State v. Janis, 880 N.W.2d 76

Defendant Cleve R. Janis, Jr. was convicted by a jury of third‑degree rape (victim incapacitated by intoxication) after a wedding-night sexual assault on the victim, J.E.
J.E. was highly intoxicated at the reception, awoke to anal penetration, said “who is this?” and “stop”/“no,” and described being “frozen”; she later underwent a sexual assault exam and reported the crime.
At trial the prosecution emphasized a theme that Janis violated his wedding vows and attacked his character repeatedly from voir dire through closing. Defense theory was that the sexual encounter was consensual.
The prosecutor elicited testimony from Karen Murphy, a nurse practitioner who supervised the sexual assault exam, asking whether victims “freeze” during rape; the court sustained some objections but allowed her to say from personal experience that victims sometimes freeze.
Defense counsel reported, and the court acknowledged, an episode of spectator–juror contact during a recess; the defense declined further inquiry and asked only for a caution to the bailiff.
Janis appealed, raising (1) admission of undisclosed expert testimony, (2) juror–spectator contact, and (3) prosecutorial misconduct; the court affirmed the conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admission of Murphy’s testimony	Janis: Murphy’s statements about victims "freezing" were undisclosed expert opinion requiring pretrial notice	State: testimony was non‑expert lay opinion based on Murphy’s perception and experience	Court: admissible under SDCL 19‑19‑701 as lay opinion; trial court did not abuse discretion
Juror–spectator contact	Janis: any contact creates a presumption of prejudice requiring inquiry and reversal	State: trial court asked parties and defense consented to limited action (caution to bailiff); no further inquiry requested	Court: defendant waived complaint by consenting to court’s course; no reversal
Prosecutorial misconduct (voir dire and closing)	Janis: prosecutor improperly injected facts and repeatedly urged jurors to judge Janis’s character and broken vows, requiring reversal	State: improper comments but defense failed to object at trial, so review is for plain error; evidence supports conviction	Court: misconduct was plain error (improper character/vows theme), but Janis failed to show prejudice under plain‑error standard; conviction affirmed
Scope of plain‑error remedy	Janis: cumulative prosecutorial misconduct deprived him of fair trial	State: defendant bears burden under Olano plain‑error framework; jury instructions and evidence undermine prejudice claim	Court: exercised caution; did not find the error seriously undermined fairness to require reversal under plain‑error criteria

State v. Johnson, 860 N.W.2d 235 (S.D. 2015) (standard of review for expert‑testimony rulings)
State v. Kvasnicka, 829 N.W.2d 123 (S.D. 2013) (expert testimony review cited)
State v. Beckwith, 871 N.W.2d 57 (S.D. 2015) (abuse of discretion defined)
Gerlach v. Ethan Coop Lumber Ass’n, 478 N.W.2d 828 (S.D. 1991) (distinguishing personal perception testimony from undisclosed expert opinion)
Freedom Wireless, Inc. v. Boston Commc’ns Grp., Inc., 369 F. Supp. 2d 165 (D. Mass. 2005) (disallowing opinion where it rested on specialized technical knowledge beyond witness’s experience)
United States v. Olano, 507 U.S. 725 (1993) (plain‑error framework for unpreserved trial errors)
United States v. Young, 470 U.S. 1 (1985) (contextual review of prosecutorial misconduct and admonition to relive full trial)
State v. Hayes, 855 N.W.2d 668 (S.D. 2014) (prosecutorial‑misconduct standards and plain‑error discussion)
State v. Janklow, 693 N.W.2d 685 (S.D. 2005) (disapproval of character‑based argument in closing)
State v. Lybarger, 497 N.W.2d 102 (S.D. 1993) (jury’s role to decide elements of offense)