State v. McDermott

982 N.W.2d 409, 2022 S.D. 69

• Court: South Dakota Supreme Court
• Decided: November 16, 2022
• Docket: 29874
• Status: Published

Opinion

#29874-a-PJD 2022 S.D. 69

IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA

****

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

BENJAMIN MCDERMOTT, Defendant and Appellant.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT CLAY COUNTY, SOUTH DAKOTA ****

THE HONORABLE TAMI BERN Judge

NICOLE J. LAUGHLIN Sioux Falls, South Dakota Attorney for defendant and appellant.

MARK VARGO Attorney General

JACOB R. DEMPSEY Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

CONSIDERED ON BRIEFS OCTOBER 3, 2022 OPINION FILED 11/16/22 #29874

DEVANEY, Justice

[¶1.] Defendant appeals his jury conviction of third-degree rape. He

contends that the evidence was insufficient to sustain the conviction because “[t]he

DNA evidence raised significant doubt that penetration could have occurred.” He

thus requests that this Court reverse the circuit court’s denial of his motion for

judgment of acquittal. Because there is sufficient evidence in the record, including

the testimony from the victim and the doctor that examined her after the rape, we

affirm.

Factual and Procedural Background

[¶2.] On October 29, 2020, J.O. and her sister decided to go to a bar in

downtown Vermillion. At the time, they were living in separate, but adjacent,

dormitories at the University of South Dakota. Their respective roommates decided

to join them, and they traveled together to the Charcoal Lounge. Shortly after

arriving, J.O.’s sister decided to leave because she did not feel well. She told the

girls to call her when they needed a ride home. While at the bar, J.O. consumed a

number of alcoholic beverages, and when the bar closed at 2:00 a.m., J.O. called her

sister for a ride home.

[¶3.] After being picked up by J.O.’s sister, the girls decided to get food via

the drive-through at McDonald’s. A white pickup was ahead of their vehicle in the

drive-through line, and one of the girls recognized the male occupants from talking

to them outside the bar. Benjamin McDermott and his friend Cory were in the bed

of the pickup. They had come from Sioux City to visit a group of friends at an

apartment in Vermillion and ended up at the Charcoal Lounge at the same time as

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J.O. and her friends. While one of the girls was talking to other occupants in the

pickup, McDermott and Cory got out, walked to the girls’ car, and began talking to

them. When the vehicles in the drive-through line began moving, J.O.’s sister told

the boys to either move out of the way or get into her vehicle. They both climbed

into the backseat of the car. McDermott sat next to J.O., and they began flirting.

According to J.O., McDermott repeatedly commented that the two of them were on a

date. He shared his McDonald’s order with her, and she reciprocated by feeding

him fries.

[¶4.] While McDermott and Cory were inside the girls’ vehicle, the white

pickup left without them. The boys, having lost their ride, indicated that they

needed a place to spend the night, and J.O. and her roommate invited them to sleep

in their dorm room. J.O.’s sister dropped J.O., her roommate, and the boys off, and

after they entered the dorm room, the group began to get ready for bed. J.O.

changed into a t-shirt and shorts, telling the boys not to look while she changed.

The dorm room had a set of bunkbeds and a futon alongside the bottom bunk. J.O.

opened the futon into a bed position where Cory slept. She testified that she asked

McDermott to sleep on the futon with Cory, or on the floor, but he kept saying that

he would sleep in the bed with her. After he kept asking, J.O. agreed to let him

sleep in her bed. Before McDermott climbed into bed with J.O., he took off his shirt

and pants but left on his boxers. McDermott turned off the dorm room lights, and

J.O. turned on a fan.

[¶5.] The group did not fall asleep right away. J.O.’s roommate was on her

phone texting her boyfriend, and Cory was on his phone browsing social media.

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They both testified that the fan was loud, and they did not hear anything

happening. At some point, McDermott kissed J.O. She testified that she was okay

with him kissing her and that she kissed him back. They continued kissing, and

McDermott put his hands on her stomach and then moved his hands underneath

her clothes. When he tried to move his hand lower, she told him no and that she

“had a tampon in.” She testified that he did not stop right away, but after she

turned and faced the wall and told him she wanted to go to sleep, he stopped

touching her. J.O. eventually fell asleep.

[¶6.] The next thing J.O. remembered was waking up with McDermott’s

penis inside her vagina. She was lying on her left side and he was lying on his left

side behind her with his body against her. Her shirt was lifted, and her shorts and

underwear were around her thighs. She was scared and confused and wanted it to

stop. She told McDermott to stop, but she did not recall if he said anything to her in

response. She then felt him kissing her neck, and while he was doing so, he gave

her a hickey. She explained that she rolled onto her back so that he would stop. He

then grabbed her hand and placed it on his penis and moved her hand up and down.

