State v. Taylor

#29072-a-SRJ

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA


                                 …
STATE OF SOUTH DAKOTA,                    Plaintiff and Appellee,

      v.

COLE TAYLOR,                              Defendant and Appellant.

                                 …

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE FOURTH JUDICIAL CIRCUIT
                  LAWRENCE COUNTY, SOUTH DAKOTA

                                 …

                  THE HONORABLE MICHELLE K. COMER
                               Judge

                                 …

JASON R. RAVNSBORG
Attorney General

CHELSEA WENZEL
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff and
                                          appellee.


TIMOTHY J. BARNAUD
Belle Fourche, South Dakota               Attorney for defendant and
                                          appellant.

                                 …
                                          ARGUED
                                          APRIL 22, 2020
                                          OPINION FILED 08/19/20
#29072

JENSEN, Justice

[¶1.]        A jury convicted Cole Taylor of second-degree rape in violation of

SDCL 22-22-1(2), and sexual contact involving a second victim in violation of SDCL

22-22-7.4. Taylor appeals claiming multiple errors by the circuit court at trial and

sentencing. We affirm.

                          Facts and Procedural History

[¶2.]        On November 10, 2017, M.R. and her friend A.F. travelled to

Deadwood, South Dakota, to attend a concert. A.F. had received four concert tickets

and a one-night stay at a Deadwood hotel from her employer. The hotel room

included one king-sized bed. A.F. and M.R. attended a VIP party for about an hour

before going to the concert. A.F. and M.R. each drank alcoholic beverages at the

VIP party and during the concert.

[¶3.]        A.F. gave her two extra concert tickets to her friend, Austin Fitcher.

Fitcher told A.F. that he would bring a friend to use the last ticket. A.F. and M.R.

did not know who Fitcher planned to bring. Fitcher arrived at the concert venue

with the defendant, Cole Taylor. They met with A.F. and M.R. just as the concert

was ending. M.R. knew Taylor because they had a consensual sexual encounter in

April 2013. They had since seen each other one other time and were Facebook

friends.

[¶4.]        When the concert ended, the four of them went to a bar for drinks.

A.F. and Fitcher left the bar and returned to the hotel room. M.R. and Taylor

stayed at the bar and later joined A.F. and Fitcher at the hotel room, where they all

continued to socialize and consume alcohol. A.F. claims that Taylor held her in


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place and kissed her while she was sitting on the bed. A.F. moved away from

Taylor, but she chose not to say anything to him to avoid conflict. Later, Taylor

leaned in and kissed M.R. M.R. stopped Taylor when he tried to kiss her a second

time. M.R. and Taylor went outside to smoke, and M.R. informed him that she had

a boyfriend and did not want to do anything to jeopardize that relationship.

[¶5.]          A.F., Fitcher, and Taylor decided to go back to the bars, but M.R.

stayed at the hotel room to sleep because she felt sick. While on the dance floor at

one of the bars, Taylor came up behind A.F. and placed one hand on her breast and

his other hand on her vaginal area. A.F. walked away from Taylor and told Fitcher

what happened. Fitcher told Taylor to “knock it off,” and Taylor replied, “my bad,

my bad.” After the bars closed at 2 a.m., A.F., Fitcher, and Taylor headed back to

their hotel room. On the way, A.F. realized she had lost an item. She and Fitcher

went back to find it while Taylor continued to the hotel room.

[¶6.]          Taylor arrived at the hotel room and knocked on the door. M.R.

opened the door just far enough to let him in and then hurried back to the bed to

cover up because she had been sleeping naked, as she did every night. M.R. did not

look to see who she had let in when she opened the door. According to M.R., she

realized that she had let Taylor in when Taylor joined her in bed without any

clothing on.

[¶7.]          Once in bed, Taylor flipped M.R. onto her back, got on top of her, and

penetrated M.R. vaginally. M.R. testified that she was initially in shock and then

told Taylor to “stop” and said, “I can’t.” She was crying, hyperventilating, and

having a panic attack. Taylor shushed M.R. and tried to calm her down, after


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which he continued to vaginally penetrate her. M.R. physically attempted to hold

Taylor back, but she did not have the strength to stop him. She told Taylor to stop

multiple times.

[¶8.]        M.R. then began pulling on the edge of the bed to try and get away

from Taylor. She flipped onto her stomach and began crawling off the bed when

Taylor grabbed her by the hips and penetrated her anally. Taylor then tried to put

his penis in her mouth, but M.R. resisted by clenching her teeth. Taylor then

flipped M.R. back onto her stomach and continued to penetrate her vaginally and

anally until he ejaculated. M.R. eventually passed out. A.F. and Fitcher were not

in the room during this time.

