#25047-a-JKM
2009 SD 106
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
VINCENT CHAD FASTHORSE, Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT
OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
* * * *
HONORABLE GLEN A. SEVERSON
Judge
* * * *
MARTY J. JACKLEY
Attorney General
ANDREW KNECHT
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.
TRACI SMITH
Office of Minnehaha County
Public Defender Attorneys for defendant
Sioux Falls, South Dakota and appellant.
* * * *
ARGUED ON OCTOBER 6, 2009
OPINION FILED 12/09/09
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MEIERHENRY, Justice
[¶1.] A jury found Vincent Fasthorse guilty of kidnapping, aggravated
assault, and rape. Fasthorse appeals. We affirm.
FACTS AND BACKGROUND
[¶2.] On September 14, 2007, Fasthorse attended a house party at his
uncle’s residence. A.S. was also at that party. As the party was ending, A.S. and
Fasthorse agreed he would give her a ride to her boyfriend’s house. Fasthorse,
however, drove A.S. past her boyfriend’s house and continued to a country road
where he turned onto a trail that led into a cornfield.
[¶3.] After parking the car, Fasthorse attempted to kiss A.S. She recoiled
from his advance and got out of the vehicle. She tried to escape by running back to
the country road. Fasthorse ran after her and was able to catch her by tripping her.
Fasthorse forced A.S. to return to the vehicle and into the back seat. He then raped
her twice. After the second rape, A.S. fled and ran toward the country road where
she was picked up by a Good Samaritan who gave her a ride home. A.S.
subsequently went to the hospital emergency room where she was examined by a
physician. The physician, as part of the examination, performed a rape kit. A.S.
suffered injuries in addition to those directly associated with the rape. The police
were contacted, and an officer interviewed her about what had taken place. At all
times A.S. maintained that Fasthorse was the person responsible for the rape and
injuries she sustained.
[¶4.] At trial, Fasthorse claimed A.S.’s rendition of the facts was not
supported by forensic evidence. A.S. told the medical personnel attending to her
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injuries that she had not had sex with any other person in the 72 hours preceding
the rape. Fasthorse argued DNA evidence contradicted A.S.’s testimony, in that,
the sperm cell fraction from her underwear revealed DNA from at least three
contributors. The test revealed the presence of equal concentrations of DNA from
both Fasthorse and A.S.’s boyfriend. Equal DNA concentrations indicated the two
sexual encounters likely occurred within 12 to 24 hours of each other. This
scientific evidence stood in contrast to A.S.’s statements to medical staff that she
had not had sexual intercourse in the 72 hours before the rape. The trial court did
not allow Fasthorse to cross-examine A.S. or medical personnel about the
discrepancy between A.S.’s claim regarding her lack of sexual activity and DNA
evidence. Fasthorse was able, however, to cross-examine the State’s DNA expert
concerning A.S.’s conflicting testimony.
[¶5.] At the time of trial, A.S. was serving a sentence in the county jail for
maintaining a drug house. Fasthorse argued A.S.’s conviction on drug charges was
relevant to impeach her credibility concerning prior drug use, bias, or her motive in
testifying against Fasthorse. The trial court prohibited Fasthorse from introducing
evidence of the conviction on the basis that it was irrelevant or without proper
foundation.
ISSUES
1. Whether there was sufficient evidence to support the jury verdict
finding Fasthorse guilty of kidnapping and aggravated assault.
2. Whether the method of selecting potential jurors denied Fasthorse
due process rights under the Sixth and Fourteenth Amendments to
the United States Constitution, and Article VI, Section 7 of the
South Dakota Constitution.
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3. Whether limiting Fasthorse’s cross-examination of A.S. denied him
the right to a fair trial pursuant to Article VI, Sections 2 and 7 of
the South Dakota Constitution, and the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution.
