State v. Blair

2006 SD 75 Dakota, Plaintiff

STATE of South Appellee, BLAIR, Defendant

Cameron Gene Appellant.

No. 23463.

Supreme of South Dakota. Court 5, 2005.

Argued Oct.

Reassigned Feb. 2006. 16, 2006. Aug.

Decided

Rehearing Sept. Denied General, Long, Attorney E.

Lawrence Strohman, Gary Campbell, M. Assis- John General, Pierre, Attorneys Da- tant South kota, Attorneys plaintiff appellee. Rensch, Office, Timothy Rensch Law J. Dakota, City, Attorney for Rapid South appellant. defendant and (on GILBERTSON, reas- Chief Justice signment). time, For the second Cameron appeals

Blair his sentences for five counts filming prohibited a minor af- grossly disproportionate. act as We firm. AND

FACTS PROCEDURE (Blair) Cameron shared custody daughter, of his who was fourteen leading old at the time of the events arrest, up to Blair’s with his ex-wife. long history allowing Blair had a his daughter girlfriends spend to have her par- at home. At night his these slumber ties, girls typically Blair’s hot used tub girls after which Blair would insist that the daughter required shower. Blair also day to shower several times a while at his home. daugh-

[¶ 3.] On June girls sleepover ter invited four to a sleep- Blair’s home. At the time over, girls ranged age from fourteen girls stop interrupting used the rected her to his conver- years old. to fifteen Blair to required by hot tub were sation. Ultimately, afterward. shower Finally, approximately 6 a.m. videotap- suspicious that Blair was

became “therapy session” ended when the two in they while were the bath- ing them in girls feign sleep decided to order to end room.1 the conversation. Blair offered to tuck the midnight, around Blair Sometime girls two into bed. He sat down between girls, two of the who were fifteen took girls the two on the and bed rubbed their time, to the and en- down basement “to fall As help asleep heads them faster.” in Blair told the gaged them conversation. bed, got Blair from up grabbed he therapist that he was a and offered girls girls’ both buttocks over the covers and boys. information life and advice and about girls ran left the room. The then to the eventually topic to the sub- He shifted the bathroom and locked themselves inside to attempt- ject of sex and masturbation. He change They clothеs. left Blair’s home girls to tell him how often get ed to and returned to the home of one of the masturbated, they and shared and how they girls, reported where the events to with them that he had masturbated girl’s mother. When Blair’s ex-wife morning watching videotape while learned what had occurred at the slumber spouse having sex. himself and former party, police she called the and an investi- He also shared detailed stories about his gation was initiated. past experiences. Blair told the girls big nipples, he liked women with and investigation originally cen- him repeatedly then asked them show night tered on Blair’s conduct on the of the in point their breasts. At some the con- However, party. slumber a search war- versation, pulled gym Blair flat his shorts daughter rant was issued after Blair’s told against body his to reveal the outline of his police videotape she had seen a of a seven- testicles, penis pointed and which he then eight-year-old placed male foster child out and named for the “educational bene- care, in in Blair’s which the child was girls. explain- fit” of the two he was While in filmed the nude. The search of Blair’s pointing anatomy, out his male his videotape home revealed a VHS format penis beyond extended the hem of his containing fifty separate instances which for a minute or shorts and was visible age surrepti- eleven girls young as as were During evening, more.2 the course of the tiously videotaped by Blair while girls Blair rubbed one of the on her also police bathroom. The also discovered that upper thigh, explaining “proper” way a crack in the wall between the bathroom “therapy to excite a man. This session” recently room had laundry and the been lasted for several hours. Several times patched. The location of the crack was conversation, during daughter Blair’s visual рrovided such that access to ask attempted come downstairs what However, per- bathroom and was of sufficient size to group discussing. repeatedly upstairs videotaping. sent her back and di- mit exposed girls he himself to the two suspicious 1. The became that Blair was Blair denies placed girls during filming them in bathroom after he the conversation. both girls in- described the event two different a video camera on shelf in the bathroom exposed that Blair to touch it as it was terviews and maintained and told the recharging. penis during conversation. As footage, angles and content. County deputy specific A Minnehaha noted, the content Blair attorney daughter the circuit court showed state’s photographs close-up her friends still after included and zoomed and one of area, breasts, of the videotape part pubic from the nipples, made shots of the into Blair’s conduct. His investigation and four genitalia daughter of Blair’s and four of her daughter identified herself they engaging friends while were her from the still photographs friends functions in the bath- everyday common victims, cloth- appearance from the in, manipulating the By zooming room. on the ing, hairstyles captured and voices towels, angle clothing camera around videotape. She was also able to determine upside camera turning and at times occurred at Blair’s videotaping the up girl’s legs, a down to shoot between homes, ap- and former current footage much sought Blair to obtain as im- videotaped proximate dates when body parts of the possible specific of these girl other also ages captured. were The included girls. videotape five The also friends, herself, identify other was able to young girls mastur- footage of one of the locations, dates from the approximаte bating with a hairbrush. interviews, From these photographs. still footage In addition to the of the [¶ 10.] deputy attorney state’s was able to in girls ranging age bodies of from naked girls videotape that the determine fourteen, images eleven to a few were of fourteen, ranged age in from eleven to a one or two adult women. There was also months, eighteen that over the course of fifty-five in clip approximately seconds surreptitiously videotaped Blair them. young pre-adolescent in length which a videotape by police seized The [¶ 8.] boy is shown naked as he exits the shower ninety-one of im- contained over minutes manipu- off. camera was and towels The ages. The first seconds are a record- few by young in lated Blair and zoomed portion of a small of a newscast. The boy’s genitals. tape images by then transitions to shot ninety-one Blair. Of the minutes of video- images Based on the on the ed- [¶ 11.] Blair, tape by twenty-four shot minutes videotape, ited it is that it does not obvious in were shot while the camera was a sta- play images in order in which the the same tionary twenty-four location. Of those Rather, fifty in- were shot. each of the minutes, eleven minutes are of Blair and filmed at a videotaping stances of were engaged activity. an in sexual adult woman eighteen different time across an month chil- The other thirteen minutes are of the in time frame and two different locations. toilet, using per- showering, dren footage spliced The was then edited and everyday common functions. forming other together produce videotape the VHS However, videotape is of balance ninety-one of im- containing the minutes entirely an different character. ages.3 Law enforcement was able to de- images termine that the newer were filmed Approximately sixty minutes of [¶ 9.] thrоugh in the crack videotape by present were shot Blair while home wall, images in in filmed manipulating the camera order to obtain while older were during videotape highly 3. The VHS discovered is ed- era was discovered in Blair's home images suggest original that the search and is believed to be the camera uti- ited. The footage tapes by original footage. was shot on other and then lized Blair to shoot the videotape original tapes edited onto the discovered in shot eight Blair’s home. An millimeter video cam- were never recovered law enforcement. through grate up penitentiary. be- to ten in the state previous in his home tween the bathroom and Blair’s bedroom. SDCL 22-6-1. police also discovered a A separate criminal file was images with two of child

computer disk opened for the child pornography images. image of two pornography. One small charged Blair was then with one count of years of girls approximately age, five to six possession pornography of child viola- touching which one of the pleaded tion of SDCL 22-22-23.1.5 Blair other in a sexual manner. The second guilty charges to all the in circuit image appeared five-year-old to be of a changed court. He later plea guilty masturbating erect of an girl penis charges filming five a minor adult male.4 prohibited sexual act and one count of possession of child pornography. ex- the images Based on discovered change, charges forty-five for the other videotape, charged on the Blair was images photographed of a minor in pro- filming prohibit- five counts of a minor act image hibited sexual and one of child ed sexual act in violation of 22-22- SDCL pornography brought. were not Prior to repeal, its SDCL 22-22-23 in provided part: relevant At a sentencing hearing con- Any person knowingly who causes or ducted on December one of the filming the or of permits photographing attempted testify victims to but unable was age years a of minor under the sixteen Instead, to do so due to emotion. her in a engage prohibited sexual act or mother read her statement into the record. guilty the simulation of such act is of a The mother of another one of the victims felony. 4 Any person photo- Class who daughter’s also read her statement into graphs age or films a minor under the of addition, daughter the record. Blair’s years engaging prohibited sixteen in a judge and first ex-wife sent letters to the sexual act or in the simulation of an such they in open but asked that not be read 4 guilty felony. act is of a Class pub- court of due the extensive amount prohibited licity The definition of a sexual act the had received in the local case “nudity included if such sexual act is de- media. The circuit court also considered a picted for the of purpose pre-sentence investigation report sexual stimu- conduct- officer, lation gratification any person by who ed a court services treatment might depiction.” such 22-22- notes and a offender evaluation con- view SDCL Curran, 2002, 109, 22 (repealed by Mary S.L. ch. ducted Carole Ph. S.D. Sister 1). D., felony, § a support As Class a conviction and letters of from Blair’s by family. under punishable SDCL 22-22-23 was any knowledge graph, depicting Blair disavowed of these im- or film minor under ages, stating purchased that he had a box of age eighteen years engaging prohib- in a computer garage disks sale and was not ited sexual act or in the simulation of such images aware of the on one of the disks. He knowing possession act encour- or whose subsequently further stated that he discovered aids, abets, any person ages, or entices storage the disks were insufficient for his data "prohibited guilty commit a sexual act" is any needs and he never used of the disks. felony. aof Class 6 109, 1). (repealed by § S.D. S.L. ch. As repeal, pro- 5. Prior to its SDCL 22-22-23.1 felony, a conviction could in a Class 6 result vided: years sentence of two state maximum Any person knowingly possesses who penitentiary. 22-6-1. SDCL book, slide, magazine, pamphlet, photo- Blair’s The circuit court found that imposed tors. The circuit conduct, lack of background, criminal ten-year on each of