[¶9.]        M.R. did not wake up until her alarm sounded around 7:00 a.m. She

woke up on one side of the bed with Taylor next to her. A.F. and Fitcher were on

the other side of the bed. When M.R. started to move, Taylor woke up, got on top of

her, and put himself between her legs. M.R. tried to get away, but Taylor physically

restrained her. Taylor then masturbated while on top of M.R. until he ejaculated on

her. A.F. and Fitcher were asleep in the bed while this took place.

[¶10.]       M.R. got up and immediately took a shower. After her shower, she

woke up A.F. and told her they needed to leave. M.R. and A.F. quickly packed their

belongings and left Deadwood. M.R. reported the incident to the Deadwood Police

Department on November 12, 2017.

[¶11.]       After reporting the incident, M.R. was examined at a local hospital.

Physical evidence from M.R.’s person was sent to the state forensics laboratory




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(DCI) in Pierre. M.R.’s vaginal and anal swabs tested positive for sperm cells, and

the DNA matched the known DNA profile of Taylor.

[¶12.]       A grand jury returned an indictment on July 25, 2018, charging Taylor

with second-degree rape and attempted second-degree rape of M.R. The State also

filed a part II habitual offender information alleging Taylor had two prior felony

convictions. The State separately filed an information charging Taylor with two

misdemeanor charges of sexual contact with A.F. Taylor pleaded not guilty to all

charges.

[¶13.]       At a pretrial hearing, the circuit court considered the State’s request to

introduce other act evidence in the form of two unrelated sexual assaults that two

other victims (P.R. and T.B.) alleged Taylor had committed. Taylor was initially

charged with rape in T.B.’s case, but the charge was dismissed prior to trial. In

P.R.’s case, Taylor was acquitted by a jury on the rape charges. The circuit court

determined that the State could present evidence of both prior alleged assaults at

trial.

[¶14.]       A jury trial was held on April 8-9, 2019, and the State presented

testimony on the other acts evidence from P.R. and T.B. P.R. testified that Taylor

raped her in November 2013 in her college dorm room. This was the only incident

regarding P.R. that the State gave the defense formal notice of and the circuit court

approved of prior to trial. P.R. testified that she was 19 years old at the time and

knew Taylor through her boyfriend. P.R. explained that she was texting her

boyfriend’s phone when she received text messages from a different number from

someone claiming to be her boyfriend who asked to come have sex with her. P.R.


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initially believed that the texts were from her boyfriend, but soon realized that it

was Taylor. Taylor asked if he could come to her dorm room so he could apologize

for an “event” that occurred in August 2013. P.R. explained that she allowed Taylor

in the room to apologize because she did not want to interfere with Taylor’s

friendship with her boyfriend.

[¶15.]       P.R. testified that she and Taylor talked for a short time and then

Taylor kissed her. She told him to stop, but Taylor took off her pants and held a

pillow over her face when she screamed. Taylor told her that he would take the

pillow off her face if she stopped screaming. He then vaginally penetrated her with

his penis and tried to penetrate her anally. P.R. testified that Taylor also forced her

to submit to oral sex. Taylor then penetrated P.R. vaginally a second time and

ejaculated inside of her. P.R. reported the incident to police and went to the

hospital. Evidence was presented that Taylor was charged with rape of P.R. but

acquitted by a jury.

[¶16.]       During P.R.’s cross-examination, the following exchange occurred

between P.R. and Taylor’s defense counsel:

             Q: You and Mr. Taylor had engaged in prior sexual encounters
             prior to that incident; correct?

             A: No, sir. He raped me before that.

             ...

             Q: Okay. Well, you testified back at your trial that you let him
             into your room so people could hear him apologize; correct?

             A: No. I did that because of people—if I did end up screaming,
             people would hear me. And we couldn’t do that in the car
             because that’s where he raped me before is in his car.


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#29072

Taylor’s defense counsel did not object, move to strike, or offer a curative instruction

to this evidence. On redirect examination, the State had P.R. explain that the

“event” she believed Taylor was coming to apologize for was when he raped her in

his car at a dog park in Rapid City in August 2013.

[¶17.]       The jury also heard evidence at trial about a sexual assault that was

alleged to have occurred between Taylor and his 21-year-old second cousin, T.B., in

December 2014. T.B.’s father testified at trial that T.B. had previously sustained a

traumatic brain injury in a car accident. Due to the injury, T.B. has memory issues,

needs extra time to process words, and has difficulty walking and balancing. He

also testified that T.B. is easily influenced and sometimes has the “mentality of a 6-

year-old.”

[¶18.]       T.B. testified that on December 30, 2014, Taylor asked her to take him

to the store. T.B. drove Taylor to the store and then back to her house, where they

went into T.B.’s bedroom. T.B. told the jury that Taylor slapped her in the head,

butt, and back and called her vulgar names. Taylor then penetrated her vaginally

and anally with his penis. Taylor had her get into a kneeling position and made her

perform oral sex. Taylor ejaculated on T.B.’s face. T.B. told her father what

happened when he got home. Her father called the police, and Taylor was charged

with rape. The charges involving T.B. were later dismissed against Taylor.