ANALYSIS
Kidnapping and Aggravated Assault Convictions
[¶6.] We review the sufficiency of the evidence to sustain Fasthorse’s
convictions for kidnapping and aggravated assault in the light most favorable to the
verdicts. State v. Carter, 2009 SD 65, ¶44, 771 NW2d 329, 342. The question is
whether “there is evidence in the record which, if believed by the fact finder, is
sufficient to sustain a finding of guilt beyond a reasonable doubt.” Id. (quoting
State v. Buchholz, 1999 SD 110, ¶33, 598 NW2d 899, 905). On review, this Court
will not resolve conflicts in the evidence, assess the credibility of witnesses, or
reweigh the evidence. Id. (citing State v. Shaw, 2005 SD 105, ¶19, 705 NW2d 620,
626). “If the evidence, including circumstantial evidence and reasonable inferences
drawn therefrom, sustain[s] a reasonable theory of guilt, a guilty verdict will not be
set aside.” Id. (citing Shaw, 2005 SD 105, ¶19, 705 NW2d at 626); State v. Guthrie,
2001 SD 61, ¶48, 627 NW2d 401, 421 (examining the totality of the evidence in
evaluating a conviction).
[¶7.] The crime of kidnapping in South Dakota can be accomplished by
“confin[ing] another person for a substantial period of time, with . . . the . . .
purpose[] . . . [t]o facilitate the commission of any felony[.]” SDCL 22-19-1. This
statute in relevant part provides:
Any person who, either unlawfully removes another person from
the other’s place of residence or employment, or who unlawfully
removes another person a substantial distance from the vicinity
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where the other was at the commencement of the removal, or
who unlawfully confines another person for a substantial period
of time, with any of the following purposes: . . . (2) To facilitate
the commission of any felony or flight thereafter[.]
Id. We have previously determined that the confinement contemplated by SDCL
22-19-1 must be in addition to that used to effectuate the rape and not “merely
incidental” to it. State v. Curtis, 298 NW2d 807 (SD 1980); State v. Reiman, 284
NW2d 860 (SD 1979). We have referred to this additional confinement requirement
as the Curtis-Reiman test. The Curtis-Reiman test is “meant to prevent the
injustice which would occur if a defendant could be convicted of kidnapping where
the only restraint utilized was that necessary to complete the act of rape.” State v.
Reyes, 2005 SD 46, ¶41, 695 NW2d 245, 258. Attendant with this test is the “need
for some increased risk of harm” as a result of the kidnapping. Id.
[¶8.] Fasthorse claims he could not have been convicted of kidnapping
because the only confinement of A.S. was incidental to the rape. A.S. testified
Fasthorse was to drive her to her boyfriend’s house. Fasthorse, however, did not
stop at the boyfriend’s house but instead drove past the house and into the country
without taking notice of A.S.’s objections. Fasthorse then secluded her in a
cornfield, ran after her when she tried to escape, tripped her, dragged her back to
the vehicle, and forced her into the back seat. All these actions went beyond those
associated with confinement incidental to the rape. See Curtis, 298 NW2d 807;
Reiman, 284 NW2d 860. Additionally, taking A.S. to a remote location increased
the risk of harm to her. Reyes, 2005 SD 46, ¶41, 695 NW2d at 258 (“‘Most
movement of rape victims by their attackers is designed to seclude the victim from
possible assistance and to prevent escape – which inevitably increases the risk of
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harm to the victim.’” (quoting State v. Running Bird, 2002 SD 86, ¶26, 649 NW2d
609, 614-15)). See also State v. Lykken, 484 NW2d 869 (SD 1992) (stating the
Curtis-Reiman test is “not meant to allow a rapist a free kidnapping because he also
commits a rape”). After viewing these facts in the light most favorable to the jury’s
verdict, we conclude Fasthorse’s confinement of A.S. was more than incidental to
the rape. Therefore, the jury had a sufficient basis to find Fasthorse guilty of
kidnapping and the verdict is affirmed.
[¶9.] Aggravated assault in South Dakota is governed by SDCL 22-18-1.1,
which provides in relevant part that “any person who: (1) attempts to cause serious
bodily injury to another, or causes such injury, under circumstances manifesting
extreme indifference to the value of human life . . . is guilty of aggravated assault.”
