State v. Dickerson & Reecy
This text of 2022 S.D. 23 (State v. Dickerson & Reecy) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
#29333, #29337-r-PJD 2022 S.D. 23
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
#29333
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
KEVIN XAVIER DICKERSON, Defendant and Appellant.
#29337
ARIANNA CHERELLE REECY, Defendant and Appellant.
APPEALS FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA
THE HONORABLE ROBIN J. HOUWMAN Judge
JASON R. RAVNSBORG Attorney General
ERIN E. HANDKE QUINCY R. KJERSTAD Assistant Attorneys General Pierre, South Dakota Attorneys for plaintiff and appellee. **** ARGUED MAY 24, 2021 OPINION FILED 04/20/22 ****
CHRISTOPHER MILES of Minnehaha County Public Defender’s Office Sioux Falls, South Dakota Attorneys for defendant and appellant Kevin Dickerson.
MARK KADI of Minnehaha County Office of the Public Advocate Sioux Falls, South Dakota Attorneys for defendant and appellant Arianna Reecy. #29333, #29337
DEVANEY, Justice
[¶1.] A jury found co-defendants Arianna Reecy and Kevin Dickerson guilty
of robbery and burglary and also found Dickerson guilty of aggravated assault
against Julio Gomez Rojas. Reecy and Dickerson separately appeal. They both
assert that the circuit court erred in precluding any reference to Gomez Rojas’s
immigration status and in admitting into evidence an exhibit listing transactions
purportedly from Gomez Rojas’s debit card. Dickerson additionally asserts that the
circuit court erred in denying his motion for judgment of acquittal. We consolidate
the appeals and reverse and remand.
Factual and Procedural Background
[¶2.] Arianna Reecy worked as an exotic dancer at a bar in Lesterville,
South Dakota. In July 2019, Reecy, who went by the name “Kisses,” met Julio
Gomez Rojas at the bar after he asked her for a private dance. Gomez Rojas
explained that he found Reecy attractive and was interested in her. The two began
exchanging text messages and also spoke to each other on the phone.
[¶3.] On November 19, 2019, Reecy asked Gomez Rojas, via text message, to
lend her money so she could feed her children. He agreed and invited Reecy to come
to his apartment. She arrived at approximately 7:30 p.m. but only stayed for three
to five minutes. She returned to the apartment building approximately an hour
later. As the two went up the stairs to Gomez Rojas’s apartment, Reecy’s boyfriend,
Kevin Dickerson, entered the building unbeknownst to Gomez Rojas. What
happened thereafter is disputed. According to Gomez Rojas, after they were inside
his apartment, Reecy opened the door for Dickerson to enter, after which Dickerson
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held him at gun point, assaulted him, and stole his wallet. In contrast, Reecy
claimed that after she and Gomez Rojas were inside his apartment, he tried to rape
her, and she struck him on the head with a cellular phone before fleeing.
[¶4.] After the incident, Gomez Rojas’s neighbors, who had heard him
screaming, called 911, and an investigation ensued. Dickerson and Reecy were
eventually arrested, and both were charged with first-degree robbery with a
dangerous weapon and alternative counts of first-degree burglary. Dickerson was
also charged with alternative counts of aggravated assault, and the State filed a
part II information alleging Dickerson to be a habitual offender. Dickerson and
Reecy both pled not guilty.
[¶5.] Dickerson and Reecy were tried together. On the day prior to trial, the
State filed a motion in limine to preclude defense counsel from referring in any
manner to Gomez Rojas’s immigration status. The State acknowledged that he was
an illegal immigrant; however, it claimed that his immigration status was not
material to any issue at trial. The State further asserted that the evidence would
be more prejudicial than probative. Finally, the State argued that admitting the
evidence would potentially place Gomez Rojas in a position of having to invoke his
right against self-incrimination.
[¶6.] At the start of the trial, the circuit court heard arguments from counsel
on the State’s motion and allowed the parties to examine Gomez Rojas for purposes
of the court’s ruling. Gomez Rojas admitted he was in the United States illegally.
He testified that approximately a week after the incident, he consulted with an
immigration attorney to learn whether his contacts with law enforcement as a
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victim of a crime would have any adverse effect on his immigration status. He
claimed that the attorney told him he could continue to cooperate with the
investigation and that at some point he could apply for a special visa available to
victims of crimes, called a U-Visa. 1 Gomez Rojas testified that he had not yet
applied for a U-Visa, “but if it comes to that point perhaps, yes, of course” he would.
[¶7.] Counsel for both Reecy and Dickerson argued that Gomez Rojas’s
immigration status is relevant and probative to his bias and motivation to lie.
Counsel for Dickerson emphasized that credibility is the central issue in the case
and to exclude the evidence would violate Dickerson’s Sixth Amendment right to
confront and cross-examine Gomez Rojas. Counsel for Reecy highlighted that it is
immaterial that Gomez Rojas has not yet applied for a U-Visa because he sought
information from an immigration attorney shortly after the incident who made him
aware that he could apply for it in the future. Reecy’s counsel further claimed that
because rape is a deportable offense, the evidence is necessary and relevant to
Reecy’s defense that Gomez Rojas tried to rape her and then had to come up with a
different story of what transpired to avoid deportation.
1. The U-Visa program was created by Congress in 2000. As one court explained, “A U-Visa enables victims of certain crimes, including domestic violence [and other crimes, such as felonious assaults in general], to reside lawfully in the United States for a period of four years, which may be extended upon certification by a law enforcement official that the individual’s continued presence in the United States is necessary to assist in the investigation or prosecution of criminal activity.” Romero-Perez v. Commonwealth, 492 S.W.3d 902, 906 (Ky. Ct. App. 2016) (citing 8 U.S.C. §§ 1101(a)(15)(U)(iii), 1184(p)(6)). The program also allows the recipient of the U-Visa to apply for lawful permanent residency three years after having resided continuously in the United States following receipt of the U-Visa. Id.
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[¶8.] The circuit court granted the State’s motion in limine. It noted serious
public policy concerns associated with allowing evidence of a victim’s immigration
status, including that it might deter people from reporting crimes. The court also
relied upon Gomez Rojas’s testimony that no one had promised him anything in
exchange for his testimony. The court thus concluded that his immigration status
was of limited relevance and was more prejudicial than probative. The court
further expressed a concern that allowing admission of such evidence would require
a minitrial as to Gomez Rojas’s status.
[¶9.] During the three-day trial, multiple witnesses testified, including
Gomez Rojas, his neighbors, Reecy, and multiple law enforcement officers. The jury
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#29333, #29337-r-PJD 2022 S.D. 23
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
#29333
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
KEVIN XAVIER DICKERSON, Defendant and Appellant.
#29337
ARIANNA CHERELLE REECY, Defendant and Appellant.
