State v. Phillips, 28181

906 N.W.2d 411

STATE of South Dakota, Plaintiff and Appellee,

v.Travis Robert PHILLIPS, Defendant and Appellant.

28181

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS ON NOVEMBER 6, 2017

OPINION FILED January 3, 2018

MARTY J. JACKLEY, Attorney General, QUINCY R. KJERSTAD, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

WILLIAM D. SIMS of Zimmer, Duncan & Cole, LLP, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

ZINTER, Justice

[¶ 1.] Travis Phillips was convicted of aggravated assault (domestic) and simple assault (domestic). He appeals the circuit court's admission of evidence of alleged instances of prior domestic abuse. We affirm.

Facts and Procedural History

[¶ 2.] Travis Phillips and Amanda Johnson were married in 2014. Their marriage was often contentious. Phillips suspected Johnson of having affairs, which led to many accusations and arguments.

[¶ 3.] On June 24, 2016, Johnson called Phillips at work to inform him that a law enforcement officer came to their apartment to serve legal papers. The paperwork related to stalking charges filed against Phillips by Tim DeWitt, a man with whom Johnson had previously had a sexual relationship. Upset, Phillips left work and went to the apartment.

[¶ 4.] Johnson testified that upon his arrival, Phillips consumed alcoholic beverages. At about 6:00 or 7:00 p.m., when Johnson was making their son's bed, Phillips entered the doorway to the room and began yelling at her about DeWitt and her relationship with him. Johnson tried to leave the room, but Phillips blocked the doorway. He told her to sit on the bed, and he continued yelling at her for yet another hour, alleging the stalking charges were her fault because she had a relationship with DeWitt. Johnson testified that when Phillips then approached and backed her into a wall, she kicked him in the groin. Phillips became even angrier and knocked a box fan off a dresser.

[¶ 5.] Johnson repeatedly asked Phillips to use the bathroom, and Phillips eventually relented. Phillips followed Johnson into the bathroom and continued yelling at her. She alleged that while in the bathroom, Phillips threatened her, indicating that he was going to report her for marijuana use¹ and that she would never see her children again.

[¶ 6.] When Johnson attempted to leave the bathroom, Phillips put his arm around her waist and threw her back into the bathroom, causing her arm to hit and bend a doorknob. When Johnson began screaming for someone to call the police, Phillips covered her mouth and nose with his hand, making it difficult for Johnson to breathe. Johnson then started sobbing uncontrollably, and Phillips sat down on the toilet seat and told her to be quiet. Johnson testified that Phillips then put his hands around her neck, preventing her from breathing: he told her he knew a wrestling move that would not leave any marks. Phillips released her once he realized she could not breathe.

[¶ 7.] Johnson exited the bathroom, and Phillips followed her into the kitchen. He told her that she had until 11:00 p.m. to figure out "where [their] relationship was going" or he was going to leave with their son. At 11:00, Phillips took their son out of Johnson's arms and left. According to Johnson, when she tried to follow, Phillips threatened to kick her back into the house "so hard that [she] would be sh* * *ing in a bag for the rest of [her] life." Johnson then waited and followed from a distance. She noticed a neighbor was outside and asked if she could use the neighbor's phone to call the police because Phillips was kidnapping her son. Phillips, who had taken Johnson's phone from her earlier that night, then threw her phone into the neighbor's yard. Johnson retrieved the phone and called law enforcement.

[¶ 8.] The police arrived and interviewed both Johnson and Phillips. Johnson told the officers that Phillips had thrown her into the bathroom and choked her. The officers noted Johnson had a bruise on her arm and marks on her chest and neck. When the officers asked Phillips what happened and what caused the marks, Phillips claimed that Johnson had an asthma attack and was hyperventilating. He denied that he would ever hit or harm his pregnant wife.

[¶ 9.] Phillips was arrested and charged with one count of aggravated assault (domestic) and three counts of simple assault (domestic). Prior to trial, the State gave notice of intent to introduce four prior incidents. The State alleged that on prior occasions: (1) Phillips "smacked" Johnson with an open hand after Phillips had accused Johnson of cheating with someone and demanded to know who it was; (2) Phillips yelled or screamed at Johnson while driving, causing Johnson to "shut down"; (3) Phillips started arguments when Johnson was talking to a person either "too much" or about "inappropriate things"; and (4) while living in Idaho, an intoxicated Phillips threatened Johnson (who was pregnant with their son) that if she ever did anything to take their son away from him, Phillips would cause her to go missing. The State argued the prior acts were relevant to show the nature of their domestic relationship and Phillips's motive and intent to control Johnson through threats and physical violence.

