931 N.W.2d 725
S.D.2019Background
- McMillen (37) communicated with 15-year-old T.J.L. via Facebook, texts, and phone; he twice picked her up during school and took her to his apartment.
- In the apartment, T.J.L. testified to multiple sexual acts including digital penetration, use of a rubber sex toy, oral sex, and that the activity stopped when she objected; McMillen denied any sexual contact.
- Evidence included Facebook messages, an accusatory message from a friend, consistent statements to officers, and photos of McMillen's apartment/truck from his Facebook page.
- A jury convicted McMillen of four counts of fourth-degree rape, one count of sexual exploitation of a minor, one count of solicitation of a minor, and one misdemeanor enticing a child away; sentences for the two non-rape counts were consecutive (suspended).
- McMillen did not object at trial to (1) sentencing on the exploitation/solicitation counts as potentially duplicative or (2) a prosecutor's cross-examination comparing his step-daughter to the victim; he raised both issues for the first time on appeal and the court reviewed them for plain error.
Issues
| Issue | Plaintiff's Argument (McMillen) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether convictions/sentences for sexual exploitation and solicitation violated Double Jeopardy | Sexual exploitation and solicitation punish same conduct as rape (same-act, multiple punishment) | Solicitation based on pre-encounter communications is separate conduct; exploitation has distinct statutory elements from rape under Blockburger | No plain error: solicitation upheld (separate conduct); exploitation not plain error because elements differ and record didn’t show clear obvious error |
| Whether prosecutor’s cross-examination constituted misconduct warranting a new trial | Questions comparing victim to McMillen’s step-daughter were improper community-conscience appeals and suggested risk to other children, prejudicing jury | Questions were brief, unobjected-to, and did not affect substantial rights amid corroborating evidence | Court finds questions improper but, on plain-error review, McMillen failed to show prejudice to substantial rights; convictions affirmed |
Key Cases Cited
- Blockburger v. United States, 284 U.S. 299 (establishes test whether each statutory offense requires proof of a fact the other does not)
- State v. Dillon, 632 N.W.2d 37 (S.D. 2001) (vacated duplicate convictions where statutes both required sexual penetration of a child)
- State v. Livingood, 921 N.W.2d 492 (S.D. 2018) (interpreting "harmful to a minor" in sexual-exploitation statute as broad and potentially covering non-penetrative conduct)
- State v. Garza, 854 N.W.2d 833 (S.D. 2014) (describes double jeopardy protections and analytical framework)
- Beck v. State, 785 N.W.2d 288 (S.D. 2010) (plain-error standard and burden on appellant to show prejudice)
- United States v. Olano, 507 U.S. 725 (sets forth principles governing plain-error review)