Id. Fasthorse argues on appeal that the evidence presented at trial was insufficient
to sustain an aggravated assault conviction. He claims the evidence did not show
A.S. had suffered “serious bodily injury” as required by SDCL 22-18-1.1.
[¶10.] Fasthorse argues serious bodily injury “means an injury which is grave
and not trivial, and which gives rise to apprehension of danger to life, health, and
limb.” State v. Bogenreif, 465 NW2d 777, 780 (SD 1991) (quoting State v. Janisch,
290 NW2d 473, 476 (SD 1980)). Furthermore, Fasthorse claims A.S.’s injuries did
not constitute serious bodily injury. Fasthorse suggests A.S.’s relatively short
three-hour hospital stay, the nurse’s description of A.S.’s condition as “good” except
for some minor scratches and abrasions, and lack of life-threatening injuries
demonstrate that no serious bodily injuries were present. Fasthorse’s argument,
however, overlooks the definition of aggravated assault which includes “attempts to
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cause serious bodily injury . . . under circumstances manifesting extreme
indifference to the value of human life.”
[¶11.] Trial testimony established that Fasthorse punched, choked, and
threatened to shoot and kill A.S. He also tripped her and dragged her back to the
vehicle. This evidence was sufficient for the jury to determine that Fasthorse
“attempt[ed] to cause serious bodily injury . . . under circumstances manifesting
extreme indifference to the value of human life” to A.S. See Carter, 2009 SD 65,
¶44, 771 NW2d at 342. The jury’s verdict finding Fasthorse guilty of aggravated
assault is affirmed.
Systematic Exclusion of Jurors
[¶12.] Fasthorse claims the method of selecting jurors at his trial amounted
to a systematic violation of his due process rights under the Sixth and Fourteenth
Amendments to the United States Constitution, as well as Article VI, Section 7 of
the South Dakota Constitution. Fasthorse’s claims are similar to those raised and
recently addressed in State v. Wright. 2009 SD 51, 768 NW2d 512. As in Wright,
Fasthorse is unable to establish that the jury selection process systematically
excluded people on the basis of race. Thus, he has failed to show a violation of his
due process rights.
Cross-Examination of Witnesses
[¶13.] Fasthorse argues he was denied a fair trial guaranteed by the Sixth
Amendment to the United States Constitution and Article VI, Section 7 of the South
Dakota Constitution because he was not permitted to confront and cross-examine
witnesses testifying against him. Fasthorse cites to Bogenreif, wherein we said
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“‘[e]xposure of a witness’ motivation in testifying is a proper and important function
of the constitutionally protected right of cross-examination.’” 465 NW2d at 782
(quoting Delaware v. Van Arsdall, 475 US 673, 106 SCt 1431, 89 LEd2d 674 (1986)).
Specifically, Fasthorse claims he was denied his constitutional right to cross-
examine A.S. about her post-rape arrest stemming from a drug charge and her
statements to medical personnel that she had not had sexual relations with anyone
in the 72 hours leading up to the rape.
[¶14.] We review evidentiary rulings by trial courts under the abuse of
discretion standard. Carter, 2009 SD 65, ¶31, 771 NW2d at 338. The trial court’s
rulings “are presumed correct” on review. Id. (quoting State v. Larson, 1998 SD 80,
¶10, 582 NW2d 15, 17). We have stated “a trial court’s ruling on limiting cross-
examination will be reversed on appeal only when there is a clear abuse of
discretion as well as a showing of prejudice to the defendant.” Id. (citing State v.
Koepsell, 508 NW2d 591, 595 (SD 1993)). Prejudice to the defendant “results when
‘a reasonable jury probably would have a significantly different impression if
otherwise appropriate cross-examination had been permitted.’” Id. (citing State v.
Johnson, 2007 SD 86, ¶35, 739 NW2d 1, 13 (quoting Koepsell, 508 NW2d at 595)).