maximum sentence sentences, original prohibit- supported in a filming five a minor remorse counts consecutively, grossly the sentences were not to be ed sexual act served Despite finding its fifty years penitentiary. disproportionate. for a total of jail grossly dispropor- were not posses- No was for sentences imposed time court, tionate, for charge, the circuit the sake sion of child but pornography judicial economy, intra-juris- an register offender conducted required was sex review of similar offenses based plea agree- under the conditions of the dictional introduced defense appealed to this on the evidence ment. Blair the sentence Court, sentencing hearing A was counsel. second arguing grossly sentence pro- then Defense counsel disproportionate. We affirmed the circuit scheduled. of a pornography copies proportionality for duced certified court’s sentence count, report compiled by Blair’s the Unified Judicial reversed and remanded but System listing all convictions violations original of ten each of sentence Defense sub- filming counts of a minor in a 22-22-23. counsel five SDCL prohibited specifically arguing sexual act. or- mitted a brief sentence We his crime com- disproportionate dered circuit сourt to examine Blair’s when prospects, pared rehabilitation and then resen- to ten other individuals convicted taking or similar crimes. The did tence Blair into account factors same State v. a brief. Hinger, set forth State SD submit Bonner, State analyzed all The circuit court However, at that SD 577 N.W.2d 575. provided by ten cases defense counsel time, record a point appellate the lacked opinion. its The circuit court written copy pre-sentence videotape, the only Spack the case of State v. found report, reports and investigation police case, was similar the facts Blair’s but treatment and sex specific “Absent authori 263, 274-75, 1133, 1139, 445 U.S. 100 S.Ct. ty, appellate it is not the role of an court to (1980))). Only 63 L.Ed.2d 382 when judgment substitute its for that of the sentence appears grossly disproportionate sentencing court as to the appropriateness will this Court conduct an intra and inter- of a particular (quoting Id. sentence[.]” Bonner, jurisdictional analysis. 1998 SD ¶ Milk, 28, 10, 2000 SD 607 N.W.2d at 17 ¶30, 17, 577 at 580. N.W.2d Gehrke, 423)). (quoting 491 at N.W.2d Thus, review, rarely this Court will overturn a On we also must statutory principle sentence within the maximum on adhere to the well-settled Herrmann, 53, appeal. v. 2004 this Court does not “resolve State SD conflicts ¶ 503, 26, Garber, evidence, credibility 679 511 (citing pass N.W.2d on of the evi 327). 2, 28, dence, Piper, 2004 674 at weigh evidence^]” SD N.W.2d or that he did determination commit Court held that a defendant's lack remorse crimes. appropriately a is considered ¶ 7, Id. at 619 N.W.2d 872. The circuit court Weber, (citing court. Id. Ganrude V. 2000 SD viewed as a lack of remorse and consid- 96, 12, 807, 810; ¶ v. 614 N.W.2d State Chase heavily imposed ered it when it the sentence. Winter, 350, (S.D.1995)). 355 534 N.W.2d affirmed, appeal On the sentence was and this 62 children “the use of This is because 1, 84, (citing at 1113. 709 N.W.2d 815

2006 SD (S.D. Romero, materials subjects pornographic 791 State v. 269 N.W.2d as 1978)). having the benefit of emotional physiological, Not had harmful us, Id. must appearing before we witnesses of the child.” mental hеalth circuit court’s assessment defer to the noted previously This Court has Id. (citing credibility of witnesses. Bonner, children, es- against “[c]rimes (S.D. 1, 4-5 Burtzlaff, 493 v. State N.W.2d offenses, na- have increased pecially sex 1992)). 1998 by epidemic proportions.”8 tionwide ¶30, 28, Because 577 N.W.2d SD AND DECISION ANALYSIS child are clear that no our state laws Supreme The United States gratifica- for sexual ever be used should unique and com- recognized has Court impose a tion,9 sought Legislature our has in “safe- interest the state pelling use upon those who significant penalty psychological physical guarding pornog- production child children Ohio, a minor.” Osborne v. well-being of child possess raphy, or who distribute 109, 103, 109 110 S.Ct. 495 U.S. McKinney, 2005 State v. pornography. (1990) (quoting New York v. L.Ed.2d 98 (McKin- ¶74, 27, 460, 699 468 SD Ferber, 747, 756-758, 102 S.Ct. 458 U.S. II). ney statutory scheme part As (1982)). 3354-3355, 3348, 1113 73 L.Ed.2d children from those designed protect that virtu- recognized That has also Court produce child seek to manufacture or who ally government all and the Federal states codified the pornography, Legislature pro- legislation prohibiting passed have Ferber, filming pro- of child in a photographing or pornography. child 458 duction of felony.10 3355, a 4 758, hibited sexual act as Class 73 L.Ed.2d U.S. at S.Ct. Bonner, crimes); (making SDCL 22-24A-1 question in tims of sex 8. While the crime in 28, 583, ¶30, felony); statutory- pornography child 577 N.W.2d at the sale of SD (defining possession, rape, circuit dockets in South Dakota SDCL 22-24A-3 pornography pornog- cases and child do not lack for or distribution of manufacture (crimi- perpetrated against felony); sexual crimes chil- 22-22-24.3 raphy other SDCL recent case defining exploitation as evidenced this Court's of a nalizing dren sexual Helland, (crimi- felony); State v. 2005 SD load. See 22-24A-5 minor as a SDCL (intermediate appeal charges pur- nalizing N.W.2d 262 the solicitation of minor II, 22-22-24); McKinney act). under SDCL poses engaging prohibited (prosecuted under SD Martin, 22-22-24); State v. SDCL statutory recognize that scheme 10.We (prosecuted under 674 N.W.2d 291 significantly 2002 when SDCL altered in Christensen, 22-22-24); SDCL and State repealed. the lan- 22-22-22 was (prosecuted 663 N.W.2d 691 guage SDCL 22-24A-2 would still encom- ‍​‌‌‌‌​​‌‌​​​‌‌​‌‌‌‌​​​‌​​​​‌​​‌​‌​​‌‌​​‌​‌​​‌‌‌​‍(repealed by 22-22-23.1 S.L. under SDCL pass Blair was convict- the conduct for which 109, 2002, 3)). § ch. ed: act,” 22-22-1(1) actual or simulated (defining sexual "Prohibited sexual 9. See SDCL sadism, masochism, intercourse, sex- penetration thirteen sexual of a victim less than masturbation, incest, (im- bestiality, or sado- years age rape); ual SDCL 22-22-1.2 abuse; simulated ex- rape actual or posing or sexual masochistic minimum sentences child); (defin- genitals, pubic or rectal 22-22-7 hibition of contact with a SDCL breasts, area, in a lewd or the bare feminine contact with a child under when sexual manner; misdemeanor); physical actual con- felony or lascivious sixteen is a or a SDCL person's or unclothed (defining tact with a clothed sexual contact with a 22-22-7.3 buttocks, or, area, if such youn- genitals, pubic person child under sixteen another female, misdemeanor); with the intent to person is a breast ger as a SDCL than sixteen gratify the sexual desire of either (defining safety arouse or 22-22-7.5 zone for child vic-

