State v. Horse

#29967-a-JMK
2024 S.D. 4

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

ROBERT A. HORSE, Defendant and Appellant.

****

APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA

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THE HONORABLE MATTHEW M. BROWN
Judge

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

MARTY J. JACKLEY
Attorney General

STEPHEN G. GEMAR
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.

****

CONSIDERED ON BRIEFS
AUGUST 29, 2023
OPINION FILED 01/17/24
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KERN, Justice

[¶1.] Robert Horse was convicted of third-degree rape after a four-day trial

in Pennington County. He appeals his conviction, raising issues involving the

validity of a search warrant for location data from his phone, comments made

during trial by the State about the victim’s motivation to testify, and opinion

testimony given by the detective who investigated the case. We affirm.

Factual and Procedural History

[¶2.] Fourteen-year-old D.M. was walking alone in Rapid City on Tuesday,

June 4, 2019, when a man pulled up next to her in his car. D.M. recalled the man

asking her where he could get some marijuana. She said that she knew a place and

got in the car with him. The man gave her money to purchase marijuana for him,

and they stopped at a house where D.M. knew she could buy some. After she

purchased the marijuana, they stopped at a gas station where the man purchased

some rolling papers. They next drove to Skyline drive in Rapid City where they

smoked some of the marijuana. The man identified himself as “Robert.” They left

the Skyline drive area and drove around Rapid City. At some point, Robert stopped

at a gas station where he purchased a case of beer and cigarettes. According to

D.M., as they were driving around, she drank approximately nine beers as well as

some Jack Daniels and smoked some of the marijuana. D.M. recalled stopping at a

gas station in Deadwood but blacked out after that, and her memory became spotty

thereafter.

[¶3.] D.M.’s next memory was Horse’s face directly in front of hers. She

explained that he was on top of her with his face about a foot or two away while she

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was lying on her back. She next remembered standing in the shower of a “very

nice” bathroom, which she thought might have been in a hotel. Her next

recollection was being at a Dairy Queen and then trying to get into a car, but she

did not know how she had arrived there. The next thing she remembered was

waking up in her own bed in her room. She did not recall having sex with Horse.

However, when she got out of bed, she noticed “white stuff” in her panties. These

events all occurred on Tuesday.

[¶4.] D.M. did not disclose these events to anyone until Wednesday when

she told her mother. Her mother indicated that she would take her to the hospital

Thursday after work. However, D.M. instead went to a friend’s house on Thursday,

got drunk, and went to a weekly summer gathering in downtown Rapid City, where

D.M.’s mother and stepfather eventually found her and attempted to bring her

home. An altercation ensued and D.M. was taken into custody for assaulting her

stepfather. She was taken to the ARISE 1 facility where during the intake process

and screening she told the staff that she might have been sexually assaulted. The

ARISE staff took her to the hospital where a rape kit was performed. D.M. was

interviewed by law enforcement and detailed the information that she could

remember from her time with Horse.

[¶5.] In an attempt to identify the man D.M. referred to as Robert, Detective

Trista Dupres of the Pennington County Sheriff’s Office obtained a surveillance

1. The ARISE Center is located at the Western South Dakota Juvenile Services
Center. It is a staff secure, detention alternative/emergency shelter for youth
between the ages of 10 and 17 serving Pennington, Meade, Lawrence, Fall
River and surrounding counties.

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video from the gas station where, according to D.M., they had bought beer and

alcohol. Detective Dupres took a still photo from the video which depicted a man

getting out of the car D.M. was travelling in. She sent this photo to local law

enforcement asking for assistance in identifying the suspect. Horse was first

identified by Rapid City Police Chief Karl Jegeris, who recognized Horse from the

photo. Horse’s parole officer confirmed Horse’s identity and D.M. identified Horse

from a photo lineup.

[¶6.] Horse was arrested on June 26, 2019, and taken to the Pennington

County Jail and charged by complaint with alternative counts of rape. Sometime

thereafter, law enforcement received the test results from the rape kit which

revealed that the DNA identified in the sperm cell fraction obtained from D.M.’s

vaginal area matched a known sample taken from Horse. As part of her

investigation, Detective Dupres applied for and received a search warrant on June

27 (2019 warrant) for Horse’s Samsung Galaxy S7 cell phone. The phone was taken

with Horse’s property at the jail incident to his arrest. 2 On July 10, 2019, Horse

was indicted on one count of third-degree rape in violation of SDCL 22-22-1(4) and

in the alternative, one count of fourth-degree rape in violation of SDCL 22-22-1(5).

