State v. Weide

1

2024 S.D. 18

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. KEATON A. VAN DER WEIDE, Defendant and Appellant.

No. 30028-r-JMK

Supreme Court of South Dakota

April 3, 2024

ARGUED OCTOBER 5, 2023

APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT LINCOLN COUNTY, SOUTH DAKOTA THE HONORABLE RACHEL R. RASMUSSEN Judge

KRISTI JONES of Dakota Law Firm, Prof. LLC Sioux Falls, South Dakota Attorneys for defendant and appellant.

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

KERN JUSTICE

[¶1.] S.O. accused Keaton Van Der Weide of raping her on June 13 2021. Despite having a daughter together, their relationship had been sporadic, with multiple engagements and breakups. S.O. claimed that, after she arrived home early in the morning following a night out with friends, Van Der Weide sexually assaulted her, penetrating her anally and vaginally without consent. When interviewed, Van Der Weide told police that the sexual encounter was consensual and involved the use of multiple sex toys, which were taken into evidence. S.O maintained that she was not penetrated with a toy and only threw one at Van Der Weide after grabbing it away from him during the attack. Van Der Weide was charged with second-degree rape in violation of SDCL 22-22-1(2).

[¶2.] Before trial, Van Der Weide moved to introduce evidence of the sex toys, including testimony that S.O. preferred him to penetrate her vagina with a sex toy and his penis at the same time. There was some confusion as to whether the toy would be referenced in the State's case. However, the circuit court determined that, unless the State alleged that a toy was used during the rape, Van Der Weide could not proffer evidence of the same. Van Der Weide sought permission and was allowed to introduce into evidence several text messages between himself and S.O. around the time of the rape. The court then allowed the State, over Van Der Weide's objection, to cross examine him based on other texts surrounding the excerpted messages. Van Der Weide was found guilty and appeals, arguing that the court abused its discretion in excluding evidence of the sex toys and allowing the State to cross examine based on unadmitted text messages. We reverse.

Factual and Procedural Background

[¶3.] S.O. and Van Der Weide began living together in 2017. At the time, S.O. was 18 and Van Der Weide was 20. The next year S.O. became pregnant and they got engaged. A few months after the birth of their daughter, S.O. and Van Der Weide temporarily ended their relationship. However, they got engaged once more in November 2020 and moved into an apartment together in Beresford, South Dakota. Although they initially shared a bedroom, S.O. and Van Der Weide were sleeping in separate bedrooms by May 2021. S.O. later testified that, in the month and a half leading up to June 13, they did not have consensual sex.

[¶4.] Between June 10 and 13, 2021, Van Der Weide sent S.O. several sexually explicit text messages, expressing his desire to have sex with her. She responded that Van Der Weide should find someone else to be intimate with and that she did not want to have sex with him. S.O. also texted that she was packing up and planning to leave. On the evening of June 12 the day before she was planning to leave the apartment, S.O went out with some friends and spent the night with a coworker. At 8:16 p.m. that day, she texted Van Der Weide that "[m]y stuff is packed and I'll be back in the am to get it." S.O. returned to the apartment between 8:30 and 9:00 a.m. the next morning and ate some light breakfast on the couch. S.O. also talked with her friend, A.H., over the phone. According to A.H., this occurred sometime between 10:00 and 11:00 a.m. and S.O. "[s]eemed fine at that point."

[¶5.] While S.O. was still on the couch, Van Der Weide sat beside her and, after some discussion, began kissing her. According to S.O., even though she told him to stop, Van Der Weide "tore (her) shorts off" and then digitally penetrated her anus as she was attempting to escape by crawling into the bedroom. Once they were in the bedroom, Van Der Weide pinned S.O. to the floor and, saying that he would "do anything to get this p***y," penetrated her vagina with his penis until he orgasmed. S.O. told police that, during the rape, she "scream[ed] no" and attempted to fight Van Der Weide off, including slapping him and biting one of his forearms.