[¶19.]       At trial, the State offered the forensic DNA testing reports prepared by

the DCI crime lab for the cases involving P.R. and T.B. The reports were offered

into evidence through the investigating officers in each case. Each report included

an affidavit from the forensic analyst who conducted the testing, certifying that the


                                          -6-
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report contained the results of the testing and was a true and correct copy of the

report. Neither examiner was called as a witness. The report in P.R.’s case showed

that seminal fluid found on P.R.’s person matched Taylor’s DNA profile. Similarly,

the report in T.B.’s case showed that seminal fluid found on T.B.’s person and on

her underwear matched Taylor’s DNA profile. Taylor objected to both reports,

arguing that they lacked foundation, violated his Sixth Amendment right to

confront and cross-examine witnesses, and there was an inadequate chain of

custody. The circuit court admitted the evidence under SDCL 23-3-19.3. 1

[¶20.]         At the close of evidence, Taylor moved for a judgment of acquittal or,

alternatively, for a mistrial, alleging A.F. had improperly coached Fitcher before his

testimony. The circuit court denied the motions. The jury returned verdicts,

finding Taylor guilty of second-degree rape of M.R. and not guilty of attempted rape.

The jury also found Taylor guilty of two counts of sexual contact with A.F. After the


1.       SDCL 23-3-19.3 provides:

               A copy of a statement of the methods and findings of any
               examination or analysis conducted by employees of the State
               Forensic Laboratory or by a certified chemist employed by a law
               enforcement agency within the state, authenticated under oath
               by the employee, is prima facie evidence in all grand jury, court,
               parole, probation, and contested case proceedings in the State of
               South Dakota of the facts contained therein reciting the methods
               and findings.

               The statement has the same force and effect as if the person who
               performed the analysis or examination had testified in person.
               An accused person or the accused’s attorney may request that
               the person in the State Forensic Laboratory or the certified
               chemist employed by a law enforcement agency within the state,
               who conducted the examination testify in person at a criminal
               trial, parole revocation, or probation revocation, concerning the
               examination or analysis.

                                           -7-
#29072

verdicts, Taylor renewed his prior motions and, for the first time, moved for a

mistrial based on P.R.’s testimony concerning the unnoticed 404(b) evidence that

Taylor had raped her in his vehicle. The circuit court denied the motions.

[¶21.]       Prior to sentencing, Taylor admitted to the two prior felony convictions

in the part II information, enhancing the potential maximum sentence on Taylor’s

second-degree rape conviction one level: from a 50-year penitentiary sentence to a

maximum sentence of life imprisonment. The circuit court sentenced Taylor to 50

years in the penitentiary with 20 years suspended and credit for 337 days served.

The court sentenced Taylor to 337 days in county jail, with credit for time served for

the two convictions of sexual contact.

[¶22.]       Taylor raises multiple issues in this appeal that we restate as follows:

             1.    Whether the circuit court abused its discretion by
                   allowing evidence of Taylor’s two prior alleged sexual
                   assaults.

             2.    Whether the admission of the other act evidence violated
                   Taylor’s constitutional rights under the Double Jeopardy
                   and Due Process Clauses.

             3.    Whether the circuit court abused its discretion when it
                   denied Taylor’s motion for a mistrial.

             4.    Whether the circuit court erred when it denied Taylor’s
                   motion for a judgment of acquittal.

             5.    Whether the circuit court’s admission of the forensic
                   laboratory reports by affidavit under SDCL 23-3-19.3
                   resulted in prejudicial error.

             6.    Whether Taylor’s sentence violates the Eighth
                   Amendment.




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#29072

                               Analysis and Decision

             1.     Whether the circuit court abused its discretion by allowing
                    evidence of Taylor’s two prior alleged sexual assaults.

[¶23.]       “We presume evidentiary rulings made by a trial court are correct, and

review those rulings under an abuse of discretion standard.” State v. Fool Bull,

, ¶ 10, 

. An abuse of discretion “is a fundamental

error of judgment, a choice outside the range of permissible choices, a decision,

which, on full consideration, is arbitrary or unreasonable.” State v. Lemler, 

, ¶ 40, 

.

[¶24.]       Taylor argues the other act evidence regarding the alleged sexual

assaults of P.R. and T.B. was not properly admitted under SDCL 19-19-404(b)

because it was improper character evidence. Taylor also claims the evidence was

unduly prejudicial under SDCL 19-19-403 and effectively resulted in a trial within a

trial.

[¶25.]       SDCL 19-19-404(b) provides: “Evidence of a crime, wrong, or other act

is not admissible to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.” However, the rule

permits other act evidence “for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or

lack of accident.” 

