State v. Evans

956 N.W.2d 68

STATE of South Dakota, Plaintiff and Appellee,

v.Harry David EVANS, Defendant and Appellant.

#29095

Supreme Court of South Dakota.

ARGUED OCTOBER 6, 2020

OPINION FILED February 24, 2021

JASON R. RAVNSBORG, Attorney General, QUINCY R. KJERSTAD, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

JOHN R. MURPHY, Rapid City, South Dakota, Attorney for defendant and appellant.

DEVANEY, Justice

[¶1.] Henry David Evans appeals his conviction entered after a jury found him guilty of several charges, including rape, kidnapping, aggravated assault, and burglary. Evans challenges the circuit court's denial of his pretrial motion to suppress, claiming the state law enforcement officers were without jurisdiction to seize his personal property located on the Pine Ridge Indian Reservation. He further contends the court committed a structural error by substantially deviating from the statutory procedures governing jury selection. Finally, Evans asserts the circuit court abused its discretion in admitting other act evidence from his ex-wife and in admitting an officer's testimony regarding corroboration of the victim's account of the incident. We affirm.

Factual and Procedural Background

[¶2.] Harry David Evans and S.B. met through an online dating site in 2016. At that time, S.B. was going through a divorce and was looking for companionship and help with taking care of her large property in Pennington County, where she raised horses. The two began spending a lot of time together, and S.B. let Evans live in the basement of her home. Their relationship eventually turned romantic.

[¶3.] About six months into their relationship, S.B. noticed that Evans was trying to control her behavior. The two began to argue and fight, and S.B. claimed that during one incident in December 2016, Evans trapped her in a room in the basement, told her they were not leaving the room, and threatened to shoot her and then himself. Approximately 45 minutes later, S.B. kicked Evans and was able to push her way out of the room. She ran upstairs and called law enforcement, but by the time the officers arrived, Evans had left. S.B. called law enforcement again in January 2017 after Evans took her to her bedroom and told her he would either rape or murder her, and if he could not have her, nobody could. Once again, by the time the officers arrived, Evans had already left.

[¶4.] Although these incidents left their relationship strained, S.B. continued to have an on-and-off intimate relationship with Evans. In the summer of 2017, Evans contacted her looking for work. By that time, S.B. had sold her property in Pennington County and was preparing to move into a modular home located on her recently purchased land near Hermosa, South Dakota. She claimed she let Evans back into her life because she felt sorry for him. According to S.B., Evans helped her with the move and with building fences on her new property.

[¶5.] S.B. eventually determined she no longer wanted a relationship of any sort with Evans and told him he needed to leave her property and never come back. Although Evans did leave, he continued to send S.B. texts daily, some of them harassing and threatening. S.B. obtained a temporary protection order against Evans on July 26, 2017, but she still feared him because of several incidents suggesting that Evans was maintaining indirect contact with her. For example, S.B. found a bale of hay and a water tank for her horses on her property line, cable wiring at the base of her driveway, a note with Evans's handwriting on the ground next to her vehicle, and her favorite candies in her mailbox. She also believed Evans had been taking her mail and going through her garbage. S.B. reported each of these acts to law enforcement, and they eventually set up game cameras around S.B.’s property for surveillance. S.B. also contacted Hermosa Town Marshal Jim Daggett to check her property on occasions when she feared Evans was trespassing.

[¶6.] On August 23, 2017, the day before the court entered a permanent protection order against Evans, S.B. received a lengthy text message from Evans stating emphatically that he loves her, she is like a drug to him, and he will die if he does not have her. Within the text, Evans stated multiple times that he knew S.B. would call law enforcement and explained that he was going to end his life because he could not live without her. He asked that she refrain from telling anyone about his plan. S.B. reported the text to law enforcement, and on September 4, 2017, Evans turned himself in for violating the protection order. However, he did not spend any time in jail because he was released on bond.

[¶7.] On the evening of September 5, 2017, after receiving what she perceived to be a threatening message from Evans through social media, S.B. called law enforcement for assistance. Around 11:30 p.m., Marshal Daggett responded and searched her property and home, but found no sign of Evans. After the Marshal left, S.B. took a sleeping pill and estimated that she had fallen asleep around 1:00 a.m.