[¶7.] To prove that the crime occurred in Pennington County and to verify

D.M.’s recollection of events, the State sought to introduce location data obtained

from Google to show where Horse’s cell phone had been on the day of the alleged

2. Even after obtaining the June 2019 warrant, law enforcement was initially
unable to unlock the phone to obtain any information without a passcode.
However, law enforcement acquired the passcode through listening to a
phone call Horse made at the jail.

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crime. Although not contained in the record, two warrants were apparently issued

to Google in January and February of 2020 to obtain the location data. 3 The

warrants were discussed at a pretrial Daubert hearing where Horse moved via an

oral motion to suppress the historical cell site location data relied upon by the

State’s expert witness, Agent Richard Fennern of the Federal Bureau of

Investigation. In ruling on the suppression motion, the circuit court described the

warrants as listing the physical location of Google, Inc. and the account of Robert

Horse along with a specific email account attributed to him. The court further

stated that the warrant authorized a search for “all location data, whether derived

from local positioning system, GPS data, cell sites or tower triangulation or

trilateration, precision measurement information such as timing, advanced or per

call measurement data, and Wi-Fi location. Such data shall include the GPS

coordinates and date and time of all location readings for June 4th of 2019.” The

court denied the motion to suppress the location data and permitted Agent Fennern

to testify at trial.

[¶8.] At trial, the State called twenty witnesses. D.M. testified about her

memory of the events surrounding the incident. The State showed her several

photos of the bathroom taken at the house where Horse had been staying at a home

on East Enchanted Pines Drive. D.M. testified about various aspects of the

bathroom that she recognized from the photos.

3. At the Daubert hearing, the State indicated that there was an issue with the
time frame listed on the first warrant, resulting in a request for a second
warrant.

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[¶9.] At the end of D.M.’s direct examination, the following exchange

occurred:

State: [D.M.], why are you here today?
Defense Counsel: I’m going to object to relevance. Rule 403.
Court: I will sustain the objection.
State: [D.M.], is it easy for you to be here today?
D.M.: No.
State: Okay. What made you decide to come and
testify today?
Defense Counsel: I’m going to object to that as – the same
objection, Rule 401, Rule 403.
Court: It’s a little bit more specific of a question. I
will overrule the objection, and you can
answer that question.
D.M.: Maybe I will save someone else.
State: Okay. Thank you. I have no further
questions.
Defense Counsel: What was the answer. I didn’t even hear
that answer.
D.M.: Maybe I will save somebody else.
Defense Counsel: I’m going to object to that. I’m going to ask
that it be stricken, Your Honor. That’s
speculation and conjecture, and there is –
there is no basis for that.
State: I object to the speaking objection. And
maybe it’s the truth.
Defense Counsel: I’m going to object, Your Honor, and ask that
that be stricken and the jury be instructed to
disregard it.

At that point, the court took a recess. Outside the presence of the jury, Horse made

a motion for a mistrial based on the State’s comment “And maybe it’s the truth.”

After hearing arguments from the parties, the court overruled the objection to

D.M.’s response to the question regarding why she chose to testify. The court

explained that D.M.’s motivation for testifying was likely to be called into question

on cross-examination and throughout the trial. Observing that although the State’s

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question was likely more appropriate on redirect examination, the circuit court

allowed the question and answer to stand.

[¶10.] As for the State’s superfluous statement, the court determined that it

was argumentative, and therefore inappropriate at that stage of the trial. The court

admonished the State and indicated that it would give a curative instruction to

remedy the situation. The court denied the motion for mistrial concluding there

was not sufficient prejudice to the defendant to warrant a mistrial.