63 2002, (repealed by 22-22-23 S.L. it is well SDCL set 2). such, up § to a maximum of ch. 109 As tled that discretion must be peni- in years imprisonment ten the state understanding exercised with the that “the tentiary may imposed for the conviction Legislature in establishing punishment count, in on one addition to a fíne of ten range of zero to for [photo [ten] per thousand dollars conviction. SDCL graphing a child in a prohibited sexual 22-6-1(7). act,] intended the more serious commis sions this crime to deserve sentences at Legislature defined [¶ 25.] When the harsher end of the spectrum.” Bon prohibited what constituted a sexual act ¶ ner, 30, 25, 577 N.W.2d at 582. 22-22-22, it did not under SDCL distin- Courts must “reserve the most severe guish degrees between or create for the sanctions for the most serious combina Instead, prohibited sexual acts. the stat- tions of the offense background and the provided: ute the offender.” (quoting People Id. act, §§ 22- Prohibited sexual as used Milbourn, 630, Mich. 461 N.W.2d 17 22-23, 22-22-23.1, means, 22-22-24 (1990)). intercourse, intercourse, sexual anal masturbation, sadism, bestiality, maso- have previously [¶ 27.] We stated that chism, fellatio, cunnilingus, incest and in order impose pro a sentence that is any activity other including sexual nudi- portionate particulars of the offense ty if activity depicted such sexual offender, and the the circuit court must purpose gra- sexual stimulation or “acquire a thorough acquaintance with the any person might tification of who view history [person] character and of the be depiction. such Encouraging, aiding, Bonner, fore it.” abetting, any person or enticing to com- (quoting N.W.2d State v. Chase in prohibited mit such sexual act as Winter, (S.D. 534 N.W.2d 354-55 provided prohibited this section is a 1995)). Hinger/Bonner The factors are act. sexual appropriate factors for the circuit 22-22-22 (repealed by SDCL determining S.L. to consider when sen 1). § Legislature ch. 109 tencing, understood which include the defendant’s character, that a circuit “general mentality, court would have the discre- moral hab its, impose environment, tendencies, tion to within age, sentence the zero sociál year crime, range regard ten without to which inclination aversion or to commit life, prohibited of the sexual depicted family, occupation, previous acts was crimi Winter, particular film or nal photograph upon (quoting record.” Id. Chase 354-55). addition, which conviction under SDCL 22-22-23 was based. That is pro- because code trial court considers the rehabilitation distinguish vision did not between the dif- prospects particular of the defendant. Id. types activity, ferent (quoting Leapley, or define Bult v. (S.D.1993)).

depictions of some activities as egre- Finally, impact more gious depiction victims, than the prohibit- including other crime on the victim or ed sexual relating personal acts. “evidence eharacteris- party; encouraging, aiding, abetting pur- or urination the term includes defecation for

pose creating enticing any person any sexual the excitement in or to commit such of viewer; provided or act or conduct which consti- acts as in this subdivision. The battery tutes sexual or simulates that sexual term does not include a mother’s breast- added). battery being feeding baby[.] (emphasis is or will be committed. The of her 64 any sexual contact Blair impact the and emotional there between

tics of victim the Finally, argues that the victims. Blair may and the ...also be examined of crime girls injury upon young the inflicted the by the court. v. considered trial State attorney ¶ a the occurred as result of state’s Rhines, 55, 130-134, 548 of videotape the the divulging existence 415, v. (quoting Payne 445-46 N.W.2d showing portions girls of it as Tennessee, 808, 811, 111 501 U.S. S.Ct. part investigation, his that his less- of (1991)). 720 115 L.Ed.2d inflicting injury should culpability er acquaintance a acquiring thorough "When been considered the circuit court have it, man circuit court has of the before sentencing. of respect type wide discretion with as its information used well source. It is from the record that clear [¶ ¶ II, 74, 17, McKinney SD years to forty Blair was not sentenced for Arabie, v. (quoting at 466 State N.W.2d minor filming prohibited a in a sexual act. 257). 21, SD eight years on each Blair was sentenced include may inquiry “This consideration photographing of the five counts of five ” (citing into Id. ‘uncharged prohibited conduct[.]’ a children in sexual different Schaefer, 291 F.3d act, prison imposed United States no time while was for (7th Cir.2002)). felony count of possession sixth eight-year The pornography. five argues ap- in his 28.] Blair second imposed consecutively were then sentences Court, that his peal before this reduсed years. of forty for a total years five forty sentence of counts On must review Court first filming prohibited a minor a sexual act sentence, ten-year determine whether disproportionate. He contends grossly is years grossly suspended, with two dis- long penitentiary that a sentence was not for each of the five felonies. proportionate appropriate necessary given facts Then, must the im- we determine whether case, his and that circuit court should position of five consecutive sentences is him have sentenced at the lower end of the given grossly disproportionate particu- his range. support Blair offers as for and the offender. As lars offense fact has no signifi- contention the that he ¶91, 20, in Hinger, we noted history,11 the of- prior cant criminal sex question becomes “[t]he evaluation rates him in the low to fender this ‘most severe’ whether sanction re-offend, range moderate for ‘the most reserved serious combination court services officer’s inves- pre-sentence background the offense and the tigation indicates Blair was remorseful. ” so, In doing we offender.’ decline Blair’s argues prospects He also his for rehabilita- invitation to under the review sentence ignored by tion were circuit court. premise that to forty he was sentenced addition, argues conduct less filming prohibited for a minor in a nature, deserving severe and therefore act. punishment at the lower end of the range, he did not direct given because circuit court is au- intercourse, “intercourse, engage impose anal thority consecutive sentences sadism, fellatio, etc.,” 22-6-6.1, bestiality, provides: nor was under SDCL which dollars, driving prior at the for 11. Blair’s criminal time of one hundred conviction record intoxicated, sentencing hearing boating included misdemeanor while and violаtion of conduct, disorderly con- convictions three regulation. victions insufficient checks less than funds history If has been convicted of two nal imposed a defendant when it Blair’s sen- offenses, regardless tence, or more when reading fair of the record indicates were committed or when the offenses the circuit heavily court discounted entered, judgment or sentence was this in comparison factor to the other rele- may judgment or sentence be that the vant factors it considered. The circuit any on imprisonment the offenses or gave greater weight to other sen- may concurrently convictions run or con- tencing factors such as the number of secutively at the discretion of the court. charges that against could have been filed Blair, candor, Blair’s lack of remorse and SDCL 22-6-6.1 authorizes the circuit court the escalation of Blair’s conduct to over the impose consecutive sentences at its dis ¶ Moran, 14, 57, eighteen-month period in question, age cretion. State SD victims, so, doing 332. In it must the effects of N.W.2d Blair’s consider, crimes on sentencing pro young girls as it must the five victimized cedure, by his Hinger/Bonner factors. Su acts. ¶ 27. pra ease, the instant [¶ 35.]In Blair could [¶ 32.] We address each of the follow- have been fifty indicted and convicted of separately factors on review: Blair’s more violations of SDCL 22-22-23 based record, previous criminal his inclination to on the videotape, contents of the and two re-offend, remorse, his level of his rehabili- possession counts of of child pornography. prospects, danger presents tation he Thus, potential he faced a of 500 or more community, and the effects of the years in if prison charges all had been crime on the victims. brought and the maximum im- sentence