APPEALS FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA
THE HONORABLE ROBIN J. HOUWMAN Judge
JASON R. RAVNSBORG Attorney General
ERIN E. HANDKE QUINCY R. KJERSTAD Assistant Attorneys General Pierre, South Dakota Attorneys for plaintiff and appellee. **** ARGUED MAY 24, 2021 OPINION FILED 04/20/22 ****
CHRISTOPHER MILES of Minnehaha County Public Defender’s Office Sioux Falls, South Dakota Attorneys for defendant and appellant Kevin Dickerson.
MARK KADI of Minnehaha County Office of the Public Advocate Sioux Falls, South Dakota Attorneys for defendant and appellant Arianna Reecy. #29333, #29337
DEVANEY, Justice
[¶1.] A jury found co-defendants Arianna Reecy and Kevin Dickerson guilty
of robbery and burglary and also found Dickerson guilty of aggravated assault
against Julio Gomez Rojas. Reecy and Dickerson separately appeal. They both
assert that the circuit court erred in precluding any reference to Gomez Rojas’s
immigration status and in admitting into evidence an exhibit listing transactions
purportedly from Gomez Rojas’s debit card. Dickerson additionally asserts that the
circuit court erred in denying his motion for judgment of acquittal. We consolidate
the appeals and reverse and remand.
Factual and Procedural Background
[¶2.] Arianna Reecy worked as an exotic dancer at a bar in Lesterville,
South Dakota. In July 2019, Reecy, who went by the name “Kisses,” met Julio
Gomez Rojas at the bar after he asked her for a private dance. Gomez Rojas
explained that he found Reecy attractive and was interested in her. The two began
exchanging text messages and also spoke to each other on the phone.
[¶3.] On November 19, 2019, Reecy asked Gomez Rojas, via text message, to
lend her money so she could feed her children. He agreed and invited Reecy to come
to his apartment. She arrived at approximately 7:30 p.m. but only stayed for three
to five minutes. She returned to the apartment building approximately an hour
later. As the two went up the stairs to Gomez Rojas’s apartment, Reecy’s boyfriend,
Kevin Dickerson, entered the building unbeknownst to Gomez Rojas. What
happened thereafter is disputed. According to Gomez Rojas, after they were inside
his apartment, Reecy opened the door for Dickerson to enter, after which Dickerson
-1- #29333, #29337
held him at gun point, assaulted him, and stole his wallet. In contrast, Reecy
claimed that after she and Gomez Rojas were inside his apartment, he tried to rape
her, and she struck him on the head with a cellular phone before fleeing.
[¶4.] After the incident, Gomez Rojas’s neighbors, who had heard him
screaming, called 911, and an investigation ensued. Dickerson and Reecy were
eventually arrested, and both were charged with first-degree robbery with a
dangerous weapon and alternative counts of first-degree burglary. Dickerson was
also charged with alternative counts of aggravated assault, and the State filed a
part II information alleging Dickerson to be a habitual offender. Dickerson and
Reecy both pled not guilty.
[¶5.] Dickerson and Reecy were tried together. On the day prior to trial, the
State filed a motion in limine to preclude defense counsel from referring in any
manner to Gomez Rojas’s immigration status. The State acknowledged that he was
an illegal immigrant; however, it claimed that his immigration status was not
material to any issue at trial. The State further asserted that the evidence would
be more prejudicial than probative. Finally, the State argued that admitting the
evidence would potentially place Gomez Rojas in a position of having to invoke his
right against self-incrimination.
[¶6.] At the start of the trial, the circuit court heard arguments from counsel
on the State’s motion and allowed the parties to examine Gomez Rojas for purposes
of the court’s ruling. Gomez Rojas admitted he was in the United States illegally.
He testified that approximately a week after the incident, he consulted with an
immigration attorney to learn whether his contacts with law enforcement as a
-2- #29333, #29337
victim of a crime would have any adverse effect on his immigration status. He
claimed that the attorney told him he could continue to cooperate with the
investigation and that at some point he could apply for a special visa available to
victims of crimes, called a U-Visa. 1 Gomez Rojas testified that he had not yet
applied for a U-Visa, “but if it comes to that point perhaps, yes, of course” he would.
[¶7.] Counsel for both Reecy and Dickerson argued that Gomez Rojas’s
immigration status is relevant and probative to his bias and motivation to lie.
Counsel for Dickerson emphasized that credibility is the central issue in the case
and to exclude the evidence would violate Dickerson’s Sixth Amendment right to
confront and cross-examine Gomez Rojas. Counsel for Reecy highlighted that it is
immaterial that Gomez Rojas has not yet applied for a U-Visa because he sought
information from an immigration attorney shortly after the incident who made him
aware that he could apply for it in the future. Reecy’s counsel further claimed that
because rape is a deportable offense, the evidence is necessary and relevant to
Reecy’s defense that Gomez Rojas tried to rape her and then had to come up with a
different story of what transpired to avoid deportation.
1. The U-Visa program was created by Congress in 2000. As one court explained, “A U-Visa enables victims of certain crimes, including domestic violence [and other crimes, such as felonious assaults in general], to reside lawfully in the United States for a period of four years, which may be extended upon certification by a law enforcement official that the individual’s continued presence in the United States is necessary to assist in the investigation or prosecution of criminal activity.” Romero-Perez v. Commonwealth, 492 S.W.3d 902, 906 (Ky. Ct. App. 2016) (citing 8 U.S.C. §§ 1101(a)(15)(U)(iii), 1184(p)(6)). The program also allows the recipient of the U-Visa to apply for lawful permanent residency three years after having resided continuously in the United States following receipt of the U-Visa. Id.
-3- #29333, #29337
[¶8.] The circuit court granted the State’s motion in limine. It noted serious
public policy concerns associated with allowing evidence of a victim’s immigration
status, including that it might deter people from reporting crimes. The court also
relied upon Gomez Rojas’s testimony that no one had promised him anything in
exchange for his testimony. The court thus concluded that his immigration status
was of limited relevance and was more prejudicial than probative. The court
further expressed a concern that allowing admission of such evidence would require
a minitrial as to Gomez Rojas’s status.
[¶9.] During the three-day trial, multiple witnesses testified, including
Gomez Rojas, his neighbors, Reecy, and multiple law enforcement officers. The jury
also watched surveillance videos from the apartment complex showing Reecy and
Dickerson enter and exit the building; listened to a recording of a 911 call; and
observed the photographs documenting a wound above Gomez Rojas’s left eyebrow
and bruises on Reecy’s arm and neck.
[¶10.] Gomez Rojas testified about his relationship with Reecy. He admitted
that he was attracted to her and had hopes that their relationship would turn
physical. He claimed that he had lent Reecy $200 when she first came to his
apartment on the evening of the incident. He testified that she was in his
apartment for only a few minutes but promised to return. He believed it was
possible something sexual would happen when she returned.