[¶11.] After the recess, the court reread a preliminary instruction given to the

jury emphasizing that statements and arguments by the attorneys during the trial

were not evidence, and also that the jury should not be influenced by the objections

made by the lawyers. The court struck the particular statement made by the

prosecutor from the record and told the jury to disregard it. 4

[¶12.] Detective Dupres also testified at trial about her investigative efforts

in the case. She indicated that she had obtained a search warrant for Horse’s phone

and gave the phone to a forensic examiner in order to download the contents of the

phone. She explained that she had also obtained additional warrants for Horse’s

Google account in an attempt to gather location data to determine where Horse and

D.M. travelled on the day in question. Her objective for obtaining this information

was to determine in which county the crime occurred. She stated that she received

an Excel spreadsheet from Google containing a series of latitudinal and longitudinal

4. In striking the statement, the court advised the jury that the prosecutor’s
comment “maybe it’s the truth,” “has been stricken from the record, and I am
admonishing the [j]ury to disregard that argument and that statement from
your consideration in the trial.”

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coordinates. She delivered this information to the FBI for assistance in mapping

out the location of the phone during the time frame involved.

[¶13.] Agent Fennern testified that he was a member of the FBI’s cellular

analysis survey team, comprised of agents who receive extensive training on

cellular technology and location information. In collaboration with local agencies,

team members assist with investigations by using historical data and records to

determine the location of phones, fugitives, and missing persons. Agent Fennern

testified that he received the Google location data and prepared a report based on

that information, which was admitted as an exhibit at trial. He described the data

as containing approximate locations of the device based on interactions with GPS, 5

wi-fi access points, and cellular networks that provide a radius within which a

phone is located. Agent Fennern testified that of the various types of data analyzed,

the GPS data is the most precise, with wi-fi data covering a larger radius, and cell

data having the broadest radius.

[¶14.] Using the information acquired from the data points of these three

sources, Agent Fennern testified that the data showed that the cell phone in

question had been in the area of the East Enchanted Pines Drive address D.M.

described on June 4, 2019, from 10:00 a.m. until 10:53 a.m. At 10:53 a.m., the

phone started moving into Rapid City. Agent Fennern testified that the location

information was consistent with the phone being at an Exxon gas station from 11:33

a.m. until 11:35 a.m. and at a Corner Pantry gas station from 11:39 a.m. until 11:43

5. Agent Fennern testified that most cell phones contain a GPS radio. The GPS
receivers in the phone connect with a satellite to determine the location of the
phone.

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a.m. From 1:51 p.m. until 3:19 p.m., the location data showed the phone leaving

Rapid City and going north to Sturgis before traveling toward Deadwood. The data

revealed that the phone moved back to Rapid City from Deadwood between 3:20

p.m. and 4:26 p.m. Agent Fennern testified that the phone was back in the

immediate vicinity of the East Enchanted Pines Drive address from 4:26 p.m. to

5:30 p.m. Finally, Agent Fennern testified that the phone was located in the

immediate vicinity of a Dairy Queen from 8:24 p.m. until 8:45 p.m. and then

returned to the East Enchanted Pines Drive address at 10:49 p.m.

[¶15.] Detective Dupres was recalled to the witness stand, and toward the

end of her direct examination, the State asked whether, based on her investigation,

she had an opinion as to where the assault took place. Horse objected as to lack of

foundation and invading the province of the jury, which the court overruled.

Detective Dupres indicated that she believed the assault occurred at the East

Enchanted Pines Drive address, located within Pennington County. This opinion

was based on the report from the FBI as well as what D.M. had told her regarding

the pictures of the bathroom in Horse’s residence.

[¶16.] The jury convicted Horse of third-degree rape on September 14, 2021,

and the court ordered a presentence investigation and a psycho-sexual examination.

At the sentencing hearing held on March 24, 2022, the circuit court sentenced Horse

to serve twenty years in the penitentiary, consecutive to a sentence he was already

serving. Horse appeals, raising several issues which we restate as follows:

1. Whether there was probable cause to authorize the search
warrant for the Google location data.

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2. Whether the circuit court abused its discretion by
overruling Horse’s objection to the State’s question
regarding D.M.’s motive for testifying and in denying
Horse’s motion for a mistrial based on the State’s
comment.

3. Whether the circuit court abused its discretion in
permitting Detective Dupres to opine about the location of
the crime.