 “Thus . . . evidence of other crimes or wrongs is inadmissible

to show bad character and that the defendant acted in conformity therewith on the

date in question. However, such evidence is admissible if it is relevant to one of the

stated exceptions . . . and that exception or element is in issue.” State v. Willis, 

 (S.D. 1985) (internal citations omitted) (analyzing an older version

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of SDCL 19-19-404(b)). When other act evidence is admitted, “the State must

present sufficient evidence for a jury to conclude by a preponderance of the evidence

‘that the other acts occurred, and that the defendant was the actor.’” State v.

Thomas, 

, 

 (quoting State v. Phillips, 

,

¶ 20, 

, 417).

[¶26.]       We apply a two-part test when considering the admissibility of other

act evidence under 404(b). State v. Stone, 

, 

.

“First, the court must determine whether the other-act evidence is relevant to some

material issue in the case other than character[.] Second, the court must determine

whether the probative value of the evidence is substantially outweighed by the

danger of unfair prejudice[.]” 

 (quoting State v. Birdshead, 

, ¶ 57,

).

[¶27.]       “Evidence is relevant if it has any tendency to make a fact more or less

probable than it would be without the evidence.” SDCL 19-19-401(a). “Relevancy is

demonstrated where evidence is necessary to prove an element of the crime, not

simply to demonstrate [the] defendant’s character.” State v. Lassiter, 

, ¶

14 n.2, 

, 175 n.2. “[I]f the other act evidence is admissible for any

purpose other than simply character, then it is sustainable. All that is prohibited

under § 404(b) is that similar act evidence not be admitted solely to prove

character.” Phillips, 

, ¶ 14, 906 N.W.2d at 415 (internal quotation

marks omitted).

[¶28.]       Here, the circuit court found Taylor’s alleged sexual assaults of P.R.

and T.B. relevant to establish Taylor’s “plan, intent and motive to achieve sexual


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gratification with non-consenting young female partners.” The court reasoned that

the evidence included “three unrelated complaining witnesses who do not know

each other. All three young women have made similar complaints against the

Defendant. All three young women assert they were sexually assaulted in a non-

consensual manner. In two of the three cases, the young women assert that the

Defendant anally penetrated them.” The court determined that the evidence was

relevant to Taylor’s primary defense of whether M.R. consented to the sex.

[¶29.]       In determining whether other act evidence is relevant, “[T]he threshold

inquiry . . . is whether that evidence is probative of a material issue other than

character.” Huddleston v. United States, 

, 

,

 (1988). We have held that “[o]ther acts evidence is admissible in

rape cases to negate the defense of consent[.]” State v. Waugh, 

,

. “When [an] appellant claims innocence . . . by a mitigating

factor, namely, consent, he thus begets the establishment of intent as a material

issue in the crime of rape.” State v. White, 

 (S.D. 1995).

[¶30.]       Here, Taylor did not dispute that he had sexual intercourse with M.R.

Instead, his core defense was that M.R. had consented. Taylor requested, and the

circuit court gave, the following instruction to the jury:

             An act is not a crime when committed or omitted under an
             ignorance or mistake of fact which disproves any criminal
             intent. When a person honestly and reasonably believes certain
             facts, and acts or fails to act based upon a belief of those facts,
             which, if true, would not result in the commission of a crime, the
             person is not guilty.




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As such, Taylor’s intent and belief as to whether M.R. was consenting to the sex

acts were material issues in the case. 2

[¶31.]         The other act evidence involved two separate instances where Taylor

was alleged to have had sexual intercourse with young female acquaintances who

later reported to law enforcement that the sexual intercourse was non-consensual.

The circuit court did not abuse its discretion in finding the prior sexual assault

allegations relevant to the issue of consent, Taylor’s intent, and his common plan or

scheme. 3 See White, 

 (“If a rapist’s method of operation is

calculated to create the appearance of consent by the victim, similar acts evidence

may be admitted to negate the defense of consent.”).

[¶32.]         Taylor argues that the other act evidence was too remote to be

relevant. However, the prior acts all occurred less than four years before the rape of

M.R. In State v. Most, we allowed the admission of prior act evidence that occurred

decades earlier because “the prior acts were substantially similar in several

respects” and negated the claim of accident. 

, 

.       Additionally, Taylor was charged with attempted second-degree rape, a
         specific intent crime. See State v. Hart, 

, ¶ 13, 

 (stating that attempted second-degree rape is a specific intent crime,
         requiring a specific intent “to accomplish forced or coercive sexual
         penetration”). Proof of similar acts may be particularly relevant to crimes
         where the State has the burden to prove specific intent. White, 

.

3.       The circuit court also held that the prior act evidence was relevant to show
         Taylor’s motive. The relevance of this evidence to motive is less clear. See
         Lassiter, 

, ¶ 21, 

 (discussing factual situations
         where “[e]vidence of a prior crime may demonstrate a defendant’s motive to
         commit a crime”).

