WILBUR, Justice.
[¶ 1.] Arley Roach was convicted by a jury of second-degree rape. Roach appeals a number of issues involving hearsay and the denial of a requested jury instruction, a Batson challenge, and an objection regarding the State's use of the word "rape" during trial. We affirm.
[¶ 2.] Roach and H.S. were involved in an intimate, three-year relationship characterized by several break-ups. The couple frequently reunited through consensual sexual intercourse.
[¶ 3.] On the evening of February 6, 2011, H.S. tried to end her relationship with Roach because she had begun a new relationship. That evening and into the early morning hours of February 7, 2011, the couple exchanged a series of text messages.
[¶ 4.] On the morning of February 7, 2011, Roach entered H.S.'s apartment, crawled into bed with H.S., and tried to have sex with her. H.S. refused, got up from the bed, and moved to the couch. Roach continued to try to have sex with her and H.S. continued to refuse. Roach then picked up H.S. and tried to carry her into the bathroom. While Roach was trying to carry her to the bathroom, H.S., in an effort to stop Roach, attempted to grab onto the walls and scraped her thumb on the corner of a doorway. H.S. asked Roach to stop and to put her down. Roach eventually complied and H.S. walked into the bathroom to smoke a cigarette.
[¶ 5.] Once in the bathroom, H.S. again tried to end her relationship with Roach. During their conversation, Roach became upset when he saw a hickey on H.S.'s neck. In response to this marking, Roach said that H.S. "c[ould] go fuck the world but [she] can't fuck him." Roach then started to pound his fist into his hand. H.S. became scared that he was going to harm her. Because Roach stood between her and the doorway to the bathroom, H.S. walked to the corner of the bathroom and began to cry. Roach proceeded to undress himself, grabbed a blanket off of a shelf, and placed it on the floor. Roach then grabbed H.S. and pushed her to the floor. While being held down by the weight of Roach, H.S. repeatedly told Roach to stop and that she did not want to have sex with him. H.S. eventually stopped fighting Roach. Roach penetrated H.S., ejaculated, and left the bathroom.
[¶ 6.] At this point, H.S.'s roommate, N.R., arrived home from school. In Roach's presence, N.R. asked H.S. what was wrong because H.S. was crying. H.S. did not respond. In an effort to find out more information, N.R. asked H.S. if Roach had forced H.S. to have sex with him. H.S. shook her head affirmatively. Roach stated that he had not done anything to H.S. N.R. asked H.S. if Roach had raped her and H.S. responded yes. N.R. called 911.
[¶ 7.] On March 31, 2011, Roach was indicted for second-degree rape and sexual contact with a person incapable of consenting. The sexual contact charge was later dismissed by the State. In a part two information, Roach was also charged as a habitual offender due to a prior felony conviction.
[¶ 8.] After a jury trial,
[¶ 9.] Roach raises five issues in this appeal:
[¶ 11.] At trial, Roach based his theory of defense on the tumultuous nature of his relationship with H.S., as well as their method of reconciliation — consensual sexual intercourse. He alleged that it was reasonable for him to believe that H.S. consented to the sexual encounter.
[¶ 12.] Roach proposed his jury instruction number two that stated, "[i]f the Defendant reasonably believed H.S. consented to the sex act, then no rape occurred." The trial court considered the jury instruction and denied it. Instead, the court gave Roach's third proposed instruction, a "mistake of fact" instruction, similar to the South Dakota Criminal Pattern Jury Instruction 2-8-1
Id. (alterations in original) (internal citations and quotations omitted).
[¶ 14.] Further, an "[e]rror in refusing a proposed instruction `is reversible only if it is prejudicial, and the defendant has the burden of proving any prejudice.'" Id. ¶ 18 (quoting State v. Martin, 2004 S.D. 82, ¶ 21, 683 N.W.2d 399, 406). "This requires a showing that the alleged error, in all probability, produced some effect upon the jury's verdict and was harmful to the substantial rights of the party assigning it." Id. (quoting Martin, 2004 S.D. 82, ¶ 37, 683 N.W.2d at 411).
[¶ 15.] Roach argues that the trial court deprived him of his constitutional rights to due process and a fair trial when it refused to instruct the jury on his theory of defense — consent. He further asserts that his second proposed instruction was supported by law and had a foundation in the evidence presented at trial. Roach maintains that he was prejudiced by the court's denial of his second proposed jury instruction because, had the instruction been given to the jury, the verdict would have been different.