[¶8.] Before the sun rose, S.B. awoke to the sound of Evans's voice beside her in bed. She tried to get away, but Evans overpowered her, forced sleeping pills into her mouth, and put duct tape around her mouth, hands, arms, and legs. S.B. testified that Evans wrapped her in a blanket and dragged her down the stairs and outside into her vehicle. S.B. explained that she blacked out, and when she awoke, she was back at her house. She described how Evans then cut away some of the duct tape and raped her while her arms were still bound. Later that morning, Evans forced S.B. to give him a ride to his truck that he had parked down the road from S.B.’s residence. S.B. then returned home, but she did not immediately report what had happened to law enforcement because Evans had threatened to kill her, her animals, and her friends if she told anyone. After remembering that Marshal Daggett had told her he would return in the morning to check on her, S.B. called him and told him there was no need to come to her home.

[¶9.] Despite S.B.’s call, Marshal Daggett went to check on S.B. and found her in a disheveled state. Although she was reluctant at first to tell him what had happened, S.B. eventually told him Evans had raped her. Marshal Daggett then contacted the sheriff's office, and S.B. was taken to the hospital for a sexual assault examination while law enforcement investigated the incident. Members of a sexual assault response team interviewed S.B. and conducted a head-to-toe examination, documenting their observations and collecting evidence swabs.¹ Nurse Donna Degen testified that she observed tape residue on S.B.’s arm and rear hip area. She also observed bruising on S.B.’s right upper arm, left and right forearm, left inner thigh, upper torso, and an area extending from her left knee to her calf and lower leg. Degen further testified that S.B.’s pelvic exam revealed a slight abrasion on her right labia majora. Jeff Goble, an agent with the South Dakota Division of Criminal Investigation (DCI), also interviewed S.B. while she was at the hospital and photographed her injuries.

[¶10.] Multiple officers searched S.B.’s home, vehicle, and surrounding property. They located several items of significance in her vehicle, including a handgun, a pair of leather work gloves, a ball of duct tape, a knife, and a pick axe. They found two more balls of duct tape in S.B.’s kitchen (later found to contain DNA originating from S.B.), a partial roll of duct tape in her bedroom, and a washcloth containing semen in her bathroom sink.² Additionally, the officers observed that the screen in the window to S.B.’s bathroom had been cut and two game cameras had been ripped off the locations on which they had been mounted.

[¶11.] Special Agent Robert Palmer obtained search warrants for Evans's person and his pickup, and on September 7, he also obtained a warrant for Evans's arrest. That same day, law enforcement learned that Evans's cellphone had pinged off a tower east of Oglala, South Dakota on the Pine Ridge Indian Reservation, and Fall River County Sheriff Bob Evans located Evans's pickup in the parking lot of the Prairie Winds Casino within the boundaries of the Reservation. Based on this information, Special Agent Palmer and Agent Goble contacted the Oglala Sioux Tribal Police (OST) and the Oglala Lakota County Sheriff (a state law enforcement officer) for permission to enter the Reservation to serve the warrant. Both agencies sent officers to assist in apprehending Evans at the casino.

[¶12.] When Special Agent Palmer and Agent Goble arrived at the casino, they observed Evans's pickup in the casino parking lot and waited for the other officers to arrive. OST Officer Hudspeth arrived and was informed about the situation by the agents. He then attempted to locate Evans inside the casino with the assistance of casino security. After learning that Evans had rented a room, the agents, along with OST Officer Hudspeth and Oglala Lakota County Sheriff Conroy, attempted to get Evans to come to the front desk by having hotel management call his room and his cell phone. The calls were not answered.

[¶13.] Casino security then advised law enforcement officers on scene that from the ground-level exterior window of the room Evans had rented, they could see an individual lying on the bed. The officers, including the DCI agents and OST Police Chief Mesteth, stood outside the room while hotel management called the room again. Special Agent Palmer testified that he could hear the phone ringing in the room, but there was no answer or movement in the room. He knocked on the door several times with no response, and casino security informed him that the individual on the bed did not move during or after the knocks or phone calls.

[¶14.] Based on the lack of response, OST Police Chief Mesteth directed the tribal officers to enter the hotel room for a welfare check....