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#29072

565. The prior acts here were not too remote given the similarities of the

encounters and their relevance to the issue of consent.

[¶33.]         The circuit court also weighed the probative value of this evidence

against the prejudicial impact under SDCL 19-19-403. The court acknowledged

that the evidence was prejudicial to Taylor, but determined the probative value was

not substantially outweighed by the danger of unfair prejudice. “Upon a trial

court’s determination that the proffered evidence is relevant, the balance tips

emphatically in favor of admission unless the dangers set out in Rule 403

substantially outweigh probative value.” Lassiter, 

, ¶ 15, 

. “Damage to the defendant’s position is no basis for exclusion; the harm must

come not from prejudice, but from ‘unfair prejudice.’” State v. Janklow, 

, 

. Given the probative value of the other act evidence,

we cannot say that the circuit court abused its discretion in permitting the State to

introduce this evidence at trial.

[¶34.]         Taylor further argues that the circuit court abused its discretion when

it permitted P.R.’s “surprise testimony” about Taylor allegedly raping P.R. in his

vehicle. However, Taylor did not object to this evidence or otherwise move to strike

the evidence at the time P.R. testified. 4 Taylor has failed to show error by the

circuit court concerning the unnoticed other act evidence.



4.       Taylor does not ask us to review this claim on plain error review. Even if we
         were to do so, the record does not support that the error was plain or
         otherwise affected a substantial right. State v. McMillen, 

, 

. Defense counsel initially elicited the evidence on cross-examination in an apparent attempt to undercut P.R.’s claim that the sex
         acts with Taylor in her dorm room were non-consensual. Further, we “have
                                                              (continued . . .)
                                            -13-
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             2.     Whether the admission of the other act evidence violated
                    Taylor’s constitutional rights under the Double Jeopardy
                    and Due Process Clauses.

[¶35.]       Taylor contends that under the Double Jeopardy Clause, the State was

collaterally estopped from relitigating P.R.’s case to the jury because a prior jury

had already found him not guilty of the charge. He also argues that forcing him to

relitigate the rape allegations violated due process because it was fundamentally

unfair. Alleged violations of a defendant’s constitutional rights are reviewed de

novo. State v. King, 

, ¶ 4, 

.

[¶36.]       In discussing whether P.R.’s testimony violated the Double Jeopardy

Clause, Taylor and the State both cite the United States Supreme Court decision in

Dowling v. United States, 

, 

, 

 (1990). In

Dowling, the Court considered whether the admission of other act evidence for

which there was a prior acquittal violates the Double Jeopardy Clause. The Court

initially recognized “that an acquittal in a criminal case does not preclude the

Government from relitigating an issue when it is presented in a subsequent action

governed by a lower standard of proof.” 

, 

. The Court

then analyzed the differing standards of proof when admitting 404(b) evidence

versus determining someone’s guilt. The Court distinguished the two standards by

holding that “in the Rule 404(b) context, similar act evidence is relevant only if the

jury can reasonably conclude that the act occurred and that the defendant was the
________________________
(. . . continued)
         permitted the State to introduce otherwise inadmissible evidence when a
         criminal defendant’s trial strategy has ‘opened the door’ to the evidence.”
         State v. Letcher, 

, ¶ 25, 

. See also State v.
         Burtzlaff, 

 (S.D. 1992) (permitting the State the right to
         respond when defense counsel “opened the door”).

                                          -14-
#29072

actor.” Id. at 346, 

. Thus, the prior acquittal of the charge on proof

beyond a reasonable doubt “did not determine the ultimate issue in the present

case[,]” and the prosecution was not collaterally estopped from admitting the other

act evidence. 

, 

.

[¶37.]       Dowling further determined that Double Jeopardy was inapplicable

because the defendant “did not demonstrate that his acquittal in his first trial

represented a jury determination that he was not one of the men” who committed

the alleged offense. 

, 

. “The acquittal did not prove that

the defendant is innocent; it merely proves the existence of a reasonable doubt as to

his guilt.” 

, 

 (citation omitted). “Because a jury might

reasonably conclude that [defendant committed the offense], even if it did not

believe beyond a reasonable doubt that [the defendant] committed the crimes

charged at the first trial, the collateral-estoppel component of the Double Jeopardy

Clause is inapposite.” 

, 

 (emphasis added).

[¶38.]       Dowling also rejected the defendant’s claim that such evidence violates

fundamental fairness under the Due Process Clause. 

, 

. The Court held that judges “are to determine only whether the action

complained of . . . violates those fundamental conceptions of justice which lie at the

base of our civil and political institutions, and which define the community’s sense

of fair play and decency.” 

, 

 (internal quotations marks

and citations omitted). The Court determined that the Rules of Evidence were

adequate to consider the admissibility of the evidence and declined “to use the Due




                                          -15-
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Process Clause as a device for extending the double jeopardy protection to cases

where it otherwise would not extend.” 