[¶11.] Gomez Rojas then related that after he and Reecy entered the
apartment during her second visit, he locked the door and sat down on his sofa. He
claimed that Reecy asked him if anyone else was home. He said no, and thereafter,
-4- #29333, #29337
Reecy unlocked the door to the apartment, after which she moved away from the
door and a male (later identified as Dickerson) with a mask on his face charged into
the apartment. Gomez Rojas testified that he did not recognize Dickerson. He
further testified that Dickerson grabbed him by the back of the neck, pointed a gun
at him, and demanded money.
[¶12.] According to Gomez Rojas, Dickerson then ordered Reecy to search the
apartment for money, and Dickerson grabbed Gomez Rojas’s wallet from a table,
opened it, and threw it on the floor after noticing that it contained no cash. Gomez
Rojas claimed that he was able to wrangle free of Dickerson’s grip, but Dickerson
then struck him on the left side of his head with the gun. He testified that he fell on
the floor after being hit but got up and retreated to the bathroom. Gomez Rojas also
testified that he screamed for help and waited to exit his bathroom until he stopped
hearing noises.
[¶13.] When Gomez Rojas came out of his bathroom, he noticed that his
neighbors, Sylvia Paragonzalez and Sofia Parada, were inside his apartment. They
had heard a scream coming from his apartment and attempted to enter but could
not open the door. Sylvia and Sofia also claimed that they saw a black male and a
female exit Gomez Rojas’s apartment and run down the stairs. Neither recalled
seeing a mask covering the man’s face or a gun. They were then able to enter the
apartment where they found Gomez Rojas bleeding from an injury on the side of his
head. According to Gomez Rojas, Sylvia and Sofia asked him if he wanted them to
call 911 and he said yes; but according to Sofia, she and her sister decided to call the
police. After Sofia called 911, the dispatcher asked her questions about the
-5- #29333, #29337
incident. Sofia translated these questions to Gomez Rojas in Spanish. She then
translated Gomez Rojas’s answers in English. She relayed that two people entered
the apartment, assaulted Gomez Rojas, and left with his wallet. She further
relayed Gomez Rojas’s descriptions of them and his statement that he recognized
the female but not the male.
[¶14.] Officer Christian O’Brien arrived at the apartment in response to the
911 call and interviewed Gomez Rojas. He observed that Gomez Rojas had a large
gash above his left eyebrow and that the area around the wound had started to
swell. During the interview, Gomez Rojas provided many details consistent with
his trial testimony. However, some differences identified by Officer O’Brien during
Gomes Rojas’s trial testimony included Gomez Rojas’s initial statement to the
officer that Reecy let herself into his apartment because he had left the door
unlocked and that he saw Dickerson and Reecy leave the apartment and drive away
in a sport utility vehicle with Iowa license plates.
[¶15.] Officer O’Brien testified that following his initial interview, Gomez
Rojas was transported to the hospital to address his injury. While there, Officer
O’Brien continued to discuss the incident with him. Gomez Rojas told Officer
O’Brien that he had met Reecy a few months prior at the bar she works at in
Lesterville and only knew her by the name of Kisses. He also explained that she
had come over to his apartment approximately a month and a half ago. He provided
Officer O’Brien with Reecy’s phone number but did not inform the officer that he
had been exchanging text messages with Reecy throughout the day of the incident.
Officer O’Brien asked Gomez Rojas about the contents of his wallet and learned that
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the wallet contained a debit card. The officer asked Gomez Rojas to determine if
any transactions had been attempted with his card. Gomez Rojas looked up his
account information on his phone and confirmed that no transactions had been
made, and upon advice of Officer O’Brien, he then froze his debit card.
[¶16.] Detective Scott Vandervelde also testified. He had been assigned to
investigate the incident, and during his investigation, he interviewed Gomez Rojas,
Sofia, and Sylvia. He also obtained the apartment building’s surveillance videos
from the date of the incident. After watching the videos, the detective noted a
discrepancy between what Gomez Rojas had told Officer O’Brien and what the
videos depicted. In particular, the videos revealed that Gomez Rojas let Reecy into
the apartment building rather than Reecy simply letting herself into his apartment.
Detective Vandervelde spoke to Gomez Rojas about the videos, and Gomez Rojas
explained that he let Reecy into the apartment that evening because he believed she
wanted to get to know him better and he wanted to see how their physical
relationship would play out. However, like his omission in his interview with
Officer O’Brien, Gomez Rojas did not inform Detective Vendervelde that he and
Reecy had been exchanging text messages throughout the day, and at no point did
the detective obtain Gomez Rojas’s phone or messaging history as evidence.
[¶17.] The day after the incident, Gomez Rojas’s bank, MetaBank, contacted
him about certain transactions that were attempted with his debit card. He
testified that he informed Detective Vandervelde about these transactions and the
two met at MetaBank to obtain information related to the transactions. At trial,
the State sought to admit a printout purportedly from MetaBank, which, according
-7- #29333, #29337
to the State, detailed transactions attempted with Gomez Rojas’s debit card after
the incident. Dickerson and Reecy objected, asserting that the document was
hearsay and lacked adequate foundation. The court instructed the State to lay
additional foundation. Gomez Rojas testified that the document was the one
provided to him by MetaBank and that it contained a list of transactions made or
attempted with his debit card. The court overruled the objection and admitted the
document under the business records exception to the hearsay rule. Thereafter,
Gomez Rojas testified that only the first three transactions on the list were ones he
recalled making himself and that he did not make any of the other transactions.
[¶18.] Detective Vandervelde also testified about the transaction document
from MetaBank. He claimed that he and Gomez Rojas had obtained the printout
from an employee of the bank, and while at the bank, he and Gomez Rojas went
through each of the listed transactions. According to Detective Vandervelde, there
were 22 total transactions, and Gomez Rojas identified only three that he had made.
Detective Vandervelde testified that while some of the information on the document
had meaning to him (date, time, and business name), he did not know the meaning
of some of the numbers associated with the transactions. In particular, Detective
Vandervelde claimed that he interpreted the time stamp to be Eastern time because
of an “ET” in parenthesis. From this, he concluded that the attempted transactions
on Gomez Rojas’s account occurred between 9:43 p.m. and 10:56 p.m. on November
19. He testified that this pattern of spending is consistent with what he sees in
card theft cases. However, he explained that he could not obtain additional
-8- #29333, #29337
information about the transactions, such as who attempted to use the debit card,
because none of the transactions were completed.
[¶19.] Officer Chase Vanderhull, who participated in the arrest of Dickerson
and Reecy, testified that during the search of the vehicle in which the two were
stopped, he found 40-caliber bullets in a plastic bag in the center console. He did
not find a gun. Officer Vanderhull further testified about a recording of his
interaction with Reecy while he was placing her in his vehicle. On the video
recording, which was admitted into evidence, Reecy can be heard complaining about
her arm hurting as her hands were being cuffed behind her back. Officer
Vanderhull noticed bruising on her hand and asked her what had happened. Reecy
explained that she was injured during her work as a pole dancer.
