952 N.W.2d 750
S.D.2020Background
- May 4, 2018 altercation between Kevin Babcock and his former partner, Rosa Sosa, left Sosa with a skull fracture, deep head wounds, bruising and neck marks consistent with strangulation; a hospital drug screen was positive for methamphetamine.
- Grand jury indicted Babcock on multiple counts: two aggravated-assault counts (one for serious bodily injury, one alternative for dangerous weapon/extreme indifference) and two simple-assault counts; a habitual-offender information was filed but later dismissed.
- Before trial the State moved in limine to exclude evidence of Sosa’s methamphetamine use; the court granted the motion and also excluded evidence of Babcock’s drug use.
- Trial evidence: Sosa testified about being choked in the car and later hit in the head (allegedly with a railroad spike) after a brief cooling-off period; spike with apparent blood and a double-edged dagger on Babcock were recovered.
- Jury convicted Babcock of two aggravated-assault counts (serious bodily injury and dangerous weapon) and two simple-assault counts; sentence imposed and Babcock appealed, arguing error in excluding Sosa’s drug evidence and double-jeopardy/multiplicity/duplicity errors.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Babcock) | Held |
|---|---|---|---|
| Admissibility of victim's methamphetamine test | Exclusion appropriate: test not shown to prove intoxication at relevant time; admitting it would be prejudicial and distract jury | Test result relevant to Sosa’s credibility, memory, and to support self-defense theory (she was allegedly "out of control") | Court properly excluded drug-test evidence under Rule 403; no prejudice shown on the record, so no reversal |
| Multiplicity (multiple counts for same incident) | Counts reflected separate offenses supported by distinct acts (strangulation vs. spike blows; separate simple-assault acts) | All alleged acts were part of one continuous incident and thus counts should have been submitted in the alternative | No multiplicity: evidence supported distinct factual episodes and separately punishable offenses |
| Duplicity / unanimity (risk jury not unanimous on same act for a count) | Indictment not duplicitous; State largely tied acts to counts but closing was sometimes unclear | Jury could have convicted without unanimous agreement as to which act supported which count; either/or election or unanimity instruction required | Although a unanimity instruction would have been preferable, any error was not prejudicial here; plain-error review fails for lack of reasonable-probability prejudice |
| Lesser-included instruction and related lesser-offense relief | N/A | Argued simple-assault convictions were lesser-included offenses of aggravated assault and should be vacated | Forfeited (no request at trial); moreover convictions were based on separate acts, so not lesser-included in this record |
Key Cases Cited
- Estate of Holznagel v. Cutsinger, 808 N.W.2d 103 (S.D. 2011) (prior drug use evidence requires timing/foundation to show contemporaneous intoxication and impairment).
- State v. Muhm, 775 N.W.2d 508 (S.D. 2009) (defines duplicity and multiplicity; endorses either/or rule and unanimity protections).
- State v. White Face, 857 N.W.2d 387 (S.D. 2014) (duplicitous single-count risks juror division when mechanism or acts are unclear).
- Puckett v. United States, 556 U.S. 129 (U.S. 2009) (plain-error framework and high burden on appellant).
- United States v. Rush-Richardson, 574 F.3d 906 (8th Cir. 2009) (prejudice for plain error requires reasonable-probability the result would differ).
- State v. Brende, 835 N.W.2d 131 (S.D. 2013) (unanimity instruction and plain-error review).
- State v. Delehoy, 929 N.W.2d 103 (S.D. 2019) (standard for abuse of discretion review).