State v. Klaudt

772 N.W.2d 117

2009 SD 71

STATE of South Dakota, Plaintiff and Appellee, v. Ted Alvin KLAUDT, Defendant and Appellant.

No. 24803.

Supreme Court of South Dakota.

Argued March 23, 2009.

Decided August 5, 2009.

Lawrence E. Long, Attorney General, Patricia J. DeVaney, Gary Campbell, Assistant Attorneys General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Timothy J. Rensch of Rensch Law Office, Prof. LC, Rapid City, South Dakota, Attorneys for defendant and appellant.

SABERS, Retired Justice.

[¶ 1.] Ted Klaudt appeals the guilty verdicts returned on four counts of second degree rape. He contends that the trial court abused its discretion by refusing three of his requested jury instructions, and that there was insufficient evidence to convict him of three of the four second degree rape charges. We affirm.

FACTS

[¶ 2.] Klaudt, a former state legislator, and his wife, Connie, provided foster care for children placed within their home by the State of South Dakota. The Klaudts resided on a farm near Walker, South Dakota.

[¶ 3.] Due to abuse, A.M. was removed from her biological parents' home several times, beginning when she was in kindergarten. As a young teenager, A.M. became defiant and ultimately found herself committed to the South Dakota Department of Corrections (DOC). After a series of placements, A.M. was placed with the Klaudts in April of 2003, at the age of 15.

[¶ 4.] Over time, A.M. and Klaudt grew close as she began to trust and confide in him. A.M. spent more time with Klaudt than anyone else living in the home. Klaudt told A.M. that because he thought of her as a daughter, she need not associate with the other girls as she was "better than them." She testified that Klaudt would become upset if she befriended any of them, so she tended to isolate herself from everyone but Klaudt. A.M. also testified that she and Klaudt discussed sexual topics in obscene terms, and that on several occasions, Klaudt asked her to sit on his lap and cuddle with him as he did with the other foster girls. Due to the abuse she encountered from her biological father, A.M. repeatedly refused the offers. However, A.M. permitted Klaudt to take nude photos of her during the summer of 2003, after he told her that one of his contacts could get modeling work for her, and that the photos were necessary to determine what types of clothes would fit her. The photos were not discovered during the investigation.

[¶ 5.] In late 2004, A.M. commented to Klaudt that she never wanted to have children and that she may as well have her uterus removed. Upon hearing this, Klaudt developed an "egg donation" scheme, complete with a lengthy egg donator application, to allow Klaudt to perform certain examinations and measurements, supposedly to determine if A.M. qualified to be an egg donator. To heighten her interest, Klaudt told A.M. of the potential to make up to $10,000 per buyer by selling her eggs to infertile women. Klaudt assured A.M. that if she donated her eggs, she would never have to worry about getting loans to purchase a car, pursue a college degree, or for anything she ever wanted.

[¶ 6.] Under the belief that this scheme was real, A.M. allowed Klaudt to perform "exams" on eight to ten occasions, all at times when A.M. was 17 or 18 years old. Three of the occasions are the subject of this case, as they occurred in Klaudt's hotel room at a hotel in Pierre, while Klaudt was serving as a state legislator. At the hotel, Klaudt produced a briefcase with speculums, a tape measure, latex gloves, a caliper, antibacterial gel, tubing, syringes, a vibrator, KY-brand lubricant, and a notepad. First, Klaudt would conduct a breast exam. He would measure A.M.'s nipples under her shirt after she removed her bra, and then he would feel the glands in her breasts to determine, as he claimed, how close she was to ovulation. He would record this information in his notepad. Klaudt would then inform A.M. that he was going to wait outside the room until she had undressed from the waist down and covered her body with a bed sheet. Klaudt would then reenter the room. He would first conduct an ovary check, for which he would insert his latexgloved fingers into her vagina and press down on her stomach with his other hand. After that, Klaudt would use the vibrator and his fingers to perform what he called vaginal stimulation. Thereafter, he would insert a speculum to open up her vagina, insert a fluid into her vagina with the syringe, and then withdraw the fluid, supposedly completing the examination. A.M. testified that because she was so uncomfortable with Klaudt performing these exams, she cried during every one of them and that if her legs closed during the course of the exam, Klaudt would reopen them to finish the exam.¹ She also testified that although she allowed the exams to be performed because she thought she would be monetarily rewarded, she never would have agreed had she known it was a sham.