[¶20.] After the State rested its case, Dickerson and Reecy moved for
judgment of acquittal on all counts. The court denied the motion. Thereafter,
Dickerson presented testimony from Derek Kuchenreuther, a computer forensic
examiner. Kuchenreuther testified that he obtained a text message and call log
from Verizon for Gomez Rojas’s phone number for November 19, 2019. He then
explained how the exhibit detailed who sent the text, if it was received, and by
whom. He identified that approximately 75 text messages were sent between the
number associated with Reecy and the number associated with Gomez Rojas on
November 19. He also testified that the phone record depicted approximately four
calls between Reecy’s phone and Gomes Rojas’s and claimed that it appeared that
the two were calling each other in equal amounts. The phone record also depicted a
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message containing a picture; however, Kuchenreuther testified that he could not
obtain the actual picture that was sent.
[¶21.] Reecy testified in her defense. She agreed that she had asked Gomez
Rojas to loan her money and that she went to his apartment twice on November 19,
2019. However, she disagreed that Gomez Rojas lent her $200. Rather, she claimed
she went to his apartment the first time believing he was going to lend her
approximately $300. When she got to his apartment, he told her that he only had
$20, so she suggested he could transfer her additional funds with what she called a
“cash app.” Gomez Rojas did not have the app, and according to Reecy, he instead
gave her his debit card. Reecy further testified that when she began to leave his
apartment during that first visit, Gomez Rojas blocked the door and asked her to
have sex with him. She claimed that she told him no, but she promised she would
return. She also testified that before he allowed her to exit the apartment, he
reached out for a hug, and while she hugged him back, he tried to kiss her.
[¶22.] According to Reecy, approximately an hour after she left his
apartment, Gomez Rojas sent her a text message with a picture of cash, indicating
that he had more money for her to borrow and that he would like his debit card
returned. 2 She agreed to return to his apartment, but she claimed that she brought
her boyfriend, Dickerson, with her because she was worried that Gomez Rojas was
going to try to have sex with her. She testified that after she and Gomez Rojas
entered his apartment, he locked the door, which made her feel uncomfortable, so
2. The actual text messages between Reecy and Gomez Rojas were not introduced at trial.
-10- #29333, #29337
she unlocked it. She further testified that Gomez Rojas then grabbed her by the
arm and swung her around onto the couch and attempted to force her to perform
oral sex on him. She claimed that she slipped away, and while she was on the floor,
he forced himself on top of her and put his hands in her pants. She claimed that
she tried to fight back by choking him, but he “smacked” her. She testified that she
was screaming and putting her arms up to protect herself. She claimed that she
grabbed a cellular phone that she noticed to her right side and struck Gomez Rojas
on the head as hard as she could. She testified that Gomez Rojas screamed, and
shortly after that, Dickerson opened the apartment door, and Gomez Rojas ran to
the back of the apartment. She testified that she was then able to leave, and after
doing so, she discarded the debit card.
[¶23.] Defense counsel entered pictures into evidence depicting bruises on
Reecy’s arms and neck and a scratch on her neck. The pictures were taken seven
days after the incident. Reecy claimed that Gomez Rojas caused the injuries. She
testified that she did not report the incident because she just wanted to forget about
what had happened. She also claimed that she did not even tell Dickerson about
what happened in the apartment.
[¶24.] The defense rested, and after closing arguments, the jury found both
Dickerson and Reecy guilty of first-degree robbery with a dangerous weapon and
first-degree burglary committed in the nighttime. The jury also found Dickerson
guilty of aggravated assault under circumstances manifesting extreme indifference
to human life. Having consolidated Dickerson’s and Reecy’s appeals, we restate
their issues as follows:
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1. Whether the circuit court erred in precluding evidence of Gomez Rojas’s immigration status.
2. Whether the circuit court erred in admitting the printout of transactions related to Gomez Rojas’s bank account.
3. Whether the circuit court erred in denying Dickerson’s motion for judgment of acquittal.
Analysis and Decision
1. Whether the circuit court erred in precluding evidence of Gomez Rojas’s immigration status.
[¶25.] Dickerson contends that the circuit court’s decision to exclude the
evidence of Gomez Rojas’s immigration status “prevented the jury from receiving
the full picture” of “his motivation to fabricate important details related to the
charges.” Dickerson further asserts that the circuit court improperly focused on the
fact Gomez Rojas had not yet filed an application for a U-Visa. In his view, the
timing of the application is irrelevant under the circumstances because Gomez
Rojas testified that he would likely be applying for a U-Visa in the future.
Dickerson argues that this evidence would have informed the jury that Gomez Rojas
stood to benefit from “providing embellished testimony, thereby increasing the
probability of a conviction.” Finally, Dickerson asserts that his Sixth Amendment
right to effectively cross-examine and confront Gomez Rojas trumps any potential
prejudice that would result from admitting the evidence.
[¶26.] Reecy similarly argues that the circuit court’s exclusion of the evidence
violated her Sixth Amendment right to confront and cross-examine Gomez Rojas.
She claims that the partiality of a witness is always subject to exploration at trial.
In her view, the circuit court’s concern about a minitrial related to Gomez Rojas’s
-12- #29333, #29337
current immigration status, including what, if anything, he has applied for, “is
overstated[.]” Reecy notes that Gomez Rojas admitted, during his testimony about
his immigration status provided outside the presence of the jury, that he was in the
United States illegally, and his testimony on this topic, in total, spans only six
pages. Reecy also contends that in denying her the opportunity to cross-examine
Gomez Rojas on this topic, the court effectively prevented her from presenting her
defense theory, namely, that Gomez Rojas lied about the incident because he was
concerned that a rape allegation, a deportable offense, would compromise his
immigration status.
[¶27.] “The Sixth Amendment to the United States Constitution provides
that a criminal defendant has the right to be ‘confronted with the witnesses against
him.’” State v. Carothers (Carothers I), 2005 S.D. 16, ¶ 8, 692 N.W.2d 544, 546
(quoting U.S. Const. amend. VI). “This right is ‘generally satisfied when the
defense is given a full and fair opportunity to probe and expose [a witness’]
infirmities through cross-examination, thereby calling to the attention of the
factfinder the reasons for giving scant weight to the witness’ testimony.’” State v.
Carothers (Carothers II), 2006 S.D. 100, ¶ 16, 724 N.W.2d 610, 617 (quoting United
States v. Owens, 484 U.S. 554, 558, 108 S. Ct. 838, 841, 98 L. Ed. 2d 951 (1988)).