Previous Criminal Record posed However, on each charge. under sentencing At the second the terms of plea bargain pleaded Blair hearing, circuit court took into account guilty only filming five counts of a minor Hinger/Bonner, all of the factors listed in prohibited in a act under SDCL 22-22-23 noting that it considered Blair’s lack of a and one count of possession por- of child significant prior criminal record to ir nography. It was within the circuit court’s relevant under the circumstances broad discretion to take note of these addi- case. Our case law makes clear that the tional uncharged determining counts when prior existence or absence of criminal of appropriate an McKinney sentence. See many fenses is one of factors to be consid II, 699 N.W.2d at 466. imposing ered the trial court when Inclination to Re-offend 91, ¶ 21, Hinger, sentence. See it is within argues Blair that Curran’s sex the circuit court’s sentencing discretion to offender evaluation and the court services weight give any determine how much pre-sentence investigation officer’s offer factors, including the relevant significant that he was at evidence low risk prior history. defendant’s criminal See re-offend, and therefore a lower sen- 1, ¶ 84, Piper, 2006 SD 709 N.W.2d at 815 required. tence was The relevant factors (holding appeal this Court does not argues circuit court failed reweigh the evidence cir reviewed consider were the low to moderate score court). cuit evaluation; he on the received sex offender the circuit [¶ 34.] While court’s choice and the court services officer’s assessment candor, language seems to indicate it his assessment did significant consider the lack of crimi- end of the prior Blair’s crimes were on lower number of zero for the offenses, probation, times on and his for sex scale of sex jail, for the number times in zero rеcommendation. alcohol related and zero for related arrests assessment psychological The However, court records Blair’s arrests. included two differ- by Curran conducted have of these items should indicate each instruments, Multi-Pha- the Minnesota ent answered with one. been (MMPI-II)12 Personality Inventory sic Inventory Adjustment and Sexual self-re- discussed these Curran [¶ 40.] which, (SAI), according report, to her “is report, in her and ported discrepancies identify sexually deviate designed to time to that was insufficient “[t]here stated accused or people behavior paraphiliac13 the effect data to determine rerun the offense.” convicted of sexual might have had on the inaccuracies that when re- reported Curran are reported The results overall results. MMPI-II, questions on the sponding initially assuming the data those obtained in an attempted place “Blair himself further was truthful.” Curran provided by minimizing faults overly positive light imply that Mr. Blair results “[t]hese stated denying problems.” psychological a low rapist and that he has is not was, appro- profile Blair’s MMPI-II for sexual assault.” Curran probability correction, range. priate within the normal Blair scored the medi- also stated that goes on to state report Curran’s (forty sixty-nine percen- range um risk minimization of that as a result of Blair’s tile) scale, adjustment rank- sexual on the psychological prob- faults and denial of fifty-sixth percentile. Curran lems, “may be an under- the assessments concern caution and “[s]ome indicated prob- psychological of Mr. Blair’s estimate regarding person’s evident sexual are lems.” Finally, adjustment responses.” Curran also report Curran’s states suggest that Blair’s test results reported on responses Blair was untruthful dysfunc- exhibiting psychological that he The directions to the assessment SAI. severity, qual- tion of mild to moderatе but give informa- specifically state not to false noting impossible that “it is ified this may used for tion as court records much, all, if at his SAI scores know how warning despite verification. Yet affected had the correct would have been instructions, responses were provided.” information been background reported Blair zero anything but true. attempted to charac- has arrests, yet his court records indicated miti- report strong positive terize the as Similarly, Blair answered four arrests. evidence, expert an gating contains misde- zero for the number lifetime convictions, opinion that he is a low risk meanor zero for the number Indust., types. Dorland Annotated Medical- v. we de- Sloane 12. In Wiedmann Merillat MMPI, (1987); Psychiatric Legal Dictionary scribed the or Minnesota Multi-Phasic Personality Inventory: (5th 1981). Dictionary 640 ed. 2, 43, objective psychologi- The test is a standard 45 n. 2 6 n. 623 N.W.2d Albertson’s, battery consisting of 550-566 true-false cal (quoting Johnson behavior, feelings, questions concerning so- ¶ 6). 452 n. attitudes, psy- symptoms of cial and frank question, chopathology. To each the sub- preference Paraphilia as “the is defined true, say. ject false or cannot must answer practices.” unusual sexual or addiction to subject's answer sheet is then scored Dictionary International Webster’s Third New keys have standardized on various been (1976). diagnostic groups personality different scale, scale, child molestation night daughter’s assault of his sleepover. may incest scale. be true Blair attempted get While to two of girls responses captured him, based on his as on the discuss masturbation with and to by MMPI-II and SAI administered Cur- show him their breasts. Blair did so ran, it is that Blair than engaging obvious was less them in all-night an “therapy tools, diagnostic truthful on each of these session” using developed skills youth as a fact not lost on the circuit court. counselor, advisor and positiоn and his authority figure, an as tools to manipulate Next, argues that the cir- these two fifteen-year-old girls under the cuit court did not consider the court ser- guise of “educating” them their own vices officer’s sentencing recommendation. Compare Mitchell, “benefit.” State v. 491 He contends that the court services offi- (S.D.1992) N.W.2d 439 - 440 (rejecting cer’s recommendation of “a considerable justification proffered defendant’s amount of suspended time with most of it repeatedly raping stepdaughter his that he and with some specific recommendations preparing was dating); her for Mitchell v. parole upon board release” is enti- Class, (S.D.1994) (af N.W.2d greater weight tled to than it was given firming thirty-year sentence on six counts the circuit argues court. Blair defendant’s, rape, rejecting explanation court expe- services officer had substantial that he was educating his stepdaughter on rience in dealing interviewing with and intercourse). Although no defendants, sexual contact and had no “sugar reason to evening, occurred that it was not for want opinions coat” his reports. of trying part on repeatedly as he [¶ 43.] While the court services officer asked the two to show him their sentence, did recommend a more lenient breasts, rubbed girls’ one of the on her his final recommendation included a con- upper grabbed buttocks, thigh, girls’ both cession that he could not “be sure [Blair’s exposed penis his to them. The cir sex crimes] would not have escalated into cuit court gave did not err when it greater something more serious pervert- ” weight to this evidence than the evidence ed.... The veteran officer also noted that generated from Blair’s less than truthful very talkative,” while Blair “open was responses to Curran and the court services whether or very not he was “truthful officer. say hard to as ‘sex offеnders’ big- are the Remorse gest usually very ‘cons’ and are convinc-

ing.” [¶ 46.] Remorse is a factor appropriate The circuit court for the circuit court to take is entitled to great into weighing imposing discretion consideration when evidence. sen it, Stahl, 154, ¶ 7, Based on the evidence before the circuit tence. 2000 SD court presented Weber, found that Blair greater (citing N.W.2d at 872 Ganrude v. ¶96, risk to 807, 810; re-offend than either Curran or the 614 N.W.2d Winter, 355). court services officer concluded. Their Chase in 534 N.W.2d at conclusions were based what the circuit the circuit court is the final arbi court determined to than be less truthful ter of the Piper, truthfulness of a witness. responses given from Blair in an attempt (citing himself, place 4-5). overly positive light. an Burtzlaff, 493 analysis its of Blair’s likeli heavily circuit court relied re-offend, hood the circuit heavily perceived on what it to be Blair’s lack of focused on the court, Curran, escalation of Blair’s conduct candor to the and to the weighed heavily ior for what it was also officer when it evaluated

court services remorse. The circuit court of Blair’s Blair’s level of the circuit court’s determination less than truthful when he noted Blair was lack of and level of remorse. candor MMPI-II, using the and not- was assessed fact that Blair [¶ ‍​‌‌‌‌​​‌‌​​​‌‌​‌‌‌‌​​​‌​​​​‌​​‌​‌​​‌‌​​‌​‌​​‌‌‌​‍51.] The was unable ed lack of candor even more that his reasons led the circuit articulate his apparent on the SAI where Blair failed to he court to truthful believe history despite his criminal report self committing about motivation for that court records could used warning be crime, not candid about his motivation and truthfulness of answers. verify the his The expressing for remorse. circuit court in his argues Blair brief that he expressions re- determined that Blair’s suspended did that the im- not understand only and in morse were insincere offered prior for his ar- position of sentence DUI lower The hopes securing a sentence. would be of his probation part rest and circuit did not abuse its discretion judgment no record since record was when it the evidence offered at determined However, Blair entered zero for entered. hearing support did not concerning past all criminal con- questions Blair’s claimed sense of remorse. crimes, duct, for sex related convic- arrests Prospects Rehabilitation tions, prison. and times in All probation may A denial defendant’s this the fact that Blair was incar- despite by sentencing court as an considered time he took cerated at the the assess- indicator of whether a defendant can be ment, having after been arrested for a sex I, successfully McKinney rehabilitated. crime. related ¶ 12, 73, at SD 476-77. circuit gave great [¶ The court also 49.] That is must be because “[rehabilitation original sentencing hearing, weight gin acknowledgment the offender’s disproportionality analysis in its personal Clegg, fault.” State remand, fact that Blair offer could 578, 580. The ina 635 N.W.2d cogent explanation no his conduct or bility unwillingness accept personal why he he did not believe would be discov- may by a responsibility be considered only explanation The offered ered. sentencing court as an indicator that a and the to Curran court services prospects defendant’s rehabilitation are was “curiosity.” officer for his conduct limited. Id. possible curiosity value What case, In the instant Blair’s videotape footage could such have for inability accept the seriousness of his forty-two- twice-married-and-divorced significant conduct factor in the year-old father, who claimed to not have circuit determination of his rehabil court’s lately problems had dated who relat- itation The circuit court noted prospects. The only possible to adult women? an without admission Blair as “value” or “benefit” to Blair of the video- filming the true conduct in taped of his naked nature of his footage daughter and video, rehabilitation ages through editing her at the efforts friends eleven prove term would futile.14 gratifica- fourteen was for his own short not inability that he did mastur- accept tion. Blair’s his behav- insistence I, McKinney due to continued denial of This Court the defendant's ¶ 15, misconduct, upheld despite the trial a score in low to finding prospects court's for rehabilita range to moderate re-offend. poor tion and sex offender treatment were watching the videotape riage, appears bate while ability his to main- court, by the circuit especially believed tain a relationship with an adult woman that he had at first given admitted that he was further compromised as his self-es- very had done nature of so. plummeted. teem Blair himself noted that videotape as it was edited renders it use- he had not been dating much prior to his any legitimate purpose, less notwith- time, At point arrest. some Blair ap- standing Blair’s claim that it was done to pears to have abandoned attempts at rela- appease curiosity. Lacking ability tionships with adult women favor of to admit his growing sexual attraction to videotaping eleven- to fourteen-year-old young early teenage years their girls. growing pornogra- addiction to child