She pulled her hand away. During all of this, she was telling him to stop. He

finally did.

[¶7.] J.O. testified that after lying in the bed awake trying to forget about

what had happened, she realized she could not, so she grabbed her phone, quietly

got out of bed, and went to the bathroom. While in the bathroom, she could not

locate her tampon inside her vagina and did not know if it had been taken out or if

it was still inside of her. J.O. then called her sister and told her that she had been

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raped. Her sister told her to come to her room in the adjacent dormitory. By this

time, it was approximately 4:30 a.m. From there, the two contacted the University

Police Department, who then contacted law enforcement.

[¶8.] Detective Robin Hower responded, and after obtaining information

from J.O. about the incident, he directed J.O. to go to the hospital for a sexual

assault examination. During the exam, hospital staff interviewed her and collected

oral, vaginal-cervical, and anal swabs. They also swabbed the hickey on her neck

and collected her underwear for testing. During the examination, Dr. Ray

Mortinsen observed that J.O.’s tampon was shoved, along with its attached string,

against her cervix at the end of the vaginal canal. He had to use forceps to remove

it. The tampon and her clothing were collected as evidence, and the swabs were

sent to the State Forensic Laboratory for DNA testing.

[¶9.] While J.O. was at the hospital, Detective Hower, Sergeant Armando

Barash, and Bryant Jackson from the University Police Department went to J.O.’s

dorm room. They entered the room and found Cory asleep on the futon and

McDermott asleep on the bottom bunk. They observed that Cory was fully clothed,

and McDermott was topless with a bedsheet over his lower half. They woke the

boys and told them to get dressed while the officers waited outside. Cory came out

of the room first, and because it took a while for McDermott to come out, Detective

Hower reentered. He told McDermott that a sexual assault had been reported

against him. McDermott later claimed that he was startled and confused by the

accusation.

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[¶10.] Jackson first interviewed McDermott, and when he began questioning

him about the previous evening’s events, McDermott asked to use the bathroom.

Because of the nature of the accusation, Jackson requested to see McDermott’s

genitals before he used the bathroom. McDermott consented, and Jackson did not

see anything out of the ordinary during his inspection. After Detective Hower

searched the dorm room, he interviewed McDermott. McDermott denied having sex

with J.O.; however, he admitted that he had rubbed J.O.’s vaginal area. He claimed

that he stopped when she said she was menstruating. He consented to a penile

swab, and Detective Hower collected two swabs and had them sent to the State

Forensic Laboratory for DNA testing.

[¶11.] On December 15, 2020, McDermott was indicted on one count of third-

degree rape in violation of SDCL 22-22-1(3), alleging he committed an act of sexual

penetration with a person “incapable, because of physical or mental incapacity, of

giving consent to such act[.]” During a three-day jury trial in June 2021, multiple

witnesses testified for the State, including J.O., her sister, their roommates, and

Cory. The State also presented testimony from Detective Hower, Dr. Mortinsen,

and Molly Raber, a DNA analyst from the State Forensic Laboratory.

[¶12.] Raber testified that she produced four reports as part of her testing of

the evidence in this case. The reports were admitted as exhibits. She also

explained the methods she used for DNA testing, including autosomal short tandem

repeat (STR) testing and Y chromosome short tandem (Y-STR) testing that targets

male DNA. She also testified that she conducted serology testing. She then

explained the results she obtained for each swab or sample she tested.

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[¶13.] According to Raber, J.O.’s vaginal-cervical swab tested positive for the

presence of male DNA, but there was not enough DNA for her to obtain an STR or

Y-STR profile to make a comparison to any individual. She was not able to obtain

sufficient DNA from the tampon to conduct either STR or Y-STR testing. However,

through serology testing, she was able to identify the presence of seminal fluid on

the tampon. The serology testing on the tampon did not reveal the presence of

sperm cells in the seminal fluid. Raber explained that the lack of sperm cells

indicates that the fluid on the tampon was pre-ejaculate.

[¶14.] Raber’s STR testing on J.O.’s anal swab indicated the presence of male

DNA, along with J.O.’s DNA. She was able to obtain a partial Y-STR profile, which

was consistent with McDermott’s DNA. She opined that the presence of

McDermott’s DNA could have resulted from his penis rubbing J.O.’s anus when he

penetrated her vaginally from behind. Through STR testing on J.O.’s neck swab,

Raber determined that the major contributor matched McDermott’s DNA profile,

while J.O. was the minor contributor. Raber also obtained a Y-STR profile from

J.O.’s oral swab and determined that it was consistent with McDermott’s profile.