[¶28.] The United States Supreme Court has long recognized “that ‘the
exposure of a witness’ motivation in testifying is a proper and important function of
the constitutionally protected right of cross-examination.’” Olden v. Kentucky, 488
U.S. 227, 231, 109 S. Ct. 480, 483, 102 L. Ed. 2d 513 (1988) (quoting Davis v.
Alaska, 415 U.S. 308, 316–17, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347 (1974)). But
-13- #29333, #29337
“[i]t does not follow . . . that the Confrontation Clause of the Sixth Amendment
prevents a trial judge from imposing any limits on defense counsel’s inquiry into the
potential bias of a prosecution witness.” Delaware v. Van Arsdall, 475 U.S. 673,
679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674 (1986). Therefore, a court may impose
reasonable limits on defense counsel’s cross-examination as to the potential bias of a
prosecution witness to avoid such things as “harassment, prejudice, confusion of the
issues . . . or interrogation that [would be] . . . only marginally relevant[.]” Olden,
488 U.S. at 232, 109 S. Ct. at 483 (quoting Van Arsdall, 475 U.S. at 679, 106 S. Ct.
at 1435).
[¶29.] However, when a court cuts “off all questioning about an event that the
State conceded had taken place and that a jury might reasonably have found
furnished the witness a motive for favoring the prosecution in his testimony, the
court’s ruling violate[s] [a defendant’s] rights secured by the Confrontation Clause.”
Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435. Therefore, while we generally
review evidentiary rulings for an abuse of discretion, the issue here concerns
whether the circuit court’s exclusion of all evidence related to the alleged victim’s
immigration status violated the defendants’ Sixth Amendment right, and our
review is de novo. 3 See State v. Spaniol, 2017 S.D. 20, ¶ 23, 895 N.W.2d 329, 338
3. A court’s decision limiting cross-examination is an evidentiary ruling that “will be reversed only if there is both an abuse of discretion and a showing of prejudice to the defendant.” State v. Kryger, 2018 S.D. 13, ¶ 13, 907 N.W.2d 800, 807. For example, in Kryger, the Court found no abuse of discretion in a circuit court’s ruling limiting cross-examination of a murder victim’s brother by precluding questions related to specific threats he made to kill the defendant. Id. ¶ 16, 907 N.W.2d at 808. Unlike the critical nature of Gomez Rojas’s testimony here, the testimony of the witness in Kryger on direct (continued . . .) -14- #29333, #29337
(reviewing de novo whether the circuit court’s denial of an evidentiary motion
violated defendant’s Sixth Amendment right).
[¶30.] We have not before examined whether or how a witness’s immigration
status or efforts to obtain a U-Visa may be admissible to show motive to testify in a
certain manner. 4 However, multiple other appellate courts have examined the
issue and have concluded that a witness’s immigration status is relevant and
admissible when such evidence has the tendency to demonstrate the witness’s bias
or motive to fabricate. While the facts of these cases are not all identical to those at
issue here, the legal reasoning underlying the courts’ rulings is persuasive.
[¶31.] For example, in Romero-Perez v. Commonwealth, one of the alleged
domestic assault victims had applied for a U-Visa, and during the trial, defense
________________________ (. . . continued) examination was described as “narrow”; was limited to the investigative timeline after the victim’s body was discovered; and was cumulative to other witnesses’ testimony. In affirming the evidentiary ruling, the Court noted that despite not being able to ask questions about specific threats, the defendant was permitted to cross-examine the brother about his ill bias against the defendant and his visceral reaction when he learned his sister had been killed. Id.
4. The dissent narrowly frames the issue as one relating to the exclusion of U- Visa evidence and then contends that exclusion of such evidence was proper because Gomez Rojas “was not aware of” the U-Visa program “when he told police that he had been assaulted and robbed by Reecy and Dickerson.” See Dissent ¶ 51. Aside from the fact that the trial testimony from Gomez Rojas’s neighbors was that they were the ones who decided to call the police and report the incident, there is no dispute that Gomez Rojas was aware at the time of the incident that he was in the United States illegally. Moreover, as the dissent recognizes, Gomez Rojas sought the advice of an attorney because he was concerned with “his ability to remain in the United States.” See id. After learning of the U-Visa program, he became aware that his continuing participation in the prosecution and his testimony against Reecy and Dickerson could impact his immigration status.
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counsel sought to use the evidence to support that she was biased, had a motive to
fabricate, and an incentive to exaggerate her testimony at trial. 492 S.W.3d 902,
904 (Ky. Ct. App. 2016). The trial court excluded the evidence, citing concerns that
the case would turn into an immigration trial and that permitting such cross-
examination would defeat the purpose of such visas. The appellate court reversed,
noting that “[i]n order for the jury to properly weigh the testimony of the witness, it
is entitled to hear all of the evidence calculated to influence the witness’ testimony.”
Id. at 905. It determined that “[t]he ability to transform oneself from illegal
immigrant, to legal visa holder, to permanent legal resident in a relatively short
amount of time without ever having to the [sic] leave the United States, could
provide a strong motive for fabrication or embellishment.” Id. at 907. Thus, the
court concluded that “it is clear that there was a ‘practical connection between the
evidence sought to be introduced and the alleged implication of bias.’” Id. (citation
omitted).
[¶32.] Similarly, in State v. Valle, the defendant sought to introduce evidence
that the victim had applied for a U-Visa. 298 P.3d 1237, 1240 (Or. Ct. App. 2013).
The trial court excluded the evidence, stating that “‘none of us seem[] to understand
it quite well enough to allow it in or out’ and that ‘the cause of the visa is
speculative, at best.’” Id. The appellate court, however, explained that “[a]t the
admissibility stage, the only question is whether a jury could find that the witness
has a motive to testify in a certain manner. Whether the witness actually has a
motive and, if so, whether the motive has influenced the witness’s testimony, are
separate and subsequent questions for the jury.” Id. at 1243. The court rejected the
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notion that there had to be “an established quid pro quo” before the witness could
be cross-examined on this topic. Id. at 1245. Rather, it determined that the trial
court erred in excluding the evidence because the jury could infer that the witness
had a personal interest in testifying a certain way from the evidence that the victim
had applied for an opportunity to stay in the United States on the basis that she
had been a victim of a qualifying crime. Id. at 1243–44.
[¶33.] Outside the U-Visa context, other courts have also addressed the
admissibility of evidence of a witness’s immigration status if it suggests a motive to
testify falsely to avoid deportation. A special court of appeals in Maryland reversed
a trial court’s exclusion of evidence of a witness’s status as an illegal immigrant.
Carrero-Vasquez v. State, 63 A.3d 647, 661 (Md. Ct. Spec. App. 2013). The
defendant had borrowed the witness’s vehicle and was pulled over for traffic
offenses. While searching the vehicle incident to the defendant’s arrest, officers
found a loaded revolver in the center console, which was later determined to be
stolen. The defendant was charged with possession of a regulated firearm and at
trial, he sought to question the owner of the vehicle, who had denied owning the
handgun, about her immigration status and whether she would be subject to
deportation if she were convicted of possessing a stolen handgun. The trial court
precluded admission of the evidence. Id. at 655.