[¶ 16.] The State asserts that the jury was properly instructed because, when the instructions are read as a whole, the law governing the case is correctly stated. The State contends that lack of consent is not an element of forcible rape under SDCL 22-22-1(2), and thus, the jury need not be given a specific instruction as to consent. In citing State v. Faehnrich,
[¶ 17.] The instructions given to the jury correctly stated the law applicable in this case. A plain reading of SDCL 22-22-1(2)
[¶ 18.] Furthermore, the jury instructions, when read as a whole, correctly stated the law applicable to this case and allowed Roach "a meaningful opportunity to present a complete defense." Klaudt, 2009 S.D. 71, ¶ 13, 772 N.W.2d at 121. Following rejection of Roach's instruction number two, the trial court gave the jury Roach's proposed "mistake of fact" instruction. In addition to Roach's "mistake of fact" instruction, the jury was also given instructions as to the elements of forcible rape, the presumption of innocence standard, and the reasonable doubt standard. Thus, when read as a whole, the instructions guided the jury to return a verdict of not guilty if the jury had a reasonable doubt as to whether Roach believed H.S. consented to intercourse.
[¶ 19.] Finally, Roach has failed to articulate any prejudice he suffered as a result of the court's denial of his proposed instruction. Even though Roach's second proposed jury instruction was denied, the court gave Roach's proposed "mistake of fact" instruction. Additionally, Roach was permitted to elicit testimony from H.S. on cross-examination that supported his consent defense. He also argued his consent defense before the jury in his closing argument. Thus, Roach did not suffer any prejudice from the trial court's denial of his proposed jury instruction.
[¶ 21.] Prior to trial, the State filed a notice to offer hearsay evidence of sexual assault nurse, Amber Mason, regarding statements H.S. made to Mason during Mason's examination of H.S. Mason is a registered nurse with specialized training in sexual assault at Rapid City Regional Hospital.
[¶ 22.] During a motions hearing, the State presented Mason's testimony. Roach objected to the testimony arguing that the testimony was hearsay and not admissible under SDCL 19-16-8 (Rule 803(4)). In a subsequent hearing, the trial court ruled generally that the portions of H.S.'s statements to Mason that were related to diagnosis and treatment were admissible at trial under SDCL 19-16-8 (Rule 803(4)). The trial court, however, did not specify which statements were admissible under SDCL 19-16-8 (Rule 803(4)) and which were not.
[¶ 24.] Mason further stated that she records the conversation she has with the victim in a "narrative." Mason testified that this narrative serves a medical purpose because it provides guidance to Mason in helping her locate injuries on the victim. Mason testified that she took H.S.'s narrative prior to the physical exam. In quoting H.S.'s narrative, Mason testified,
Mason further stated,
Mason also testified that,
Roach interposed no objection to the foregoing testimony.
[¶ 25.] On appeal, Roach argues that some of the statements made by Mason at trial were not relevant for medical diagnosis or treatment, were cumulative to H.S.'s in-court testimony, and thus, were inadmissible hearsay. The State argues that H.S.'s statements to Mason are admissible under SDCL 19-16-8 (Rule 803(4)).
[¶ 26.] Admissibility of evidence pursuant to SDCL 19-16-8 (Rule 803(4)) is reviewed under an abuse of discretion standard. See United States v. Sumner, 204 F.3d 1182, 1185 (8th Cir.2000). "`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." SDCL 19-16-1(3) (Rule 801(c)); State v. Shepard, 2009 S.D. 50, ¶ 14, 768 N.W.2d 162, 166. "Hearsay is not admissible except as provided by law or by chapters 19-9 to 19-18, inclusive, or by other rules prescribed by the Supreme Court." SDCL 19-16-4 (Rule 802). One such exception is SDCL 19-16-8 (Rule 803(4)), which provides:
"The crucial question under this rule ... is whether the out-of-court statements were `reasonably pertinent' to diagnosis or treatment." Olesen v. Class, 962 F.Supp. 1556, 1565 (D.S.D.1997) aff'd in part, rev'd in part, 164 F.3d 1096 (8th Cir.1999).