Analysis

1. Whether there was probable cause to authorize the
search warrant for the Google location data.

[¶17.] Horse first argues that the circuit court should have granted his

motion to suppress the location data relied upon by Agent Fennern. He alleges that

there was a lack of probable cause to support the search warrant in that the search

warrant lacked sufficient particularity as to the information sought. We review the

issuing court’s determination of probable cause with “great deference,” and we “are

not empowered to conduct an after-the-fact de novo probable cause

determination[.]” State v. Ostby, 2020 S.D. 61, ¶ 13, 951 N.W.2d 294, 298 (quoting

State v. Raveydts, 2004 S.D. 134, ¶ 8, 691 N.W.2d 290, 293).

[¶18.] “In determining whether probable cause exists to support the issuance

of a search warrant, ‘[t]here must be “a showing of probability of criminal activity.”’”

Id. ¶ 14, 951 N.W.2d at 299 (alteration in original) (quoting State v. Tenold, 2019

S.D. 66, ¶ 30, 937 N.W.2d 6, 14). A probability of criminal activity is analyzed “by

looking at the totality of the circumstances to decide if there was at least a

‘substantial basis’ for the issuing judge’s finding of probable cause.” Raveydts, 2004

S.D. 134, ¶ 7, 691 N.W.2d at 293 (quoting State v. Jackson, 2000 S.D. 113, ¶ 8, 616

N.W.2d 412, 416). However, “[o]n review, we are limited to an examination of the
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facts as contained within the four corners of the affidavit.” Ostby, 2020 S.D. 61,

¶ 13, 951 N.W.2d at 298 (quoting State v. Gilmore, 2009 S.D. 11, ¶ 7, 762 N.W.2d

637, 641). Furthermore, we “look at the evidence contained in the affidavit in its

entirety—the ‘whole picture’—rather than at each piece of the evidence in

isolation.” Id. ¶ 15, 951 N.W.2d at 299 (quoting State v. Barry, 2018 S.D. 29, ¶ 22,

910 N.W.2d 204, 212).

[¶19.] In his argument to this Court, Horse argues that the June 2019 search

warrant for his cell phone was overly broad, not based on probable cause, and not

sufficiently particular. In support of his argument that the location data should be

suppressed, he challenges the June 2019 warrant. But the location data used by

Agent Fennern was produced from the January and February 2020 search warrants

presented to Google, not from the June 2019 warrant. Agent Fennern testified that

he relied on the location data obtained from Google for his analysis, not on the

information from the cell phone itself. 6 In other words, law enforcement did not

need the cell phone in order to obtain this location data. Therefore, the June 2019

search warrant was not relevant to the analysis, and we decline to address this

claim.

6. In his reply brief, Horse contends that the GPS data came from within the
cell phone itself. However, Agent Fennern testified that all of the
information he relied upon including GPS, wi-fi, and cellular data came from
the Google location data. During the Daubert hearing, Agent Fennern
explained that in order to obtain the location data from Google, it was
necessary to provide the phone identifier (the serial number of the cell phone,
also known as the International Mobile Equipment Identifier) or a Gmail
account and not the physical phone itself.

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[¶20.] In regard to the remaining two warrants from January and February

2020, they are not contained in the record for our review. We may only “review the

trial court record insofar as it exists.” Graff v. Child.’s Care Hosp. & Sch., 2020 S.D.

26, ¶ 16, 943 N.W.2d 484, 489. “[T]he ultimate responsibility for presenting an

adequate record on appeal falls upon the appellant.” Strong v. Gant, 2014 S.D. 8,

¶ 23, 843 N.W.2d 357, 363 (quoting Toben v. Jeske, 2006 S.D. 57, ¶ 11, 718 N.W.2d

32, 35). “Where the trial court record is incomplete and not adequate to the task,

‘our presumption is that the circuit court acted properly.’” Graff, 2020 S.D. 26, ¶ 16,

943 N.W.2d at 489 (quoting Baltodano v. N. Cent. Health Servs., Inc., 508 N.W.2d

892, 895 (S.D. 1993)). We therefore assume that the January and February 2020

search warrants were properly granted.

2. Whether the circuit court abused its discretion by
overruling Horse’s objection to the State’s question
and denying Horse’s motion for mistrial.