[¶ 10.] The circuit court ruled that the prior acts were relevant and admissible to show: Phillips's "motive or plan to control his wife through threats and/or acts of physical violence"; Phillips's "motive and intention to physically assault his wife when he believed she was cheating on him"; and Phillips's "plan or knowledge of the manner in which he could hide any violent actions taken toward his wife." The court also ruled that the probative value of the acts was not substantially outweighed by the risk of unfair prejudice.

[¶ 11.] At trial, Johnson testified to the alleged assaults and the prior acts. The State also presented expert testimony from Krista Heeren-Graber, a social worker. Heeren-Graber testified about the dynamics of abusive relationships, including victim minimization of what is going on in a relationship and an abuser's use of threats and violence to maintain power and control. Phillips did not testify.

[¶ 12.] A jury found Phillips guilty of aggravated assault and one count of simple assault. On appeal, Phillips challenges the circuit court's admission of the other acts evidence. He also claims his trial counsel was constitutionally ineffective.

Decision

[¶ 13.] Phillips first argues that the prior acts were inadmissible because they were introduced only to show that he had a propensity to be violent. See SDCL 19-19-404(b)(1) ("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, other acts evidence "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." SDCL 19-19-404(b)(2). A circuit court's determination to admit other acts evidence will be overturned only upon a showing that it was an abuse of discretion. State v. Medicine Eagle , 2013 S.D. 60, ¶ 16, 835 N.W.2d 886, 892.

[¶ 14.] "To determine the admissibility of other acts evidence, the court must determine: (1) whether the intended purpose is relevant to some material issue in the case, and (2) whether the probative value of the evidence is substantially outweighed by its prejudicial effect." State v. Huber , 2010 S.D. 63, ¶ 56, 789 N.W.2d 283, 301. SDCL 19-19-404(b) is a rule of inclusion, not exclusion. Id. "[I]f the other act evidence is admissible for any purpose other than simply character, then its use is sustainable. All that is prohibited under § 404(b) is that similar act evidence not be admitted ‘solely to prove character.’ " State v. Wright , 1999 S.D. 50, ¶ 17, 593 N.W.2d 792, 800 (footnote and citation omitted) (quoting Huddleston v. United States , 485 U.S. 681, 687, 108 S.Ct. 1496, 1500, 99 L.Ed.2d 771 (1988) ). "It is the proponent of the prior acts evidence who must persuade the trial court that the evidence has some permissible purpose." State v. Armstrong , 2010 S.D. 94, ¶ 11, 793 N.W.2d 6, 11.

[¶ 15.] Phillips contends that none of the circuit court's stated purposes were at issue in this case; and therefore, none of the prior acts were relevant. We disagree. The prior acts showed a controlling and hostile relationship that was fueled by Phillips's suspicion of Johnson's relationships with other men. That evidence was relevant because it revealed a motive for Phillips's assault of Johnson. In essence, the evidence was used to provide context and show the nature of the parties' relationship.²

[¶ 16.] Prior instances of domestic abuse against the same victim are often relevant in the familial context because they show the nature of the relationship, which explains the interactions between the parties.

Domestic abuse often has a history highly relevant to the truth-finding process. When an accused had a close relationship with the victim, prior aggression, threats or abusive treatment of the same victim by the same perpetrator are admissible when offered on relevant issues under Rule 404(b). The rationale for admissibility is that an accused's past conduct in a familial context tends to explain later interactions between the same persons.

State v. Laible , 1999 S.D. 58, ¶ 21, 594 N.W.2d 328, 335 (citations omitted). In Laible , we upheld the admission of prior instances of domestic abuse in a murder prosecution because the defendant's "persistent verbal abuse, though not always accompanied by violence or threats, was an expression of his attitude, inseparable from his intermittent aggression." Id. Therefore, "[h]is previous attacks and threats ... were ... admissible to show the nature of [the] relationship, his motive, and his state of mind." Id. ; accord Huber , 2010 S.D. 63, ¶ 57, 789 N.W.2d at 301-02.

[¶ 17.] Courts...