[¶ 7.] In conjunction with these procedures, A.M. received numerous emails, either forwarded by Klaudt or directly from an individual named "Terri Linee," who supposedly was an agent of an egg donation agency. The emails, which began in the latter part of 2004, strongly and repeatedly encouraged A.M. to complete the required exams, told her to relax and not cry during the exams, reinforced the monetary benefits that would be reaped upon successful completion of the exams, and maintained the good reputation Klaudt had with the "agency." These emails, which echoed many of the conversations A.M. had with Klaudt, were in fact written by Klaudt, and there was no such person as Terri Linee. At one point as an incentive to complete the exams, Klaudt, under the guise of Linee, sent A.M. a payment of $250 as an advance.² When A.M. failed to submit to the exams as frequently as Klaudt desired, Klaudt used the Linee email account to threaten A.M. that she would have to repay the $250 if she did not finish the exams, and failure to repay the money would negatively affect her credit rating.

[¶ 8.] In the fall of 2006, A.M. left the Klaudt home to attend college in Bismarck, North Dakota. After she left, Klaudt often called, left voice messages, or texted A.M. to see what she was doing. Klaudt also created other email accounts and used them to stay in contact with A.M. without her knowing it was Klaudt, and further used the email accounts to contact other people in Bismarck to spy on A.M. and say things to A.M. in an effort to cause turmoil in her romantic relationships.

[¶ 9.] In January 2007, A.M. was having a financial dispute with Klaudt over work she was to perform on the farm and payments she had failed to make for a car loan and car insurance. Klaudt's contact with A.M. had become so incessant that she eventually changed her phone number. When she called to inform her biological mother of her new phone number, A.M. revealed the egg donation scheme and accompanying exams. The South Dakota Division of Criminal Investigation was contacted and an investigation ensued. The investigation revealed a previous report about an egg donation scheme involving Klaudt and another of his foster daughters, J.S.

[¶ 10.] J.S. arrived at the Klaudt home in 2002, at the age of 15. Like A.M., J.S. went through several foster homes and programs with the DOC before being placed in the Klaudt home. Although J.S. did not become very close to Klaudt, she developed a close relationship with Klaudt's wife, Connie. In March of 2006, J.S. told her friend's mother that Klaudt performed a test on her where he put something inside her vagina to draw out fluid to see if she was fertile enough to donate her eggs. After informing Klaudt of this report and hearing how this would hurt Klaudt, the family, and especially Connie, J.S. recanted the story and the investigation was eventually dropped.

[¶ 11.] After A.M.'s claims were made in early 2007, and after A.M. spoke with J.S., J.S. admitted that her previous report was true. J.S. testified that after she had found an egg donator application under the bed of another foster daughter, she asked Klaudt about it. Klaudt told J.S. that she could make $5,000 per egg, if she proved fertile. J.S. had expressed concern to Klaudt of being infertile because she suffered from pelvic inflammatory disease. In response, Klaudt offered to perform the procedures. J.S. was 19 years old when Klaudt performed the exam on her at the same hotel in Pierre. The routine was essentially the same as what was done to A.M., except that Klaudt had J.S. insert the speculum and vibrator into her vagina herself. J.S. testified that when she could not insert the vibrator, Klaudt started forcibly pushing it, causing J.S. to cry because of the pain, and he would not stop when she asked.

[¶ 12.] Klaudt was charged in Hughes County with four counts of second degree rape through the use of force or coercion.³ The first three counts stemmed from A.M.'s allegations, and the last count related to J.S.'s allegation. At the trial, three girls, in addition to A.M. and J.S., testified to Klaudt performing or attempting to perform the same exams upon them. They testified that Klaudt used the same method of persuasion to allow him to perform these exams so they could possibly qualify for egg donation and earn money. At the close of the State's case, the defense moved for a judgment of acquittal as it related to the three counts involving A.M. The motion was denied. Furthermore, during the settling of instructions, the trial court refused certain instructions requested by the defense. Ultimately, the jury convicted Klaudt on all four counts. He was sentenced to four consecutive, eleven-year terms in the penitentiary.⁴ Klaudt appeals, raising two issues:

1. Whether Klaudt was deprived of due process and a meaningful opportunity to present a complete defense, when the trial court refused to give the proffered theory of defense instructions, and when, individually and/or...