[¶15.] STR testing of the cutting from J.O.’s underwear revealed a mixture of

DNA with the major contributor being J.O., but there was insufficient DNA to make

further comparisons to determine the source of the minor contributor. However,

Raber was able to obtain a Y-STR profile, which indicated the presence of DNA from

two males. She testified that the Y-STR profile for the major contributor was

consistent with McDermott’s profile. She explained that the minor contributor to

the Y-STR profile could be a second male, or it might have been an artifact from the

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type of testing conducted. She further explained that DNA can be transferred onto

clothing in washing machines or from others handling the clothing.

[¶16.] Raber’s STR testing on McDermott’s penile swab revealed a mixture of

DNA from two individuals. The DNA profile of the major contributor matched

J.O.’s DNA profile, while the DNA profile of minor contributor was consistent with

McDermott’s DNA. When asked about the significance of J.O. being the major

contributor and McDermott being the minor contributor, Raber explained that this

result made it more likely that J.O.’s DNA was from a bodily fluid, rather than from

touch DNA. Raber then conducted serology testing on the penile swab in an

attempt to identify what type of fluid might be present. The forensic laboratory

does not currently have the ability to determine through serology testing whether a

swab contains vaginal secretions, but it can test for the presence of blood or saliva,

neither of which were detected on McDermott’s penile swab. Raber thus opined

that the DNA and serology test results were consistent with vaginal-penile

penetration.

[¶17.] At the close of the State’s case, McDermott moved for judgment of

acquittal. In denying the motion, the circuit court explained that J.O.’s “testimony

in and of itself establishes a prima facie case for every element of the offense.” The

court further noted that J.O.’s testimony is corroborated by the testimony of Dr.

Mortinsen and Raber.

[¶18.] McDermott testified in his defense. His version of the events leading

up to the boys joining the girls in J.O.’s dorm was consistent with the testimony

provided by others. Although he agreed with J.O.’s testimony that the two began

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kissing after they entered the bottom bunk, he testified that their kissing and

touching led to his boxers and her shorts being lowered. He also claimed that J.O.’s

hand was on his penis and his hand was on her vaginal area and they were “kissing

and rubbing.” According to McDermott, J.O. then told him that she was

menstruating, and he said he was not “really into that.” He claimed that he pulled

his boxers back up and they continued kissing for about five minutes before going to

sleep. McDermott testified that although he had multiple drinks over the course of

a few hours, he “was coherent” and “knew what was going on.” After he and J.O.

fell asleep, the next thing he recalled was law enforcement in the room telling him

that he had been accused of sexually assaulting J.O.

[¶19.] The jury found McDermott guilty of third-degree rape, and the circuit

court sentenced him to ten years in prison with eight years suspended. McDermott

appeals, asserting that the circuit court erred in denying his motion for judgment of

acquittal.

Analysis and Decision

[¶20.] McDermott notes that an essential element of third-degree rape under

SDCL 22-22-1(3) is penetration. He further acknowledges that penetration is

defined to include “an act, however slight, of sexual intercourse . . . into the genital

. . . opening[] of another person’s body.” SDCL 22-22-2. McDermott argues,

however, that the evidence at trial was insufficient to support his conviction

because the element of penetration could not be proven beyond a reasonable doubt.

In particular, he claims that the DNA “evidence only proves that [his] DNA profile

was on [J.O.’s] neck, underwear, and mouth,” not in her vagina. He further asserts

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that “the theory that [he] was able to not only penetrate her vagina, but also push

her tampon so deep inside of her with his penis that it was unreachable, without

any blood being transferred onto him or his DNA being transferred to the vagina or

tampon is improbable” and raises “significant reasonable doubt that vaginal

penetration occurred.”

[¶21.] “[A] motion for judgment of acquittal attacks the sufficiency of the

evidence[.]” State v. Ahmed, 2022 S.D. 20, ¶ 14, 973 N.W.2d 217, 221 (alteration in

original) (citation omitted). Our standard of review on a sufficiency of the evidence

claim is well established.

“A question regarding the sufficiency of the evidence to sustain a conviction is reviewed de novo.” State v. McReynolds, 2020 S.D. 65, ¶ 11, 951 N.W.2d 809, 814. When reviewing the sufficiency of the evidence, the Court considers “[w]hether there is evidence in the record which, if believed by the fact finder, is sufficient to sustain a finding of guilt beyond a reasonable doubt.” State v. Wolf, 2020 S.D. 15, ¶ 13, 941 N.W.2d 216, 220 (citation omitted). On review, the Court “accept[s] the evidence and the most favorable inferences that can be fairly drawn from it that support the verdict.” Id. (quoting State v. Carter, 2009 S.D. 65, ¶ 44, 771 N.W.2d 329, 342). This Court does not “resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence on appeal. If the evidence including circumstantial evidence and reasonable inferences drawn therefrom sustain a reasonable theory of guilt, a guilty verdict will not be set aside.” Id. (quoting Carter, 2009 S.D. 65, ¶ 44, 771 N.W.2d at 342).