phy, an addiction some of Blair’s relatives [¶ 55.] Curran’s treatment notes indi- acknowledged in support their letters of to cate she discussed with Blair growth court, the circuit court reasoned Blair and escalation of his behavior from video- present would to danger community taping to an attempt at outright physical that rehabilitative efforts would not allevi- contact girls with two of the at sleep- Therefore, ate in the short term. the cir- response, over. Blair noted that three give cuit court elected to weight more to years prior to the arrest he would not have penological theory incapacitation thought he videotape would people. Blair than rehabilitation.15 conceded that he grown had tired of watching videotaped images and had Danger Community to the moved into personal contact and sexual The circuit court greatly girls talk with the evening two on the concerned with the escalation of Blair’s sleepover. conduct over time. The police reports progression [¶ 56.] While Blair’s from pre-sentence contained investigation voyeur pornographer to child attempted to report indicated that Blair’s first wife had may child molester be discovered him characterized as peeking through a hole in slow, the wall at two nevertheless it was guests staying female obvious to the their home they while used the circuit court that Blair presented very bathroom. After the failure of Blair’s second mar- danger real community.16 cir- The Eighth 15. ports Amendment does not mandate Anti-Child-Pornography Regulations in adoption penological Reality, one scheme. Virtual 85 Minn.L.Rev. n. Harmelin, (2001) (citing U.S. 111 S.Ct. at 69-71 Pornography Child Pre- Penological may Hearing 115 L.Ed.2d 836. schemes vention Act of 1995: Before the Sen- Comm, theories, including Judiciary, Cong. be based on ate different 104th retri- bution, deterrence, (1996) (statement Cline) incapacitation of Professor or rehabili- Victor tation, (testifying long psychologist as "a grossly special- as a sentence is clinical not disproportionate. izing compulsions” in the treatment of Id. sexual noting overwhelming majority "that the empirical 16. No quantify studies exist that pedophiles pornog- of the he treats use child pornographers number of child raphy that escalate creаte it to stimulate and whet and/or However, predatory physical appetites they conduct. their sexual which masturbate to, profiles of cases and Federal Bureau of Inves- then later use as a model for their own ” tigation acting-out “studies of sexual offenders indicate sexual with children’ and that viewing correlation between the pedo- and collec- “he had seen numerous cases where pornography tion of philes pornographic materials and the used the material to se- subsequent acts”)); engaging commission of crimes.” Michael duce children into in sexual Wegner, Teaching Dogs K. Department Old New Tricks: United States of Justice Office of Prevention, Why Speech Traditional Free Sup- Delinquency Doctrine Juvenile and Use of degree of only cuit court concluded that the reason account the offensiveness dem- conduct not escalate to an actu- Blair’s in child pornog- Blair’s did onstrated taste attempt appeared argues al at sexual contact to be his raphy. offense is arrest. a lesser deserving punishment because no sex act other than masturbation was explanation his con- depicted, and Blair did not because direct young duct his basement with two girls engage conduct rings as hollow as his excuse that his However, does filmed.17 the statute creating videotape motivation prohibit- differentiate between the various “curiosity.” mere Blair offered that these ed acts or rank acts from se- girls were of his two not even friends require pun- vere to less severe and daughters “basically that he had found adjusted accordingly. ishment be them and invited them to come .” He over also told Curran that his conduct was the Blair does that the concede con- of low and a result self-esteem need videotape tent requirements met the accept admired. The circuit court did not 22-22-23, of SDCL the crime to which he as plausible explanations, these factors pleaded guilty. despite this con- again inability that Blair’s determined cession, Blair his conduct is less reasons accept his conduct for what was made deserving punishment, only as his crime danger community. him a caused his victims humiliation and invaded Crime on Victims Effects of their It privacy. is to note that important charged peek- was not window argument Blair’s that con- his 22-21-3, ing less under or with a duct was severe in nature and there- SDCL misde- deserving of SDCL 22-21-4 for punishment taking fore the lower meanor under pictures to suggest end scale seems that of someone in the nude without the circuit have court should taken into their consent.18 crimes These two more Computers Exploitation provides: person in the may Sexual of Chil- 18. SDCL 22-21-3 "No (1999) (“describing por- dren 3 use of private child property enter the of another and nography preferential as a of characteristic peek any door or window of inhabited purposes”); sex offenders law enforcement thereon, building or structure located without Missing Exploited National Center having purpose lawful with the owner or oc- Children, Child Who Molesters Abduct: Sum- cupant thereof. A violation of this section is (1995) ("de- mary of the Case Series in Point Class 1 misdemeanor.” tailing numerous cases of convicted child mo- provides: SDCL 22-21-4 lesters and abductors who used various forms camcorder, person may No use a concealed pornography of child as a means of stimu- camera, picture photographic motion or cam- lation of their own sexual desires com- before film, any type, secretly videotape, era children”). mitting against sexual crimes means, photograph, by or record electronic any clothing, person or other without by noted As Justice Blackmun in his con- person through clothing under other or Ferber, 12-year-old pho- currence in “a child being by person, pur- worn for the other masturbating tographed surely while suffers of, pose viewing body undergar- or psychological the same harm whether the by, person, ments worn other without the community photograph 'edifying' labels the or knowledge person, consent or of that other appreciation ‘tasteless.’ audience’s to, arouse, appeal gratify with the intent to or depiction simply irrelevant to [the State’s] lust, passions, or desires of protecting asserted interest in children from emotional, person privacy of that psychological, and invade the other and mental harm.” 774-75, person, 458 U.S. at 102 S.Ct. at under circumstances in which the J., (Blackmun, concurring). person expectation L.Ed.2d 1113 has a other reasonable description “peep- consequence. fit of a curious aptly Other victims wrote similar attempts give statements, tom” that Blair discussing how his acts were a conduct, and are considered invasion violation of girls trust each of these had Instead, privacy crimes. Blair was Blair. One of the victims wrote that she at 22- charged with sex crime under SDCL times wondered if she could trust her own filming prohibited 22-23 for a minor father not to do something similar to her. sexual act. We do not accept Blair’s charac- just It is not humiliation and injuries terization of the victims’ as humili- girls’ privacy invasion of the that SDCL ation privacy and invasion of caused targeted preventing 22-22-23 was learning of the videotape, existence of the suggested by Blair. The sought statute seeing or still photographs made from the protect photo- children from those who videotape. Nothing could be further from graph engaged or film in prohibit- children injuries the true nature of the inflicted is, sought ed sexual acts. That the statute upon young girls, especially Blair’s from protect children those who create daughter.19 young girls These were used pornography either still picture exploited objects by forty-two as sex moving film format. images Whether the year old man. The State’s disclosure of in question the children were limited to the existence of videotape girls nudity, something or extended to as hei- showing photos some of them the still bestiality, sought nous as the statute made from the videotape did not create protect predators children from who de- injury. The injury was inflicted rive their sexual satisfaction from child surrepti- conduct at the time he pornography and pro- those who seek to tiously girls filmed the and then used those predators vide such with these images. images for his own sexual gratification. heavily The circuit court focused time, At that the children were victimized its decision on the effects of and the elements of completed. the crime young Blair’s crimes on the five vic- Blair prosecuted for a sex The timized. letters from several of the crime, children, not for humiliating these significant victims indicate the psychologi- invading privacy, causing their or them cal harm by incurred the victims. Each of exhibit trust issues. The circuit court un- girls the who wrote letters statements derstood the distinction clearly and was to the circuit court respec- focused on their injury focused on the to the victims as a parent tive disbelief that could do such encompassing exploitation when it thing to a child. daughter Blair’s wrote compared psychological injuries the of a that is unable to why she understand her manner, rape injuries father victim to psychological would treat her such a the and how she is unable to people by trust as a incurred these young girls.20 privacy. A being my violation of this section is a Class Just reminded of what dad has 1 misdemeanor. days ques- done to me has some me made really get tion if there reason to out deny any 19. Blair continues sexual attrac- morning. just of bed in the I didn't want daughter. tion to his Even if the circuit court anymore.... live The more I think about truth, accepted had that statement as it does the more I have realized I don't think of negate appears fact that the to have daughter “stalking my him as dad used his as a because real Fathers don’t horse” gain order to access her friends. hurt their children like this. daughter 20. Blair’s wrote a letter to the cir- prior sentencing hearing. cuit court to the It part: stated in Furthermore, felony. The that the circuit court one fact sentences the 64.]