[¶21.] Horse next alleges that the State’s question to D.M.— “What made you

decide to come and testify today?”—was irrelevant and elicited a response which

had the sole purpose of appealing to the sympathy of the jury. “Our standard of

review for evidentiary rulings ‘requires a two-step process: first, to determine

whether the trial court abused its discretion in making an evidentiary ruling; and

second, whether this error was . . . prejudicial[.]’” State v. Hankins, 2022 S.D. 67,

¶ 20, 982 N.W.2d 21, 30 (quoting State v. Thoman, 2021 S.D. 10, ¶ 41, 955 N.W.2d

759, 772). “An abuse of discretion is a discretion exercised to an end or purpose not

justified by, and clearly against, reason and evidence.” Id. ¶ 21 (quoting State v.

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Babcock, 2020 S.D. 71, ¶ 21, 952 N.W.2d 750, 757). In addition to a showing of

error, the appellant must also show prejudice before we will reverse. Id. ¶ 20.

[¶22.] Horse claims that the question and answer about D.M.’s motive to

testify was irrelevant and highly prejudicial as D.M.’s credibility and her motivation

to testify had not yet been attacked on cross-examination. We agree with the circuit

court that the question may have been better suited for redirect examination to

rehabilitate D.M. after her credibility was challenged through cross-examination.

However, D.M.’s motive to testify was not irrelevant. Notably, defense counsel had

advised the jury in his opening statement that this case would come down to the

credibility of D.M., and he also alluded to what might have motivated her to report

that she had been sexually assaulted. Under these circumstances, the circuit court

was acting within its discretion in allowing the question and we find no error.

[¶23.] Closely related to the previous issue is Horse’s contention that the

prosecutor’s statement of “And maybe it’s the truth” regarding D.M.’s answer about

her motivation to testify at trial should have been grounds for a mistrial, as the

impermissible comment amounted to prosecutorial misconduct that improperly

bolstered the witness’s credibility. “We review the denial of a motion for mistrial for

an abuse of discretion[.]” State v. Shibly, 2023 S.D. 30, ¶ 21, 993 N.W.2d 143, 150

(alteration in original) (quoting State v. Nelson, 2022 S.D. 12, ¶ 35, 970 N.W.2d 814,

826).

[¶24.] “Improper vouching ‘invite[s] the jury to rely on the government’s

assessment that the witness is testifying truthfully.’” State v. Manning, 2023 S.D.

7, ¶ 38, 985 N.W.2d 743, 755 (alteration in original) (quoting State v. Snodgrass,

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2020 S.D. 66, ¶ 45, 951 N.W.2d 792, 806). “Prosecutorial misconduct implies a

dishonest act or an attempt to persuade the jury by use of deception or by

reprehensible methods.” Hankins, 2022 S.D. 67, ¶ 32, 982 N.W.2d at 33 (quoting

State v. Hayes, 2014 S.D. 72, ¶ 23, 855 N.W.2d 668, 675). “[N]o hard and fast rules

exist which state with certainty when prosecutorial misconduct reaches a level of

prejudicial error which demands reversal of the conviction and a new trial; each

case must be decided on its own facts.” Id. ¶ 33 (alteration in original) (quoting

State v. McMillen, 2019 S.D. 40, ¶ 27, 931 N.W.2d 725, 733). “Prosecutorial

misconduct is prejudicial when it ‘so infect[s] the trial with unfairness as to make

the resulting convictions a denial of due process.’” Id. (alteration in original)

(quoting State v. Smith, 1999 S.D. 83, ¶ 52, 599 N.W.2d 344, 355). “‘A criminal

conviction is not to be lightly overturned on the basis of a prosecutor’s comments

standing alone,’ but, if the prosecutor’s conduct affects the fairness of the trial when

viewed in context of the entire proceeding, reversal can be warranted.” Id. (quoting

McMillen, 2019 S.D. 40, ¶ 27, 931 N.W.2d at 733).

[¶25.] Here, the statement by the prosecutor does not require reversal. The

prosecutor’s remark, while improper, was not so reprehensible that it “infected the

trial with unfairness” so as to require reversal. The comment was a very short

statement made in the course of responding to a specific objection by defense

counsel regarding the speculative nature of the witness’s statement. And fairly

read, the prosecutor did not state that D.M. had, in fact, told the truth; the

prosecutor said that “maybe it’s the truth.” Regardless, the circuit court took

appropriate curative action by striking the comment from the record and by

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reiterating the preliminary instruction given to the jury that comments and

objections made by the attorneys are not evidence that should be considered.