, 

.

[¶39.]       Applying Dowling, the State was not collaterally estopped from

offering evidence of P.R.’s alleged rape, nor did the admission of this evidence

violate fundamental fairness. The circuit court applied well-established rules of

evidence and properly instructed the jury that, before considering the other acts,

the jury must first determine if a preponderance of the evidence established that

the defendant committed the other acts. See Thomas, 

, 

. Taylor extensively cross-examined P.R. concerning the alleged sexual assault

and the prior acquittal. The jury “remained free to assess the truthfulness and the

significance of [the alleged victim’s] testimony, and the petitioner had the

opportunity to refute it.” Dowling, 

, 

. See also

People v. Wallen, 

 (Colo. App. 1999) (upholding the admission of a

prior sexual assault charge where the defendant had raised a similar consent

defense, as the jury could consider the prior act under the preponderance of the

evidence standard).

             3.     Whether the circuit court abused its discretion when it
                    denied Taylor’s motions for a mistrial.

[¶40.]       Taylor argues the court abused its discretion when it denied his motion

for a mistrial based on what he characterizes as “witness tampering” by A.F.

involving the testimony of Fitcher. During her testimony, A.F. stated on direct

examination that Taylor had kissed her at the hotel room, and Taylor extensively

cross-examined her as to whether this had occurred; primarily because A.F. had not

stated this fact to the grand jury. A.F. also testified that she had not told Fitcher

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about being kissed by Taylor. Fitcher testified after A.F. and stated that he had

observed Taylor and A.F. kiss in the hotel room. However, on cross-examination,

Fitcher admitted that he did not actually see Taylor kiss A.F. Instead Fitcher

claimed that A.F. had told him this occurred. During cross-examination, Taylor

suggested that A.F. and Fitcher had talked about this testimony, but Fitcher denied

A.F. had told him what to say. After Fitcher’s testimony, Taylor asked for a

mistrial. Taylor claimed that A.F. had told Fitcher to testify about the kiss when

she and Fitcher were in the hallway together outside the courtroom immediately

before Fitcher’s testimony. 5 The circuit court denied the motion for a mistrial.

[¶41.]         We review the denial of a motion for mistrial for an abuse of discretion

and will only overturn upon a showing that an error has caused actual prejudice to

the defendant. State v. Kryger, 

, ¶ 33, 

, 812. Although

not prefaced as such, Taylor’s claim of “witness tampering” was essentially an

argument that the court’s sequestration order had been violated. To establish

prejudice where a witness sequestration order has been violated, it must be

5.       After the jury returned a verdict, Taylor renewed his motion for a mistrial on
         this issue and also moved for a mistrial for the first time concerning the
         unnoticed 404(b) evidence. On appeal, Taylor also raises the circuit court’s
         denial of his post-verdict motion for a mistrial on the unnoticed 404(b)
         evidence. We decline to review the motion for a mistrial with respect to the
         unnoticed 404(b) evidence because Taylor failed to timely move for a mistrial
         on this issue prior to the jury’s verdict.

         “A court may declare a mistrial before the jury returns a verdict but, after a
         verdict has been returned, the trial is complete. If the motion is not made
         before the verdict, the party seeking a new trial has waived the mistrial
         issue.” 75B Am. Jur. 2d Trial § 1408. Taylor did not move for a new trial
         after the verdict pursuant to SDCL 23A-29-1. Further, as discussed above,
         Taylor has failed to show an error or prejudice concerning the unnoticed
         404(b) evidence that Taylor elicited from M.R.


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established that “the witness’[s] testimony has changed or been influenced by what

[they] heard from other witnesses.” State v. Randle, 

, ¶ 21, 

. The circuit court found there was insufficient evidence that A.F. and

Fitcher had discussed the kiss in the hallway before Fitcher took the stand, or that

A.F. influenced Fitcher’s testimony. We agree. In any event, whether Taylor had

kissed A.F. was an issue of minimal significance to the charges Taylor faced at trial.

Therefore, Taylor has failed to make any showing that he was prejudiced concerning

Fitcher’s testimony. The court did not abuse its discretion when it denied Taylor’s

motion for a mistrial.

             4.     Whether the circuit court erred when it denied Taylor’s
                    motion for a judgment of acquittal.

[¶42.]       Taylor contends the circuit court erred in denying his motion for a

judgment of acquittal. The denial of a motion for a judgment of acquittal is

reviewed de novo. State v. Quist, 

, ¶ 13, 

. “When

conducting our review, we determine whether the evidence was sufficient to sustain

the conviction.” Stone, 

, 

. “In measuring the

sufficiency of the evidence, we ask whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Most, 

, 

. “If the evidence, including circumstantial evidence and

reasonable inferences drawn therefrom sustains a reasonable theory of guilt, a

guilty verdict will not be set aside.” Stone, 

, 

.