[¶ 27.] At the pretrial hearing, the trial court did not make a definitive ruling on the specific portions of Mason's narrative that are now at issue: those statements that were not related to diagnosis and treatment. Upon review, it appears that some portions of Mason's narrative were relevant to medical diagnosis and treatment and some portions were not. The trial court never made a specific pretrial ruling as to admissibility of each portion of the narrative, and Roach did not renew his objection at trial as to the portions of Mason's testimony that were not related to medical diagnosis and treatment. We have said on previous occasions that "[t]he `failure to object at trial constitutes a waiver of that issue on appeal.'" State v. Motzko, 2006 S.D. 13, ¶ 4 n. 2, 710 N.W.2d 433, 436 n. 2 (quoting State v. Moran, 2003 S.D. 14, ¶ 21, 657 N.W.2d 319, 325). Because Roach failed to renew his objection at trial to the portions of Mason's testimony that were not related to medical diagnosis and treatment, he waived this issue. Thus, this Court will not review the issue on appeal.
[¶ 29.] During voir dire, Roach's counsel presented questions to the prospective jurors regarding the presumption of innocence. C.B.B., a Native American prospective juror, stated that her understanding of the presumption of innocence was that the defendant is innocent until proven guilty. In response to counsel's request to elaborate on her affirmative response to the question about whether it would be hard for her to look at Roach as having done nothing wrong, C.B.B. responded, "Seeing him sitting there looking innocent, but you really don't think he did
[¶ 30.] Roach raised a Batson challenge to the State's peremptory strike of C.B.B. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Based on C.B.B.'s responses to its inquiries, the State responded that it did not believe that C.B.B. could be a fair and impartial juror. In relying on its detailed notes and observations of the proceedings, the trial court ruled that, based on C.B.B.'s confused responses to both counsel as to the standards for a criminal trial and C.B.B.'s demeanor throughout the proceedings, the State presented race-neutral reasons for the strike.
[¶ 31.] On appeal, Roach argues the State failed to articulate a race-neutral explanation for striking C.B.B., and therefore, Roach's conviction should be vacated. Specifically, he asserts that the State struck C.B.B. and, yet, chose to retain another juror, R.W., who incorporated C.B.B.'s response as to the meaning of presumption of innocence in his response to counsel's voir dire questions.
[¶ 32.] This Court reviews a trial court's ruling on a Batson challenge for clear error. State v. Mulligan, 2007 S.D. 67, ¶ 34, 736 N.W.2d 808, 820 (citing Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21). Additionally,
State v. Overbey, 2010 S.D. 78, ¶ 11, 790 N.W.2d 35, 40 (quoting In re H.L.S., 2009 S.D. 92, ¶ 11, 774 N.W.2d 803, 807-08).
[¶ 33.] The test for examining a Batson challenge consists of three steps. "[A] defendant must first establish a prima facie case of purposeful discrimination by showing he or she is a member of a cognizable racial group and the State used its peremptory challenges to remove members of the defendant's race from the potential jury candidates." Mulligan, 2007 S.D. 67, ¶ 33, 736 N.W.2d at 820 (quoting State v. Owen, 2007 S.D. 21, ¶ 45, 729 N.W.2d 356, 369). "A criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race." Id. (quoting Honomichl v. Leapley, 498 N.W.2d 636, 639 (S.D.1993)). "The burden then shifts to the State to provide a race-neutral explanation for the use of its peremptory challenges." Id. (quoting Owen, 2007 S.D. 21, ¶ 45, 729 N.W.2d at 369). "The trial court will then have the duty to determine if the defendant has established purposeful discrimination." Id. (quoting State v. Farmer, 407 N.W.2d 821, 823 (S.D. 1987)).
[¶ 34.] In this case, the trial court found that the State articulated a race-neutral explanation for the use of its peremptory challenge. The court based this finding on its observations of C.B.B.'s confusion in her responses as to the standards in criminal trials and her demeanor throughout the proceedings. We acknowledge that the trial court is in a better position to judge the credibility of C.B.B. This Court will give great deference to the trial court's finding that the State exercised a race-neutral strike. See id. ¶ 34 (quoting Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21 ("[T]he trial judge's findings in the context under consideration
[¶ 36.] At trial and prior to H.S. taking the stand, Officer Terviel testified on behalf of the State. Officer Terviel responded to N.R.'s 911 call on February 7, 2011. He testified as to his observations of H.S. When Officer Terviel began to testify as to his conversation with H.S. regarding what had happened, Roach objected to this testimony arguing that it was hearsay. His objection was overruled without explanation. The following day at trial, the State supplemented the record and stated that the testimony of Officer Terviel was admissible under the excited utterance exception to the hearsay rule under SDCL 19-16-6 (Rule 803(2)).