State v. Krouse, 2022 S.D. 54, ¶ 34, 980 N.W.2d 237, 247 (quoting Ahmed, 2022 S.D.

20, ¶ 14, 973 N.W.2d at 221).

[¶22.] While McDermott quotes the above standard of review, his argument

on appeal focuses almost exclusively on his view that “[t]he DNA results do not

prove beyond a reasonable doubt that actual penetration occurred as required by

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SDCL 22-22-1(3).” But the State was not limited to proving vaginal penetration

through DNA evidence. As the circuit court aptly noted, J.O.’s testimony alone

would be sufficient to prove the elements of third-degree rape under SDCL 22-22-

1(3), including penetration.

[¶23.] Under SDCL 22-22-1(3), “[r]ape is an act of sexual penetration

accomplished with any person . . . incapable, because of physical or mental

incapacity, of giving consent to such act[.]” “Sexual penetration” is defined in SDCL

22-22-2 as “an act, however slight, of sexual intercourse, cunnilingus, fellatio, anal

intercourse, or any intrusion, however slight, of any part of the body or of any object

into the genital or anal openings of another person’s body.”

[¶24.] Here, the jury heard evidence indicating consensual sexual activity

between J.O. and McDermott that did not include penetration. The jury also heard

testimony from J.O. that during this consensual activity, she asked him to stop and

he did not stop right away. More critically, yet ignored by McDermott in his

arguments on appeal, J.O. specifically testified that after McDermott eventually

stopped and she fell asleep, she woke to find his penis inside her vagina and her

shorts and underwear down to her thighs. She testified that she asked him to stop,

but he did not. As Raber testified, the evidence of J.O. being the major contributor

to the DNA on McDermott’s penile swab, most likely from J.O.’s bodily fluids, is

consistent with J.O.’s description of vaginal-penile penetration. Her further

determinations that the Y-STR profiles obtained from J.O.’s anal swab and from

J.O.’s underwear were consistent with McDermott’s DNA also supported the jury’s

verdict.

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[¶25.] In addition, the jury heard J.O.’s testimony about her inability to

locate the tampon inside her vagina after these events. Dr. Mortinsen testified that

during his pelvic exam of J.O., he could not locate J.O.’s tampon when he initially

inserted a speculum inside J.O.’s vaginal canal. When he eventually located the

tampon, he noted its string and the tampon itself were both pressed up against the

cervix at the end of the vaginal canal and he had to use forceps to remove it. He

agreed these findings were consistent with the tampon being pressed up “there by a

penis entering the vagina.” Moreover, the serology testing identified seminal fluid

on both the tampon and the vaginal-cervical swab, and there was no evidence in the

record suggesting that J.O. had sexual contact with anyone other than McDermott

on the night in question.

[¶26.] While McDermott offers an alternative explanation for why the DNA

and serology results could be consistent with his version of the events in question

and contends that these results support the existence of reasonable doubt, “[t]his

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

evaluate the weight of the evidence.” See State v. Brim, 2010 S.D. 74, ¶ 6, 789

N.W.2d 80, 83 (citation omitted). Rather, “[t]he jury is the exclusive judge of the

credibility of witnesses” and determines the weight to be accorded to the evidence

presented. State v. Thoman, 2021 S.D. 10, ¶ 37, 955 N.W.2d 759, 771 (citation

omitted). This includes an assessment of the credibility of both J.O.’s and

McDermott’s testimony, as well as the DNA evidence. As this Court has explained,

“the relevant question is not whether certain evidence was absent from trial; the

relevant question is whether ‘there is evidence in the record which, if believed by

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the fact finder, is sufficient to sustain a finding of guilt beyond a reasonable doubt.’”

State v. Hayes, 2014 S.D. 72, ¶ 41, 855 N.W.2d 668, 680 (quoting State v. Hauge,

2013 S.D. 26, ¶ 12, 829 N.W.2d 145, 149). Because there is sufficient evidence in

the record to support the jury’s verdict finding McDermott guilty of third-degree

rape, the circuit court did not err in denying his motion for judgment of acquittal.

[¶27.] Affirmed.

[¶28.] JENSEN, Chief Justice, and KERN, SALTER, and MYREN, Justices,

concur.

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