] Defendant argues the trial court erred when it refused the offer of

proof regarding E.C.’s overly dramatic personality trait because the testimony was

not being offered to show conformity on the night of the rape. He also argues the

offer of proof regarding the mother’s concerns that the investigation should have

been more thorough should have been allowed, but without reference to the prior

rape allegation. Both, Defendant argues, were critical to showing that the police

failed to conduct a thorough investigation despite being given good reasons to do so

by E.C.’s mother.

[¶58.] Defendant had the opportunity to cross-examine the investigating

officers as to the thoroughness of their investigation on the morning of the rape. We

fail to see how the mother’s testimony concerning E.C.’s supposed personality trait

was relevant to whether the police conducted a thorough investigation. We agree

with the trial court that the mother’s testimony regarding her opinion of E.C.’s

overly dramatic personality was not admissible under SDCL 19-12-4 (FRE 404(a)).

[¶59.] With regard to the prior rape allegation, SDCL 23A-22-15 (repealed

2010) precludes evidence of specific instances of the victim’s prior sexual conduct

except when “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.”

The rule pertains to “prior sexual conduct,” which pre-supposes that it occurred.

However, here by implication, the Defendant was attempting to bring to the jury’s

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attention facts which would point to a conclusion that in the past, E.C. had made

false accusations of rape against others. In State v. Sieler, 397 NW2d 89 (SD 1986),

the defendant charged with sexual contact sought to cross-examine the complainant

about false claims of rape she allegedly made in the past. Id. at 91. The trial court

refused concluding such testimony was irrelevant. Id. We held that to become

relevant the prior charge of rape must be shown to be “demonstrably false” as prior

truthful charges of rape are not relevant. 8 Id. at 92. To do otherwise would turn

“the trial into one of the victim.” Id.; see also State v. Guthmiller, 2003 SD 83, ¶28,

667 NW2d 295, 305; State v. Dillon, 2001 SD 97, ¶26, 632 NW2d 37, 47. Here, no

such showing of demonstrable falsity was made. The trial court’s decision was,

therefore, justified under Sieler, 397 NW2d 89.

[¶60.] In summary, there was no foundation for the mother’s testimony given

the status of her relationship with E.C. at the time E.C. allegedly made the

statements about a prior rape to a counselor. Therefore, the relevance of a prior

rape allegation was not established with regard to the thoroughness of the police

investigation on the morning of the rape. For the above reasons, the trial court did

not abuse its discretion.

[¶61.] Affirmed.

[¶62.] KONENKAMP, ZINTER, MEIERHENRY, and SEVERSON, Justices,

concur.

8. In Sieler, 397 NW2d 89, we did not examine the limited scope of admissibility
of actual past sexual conduct under SDCL 23A-22-15 as the issue was not
raised on appeal.

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