[¶43.]       At trial, the jury heard from the victim M.R., the investigating officer,

and the nurse who examined M.R. at the hospital. In her testimony, M.R. provided

                                         -18-
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specific details about the sexual assault and her efforts to resist Taylor. Sufficient

evidence exists in the record to support the conviction.

             5.     Whether the circuit court’s admission of forensic
                    laboratory reports by affidavit under SDCL 23-3-19.3
                    resulted in prejudicial error.

[¶44.]       Taylor claims the admission of the DNA testing reports from P.R.’s and

T.B.’s cases violated his Sixth Amendment right to confront and cross-examine

witnesses against him because the two forensic analysts did not testify at trial.

“The Sixth Amendment’s Confrontation Clause confers upon the accused, ‘[i]n all

criminal prosecutions, . . . the right . . . to be confronted with the witnesses against

him.’” Bullcoming v. New Mexico, 

, 

, 

 (citation omitted). We review this alleged violation of Taylor’s

constitutional right de novo. State v. Medicine Eagle, 

, ¶ 27, 

.

[¶45.]       Taylor relies on the balancing test from State v. Beck, 

,

, to support his claims. However, Beck was decided before the

United States Supreme Court’s decisions in Bullcoming and Crawford v.

Washington, 

, 

, 

 and no longer controls

the issue before the Court.

[¶46.]       Bullcoming considered whether “a forensic laboratory report

containing a testimonial certification, made in order to prove a fact at a criminal

trial” could be introduced through “an analyst who did not sign the certification or

personally perform . . . the test . . . .” 

, 

. The New

Mexico Supreme Court held that the admission of the report did not violate the


                                          -19-
#29072

defendant’s Sixth Amendment right to confront witnesses because the results were

calculated by a machine, and merely transcribed by the non-testifying analysts. 

The Court disagreed.

[¶47.]       The Court held “[a]n analyst’s certification prepared in connection with

a criminal investigation or prosecution . . . is ‘testimonial,’ and therefore within the

compass of the Confrontation Clause.” 

, 

 (citing

Melendez–Diaz v. Massachusetts, 

, 

,

 (2009)). No matter how reliable a piece of evidence may be, there

is no “forensic evidence” exception to the Confrontation Clause. 

 The Court

stated:

             [T]he comparative reliability of an analyst’s testimonial report
             drawn from machine-produced data does not overcome the Sixth
             Amendment bar. This Court settled in Crawford that the
             “obviou[s] reliab[ility]” of a testimonial statement does not
             dispense with the Confrontation Clause. (Clause “commands,
             not that evidence be reliable, but that reliability be assessed in a
             particular manner: by testing [the evidence] in the crucible of
             cross-examination”). Accordingly, the analysts who write
             reports that the prosecution introduces must be made available
             for confrontation even if they possess “the scientific acumen of
             Mme. Curie and the veracity of Mother Teresa.”

Id. at 661, 

 (citations omitted).

[¶48.]       Therefore, the circuit court erred by admitting the lab reports under

SDCL 23-3-19.3 without affording Taylor the opportunity to cross-examine the

analysts who conducted the testing and authored the reports. However, we must

also consider whether the error was harmless. 

 at 668 n.11, 

n.11 (“express[ing] no view on whether the Confrontation Clause error in this case




                                          -20-
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was harmless” and holding that “nothing in this opinion impedes a harmless-error

inquiry on remand”).

[¶49.]       “When a defendant has shown his constitutional right to confrontation

has been violated, he is entitled to a new trial unless the improperly admitted

evidence constitutes harmless error.” State v. Richmond, 

, 

, 802. “An otherwise valid conviction should not be set aside if the

reviewing court may confidently say, on the whole record, that the constitutional

error was harmless beyond a reasonable doubt.” State v. Podzimek, 

, 

 (quoting Delaware v. Van Arsdall, 

, 

, 

 (1986)). We consider many factors when

determining whether an error is harmless such as the testimony of the witnesses,

whether the evidence is cumulative, the presence or absence of corroborating or

contradicting evidence on the material points, the extent of cross-examination

otherwise permitted, and the overall strength of the prosecution’s case. 