[¶ 37.] This Court reviews evidentiary rulings of the trial court under an abuse of discretion standard. State v. Graham, 2012 S.D. 42, ¶ 16, 815 N.W.2d 293, 301. "An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence." State v. Fisher, 2011 S.D. 74, ¶ 32, 805 N.W.2d 571, 578 (quoting State v. Krebs, 2006 S.D. 43, ¶ 26, 714 N.W.2d 91, 101).
[¶ 38.] To be admissible pursuant to the excited utterance exception to the hearsay rule, a hearsay statement must "relate `to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.'" State v. Midgett, 2004 S.D. 57, ¶ 31, 680 N.W.2d 288, 295 (quoting SDCL 19-16-6 (Rule 803(2)). "The reliability of the statement stems from the influence of the event that overrides any reflective capability essential for fabrication." State v. Floody, 481 N.W.2d 242, 250 (S.D.1992). "Thus, `the critical inquiry is whether the statements were made while the declarant was still under the influence of the experience.'" Id. (quoting State v. Logue, 372 N.W.2d 151, 159 (S.D. 1985))). "The lapse of time between the startling event and the out-of-court statement although relevant is not dispositive in the application of [R]ule 803(2)." United States v. Iron Shell, 633 F.2d 77, 85 (8th Cir.1980).
[¶ 39.] The State has cited the record in support of the trial court's admission of
[¶ 40.] In Midgett, we said,
2004 S.D. 57, ¶ 31, 680 N.W.2d at 295. Similar to the trial court in Midgett, the trial court in the present case did not determine whether each statement at issue was made under the stress of excitement of the event. However, unlike Midgett, the State has cited to stress of excitement evidence within the record. Officer Terviel, who arrived at H.S.'s apartment at 11:09 a.m. — 39 minutes after the forcible encounter occurred and three or four minutes after he received notice from dispatch of the incident, testified that he observed that H.S. "appeared to have been recently crying" and was "visibly upset." He also noted that H.S. was holding her abdomen area. Officer Terviel further testified that, while he was speaking to N.R., he "could hear [H.S.] crying." When Officer Terviel began to question H.S. about the alleged rape, H.S. "appeared to be visibly shaken, alternate — alternately crying, sobbing, and appeared quite upset." Specifically, Officer Terviel testified that
Officer Terviel's investigation involving H.S. lasted approximately 49 minutes.
[¶ 41.] Officer Terviel's observations and H.S.'s demeanor throughout Officer Terviel's investigation indicate that H.S.'s excited statements were the product of the startling event she was continuing to experience at the time she spoke with Officer Terviel rather than the product of reflection. While the trial court did not make findings as to the stress of excitement of the event on the record as discussed in Orelup, the State has cited stress of excitement evidence in the record to warrant the trial court's admission of Officer Terviel's testimony under the excited utterance exception to the hearsay rule. Therefore, the trial court was within its discretion to admit the testimony of Officer Terviel under SDCL 19-16-6 (Rule 803(2)).
[¶ 43.] Finally, Roach contends that the trial court abused its discretion in overruling his two objections and allowing the use of the word "rape" during the trial. He argues that he was prejudiced by its use. Roach further asserts that the use of the term was a legal conclusion which invaded
[¶ 44.] This is the first time this Court has addressed whether allowing the use of the word "rape" throughout trial is an abuse of discretion. Other jurisdictions have had the opportunity to address this issue. See State v. Goss, 293 N.C. 147, 235 S.E.2d 844, 849 (1977) (finding that the use of the term "rape" by the victim was clearly a "convenient shorthand term" and not an impermissible legal conclusion); State v. Wonser, 217 Kan. 406, 537 P.2d 197, 199 (1975) (finding that the trial court did not err in allowing the repeated use of the word "rape" by witnesses, the prosecuting attorney, and defense counsel when referring to an element of the offense of indecent liberties with a child and stating that "the parties were simply designating the act by its common name"); State v. Amick, No. COA8-760, 2009 WL 1056557, at *3 (N.C.Ct.App. Apr. 21, 2009) (stating that the victim's use of the word "rape" was not an impermissible legal conclusion, but rather "a `convenient shorthand term' to describe the victim's version of events"); People v. Haynes, No. A122908, 2010 WL 4132618, *6-7 (Cal.Dist.Ct.App. Oct. 21, 2010) (stating that it was not an abuse of discretion for the court to allow the prosecutor to ask the victim questions using the word "rape" and for the victim to use the word "rape" in response because victim's responses were shorthand for describing what had occurred). See also State v. Mireles, No. A03-699, 2004 WL 1244077, *4 (Minn.Ct.App. June 8, 2004) (finding that there was no prosecutorial misconduct in the prosecution's use of the word "rape" to describe the offense). But see Arnold v. State, 166 Ga.App. 313, 304 S.E.2d 118, 123 (1983) (stating that in this case, which turned on the identity of the assailant rather than on whether the rape occurred, the "[u]nrestricted use of the word ["rape"] may be objectionable, absent some jury instruction that the question of whether or not any rape occurred was for [the jury's] determination").