[¶34.] On appeal, the Maryland court concluded that the lower court’s ruling
violated the defendant’s right of confrontation. Id. at 657 (relying on Davis, 415
U.S. at 316–17, 94 S. Ct. at 1110 and Olden, 488 U.S. 227, 109 S. Ct. 480). In
particular, the court noted the United States Supreme Court’s holding in Davis
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“rejecting the claim that the State’s interest in securing the confidentiality of
juvenile records outweighed Davis’s constitutional right to confront his accuser,”
and its conclusion that “[w]hatever temporary embarrassment might result to [the
witness] or his family by disclosure of his juvenile record . . . is outweighed by
[Davis’s] right to probe into the influence of possible bias in the testimony of a
crucial identification witness.” Id. (quoting Davis, 415 U.S. at 319, 94 S. Ct. at
1105). Noting “that the right of confrontation is the cornerstone of a fair trial[,]” the
court ultimately held that the State’s “desire to protect immigrant witnesses from
intimidation and unfair prejudice[ ] is truly subordinate to appellant’s right to
confront the witnesses against him.” 5 Id. at 659.
[¶35.] Under the circumstances of this case, we conclude that Dickerson and
Reecy have a constitutional right to probe into the possible motives influencing
Gomez Rojas’s testimony, including not only the circumstances of the alleged
5. This Court’s decision in State v. Rough Surface, 440 N.W.2d 746 (S.D. 1989), also supports a determination that Reecy and Dickerson were denied their right of confrontation. In Rough Surface, the defendant relied on Davis to argue that he had a constitutional right to cross-examine witnesses regarding their juvenile records to show “they were susceptible to acting out of fear or concern of possible jeopardy to their status.” Id. at 752. This Court recognized that Davis involved a similar request to cross-examine a witness regarding his juvenile record to show “he had testified to protect his probationary status or to shift suspicion away from himself.” Id. We noted the Supreme Court’s conclusion that because the juvenile witness in Davis was crucial to the State’s case, “the right of confrontation is paramount to the State’s policy of protecting a juvenile offender.” Id. (quoting Davis, 415 U.S. at 319, 94 S. Ct. at 1112). After determining that the juveniles in Rough Surface did not provide “the crucial link in the State’s proof of the defendant’s act[,]” this Court found no violation of the defendant’s confrontation rights. Id. Here, the State advised the jury that the case boils down to whether the jury believes Gomez Rojas’s testimony, thus making Reecy’s and Dickerson’s right of confrontation paramount.
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assault, but also his denial of any forced sexual contact with Reecy during the
incident. It is undisputed that Gomez Rojas is in the United States illegally and
that rape is a deportable offense. It is further undisputed that one week after the
incident he sought the advice of an immigration attorney and learned that he could
be eligible to apply for a U-Visa in the future. 6
[¶36.] Against the backdrop of the disparities in Gomez Rojas’s initial
description of the events in question and his evolving narrative after being
confronted by law enforcement with the later discovered video and cellphone
records, a jury could infer that his immigration status may have caused him to
make a false report against Reecy to deflect a possible rape allegation by her. Also,
although Gomez Rojas had not yet applied for a U-Visa, a jury could infer from his
knowledge of the program and his indication that “if it comes to that point” he
would “of course” apply for one, that he had an incentive to embellish or exaggerate
his testimony against Dickerson and Reecy in order to be perceived as the victim in
6. The State directs this Court to two cases in which, like here, the witness had not yet applied for a U-Visa. See State v. Buccheri-Bianca, 312 P.3d 123 (Ariz. Ct. App. 2013); People v. Chavez Limon, 2019 WL 2635550 (Cal. Ct. App.). According to the State, these cases support the conclusion that Gomez Rojas’s immigration status is not relevant to any issue at trial because he did not know about the U-Visa program until after he reported the crime and he was never promised anything in exchange for his cooperation. However, these cases are factually and procedurally distinguishable. See, e.g., Buccheri-Bianca, 312 P.3d 123 (witness did not apply for a U-Visa until over a year after reporting the crime, there was no evidence that witness was in the country illegally, and defense counsel did not object on constitutional grounds); Chavez Limon, 2019 WL 2635550 (witness’s request from prosecutor to assist in applying for a U-Visa was rejected; defendant was able to effectively impeach witness during trial using his prior convictions).
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the events in question. 7 This evidence was therefore relevant to whether Gomez
Rojas’s version of the events was credible. See SDCL 19-19-401 (providing that
“[e]vidence is relevant if: (a) It has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) The fact is of consequence in
determining the action” (emphasis added)).
[¶37.] It is also significant that Gomez Rojas was a critical witness. Without
his testimony, the State could not have proven the elements of the charges at issue.
As the State told the jury, this case “comes down to one question: Who do you
believe? Do you believe [Gomez Rojas]? Do you believe Ms. Reecy?” Yet the jury
7. Like the State, the dissent also relies on two factually distinguishable decisions: State v. Deleon-Yuja, No. 2019AP2059-CR, 2021 WL 1883365, at *7 (Wis. Ct. App. May 11, 2021) and Ramos Pabon v. State, No. 02-18-00517-CR, 2019 WL 4122611, at *4 (Tex. App. Aug. 29, 2019). In Deleon-Yuja, the victims who testified at trial were young girls, and unlike here, there was no evidence in the record that they or their parents “had an illegal immigration status.” 2019 WL 4122611, at *7. Further, this case did not involve a defense theory in which the witnesses at issue were accused of committing a crime, as was Gomez Rojas, and the prosecution’s case did not rest solely on the credibility of their testimony.
In Ramos Pabon, the victim, then seven years old, accused the defendant in 2005 of sexually abusing her, but no charges were brought at that time. 2019 WL 4122611, *2. By the time charges were brought in 2016, the victim had obtained a U-Visa and permanent residency. The trial court denied the defendant’s attempt to introduce this evidence to show an ulterior motive to pursue her claim against him. On appeal, the defendant raised a Sixth Amendment Confrontation Clause issue, but the appellate court found he had forfeited such a claim because he did not raise it below. The court therefore reviewed the alleged error for an abuse of discretion and concluded that no such abuse occurred because at the time the case was reinvestigated and the defendant was arrested, the victim, who had obtained permanent residency in 2014, “was not subject to the U-Visa requirement that she cooperate with law enforcement or risk deportation[.]” Notably, the appellate court remarked that “[t]he excluded evidence could certainly be admissible in a different factual scenario[.]” Id. *4.
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was not fully informed as to Gomez Rojas’s potential motives in assessing his
credibility. More importantly, the court’s ruling prevented defense counsel from
discrediting the State’s explicit argument to the jury that Gomez Rojas “doesn’t
have anything at stake in this case” and “doesn’t stand to gain or lose anything from
the outcome of the case.”