[¶ consecutively, imposed crime on while harsher of the effects of Blair’s were was aware sentence, evi does not make community and on the victims as than concurrent disproportionate. by opinion issued the sentences a whole denced its memorandum and sentencing hearing the first its after clearly The record establishes conducting gross after opinion issued five girls in the minds each of these on remand. disproportionality analysis specific crimes were individual and has that a sex legislature “The determined and psy- each of them and the emotional against a child a serious concern crime damages by each was chological sustained punished severe and one which should be and The circuit unique individual. Guthmiller, ly.” State to hold Blair was well within its discretion 295, 311 (reaffirming for the crimes com- separately accountable given deference should be utmost against each of the five victims of mitted sentencing and the court in Legislature by his crimes consecutive sen- imposing child, involving against sex cases crimes justly tences. circuit court concluded pedophilia). cоntext of criminal Giv that concurrent would not ac- understanding of the circuit court’s en justice of the five complish for each chil- against chil increasing trend sex crimes Separate dren victimized Blair. crimes dren, and the of conduct often escalation against separate justi- victims committed cases, types depicted the circuit is, separate, consecutive sentenc- fied greater err placed court did not when it ing. penological of deter

focus on the theories With the full record now before incapacitation rather than on rence us we are able to discern the nature of rehabilitation. conduct, character, ef- his its light egregious nature fect on the victims as determined against the offense at least five circuit court. a doubt This is without fourteen, ages between eleven most serious violation of SDCL 22-22-23 repeated violations of SDCL 22-22-23 Dakota, videotape in South in that eighteen-month period, over an Blair’s lack fifty sepa- contained evidence of at least his own con- of remorse candor about rate violations five different against vic- duct, attempts to shift the cause of the tims. The of the severity combination injury attorney, offense, to the state’s and the se- crime effects of the on the long-lasting injuries psychological victims, vere and limited rehabilitation child-vic- justify to his own and the other at the prospects a sentence harsher tims, imposed spectrum. the sentences were not of the Based on the end record whole, grossly disproportionate eight-year crimes five consecutive sentences, harsh, eight not appear committed. was sentenced while do years charged. disproportionate for each of the offenses grossly five therefore do forty years prohi- He Amendment Eighth sentenced not violate by thing today A letter to the authored one of the to come to even face this here man, get up say he victims was read into the record at the sen- here and what did to tencing hearing by thinking wrong. stated her mother. It me Now I'm about part: pictures head. how he me in his I was sad, my outraged, frightened, at the I don't know where to start. I feel like all same my has been violated. I feel like I lost time when I out. I am scared to trust found anyone.... dying identity. I I [have] even come to think I trust I felt like when my every- can’t trust own took out. father.... It found against punish- cruel and unusual cuit court for a bition reduction. In reluctant Therefore, order, to review compliance ment. we decline with our judge re- intra-jurisdictional analysis offered duced each of the five sentences sus- pending years two appeal. years Blair on the ten im- posed for each conviction. Now defendant Affirmed. [¶ 68.] a forty-year prison faces term. He con- tends that this grossly new sentence is also ZINTER, Justice, concurs. [¶ 69.] disproportionate. view, In my the correct KONENKAMP, Justice, [¶ 70.] concurs performing method for a proportionality in result. analysis of consecutive sentences is not to examine them in aggregate, but to exam- MEIERHENRY, SABERS and individually. ine each one Justices, dissent. KONENKAMP, (concurring Justice I. result). In general, ascertain whether question today we face excessive, sentence is unconstitutionally eight-year

whether a sentence of five con we must first decide whether there is a prison unconstitutionally secutive terms is showing gross threshold disproportion- excessive for a defendant convicted of five ality by comparing gravity “the of photographing counts a minor in an offense [with] the harshness of the penal sentences, noncapital obscene act. With ty.” 28, Ewing, 1179, 538 U.S. at 123 S.Ct. Supreme the United States Court uses 108; Harmelin, 155 L.Ed.2d accord proportionality “narrow principle” that for 1005, 2680, U.S. 111 S.Ct. 115 L.Ed.2d punishment “grossly bids disproportion J., (Kennedy, concurring part and ate” to the crime. Ewing California, v. concurring in the judgment). perform 11, 20, 23, 1179, 1186, 538 U.S. 123 S.Ct. analysis, we must determine if the (2003) (O’Connor, J., 155 L.Ed.2d 108 con Legislature had a reasonable basis for con curring in judgment) (quoting Harme cluding that the sentencing framework ad 957, 996-97, lin v. Michigan, 501 U.S. goals vanced the of South Dakota’s crimi (1991) 2680, 2703, S.Ct. 115 L.Ed.2d 836 justice system any nal way. substantial J., (Kennedy, concurring in part and con 28, Ewing, See 538 U.S. at 123 S.Ct. curring judgment)).21 We use the (quoting 155 L.Ed.2d 108 Solem analysis same under the South Dakota Helm, 463 U.S. n. 103 S.Ct. Pugh, Constitution. State v. 3001, 3013, 77 (1983)). Then, L.Ed.2d 637 ¶ 19, (interpreting Arti we consider whether the sentence of a cle VI section 23 of the South Dakota particular ‍​‌‌‌‌​​‌‌​​​‌‌​‌‌‌‌​​​‌​​​​‌​​‌​‌​​‌‌​​‌​‌​​‌‌‌​‍grossly dispropor defendant is Constitution). tionate the crime committed. Id. A sentence, In originally imposing prison grossly dispropor sentence is not gave the circuit court defendant ten tionate if it furthers the State’s retributive convictions, for each of his five with each goals reflecting and correctional “a ration consecutively, sentence to be served legislative judgment, result- al entitled to defer in a fifty years peniten- 30, 1190, total of in the ence.” Id. at 123 at S.Ct. 155 tiary. We remanded the case to the eir- L.Ed.2d 108. Ewing only prohibition punishment. Harmelin and confirm that in on cruel and unusual 22, 1185, "exceedingly Ewing, rare” cases will a sentence aof 538 U.S. at 123 S.Ct. at 155 years (citation omitted). Eighth of term violate the Amendment’s L.Ed.2d 108

74 be decided next is pressed 77.] hard What must [¶ One would be legislative creating “stacking” a scheme the of sentences cre-

conclude that whether photo disproportionality. a maximum sentence ten-year gross ates an issue of in act could a child an obscene graphing separate five felo- Defendant committed Certainly, considered excessive. ever be separate minors. videotaping nies five Legislature can “with reason сonclude the authority no for the notion that he He cites posed individual and that the threat or right has a state federal constitutional society” activity, dangerous from this separate for five to concurrent sentences children, enough of is bad the welfare separate acts. resulting crimes from five retribution warrant deterrence Nonetheless, proportionality legitimate ten-year term. through prison a See review, question the remains whether we Harmelin, 1003, 111 S.Ct. 501 U.S. at at examine each separately should sentence J., (Kennedy, 2707, L.Ed.2d 836 con 115 the imposed or whether we should examine judg in the curring part concurring in no have defini- cumulative sentences. We ment). pornography pernicious is Child guidance Supreme tive from Court. nothing It less than societal affliction. is Indeed, Court’s Supreme diverse abused, exploited of chil depiction the vile Eighth proportionality analy- Amendment purposes. lascivious dren for not ses “have established a clear consis- Court, quote Supreme To path for v. Lockyer tent courts to follow.” judgment, as legislative as well “The Andrade, 63, 72, 1166, 538 123 S.Ct. U.S. literature, in judgment found relevant is (2003). 1173, In rejecting 155 L.Ed.2d 144 subjects the use children challenges to in long prison sentences harmful to pornographic materials is majority and Ewing, Harmelin emotional, physiological, and mental health any single in agree opin- could not Court Ohio, child.” Osborne v. 495 U.S. the Supreme adopts ion. Until Court 1696, 103, 109, 1691, 110 S.Ct. 109 L.Ed.2d I would approach, prefer more consistent Ferber, (1990) (quoting 98 New York v. 458 precedent to examine on consecutive sen- 756-58, 747, 102 73 U.S. S.Ct. analysis jurisdictions that tence from those (1982) (citations omitted)). 1113 L.Ed.2d specifically have considered issue. only harms pornography Child chil Several courts have concluded production, also “causes dren its but gross that a review must disproportionality continuing by haunting harm child victims sentence, performed separate for each the children to come.” Id. not the total. United v. cumulative States (citation omitted). at 1697 Sen 110 S.Ct. (10th Schell, Cir.1982), 692 F.2d 672 Unit for these tencing offenses should reflect (2d Aiello, v. F.2d 257 ed States 864 Cir. the child have the harm victims suffered. Ramos, 1988); Pearson v. F.3d 881 Sherman, F.3d United States (7th Cir.2001); People, Close v. P.3d 528 (7th Cir.2001) (the por children 547-48 (Colo.2002). Supreme As the Court trayed pornography primary are wrote, nothing victims). Iowa “There is cruel and comparing “gravity punishing person about unusual commit penalty,” to the “harshness of the offense” severely crimes ting per two more than a I question conclude that the of whether a crime, committing only son one which is kind ten-year penalty maximum for this sentencing.” effect of dispro consecutive exploitation grossly itself portionate nega August, State v. must be answered 1999) (Iowa original). Like Ewing, (emphasis 123 S.Ct. at tive. U.S. 1179, 155 wise, Supreme L.Ed.2d the Arizona Court conclud- 108. “if particular year ed that the sentence for a prison offense, term for each two disproportionately long, offense is not it years than less the maximum penalty, is merely does not become so because is grossly not disproportionate to the crimes sepa consecutive to another sentence for a Thus, he committed. finding no or rate offense because the consecutive gross disproportionality our review ends. lengthy are in aggregate.” sentences Ari Berger, zona v. Ariz. 134 P.3d 378 II. (Ariz 2006) (citation omitted) (mandatory [¶ 80.] Aside from question pro- amounting consecutive sentences to 200 portionality, say, nonetheless, I must years imprisonment for pos 20 counts of the new sentences defendant received on pornography session of child was not cruel remand strike problematic, me as consid- unusual). I find these persuasive. cases ering that videotapes his arе not the most Each sentence should be reviewed individ type serious of child pornography, and he Otherwise, ually. proportionate sentences had no prior convictions, sex offense not to for separate always crimes could become mention that most other child pornography potentially disproportionate only because offenders have received lesser sentences the sentences are ordered to be served under the guidelines, federal court consecutively.22 states, courts of other and in our own only question remaining, circuit analysis, courts. its this Court then, whether, case, particular is in this an compares cases where the offenders were eight-year sentence for each of defendant’s also convicted of rape and molesta- separate grossly crimes is disproportion tion. That the case here. IWhere point, ate. On this I do not believe that part dissenters, however, with the is in these sentences meet the standard of the their insistence that defendant’s reduced “exceedingly case, rare” and “extreme” prison terms must still be set aside as