Further, Horse has not shown that this statement, made in the course of a four-day

trial, was prejudicial to him. Therefore, the circuit court did not abuse its discretion

in denying Horse’s motion for a mistrial.

3. Whether the circuit court abused its discretion in
permitting Detective Dupres to opine about the
location of the crime.

[¶26.] Finally, Horse asserts that Detective Dupres’s opinion as to where the

rape occurred was not a lay opinion, but rather an expert opinion that should have

been disclosed prior to trial, pursuant to a pretrial order requiring disclosure of

experts and their anticipated testimony.

[¶27.] “Decisions to admit or deny opinion evidence will not be reversed

unless there is a clear showing of an abuse of discretion.” State v. Moran, 2003 S.D.

14, ¶ 12, 657 N.W.2d 319, 324. Lay witness testimony is governed by SDCL 19-19-

701, which states:

If a witness is not testifying as an expert, testimony in the form
of an opinion is limited to one that is:
(a) Rationally based on the witness’s perception;
(b) Helpful to clearly understanding the witness’s testimony
or to determining a fact in issue; and
(c) Not based on scientific, technical, or other specialized
knowledge within the scope of § 19-19-702.

[¶28.] Here, Detective Dupres’s opinion was not an expert opinion. Her

testimony regarding the location in which the crime occurred was rationally based

on her perceptions of the case having served as the lead investigator. This Court

has determined in prior cases that law enforcement officers may testify as lay

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witnesses based upon their own observations and involvement with the case. See,

e.g., State v. Evans, 2021 S.D. 12, ¶ 56, 956 N.W.2d 68, 89; State v. Stone, 2019 S.D.

18, ¶ 32, 925 N.W.2d 488, 499; State v. Asmussen, 2006 S.D. 37, ¶ 40, 713 N.W.2d

580, 592. Detective Dupres was simply connecting the dots between information

gleaned from the overall investigation, namely, her knowledge of the Google

location data provided by Agent Fennern charting the route taken by Horse and

D.M., and D.M.’s statements that she recognized the bathroom in Horse’s home

from photographs shown to her by law enforcement. Detective Dupres’s opinion

was not based on “scientific, technical, or other specialized knowledge,” as defined

in SDCL 19-19-702.

[¶29.] Horse also alleges that Detective Dupres’s testimony invaded the

province of the jury on the issue of venue. Detective Dupres gave her opinion

regarding where the crime occurred, and the jury was entitled to give that opinion

whatever weight they deemed appropriate. Indeed, the jury was properly

instructed that it was their role to determine that the State had established venue

by a preponderance of the evidence, which was defined in a separate instruction. 7

7. The instruction read:

The indictment alleges that offenses for which Defendant stands
charged were committed in Pennington County. This place of
commission of a crime is called venue. Venue must be shown by
the evidence which the State has the burden of proving by a
preponderance of the evidence. If the State does not prove
venue by a preponderance of the evidence, you must acquit the
Defendant.

(continued . . .)
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Therefore, Detective Dupres’s opinion as to where the crime occurred was a lay

opinion and the circuit court did not abuse its discretion by admitting the evidence.

Conclusion

[¶30.] The location data was obtained by the January and February 2020

search warrants and because these warrants are not included in the record, we

presume the warrants were proper and the circuit court did not err in its probable

cause determinations. Further, the court did not abuse its discretion in denying

Horse’s motion for a mistrial because the prosecutor’s comment did not rise to the

level of prosecutorial misconduct. Finally, the court did not abuse its discretion by

admitting Detective Dupres’s opinion as to where the rape took place because such

testimony did not constitute previously undisclosed expert testimony.

[¶31.] JENSEN, Chief Justice, and SALTER, DEVANEY, and MYREN,

Justices, concur.

________________________
(. . . continued)
When a Crime is committed in one county and partly in another
county, or the acts requisite to the offense occur in two or more
counties, the venue of the crime is in either county.

This instruction adequately instructed the jury that the State was
required to prove venue.

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