[¶6.] Afterwards, Van Der Weide went to take a shower. S.O. "threw on the closest pair of pants . . . got in [her] car and headed off to get [her] three-year-old daughter." While driving, S.O. called A.H.-A.H. testified that this call was ten minutes after their previous conversation-and told her about the rape. They met near the Centerville exit on the interstate out of Beresford. According to A.H., S.O. was distraught: "We stood outside and just I held her for a few minutes and let her cry it out[.]" A.H. then called 911 while S.O. contacted her mother and father. Sergeant Aaron Bartscher of the Lincoln County Sheriff's Office and Officer John Krebs of the Beresford Police Department responded to the call, meeting S.O., A.H., and S.O.'s parents at the interstate exit. Officer Krebs privately interviewed S.O., who told him that Van Der Weide had raped her through penile penetration of her vagina. At this time, she did not disclose the digital anal penetration.

[¶7.] Officer Krebs and Sergeant Bartscher then drove to Van Der Weide's apartment to interview him about the incident. Sometime before they arrived, Van Der Weide received a text message from S.O., telling him "I'm on the phone with the cops. I told you to stop." However, when Officer Krebs confronted him in the apartment parking lot, Van Der Weide stated that he was "confused" and denied that there had been "any type of incident" earlier that day. Van Der Weide willingly rode in Officer Krebs' car to continue the interview at the Beresford Police Department.

[¶8.] After obtaining background information, Officer Krebs asked Van Der Weide to recount what had happened that morning. Van Der Weide explained that he had been out the previous night with friends but returned to the apartment before S.O. When she arrived, he sat next to her on the couch, and they began to talk about their strained relationship. According to Van Der Weide, they eventually started "kissing and hugging," jointly removed her maternity shorts, and then began to have consensual "make-up" vaginal intercourse in the living room. Upon prompting from Officer Krebs, Van Der Weide clarified that, according to S.O.'s alleged preference, he had penetrated her from behind and pulled her hair. When asked if he had pushed S.O. to the ground and held her down, Van Der Weide responded that S.O. "likes it a little bit rough" but only admitted to pulling her hair and "bit[ing] her a** a little bit."

[¶9.] Van Der Weide told Officer Krebs that the sexual encounter started on the couch and later moved to the living room floor. He also explained that the sexual encounter had occurred primarily with S.O. face downwards-except for a brief period where he "rolled" her on her back-and that he had penetrated S.O.'s vagina with his penis and with "her toys" until he ejaculated. Van Der Weide maintained that he and S.O. regularly used sex toys during intercourse, and that she liked him to penetrate her vagina with a toy and his penis at the same time. He claimed that, while the intercourse occurred exclusively in the living room, he and S.O. had gotten multiple sex toys from the bedroom. According to Van Der Weide, they both used a toy to penetrate her vagina.

[¶10.] Van Der Weide denied S.O. had ever told him no or to stop, although he allegedly recalled that she might have said "don't stop." He described the sex as "amazing" and claimed that he didn't understand S.O.'s messages about calling the police and having told him to stop. Van Der Weide also told Officer Krebs that, apart from the hair pulling and a** biting, there had not been any biting, scratching, hitting, fighting, or screaming. Van Der Weide showed Officer Krebs his arms and there were no visible bite marks or other physical injuries. When Officer Krebs accused him of feigning confusion when he was confronted earlier in the apartment parking lot-Officer Krebs pointed out that he must have known the police were coming-Van Der Weide responded that he "never would have thought she would try to get me for something like this."

[¶11.] Officer Krebs notified Van Der Weide that S.O. would soon be medically examined, revealing any potential damage to her private parts. Van Der Weide, however, suggested that signs of injury to S.O.'s vagina could be attributable to him penetrating her that morning with his penis and a sex toy simultaneously. Sergeant Bartscher, with Van Der Weide's consent, obtained DNA swab samples from his mouth. Van Der Weide also consented to the seizure of certain evidence, including S.O.'s shorts and the sex toys, from his apartment. He accompanied Officer Krebs back to his residence and S.O.'s shorts were found in her bedroom and the sex toys were located in a closet drawer. Van Der Weide identified two of the toys as having been used in the sexual encounter. Officer Krebs took this evidence, along with Van Der Weide's shorts, and left the apartment.

[¶12.] S.O. underwent a sexual assault examination that same day at Mercy Medical Center in Sioux City. A sperm DNA profile obtained from the vaginal swab was later determined to match Van Der Weide's DNA sample. The next day, June 14, 2021 S.O. had a more extensive interview with Officer Krebs at the Beresford Police Department. During this interview, S.O. disclosed...