949 N.W.2d 395
S.D.2020Background
- Victim K.S., diagnosed with Benson’s Syndrome (dementia), lived in a dementia care facility and had significant cognitive and functional impairments by late 2016.
- On November 18, 2016, Roger Jackson — who visited K.S. at the facility despite family restrictions — took her off campus for about two hours; staff later found discharge in her adult undergarment.
- A sexual assault exam and lab testing found seminal fluid in K.S.’s undergarment; DNA testing did not exclude Jackson as the source. Jackson gave varying statements admitting some sexual contact but claiming impotence and uncertainty about penetration.
- Jackson was indicted for third-degree rape under SDCL 22-22-1(3) (sexual penetration of a person incapable of consenting due to physical or mental incapacity), pled not guilty, and filed pretrial motions including a due-process dismissal claim based on the State’s failure to interview K.S.
- The circuit court denied dismissal, limited certain expert testimony (Daubert hearing), denied a last-minute continuance to call an additional expert, and a jury convicted Jackson; he appealed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Jackson) | Held |
|---|---|---|---|
| 1. Motion to dismiss for failure to interview victim (due process) | Denial proper; State’s failure to interview did not show bad faith and medical/staff records provided comparable evidence | Failure to interview deprived Jackson of material exculpatory evidence; dismissal or hearing required | Denied. Evidence was at most "potentially useful"; no bad faith; no dismissal required |
| 2. Whether knowledge is an element of SDCL 22-22-1(3) | Knowledge not required; Schuster controls; statute treats incapacity like statutory rape exceptions | Jackson urged revisiting Schuster and argued Jones supports a knowledge/awareness element | Affirmed. Knowledge is not an element under subsection (3); Schuster remains controlling |
| 3. Exclusion/limitation of defense expert (Dr. Swenson) | Court properly excluded speculative or non‑reliable opinions about capacity-to-consent to sex and limited timeframe under Daubert/SDCL 19-19-702 | Restrictions prevented meaningful expert support that K.S. might have had capacity; testimony on what questions should have been asked was critical | No abuse of discretion. Court reasonably limited testimony as unreliable, confusing, or cumulative |
| 4. Denial of continuance to call State’s withdrawn expert (Dr. Cherry) | Continuance unnecessary; Cherry’s expected testimony would have been cumulative and not exculpatory | Late disclosure and State’s misrepresentation prejudiced defense; continuance needed to secure Cherry | No abuse of discretion. Testimony would be cumulative of Dr. Swenson; defendant failed to show materiality or due diligence |
Key Cases Cited
- California v. Trombetta, 467 U.S. 479 (limits on government duty to preserve evidence; materiality and reasonably available comparable evidence required)
- United States v. Valenzuela-Bernal, 458 U.S. 858 (due process claim for lost access to witnesses; materiality requirement applies)
- Brady v. Maryland, 373 U.S. 83 (suppression of material, favorable evidence violates due process)
- Arizona v. Youngblood, 488 U.S. 51 (for potentially useful evidence, defendant must show bad faith by government)
- Daubert v. Merrell Dow Pharms., 509 U.S. 579 (standard for admissibility of expert scientific testimony)
- State v. Schuster, 502 N.W.2d 565 (S.D. 1993) (knowledge not an element of rape where victim incapable of consenting due to mental/physical incapacity)
- State v. Jones, 804 N.W.2d 409 (S.D. 2011) (distinguishes intoxication-based rape statute; requires proof defendant knew or reasonably should have known victim’s incapacity to consent due to intoxication)
- United States v. Agurs, 427 U.S. 97 (Brady materiality standard)