[¶ 45.] On a review of the record, the words "rape" or "raped" are used by both parties in voir dire, direct and cross-examination of witnesses, and closing arguments. Prior to Roach's first objection, "rape" or "raped" was used several times by both the State and Roach. Notably, even after his second objection, Roach used "rape" or "raped" in his cross-examination of H.S. and his closing argument. The prevalence of the use of the word "rape" by both sides lends credence to fact that the word "rape" was not used as a legal conclusion, but rather as shorthand to describe the events that occurred.
[¶ 46.] Further, while the court did not give a specific jury instruction as to the use of the words "rape" or "raped," the court did give specific instructions as to the elements of forcible rape under SDCL 22-22-1(2) that must be proven beyond a reasonable doubt, the definition of reasonable doubt, and the presumption of innocence. Roach did not suffer prejudice because the jury was properly instructed, thus avoiding confusion, if any, that the use of the word "rape" may have caused. Therefore, the court did not abuse its discretion in denying Roach's objection to the use of the word "rape" during trial.
[¶ 47.] The trial court properly denied Roach's proposed jury instruction on consent. The instructions that were given to the jury accurately stated the law and were not prejudicial to Roach. Additionally, because Roach did not object to Mason's testimony at trial, he failed to preserve that issue on appeal. The trial court also correctly denied Roach's Batson challenge to the State's peremptory strike of juror, C.B.B. Further, while the trial court did not make specific findings on the record, the State has cited to stress of excitement evidence in the record to warrant the trial court's admission of Officer Terviel's testimony under the excited utterance exception to the hearsay rule. Lastly, the trial court did not abuse its discretion in denying Roach's objection to the use of the word "rape" during trial. Therefore, based on the foregoing, we affirm.
[¶ 48.] GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices, concur.
[¶ 49.] KONENKAMP, Justice, concurs specially.
KONENKAMP, Justice (concurring specially).
[¶ 50.] This case illustrates one of the pitfalls inherent in our rule in SDCL 19-9-3 (Rule 103(a)). The rule provides in part: "Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal." SDCL 19-9-3 (Rule 103(a)) (emphasis added); see also Papke v. Harbert, 2007 S.D. 87, ¶ 54 n. 16, 738 N.W.2d 510, 528 n. 16. Our rule gives no further guidance on what constitutes a "definitive ruling." Overreliance on this provision may be hazardous to preserving an objection for appeal.
[¶ 51.] Here, the defense sought a pretrial order to exclude, among other things, the testimony of Nurse Amber Mason about statements the victim made regarding the identity of the alleged assailant and other remarks not pertinent to medical diagnosis. The court granted the request, in part, saying it "will not admit the identity information elicited." Defense counsel also asked the court for "clarification on the purported statements the State is seeking to introduce, as not all statements of the alleged victim supposedly made to Ms. Mason are pertinent to medical diagnosis or treatment." The court responded:
Then the court asked counsel if its response provided "sufficient direction." The State answered affirmatively, and defense counsel replied, "We do rely on our letter dated August 12th." But that letter, again, only sought the same "clarification" and commented that "not all statements the alleged victim supposedly made to Ms. Mason are pertinent to medical diagnosis or treatment."
[¶ 52.] Was there a definitive ruling? In fairness to defense counsel, in a sense the ruling was definitive: it was not conditional or provisional. Apparently, the trial court intended its ruling to be its final
[¶ 53.] On appeal, counsel thoroughly parses Nurse Mason's testimony, arguing that portions were not at all related to diagnosis or treatment. But the trial court was never given the opportunity to hear these specific objections. If it had, the matter may have been easily corrected. Defense counsel should have brought this issue back to the court's attention at trial. As the Committee Notes explain, "Even where the court's ruling is definitive, nothing in the [rule] prohibits the court from revisiting its decision when the evidence is to be offered." Id. Since the court was not given an opportunity to rule on the specific concerns now before us, we must declare the issue waived.
Id. The trial court refused to give this instruction to the jury. Id. at 334. The court instead instructed, and this Court ultimately approved, the following mistake of fact instruction:
Id.