[¶38.] Contrary to the circuit court’s ruling, allowing admission of the
evidence here would not confuse the issues or require a minitrial as to his
immigration status given Gomez Rojas’s admissions. And even if Gomez Rojas
would be prejudiced by the admission of this evidence, whether Gomez Rojas was
lying about his encounter with Reecy and Dickerson goes to the heart of their
defenses, and the State has not established that any danger of unfair prejudice
substantially outweighs its probative value. See SDCL 19-19-403 (providing that
relevant evidence may be excluded “if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence”). As one court explained, “Given the nature of the U-Visa
program, . . . a criminal defendant’s right to effectively probe into a matter directly
bearing on witness credibility and bias must trump any prejudice that would result
from the jury’s knowledge of the victim’s immigration status.” Romero-Perez, 492
S.W.3d at 907.
[¶39.] This Court has observed that “the exposure of a witness’ motivation in
testifying is a proper and important function of the constitutionally protected right
of cross-examination.” State v. Packed, 2007 S.D. 75, ¶ 23, 736 N.W.2d 851, 859
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(quoting Davis, 415 U.S. at 316–17, 94 S. Ct. at 1110). Moreover, “[t]he right of
cross-examination is more than a desirable rule of trial procedure. It is implicit in
the constitutional right of confrontation, and helps assure the ‘accuracy of the truth-
determining process.’” Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038,
1046, 35 L. Ed. 2d 297 (1973) (quoting Dutton v. Evans, 400 U.S. 74, 89, 91 S. Ct.
210, 220, 27 L. Ed. 2d 213 (1970)). Because the evidence related to Gomez Rojas’s
immigration status was relevant given the circumstances in this case and the
danger of unfair prejudice did not substantially outweigh its probative value, the
circuit court’s decision denying admission of the evidence deprived Dickerson and
Reecy of their constitutional right to confrontation.
[¶40.] “When a defendant has shown his constitutional right to confrontation
has been violated, he is entitled to a new trial unless the [violation] constitutes
harmless error.” State v. Taylor, 2020 S.D. 48, ¶ 49, 948 N.W.2d 342, 356 (quoting
State v. Richmond, 2019 S.D. 62, ¶ 35, 935 N.W.2d 792, 802); see SDCL 23A-44-14
(harmless error rule). “The State bears the burden of proving beyond a reasonable
doubt the error was harmless.” State v. Johnson, 2009 S.D. 67, ¶ 25, 771 N.W.2d
360, 370.
[¶41.] In determining whether a violation of a defendant’s constitutional
right to confrontation is harmless, the relevant inquiry is “whether, assuming that
the damaging potential of the cross-examination were fully realized, a reviewing
court might nonetheless say that the error was harmless beyond a reasonable
doubt.” Van Arsdall, 475 U.S. at 684, 106 S. Ct. at 1438. See also State v. Zakaria,
2007 S.D. 27, ¶ 19, 730 N.W.2d 140, 146 (providing that we must be “able to declare
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a belief beyond a reasonable doubt that the error was harmless and did not
contribute to the verdict obtained” (citation omitted)). The Supreme Court has
further explained that:
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 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.
Van Arsdall, 475 U.S. at 684, 106 S. Ct. at 1438 (emphasis added).
[¶42.] In its appellate briefs, the State focuses only on whether the circuit
court’s exclusion of the immigration evidence was error and not whether, in the
event this Court would determine that error occurred, the error was harmless.
When asked during oral argument to explain on what basis the error could be
considered harmless beyond a reasonable doubt, the State claimed that admission of
the evidence concerning Gomez Rojas’s immigration status would not have changed
the jury’s verdict in light of the evidence in the record supporting that Reecy and
Dickerson entered Gomez Rojas’s apartment, assaulted him, and robbed him. In
the State’s view, Reecy and Dickerson were able to ask questions challenging
Gomez Rojas’s credibility. In particular, the State noted that Gomez Rojas was
asked questions about inconsistencies in his statements to law enforcement and his
testimony at trial. The State further argued that given Reecy’s testimony that
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Gomez Rojas had raped her, the defense still had the opportunity to argue that
Gomez Rojas had a motivation to lie to avoid being prosecuted for rape. 8
[¶43.] While the defense was not without other means to challenge Gomez
Rojas’s credibility, there is no doubt that Gomez Rojas’s testimony was critical to
the State’s case. In fact, during closing argument, counsel for the State informed
the jury multiple times that the case boils down to one question—whether the jury
believes Gomez Rojas. Despite the significance of his testimony, Reecy and
Dickerson were prevented from fully exposing Gomez Rojas’s potential motives to lie
and were unable to respond to the State’s argument to the jury that Gomez Rojas
“doesn’t have anything at stake in this case” and “doesn’t stand to gain or lose
anything from the outcome of the case.” Finally, Gomez Rojas’s testimony as to the
key elements of the charges was not cumulative, and other than the next-door
neighbors hearing screams, there was no evidence corroborating Gomez Rojas’s
version of what led up to him being injured inside his apartment on June 19, 2019.
The State’s case against Dickerson and Reecy depended primarily on whether the
jury believed the defendants’ or Gomez Rojas’s versions of what transpired in the
8. The dissent also relies on Reecy’s opportunity to argue that Gomez Rojas gave law enforcement a false account of what transpired in his apartment to avoid criminal liability for the alleged attempted rape. See Dissent ¶ 54. In the dissent’s view, because the attempted-rape defense was developed at trial, the circuit court did not prohibit all inquiry into the possibility that Gomez Rojas would be motivated to lie. The dissent’s argument subjectively discounts the notion that for some individuals, the long-term consequences of deportation would be equally, if not more, concerning than the possibility of a conviction and sentence for an attempted rape.
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apartment. 9 Thus, the State has not established that the circuit court’s error was
harmless beyond a reasonable doubt. As a result, Dickerson and Reecy are entitled
to a new trial.
2. Whether the circuit court erred in admitting the printout of transactions related to Gomez Rojas’s bank account.
[¶44.] Dickerson and Reecy assert that the circuit court erred in applying the
business records exception to the hearsay rule to allow admission of the printout of
transactions purportedly from MetaBank. They note that the exhibit contains no
symbols or other indicia that it was produced by MetaBank or any identifying
information connecting the document to Gomez Rojas. They then claim that the
court erred in simply relying on Gomez Rojas’s representation that the document
was produced by the bank. In its appellate briefing, the State only addresses
whether Dickerson and Reecy were prejudiced by the admission of the evidence,
essentially conceding an error in its admission. 10
[¶45.] “Business records qualify for a hearsay exception if they are records of
a regularly conducted business activity.” State v. Stokes, 2017 S.D. 21, ¶ 13, 895
N.W.2d 351, 354. The exception requires that:
9. Any reliance by the State on the purported bank transaction record for Gomez Rojas’s debit card, as corroborating evidence of an attempted theft to support the burglary charges, must be discounted given our determination in this appeal under issue two that these records were improperly admitted.