which grossly disproportionate princi cruel and unusual. Once we conclude that ple should Lockyer be invoked. v. An a sentence is not grossly disproportionate, drade, 538 U.S. 123 S.Ct. abjure we must the result we think more 1173-74, (2003). 155 L.Ed.2d 144 Defen fitting and defer to the judge’s dant was producing child pornography for evaluation of the offender. Neither the so, his personal use. In doing he filmed South Dakota Constitution nor the Consti- daughter and her adolescent friends. tution of the United States authorizes us Also, guise under dispensing “thera to dictate to sentencing courts what we py,” he cornered two of the in his exactly believe to be an proportionate sen- basement for hours an effort to convince questions tence. Those must be left to the them to show him their breasts and to Legislature and to the circuit courts them- share erotic thoughts with him. These selves. girls also reported exposed that he himself to them and touched them inappropriately. years, In recent this Court has circumstances, Considering all the eight an reviewed several child pornography convic- suggesting I am not that we taneously may should never be such instances. In this case, however, consider the consecutive nature of sentences defendant committed his of- proportionality challenge. may There period fenses over a of time with different be times when such consideration would be victims, causing separate and distinct harm appropriate. example, For consecutive sen- instance, prison in each and his do not terms amounting prison tences to life in or for con- up add to a life sentence. victions on several offenses committed simul- 76 Richardson, F.3d ranging United States v. 238 837

tions. These cases had sentences (7th Cir.2001) 70,000 jail punishment images to a of (possession from brief term of years penitentiary. In one hundred from pornography In- child downloaded 74, 2005 SD 699 McKinney, v. ternet). State legislative di- Without further 460, one N.W.2d the offender received rection, sentencing disparities conspicuous counts, years twenty but he hundred on only persist. for these cases will Child case, convicted, also in a related an in- pornography always generate will first-degree contact with a rape, sexual revulsion, important nate but it is that child, exploitation and sexual of a minor. logical in these follow a sentencing cases Martin, hand, in v. the other State On methodology, punishment so fits 2003 SD 674 the offender N.W.2d offender, and like the offense and of- thirty was convicted of counts two coun- punished fenses and offenders are similar- sixty possible ties and faced a sentence of Bonner, ly. State v. if all the for sentences the convic- leniency 579. N.W.2d Unwarranted tions were made consecutive. He received punishment generate both excessive jail forty-five days a concurrent total of disrespect for the law. years probation. and ten See also State v. adjunct principles an As to Christensen, 64, 663 commonly deciding proper used sen- (two possession pornog- counts of of child tence, I recommend look at that courts two year concurrently). run raphy: one each to assessing additional determinants when These reflect a broad disparity.23 sentences pornography child of- seriousness true It is that Martin Christensen (1) specific fense: nature of the materi- sentenced at a time when the maxi- were (2) al and the extent to the offender penalty possession por- mum of child which But nography years. in neither is material.24 two involved material, for their multiple category, case were sentences first nature seri- consecutively. crimes ordered to be served range depictions ousness can from lewd to indecent to nudity, posing, adult-child legislatively Other than max- set (e.g., molestation), rape, sexual interaction penalties psycho- imum and sex offender See, bestiality. to of sadism or depictions evaluations, logical judges have else little Richardson, e.g., United States F.3d making them in guide sentencing deci- Cir.2001) (7th (pictures depicting for these of offenses. It would types sions children”). In “bondage and torture of helpful Legislature give involvement, category, second extent of guidance courts some additional on sen- range simple posses- seriousness can from tencing possessing offenders numerous sion, trading bartering, commer- Considering pornography images. production cial It distributiоn. stands speed large with which numbers of depraved images reason more can be downloaded from the Internet, invasive the abuse and the more involved consecutive sentences for each image could depicting become astronomical. See offender with the material Panel, Sentencing Advisory 24. 23. The same issue has been noted in federal See The Panel's Sentencing decisions under the Appeal to the Court Advice Offenses Gallagher, Reform Act of Rick Down- 2002). (August Involving Pornography Child Departures: Curing the Lenient Sentenc- ward Pornographers Internet Child and Statu- tory Rapists, Pol'y 5 U.C. Davis J. Juv. L. & (Winter 2000).

77 it, greater the the seriousness of the of- Blair’s excessive Today, sentence. this fense. upholds Court “pick and analy- choose” sis and does little to address whether criteria, Under these defen Blair’s excessive sentence is consistent videotapes, though disgusting dant’s and Eighth with the Amendment. If this ex- reprehensible, do not fall into the most stands, cessive sentence it sends a mes- category serious pornography. sage to the State to keep building more Most of depict surreptitious them filming bigger prisons. and engaging ordinary minors in bathroom Bonner, And, we abandoned and toilet activities. although defen “shock the conscience test” in favor of dant was himself creating editing and pronged analysis. two videos, SD there was no evidence that he matter, N.W.2d 575. As an initial we “de circulating any them manner. Ac termine whether appears I sentence cordingly, stand our earlier decision grossly disproportionate.” Id. 17. Our appeal the first of this case to remand involved, review examines “the conduct resentencing. It was not so much a conduct, past relevant question utmost pun whether defendant should be Legislature deference to the and sternly the sen ished as whether he should be tencing court.” analysis Id. Cеntral to this punished line with what other like of is the sentencing duty court’s to “reserve fenders have received. Imposing the max the most severe crimes, imum sanctions the most prison terms for these as the serious combinations judge instance, circuit did in the first vio offense the background ¶ 25, Id. principle lates the that only the most seri offender.” added). 577 N.W.2d at 582 (emphasis ous commissions of an offense deserve the Bonner, penalty. most serious 1998 SD 30 [¶ 87.] We reversed and remanded the ¶ 25, at N.W.2d theOn other circuit original court’s fifty sentence of hand, as the circuit recognized, court there remand, years. On the circuit court was were additional considerations that still ordered to engage in a proportionality present sentences, bear on the reduced analysis and resentence Blair taking into including the fact that defendant is the Bonner, account the factors set forth filmed, father of one he and his Hinger, 1999 SD 600 N.W.2d 542. improper behavior with two of her friends mentioned, As Bonner is our seminal case indicates that he trying sexually concerning proportionality. issues them, ‍​‌‌‌‌​​‌‌​​​‌‌​‌‌‌‌​​​‌​​​​‌​​‌​‌​​‌‌​​‌​‌​​‌‌‌​‍exploit physically both psycho However, remand, the circuit court de- logically. scribed Bonner and our decision to reverse fifty-year sentence as follows:

SABERS, Justice (dissenting). The initial determination that the sen- I [¶ dissent. may 85.] This Court remanded grossly tence disproportionate is Blair’s case with a direct apparently Court, command to the Supreme made circuit court: taking resentence Blair into without the benefit of seeing and hear- account defendant, the factors set forth in victims, State v. or other Bonner, 575 and witnesses in the case. The initial deter- Hinger, is, State v. court, mination in the opinion of this 542. The circuit ignored com- merely the “shock the conscience” test engaged mand and in a “pick and choose” justice under another name. A looks analysis whereby it addressed and accent- the nature of knowing the crime without only it, uated those supported facts that much prior about and looks at the defendant, not Blair’s con- makes We do condone