[¶50.]       In Taylor’s case, “a full review of the record reveals a host of factors

that show that any alleged error committed by the circuit court in admitting [the

lab reports] was harmless beyond a reasonable doubt.” Podzimek, 

, 

. The State offered the lab reports solely to corroborate the

other act evidence of P.R. and T.B., specifically, that it was Taylor who had sexual

intercourse with them; allegations that Taylor did not appear to dispute. In fact, as

to P.R., Taylor’s cross-examination of P.R. tried to suggest that P.R. and Taylor had

a consensual sexual encounter, much like the defense Taylor raises in this case. As




                                          -21-
#29072

to T.B., Taylor did not challenge T.B.’s testimony about the alleged sexual

intercourse. 6

[¶51.]           In any event, the DNA tests speak only to the question of whether

sexual intercourse with the two other act witnesses occurred, not whether it was

consensual. Because consent was the central issue in this case, the testimony from

the other alleged victims was material to the issue of Taylor’s mistake of fact

defense, his criminal intent, and to show a common plan or scheme. Finally, the

State’s overall case against Taylor was strong regardless of whether the lab reports

at issue had been admitted into evidence. “[W]hen considered in light of the

evidence submitted at trial, the circuit court’s admission of [the lab reports], though

erroneous, was harmless.” Richmond, 

, 935 N.W.2d at 804. 7

                 6.    Whether Taylor’s sentence violates the Eighth Amendment.

[¶52.]           Taylor contends that his sentence is grossly disproportionate to the

offenses and is therefore unconstitutional under the Eighth Amendment. “[W]hen

the question presented is whether a challenged sentence is cruel and unusual in


6.       Instead of cross-examining T.B., Taylor used information from the DNA
         report to cross-examine the investigating officer in T.B.’s case to suggest,
         without objection from the State, that T.B. had engaged in other recent
         sexual behavior aside from Taylor. Defense counsel elicited testimony from
         the officer that DNA of a third, unknown contributor had been found in T.B.’s
         underwear, and the officer believed the charges against Taylor relating to the
         alleged sexual assault of T.B. were ultimately dismissed based, at least in
         part, upon these DNA results.

7.       Taylor asserts that cumulative errors by the circuit court violated his
         constitutional right to a fair trial. “The cumulative effect of errors by the
         trial court may support a finding by the reviewing court of a denial of the
         constitutional right to a fair trial.” State v. Davi, 

 (S.D.
         1993). However, Taylor has failed to demonstrate any error that was
         prejudicial to him, either on its own or on a cumulative basis.

                                            -22-
#29072

violation of the Eighth Amendment, we conduct a de novo review.” State v. Chipps,

, ¶ 31, 

.

[¶53.]       “The Eighth Amendment to the U.S. Constitution, which was extended

to the states through the Fourteenth Amendment, prohibits the infliction of ‘cruel

and unusual punishments.’” Id. ¶ 32. In reviewing a sentence challenged under the

Eighth Amendment, we must determine “whether the sentence imposed is grossly

disproportionate to its corresponding offense.” State v. Yeager, 

, ¶ 4,

. In doing so, we first “look to the gravity of the offense and the

harshness of the penalty.” Chipps, 

, ¶ 38, 

. Such a

comparison “rarely leads to an inference of gross disproportionality and typically

marks the end of our review.” 

 However, should the penalty imposed appear to

be grossly disproportionate to the gravity of the offense, we next “compare the

sentence to those ‘imposed on other criminals in the same jurisdiction’ as well as

those ‘imposed for commission of the same crime in other jurisdictions.’” 

(quoting Solem v. Helm, 

, 

, 

).

[¶54.]       Taylor was convicted of second-degree rape under SDCL 22-22-1. We

have held that “[r]ape is a heinous crime . . . without a doubt deserving of serious

punishment.” Yeager, 

, ¶ 6, 

 (analyzing child rape).

The crime is often violent because “it normally involves force, or the threat of force

or intimidation, to overcome the will and the capacity of the victim to resist.” 

Along with physical injury, it “can also inflict mental and psychological damage.”

 There may be public injury as well, because rape “undermines the community’s




                                          -23-
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sense of security.” For these reasons, “the gravity of [rape] is comparatively high

when weighed against other criminal acts.” 

[¶55.]       “In judging the gravity of an offense, a court may also consider certain

past conduct of the defendant” in sentencing enhancement cases. Chipps, 

, ¶ 36, 

. After Taylor’s conviction, he admitted to two prior

felony convictions under the habitual offender statute in SDCL 22-7-7. Because of

the habitual offender enhancement, Taylor faced a potential life sentence on the

conviction for second-degree rape. “[I]f the sentence is enhanced because of the

offender’s recidivism, then the gravity of his past offenses also contributes to the

gravity of the present offense.” 

[¶56.]       The circuit court’s imposition of a 50-year sentence, with 20 years

suspended, was well within the maximum sentence boundaries that Taylor faced.

“[A] sentence within the statutory maximum generally will not be disturbed on

appeal.” State v. Talla, 

, 

. Given the record

before the circuit court, we conclude that Taylor has failed to show his sentence was

grossly disproportionate. “Accordingly, no further review of [Taylor’s] challenge on

Eighth Amendment grounds is warranted.” Yeager, 

, ¶ 10, 

.

[¶57.]       We affirm.

[¶58.]       GILBERTSON, Chief Justice, and KERN, SALTER and DEVANEY,

Justices, concur.




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