10. During oral argument, the State declined to concede that the circuit court erred in admitting the evidence. However, when asked, the State could not identify a basis on which the evidence would be admissible. Instead and similar to its response in its appellate briefing, the State only asserted a lack of prejudice.
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(A) The record was made at or near the time by—or from information transmitted by—someone with knowledge; (B) The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) Making the record was a regular practice of that activity; (D) All these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with a rule or a statute permitting certification; and (E) The opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
SDCL 19-19-803(6) (emphasis added).
[¶46.] Here, the State did not lay an adequate foundation for the admission of
the transaction document, and the circuit court erroneously determined that Gomez
Rojas was a qualified witness as contemplated by the exception to the hearsay rule.
Gomez Rojas did not claim to be familiar with MetaBank’s recordkeeping practices
or with how the transaction list was prepared. Even more problematic, he had no
knowledge of the 19 transactions most pertinent to the charges at issue. Similarly,
although Detective Vandervelde also testified about these records, he had no
firsthand knowledge of the existence of the transactions or how the list was created
and could only make assumptions about the date and time stamps on the document.
“While ‘[t]he phrase “another qualified witness” is given a very broad
interpretation,’ the witness must nonetheless possess ‘enough familiarity with the
record-keeping system of the entity in question to explain how the record came into
existence in the course of a regularly conducted activity of the entity.’” Stokes, 2017
S.D. 21, ¶ 16, 895 N.W.2d at 356 (citation omitted). Therefore, the circuit court
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erred in admitting these bank records. 11 If admission of the transaction document
arises again on remand, the circuit court is directed to properly apply the business
records exception prior to admitting such evidence.
[¶47.] Reversed and remanded. 12
[¶48.] JENSEN, Chief Justice, and MYREN, Justice, concur.
[¶49.] KERN and SALTER, Justices, dissent.
SALTER, Justice (dissenting).
[¶50.] I believe that the exclusion of U-Visa evidence relating to a witness
could, in some cases, result in a violation of a defendant’s Sixth Amendment right of
confrontation. However, I do not believe this is such a case, and I write to
respectfully note my dissent.
[¶51.] As an initial matter, the U-Visa evidence sought for cross-examination
here lacks logical relevance, and I would affirm the circuit court’s decision to
11. Because we are remanding both cases for a new trial, we need not examine whether this error was prejudicial. See, e.g., Packed, 2007 S.D. 75, ¶ 35, 736 N.W.2d at 862 (declining to address prejudice in light of remand). However, it bears clarifying that contrary to the dissent’s view that the bank records were admitted “simply to confirm that Gomez Rojas had not authorized certain debit card purchases[,]” see Dissent ¶ 55, the State admitted the bank records to prove the fact that transactions were attempted on Gomez Rojas’s debit card at specific times and on specific dates after the incident in order to implicate Reecy and Dickerson as the ones attempting to use the card. Also, the dissent’s suggestion that Gomez Rojas’s testimony could establish that transactions were attempted is simply incorrect because he lacked personal knowledge to render such testimony. Further, his testimony relating what he was told by the bank was inadmissible hearsay.
12. Given the disposition of the case, we also decline to consider whether the circuit court erred in denying Dickerson’s motion for judgment of acquittal.
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exclude it on that uncomplicated basis. The only evidence in the record relating to
Gomez Rojas and the U-Visa program indicates that he was not aware of it when he
told police that he had been assaulted and robbed by Reecy and Dickerson. Gomez
Rojas learned of the U-Visa program a week after the November 19 incident when
he asked an immigration attorney if assisting in the police investigation would
jeopardize—not enhance—his ability to remain in the United States.
[¶52.] Other courts confronted with similar circumstances have upheld trial
court decisions excluding U-Visa evidence where a witness was unaware of the
program at the time the criminal behavior was initially reported. See, e.g., State v.
Deleon-Yuja, No. 2019AP2059-CR, 2021 WL 1883365, at *7, *9 (Wis. Ct. App. May
11, 2021) (affirming trial court’s exclusion of U-Visa evidence where it determined
there was “nothing in the record [indicating] that the victims or their family knew
about a U-[V]isa when the sexual assault disclosures were made”); Ramos Pabon v.
State, No. 02-18-00517-CR, 2019 WL 4122611, at *4 (Tex. App. Aug. 29, 2019)
(affirming the exclusion of U-Visa evidence where the defendant “did not offer any
evidence” that “getting a U-Visa was on the . . . complainant’s radar when she
[reported] the sexual abuse”).
[¶53.] But the fact-bound results in these cases, and the U-Visa cases cited by
the Court, are more illustrative of established principles than reflective of new
ones—a point the Court seems to overlook in its effort to explain the details of these
non-binding decisions. There is nothing new or distinct about U-Visa information
that differs from other types of evidence that could support an inference of bias and,
yet, is properly excluded. See Kryger, 2018 S.D. 13, ¶ 15, 907 N.W.2d at 808
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(affirming circuit court’s decision prohibiting cross examination about a witness’s
threatening comments because, among other reasons, the threats occurred after the
factual circumstances associated with the witness’s testimony).
[¶54.] I also do not believe the circuit court’s decision to exclude the U-Visa
evidence “prohibited all inquiry into the possibility” that Gomez Rojas would be
motivated to lie as a means of diverting attention from an alleged effort to rape
Reecy. Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435. The defense theory that
Gomez Rojas falsely reported the assault and robbery in a preemptive effort to avoid
criminal liability for allegedly attempting to rape Reecy was probably a stronger
basis for impeachment than the potential of simply being removed from the country.
But, in any event, the attempted-rape defense theory was fully developed at trial, in
part by cross examining Gomez Rojas.
[¶55.] I do agree with the Court’s conclusion that the circuit court abused its
discretion by admitting the MetaBank document detailing Gomez Rojas’s
unauthorized debit card charges. However, the error was, in my view, harmless.
See State v. Brown, 480 N.W.2d 761, 764 (S.D. 1992) (holding the erroneous
admission of evidence under the business records exception “does not warrant
reversal absent a showing that substantial rights of the party were affected”). The
significance of the MetaBank transaction history was simply to confirm that Gomez
Rojas had not authorized certain debit card purchases. His corresponding
testimony established as much, without regard to the specific transactions
themselves, and the bank information did not impact the jury’s verdict.
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[¶56.] Finally, I am not persuaded by the defendants’ arguments challenging
the sufficiency of the evidence. In my view, the jury’s verdicts are supported by the
evidence, and I would affirm the defendants’ convictions in all respects.
[¶57.] KERN, Justice, joins this dissent.
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