985 N.W.2d 743
S.D.2023Background
- Manning, a family friend who frequently babysat the Ahoe children, was accused by seven-year-old B.A. of repeated anal penetration occurring both in the family office and in her bedroom.
- B.A.’s detailed forensic interview described penetration, orgasmic "white stuff," and instructions to keep quiet; the CAC nurse practitioner examined B.A. and found no physical trauma.
- DNA testing of office items detected a sperm match to B.A.’s father and excluded Manning; other samples excluded Manning or were inconclusive.
- A jury convicted Manning of two counts of first-degree rape and two counts of sexual contact with a child under 16; the court entered judgment and sentenced only on the two rape convictions to consecutive 60-year terms.
- Manning appealed, raising sufficiency of the evidence, double jeopardy/multiplicity, improper witness bolstering, courtroom closure during voir dire, Eighth Amendment and abuse-of-discretion sentencing claims, and ineffective assistance of counsel; the South Dakota Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Manning) | Held |
|---|---|---|---|
| 1) Sufficiency of evidence for two first-degree rape convictions | B.A.’s in-court statement and forensic interview alone (corroborated by others) establish anal penetration of a child <13 beyond a reasonable doubt | DNA excluded Manning and medical exam showed no trauma, so evidence insufficient to prove penetration | Affirmed: viewing evidence in State’s favor, B.A.’s testimony and corroborating evidence supported convictions |
| 2) Double jeopardy / multiplicity of charging rape and sexual contact for same acts | Prosecutor may present alternative theories; court sentenced only on rape counts so no multiple punishment occurred | Charging and convicting on both rape and sexual contact for same conduct violated double jeopardy / indictment was multiplicitous | Affirmed: no double jeopardy or multiplicity violation because no judgments or sentences were entered on the sexual contact counts |
| 3) Alleged improper bolstering / vouching of child witnesses by court and prosecutor | Colloquies and prosecutor remarks were foundational and fair comments on credibility, not improper vouching | Colloquies and closing argument vouched for the child witnesses and improperly influenced the jury | Affirmed: questioning to ensure child understood truth/lie and prosecutor’s comments were permissible credibility arguments, not vouching |
| 4) Closure of courtroom during voir dire | No evidence supports closure; no closure order or contemporaneous record; defendant and counsel did not know of any closure | Affidavit from defendant’s mother asserts courtroom was closed and a sign posted; closure requires reversal as structural error | Affirmed: court did not abuse discretion in denying new trial—record lacks corroboration and motion was untimely/undeveloped |
| 5) Eighth Amendment / sentencing abuse of discretion (two consecutive 60-year terms) | Sentence is within statutory range; rape of a child is severe; court properly considered PSI and psychosexual evaluation and aggravating factors | Consecutive 60-year terms amount to an effectively life sentence and are grossly disproportionate | Affirmed: sentence not grossly disproportionate; court did not abuse discretion given defendant’s history, evaluator findings, and public-safety concerns |
| 6) Ineffective assistance of counsel | Trial counsel’s omissions (multiplicity challenge, bolstering objections) had no merit; voir dire claim needs a fuller record and is better raised in habeas | Counsel failed to preserve important objections and failed to pursue the direct appeal, prejudicing Manning | Affirmed in part and deferred in part: claims based on preserved issues lack merit; voir dire-related IAC not addressed on direct appeal (record inadequate) |
Key Cases Cited
- State v. Seidel, 953 N.W.2d 301 (S.D. 2020) (jury is exclusive judge of credibility; appellate sufficiency review defers to jury)
- State v. Snodgrass, 951 N.W.2d 792 (S.D. 2020) (limits on improper vouching and role of jury on credibility)
- State v. Brammer, 304 N.W.2d 111 (S.D. 1981) (rape and sexual contact are mutually exclusive when based on same conduct)
- State v. Bausch, 889 N.W.2d 404 (S.D. 2017) (vacating sexual contact convictions when punishment duplicated rape conviction)
- State v. Babcock, 952 N.W.2d 750 (S.D. 2020) (double jeopardy protects against multiple punishments; multiplicity doctrine explained)
- Presley v. Georgia, 558 U.S. 209 (2010) (right to public trial extends to voir dire)
- Kennedy v. Louisiana, 554 U.S. 407 (2008) (recognition of extreme gravity of child rape in Eighth Amendment analysis)
- State v. Chipps, 874 N.W.2d 475 (S.D. 2016) (framework for gross disproportionality and Eighth Amendment review)