Furthermore, the trial court’s decision to exclude certain subjects on cross-
examination is subject to the following test:
The correct inquiry is whether, assuming that the damaging
potential of cross-examination were fully realized, a reviewing
court might nonetheless say that the error was harmless beyond
a reasonable doubt. Whether such an error is harmless in a
particular case depends upon a host of factors, all readily
accessible to reviewing courts. These factors include the
importance of the witness’ testimony in the prosecution’s case,
whether the testimony was cumulative, the presence or absence
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of evidence corroborating or contradicting the testimony of the
witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the
prosecution’s case.
Id. (citing Koepsell, 508 NW2d at 595 (quoting Van Arsdall, 475 US at 684, 16 SCt
at 1438 (citing Harrington v. California, 395 US 250, 89 SCt 1726, 23 LEd2d 284
(1969)))).
[¶15.] In this case, the trial court determined that cross-examination of A.S.
about her arrest on a drug charge was not relevant to her testimony about the rape.
When asked how this information was relevant at trial, Fasthorse’s counsel offered
that it was relevant to A.S.’s “ability to recall events.” The trial court found
Fasthorse was trying to attack A.S.’s character in an impermissible manner. We
agree with the trial court. The inference Fasthorse was attempting to make about
A.S.’s familiarity with drugs and her drug-using lifestyle was not relevant to
whether she was raped. Nevertheless the jury was made aware that she had been
convicted of a felony. She testified that she was a convicted felon, and the trial
court instructed the jury that her conviction could be considered in judging her
credibility. Under these circumstances, Fasthorse has failed to show that the trial
court abused its discretion.
[¶16.] The second excluded topic on cross-examination dealt with the
discrepancy between the DNA evidence and A.S.’s testimony and statements about
not having sexual intercourse with anyone 72 hours prior to the rape. The trial
court did not allow Fasthorse to question A.S. about her prior sexual conduct. The
trial court originally excluded this evidence based on SDCL 23A-22-15, which
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prohibits evidence of a rape victim’s prior sexual conduct. The statute provides in
relevant part:
In prosecutions for a sex offense under chapter 22-22, evidence
of specific instances of a victim’s prior sexual conduct shall not
be admitted nor reference made thereto before the jury or jury
panel, except as provided in this section. Whenever a party
proposes to offer evidence concerning a victim’s prior sexual
conduct, the court shall first conduct a hearing in the absence of
the jury and the public to consider and rule upon the relevancy
and materiality of the evidence.
Id. The trial court ruled A.S.’s statements about her recent sexual activity were not
relevant and the proper foundation had not been laid for the introduction of such
evidence. At the time of the trial court’s ruling, there had been no showing of its
relevance because the DNA test results indicating multiple DNA contributors had
not been introduced. At that point in the trial, the relevance and foundation had
not been established. Consequently, Fasthorse has not shown that the trial court
abused its discretion.
[¶17.] Even if the trial court’s ruling was in error, Fasthorse cannot
demonstrate he was prejudiced by the limited cross-examination. The results of the
DNA tests were eventually presented to the jury, which revealed the presence of
DNA from A.S., her boyfriend, Fasthorse, and an unknown contributor. Counsel for
Fasthorse admitted in appellate oral argument she could have asked to re-open
A.S.’s cross-examination on this subject once relevance and foundation were
established. Fasthorse chose not to as a matter of trial strategy. Even so,
Fasthorse’s theory of the case was fully presented to the jury in closing argument,
including the impeaching nature of the DNA evidence. Fasthorse has not shown “a
reasonable jury probably would have [come] to a significantly different impression”
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had he been able to cross-examine A.S. on the DNA results or the specifics of her
drug conviction. Johnson, 2007 SD 86, ¶35, 739 NW2d at 13. Therefore, the trial
court is affirmed on this issue.
[¶18.] The trial court is affirmed on all issues.
[¶19.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER,
Justices, and SABERS, Retired Justice, concur.
[¶20.] SABERS, Retired Justice, sitting for SEVERSON, Justice, disqualified.
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