State v. Packed

2007 SD 75, 736 N.W.2d 851, 2007 S.D. LEXIS 138, 2007 WL 2059836
CourtSouth Dakota Supreme Court
DecidedJuly 18, 2007
Docket24040
StatusPublished
Cited by46 cases

This text of 2007 SD 75 (State v. Packed) 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.

Bluebook
State v. Packed, 2007 SD 75, 736 N.W.2d 851, 2007 S.D. LEXIS 138, 2007 WL 2059836 (S.D. 2007).

Opinions

KONENKAMP, Justice.

[¶ 1.] Defendant was convicted in a jury trial of first degree rape and sexual contact with a child who lived in his home. He was sentenced to life plus twenty-five years. Because we conclude that several trial errors deprived him of a fair trial, we reverse and remand for a new trial.

Background

[¶ 2.] E.S.B., who was eight at the time of the incidents in question, lived with Shanna and Fred Packed, Jr. (defendant). The child referred to them as “mom” and “dad,” but Shanna is actually E.S.B.’s maternal grandmother. According to Shanna, E.S.B.’s natural mother, Betty Du-Bray, and natural father, Gordon DuBray, “didn’t want her,” and so the child moved in with Shanna when she was two. In the summer of 2003, Shanna, defendant, and E.S.B. lived in a brown house in Martin, South Dakota. Her natural mother and father lived at Sunrise Housing Addition, several miles away.

[¶ 3.] Around June 6, 2003, Shanna was hospitalized in Rapid City, South Dakota with a broken jaw. According to Shanna, defendant drove her to Rapid City. Shanna recounted that while she was in the hospital, defendant was E.S.B.’s primary caretaker. During this same time, defendant said he was working two jobs. When Shanna returned from the hospital, she noticed some blood in E.S.B.’s underwear and questioned her about it. E.S.B. denied that anything had happened to her and said that the underwear belonged to her sister. Shanna did nothing further.

[¶ 4.] Later that summer or early fall, Shanna, defendant, and E.S.B. moved into a blue house in Sunrise Housing Addition. They were now living close to E.S.B.’s natural mother, Betty. In September 2003, Shanna and Betty noticed “a light green stain” on E.S.B.’s underwear. She and Betty questioned E.S.B. about it. According to Shanna, Betty angrily asked E.S.B. who had been messing around with her. When E.S.B. gave no response, Betty asked if “Gordon” or “Fred” had been messing around with her, to which E.S.B. replied that Fred (defendant) had. According to Betty, she did not do anything with this information, except leave the room upset.

[¶ 5.] In January 2004, the Department of Social Services (DSS) received a report about alleged abuse of E.S.B. A social worker investigated by first speaking with E.S.B. at her school in Allen, South Dakota. E.S.B. was in the third grade. She told the DSS worker that defendant had touched her sometime between Halloween [854]*854and Thanksgiving and her mom, Shanna, had found baby oil when they moved. She also told the social worker that her younger sister was there and saw it all happen. Although the authorities first thought E.S.B. was describing abuse that had occurred recently, they later realized that E.S.B. was speaking about an incident of improper touching that had happened while she was living in the brown house the previous summer.

[¶ 6.] Law enforcement officers continued their investigation. They spoke with Shanna and attempted to collect the underwear and baby oil as evidence. The underwear had been washed, but Shanna gave it to them anyway. She also gave them the bottle of baby oil. Shanna told the officers that when she noticed the stain in the underwear she told defendant about it and he told her to take E.S.B. to the doctor. Shanna also told the authorities about a neighbor boy who had called her, swore at her, and said rude things to her, all while claiming he was E.S.B.’s boyfriend. Sheriff John Walker gave the information about the neighbor boy, D.H., to Martin City Police Chief Shane Valendra. Nothing else was done with regard to this information by Sheriff Walker or Police Chief Valendra.

[¶ 7.] Police Chief Valendra and Sheriff Walker took E.S.B. and her younger sister to Rapid City for a forensic interview and medical examination. Lora Hawkins conducted a forensic interview of E.S.B. and Dr. Lori Strong, a pediatrician specializing in the field of child abuse, examined her. The videotape recording of E.S.B.’s interview shows a shy and reticent child, who volunteered little information. Each bit of detail about the incidents had to be painstakingly obtained with careful, age-appropriate questions. The interview lasted approximately forty-five minutes. When the questions centered on inconsequential activities, E.S.B. answered without reluctance. However, when questioned about defendant and inappropriate touching, E.S.B.’s demeanor noticeably changed. Her answers were reserved and given in a low voice.

[¶ 8.] E.S.B. told Hawkins that defendant had touched her four times in her room in the brown house while her mom was in the hospital. She also said that he touched her “peaches” with his hand. Later during the interview she said that defendant had laid on top of her with her pants down and touched her “peaches” with his “hot dog.” This was after E.S.B. repeatedly stated that her pants were up, as were his, and that he never went inside her underwear. During the interview, Hawkins left to speak with Sheriff Walker and Police Chief Valendra to see if there was anything they wanted her to explore. When she returned, she questioned E.S.B. about the baby oil and whether her younger sister was in the room when the touching occurred. E.S.B. denied that her younger sister was there and had no information about the baby oil. Nothing was asked of her about D.H., the neighbor boy.

[¶ 9.] Defendant was indicted on charges of first degree rape of a child under ten and sexual contact with a child under sixteen “on or between June, 2003 and January 6, 2004.” Defendant moved for a bill of particulars, which was granted. The State filed the bill limiting the time of the alleged offense to “on or between June 6-11, 2003.” At trial, upon motion of the defense, the time frame was further limited to “on or between June 6-9, 2003.” When the indictment was read to the jury, the State agreed to modify the time frame to comply with the agreed dates. Also, in the court’s preliminary jury instructions, the dates recited were “on or between June 6-9, 2003.”

[855]*855[¶ 10.] Before trial, the State moved in limine to preclude defendant from presenting evidence of a third-party perpetrator. Defense counsel responded that what he intended to introduce was not necessarily third-party perpetrator evidence. He intended to cross examine Shanna, Sheriff Walker, and E.S.B. about the neighbor boy, D.H., and how Shanna and Betty had concerns about E.S.B. “running around” with him. This line of questioning, counsel asserted, supported his theory of the defense that E.S.B. was fabricating the allegations against defendant to avoid getting in trouble for having a boyfriend. The court granted the State’s motion in limine, concluding that nothing linked D.H. to the alleged crimes, and thus, as third-party perpetrator evidence, it was inadmissible.

[¶ 11.] While testifying at trial, E.S.B. was even more reticent than when she was interviewed by the forensic interviewer. On a number of occasions, the State had to repeat its questions before she would respond. On the specifics of the rape charge, she said that while her underwear was down and defendant’s pants and underwear were down, defendant touched her “middle” with his “middle.” Shanna and Betty also testified. They described how they found the stains in E.S.B.’s underwear and questioned her about it. Shanna was asked about D.H. by defense counsel in an offer of proof outside the presence of the jury. She acknowledged that she had concerns. Betty admitted to angrily questioning E.S.B. with Shanna there.

[¶ 12.] Sheriff Walker testified that he felt Shanna was uncooperative during the investigation.

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Cite This Page — Counsel Stack

Bluebook (online)
2007 SD 75, 736 N.W.2d 851, 2007 S.D. LEXIS 138, 2007 WL 2059836, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-packed-sd-2007.