record did Legislature subjective judgment this sentence duct. surreptitious photographing intend “may grossly disproportionate, and be” using the recording persons video of bath- findings remands the case further to the most violations of room be serious the trial court. girls None of these were 22-22-23. SDCL clearly disagreed circuit with The court they being aware that were recorded. matter, this as well decision to remand our any did cause to not of law the circuit court was as the which “intercourse, sadism, in engage bestiality, Unfortunately, to obligated apply.25 Instead, fellatio, etc.” recorded these he is plagued circuit court’s decision its every day in func- girls engaging common sentiments, resulting in a sentence initial using as showering tions such grossly disproportionate for Blair to in The court service officer this toilet.26 Fifty years years crimes. with ten dealing in with experienced case was sex is, suspended upon certain conditions summary, In his he noted that offenders. practical purposes, all same sentence very high not in Blair’s crime “did rank proceeding. the circuit court set first the scheme of sex crimes.” Disproportionality Gross [¶ 88.] recognized circuit 92.] The court Nature of offense there no sexual contact this was However, it repealed, compared Before it was SDCL case. con felony a man forcibly 22-22-28 it a class four to duct that of who had made age raped causing psychological film a minor a woman her “photograph or under court, engaging prohibited injuries. According in a the circuit of sixteen just 22-22-22 be psychologi act....” SDCL defined Blair’s crimes could as sexual “prohibited cally a cases there damaging acts constituted sexual as in which what act.” Most of the conduct criminalized forcible sexual contact. The circuit court compared causing directing Spack.27 included or minors under also this case to State v. age Spack, charged of in “inter- In engage sixteen the defendant was with course, intercourse, sadism, twenty anal third bestiality, degree rape, counts of nine However, fellatio, an photographing etc.” the statute also counts a child in ob alone, act, nudity, encompassed standing possession a scene and nine counts of if a prohibited nudity pornography. Spack raped sexual act child thir depicted purpose teen-year-old girl “for the stimu- times numerous gratification any perform lation or her while person photographed who she was 22-22- might depiction.” ing Additionally, view such fellatio on him. law en SDCL Ultimately, through 22. SDCL 22-22-23 forcement recovered note from vic targeted punish- Spack 22-22-24 tim to if SDCL were indicated he were to night were allow her out on engaged go given individuals who he manufacture, sale, possession, anything “put do to her except or distribu- could it pornography. tion of her butt.” girl lengthy masturbating 25.The circuit court wrote 26. One was filmed decision reproduced and it will However, dissent. she do so hairbrush. did not at the many circuit occasions direction of Blair. procedures remarked that this Court’s con- cerning proportionality were "awkward” and County Pennington file number 01-832. "subjective.” Blair’s conduct does not rise to serious offense aids our decision and “cer Spack’s, level defendant who tainly bears on question gross dis- multiple rapes commits or sexual assaults. proportionality.” 30, ¶ 23, alleges attempted no actual or State N.W.2d at mentioned, 581-82. As our or part sexuаl contact on the of Blair.28 Sur- der to the circuit court required that reptitious recording equal photo- is not light consider this case in principles graphing being raped. a minor while remand, set forth in Bonner. On the cir fact, alone, nudity standing longer no con- cuit court mentioned that Blair had no “a prohibited stitutes sexual act” under the prior felony convictions. Remarkably, the Dakota South Codified Laws.29 Because circuit court considered Blair’s lack of a conduct falls far short of the most prior felony conviction “irrelevant.” crime, serious commission of this cir- Apparently, [¶ 97.] the circuit court de- regard. cuit court erred in this prior cided that Blair’s misdemeanor con- plurality The opinion [¶ 94.] does little supported victions the sentence. His mis- to address the circuit court’s rationale be- demeanor record included a conviction for Instead, hind its sentence. in a manner disorderly conduct, three convictions for barely distinguishable that from the insufficient funds checks less than one brief, bold, State’s makes series of dollars, hundred a conviction driving for unsupported pronouncements. For exam- intoxicated, while and a violation of a boat- ple, plurality opinion labels Blair as ing regulation. prosecutor The stated at attempted “an child molester.” It does so the sentencing hearing that she did not despite the fact that the State did not significant believe Blair had a criminal his- allege charge attempted sexual assaults. tory. The circuit disagreed. plurality opinion spends great The deal discussing of time the horrors of manufac- [¶ 98.] The circuit court cited State v. turing distributing child pornography. Stahl, agree general While we with those propo- holding that numerous misdemeanor con- sitions, there is no evidence the record may support victions a sentence at the that Blair any way was involved in with harsher end of the spectrum. Stahl had disseminating any of these videos. There- prior “nineteen misdemeanor convictions fore, disagree we circuit court and and three violations of the terms of sus- plurality that this severe sentence was pended sentences.” Id. 619 N.W.2d at reserved for the most serious commission spanned twenty-four Stahl’s record of the crime. years and included simple offenses such as Background of Offender assault, minor, furnishing alcohol to a DUI’s, We noted in Bonner three reckless driving, open prior felony lack of a conviction or other container. Id. Stahl also past admitted plurality opinion allegation 28. The (defining pro- recites an urinate. See SDCL 22-24A-2 exposed girls. that Blair himself to two of the hibited sexual act as or urination "defecation However, disputed claim remained purpose creating sexual excitement in throughout proceedings. these viewer”) There is no evidence that Blair videotaped girls these to watch them use the plurality 29. The claims Blair’s conduct would State, victims, bathroom. Nor did the coun- still constitute a crime under the current stat- selors, judge, etc. mention such a claim. In- utory plurality opinion scheme. See at n. 10. stead, girls videotaped pur- Blair these for the plurality's claim is based on the poses seeing them nude. premise videotaped that Blair purpose watching them defecate and history and as employment had worked marijuana, methamphetamine use of counselor, this, director, youth care social work- Id. all of the circuit Despite LSD. er, pre- be- The significant computer networking. “no difference court found investigator allegations record and the defen- found no prior tween Stahl’s sentence while Blair work- improper dant’s conduct [Blair’s].” capaсities. in those court, I the circuit find 99.] Unlike [¶ evaluation, pre-sen- significant differences between Stahl and investigator wrote: records. The most obvi- tence Blair’s criminal times ous is that has over three Stahl first the Court on his Mr. is before many convictions. Addition- misdemeanor felony. very during He was emotional ally, Stahl was convicted of a violent crime openly our and cried on sever- interview major use. drug and admitted to I no that he is al occasions. have doubt the hurt remorseful for his actions and plurality opinion However, plurality opinion vant.” the investigator, a pre-sentence seasoned goes reading on to that “a fair of conclude worker, that “in the court service noted the circuit court heavi- record indicates crimes, of this rank scheme sex does not ly comparison this factor in to discounted very high ...” He recommended the other factors it considered.” relevant Blair of in- receive a considerable amount ¶ 34. plurality opinion Apparently, See suspended carceration time with most itof plurality reading believes a literal opinion specific upon conditions. of the record would be “unfair.” More Mary The record Dr. includes required importantly, Bonner the circuit counseling notes. at least six Curran’s On prior court to the lack felony consider of occasions, Dr. different Curran noted By using conviction. term “irrele- responsibility Blair had for his accepted

vant,” the court circuit did not believe the acts and “knows he has no one to blame felony lack of a wor- prior conviction was himself.” The court officer but service thy of circuit consideration. The court also believed Blair was On remorseful. in rejecting comparing erred Bonner and remand, however, the court con- circuit background Blair’s criminal to cluded Blair had to lied both Curran Stahl. This most severe sentence was not the court’s officer. service background most reserved for the serious plurality upholds 105.] The this [¶ of the offender. determination,” “credibility though even & [¶ 101.] Remorse Rehabilitation any the circuit never privy court was to Prospects fact, conversations. the court never pre-sentence investigation testimony 102.] A heard on these or even issues given occurred, time this incident Blair’s daugh- Court’s order of reversal and directions on years ter thirteen old. Blair for- remand. We should reverse and remand ty-two years If old. Blair was to serve this matter again. even forty-year sentence, one-half of his daughter would thirty-three and he Conclusion sixty-two. would be The circuit court’s greatly sentence exceeds its interest in Our order made clear that the ensuring Blair’s daughter would be of suf- circuit court was to reconsider this sen- age upon ficient Blair’s release. in tence accordance with State v. Bonner. rehabilitation, In terms of Instead, the The circuit court did not do so. it plurality highlights only rejected those facts that rejected Bonner and opinions are adverse to Blair. Blair was parties convicted of disinterested involved with this photographing act; child an obscene case. The result is a sentence that Thus, a sex crime. important greater the most than the sentences for those who test results terms of rehabilitation have rapes committed chil- molested would be the Sex Item Truthfulness Scale. dren.31 The circuit court did reserve L.S., ¶76, 4, 31. In re SD 721 N.W.2d ago, Seven months we reversed a circuit judge this same circuit court sentenced a suppressing court's order evidence in State felony defendant suspend- for child abuse and Helland, 707 N.W.2d 262. ed all but six months of the sentence. The possessed pornographic Helland dozens of charge allegations child abuse included three images boys” boys,” entitled "hot and "teen of actual sexual contact in which the defen- depicted boys legs which little with their young girl dant asked a penis to touch his spread. charged twenty Helland was with up sitting "moved and down" while she was possession pornography counts of of child lap. on his objectively, Considering all factors for the most most severe sanctions “the twenty five should not exceed and sentence combinations serious offense all, of a Bonner, quarter After that is a years. background offender.” (em- ¶ 25, surreptitiously recording teen- century for SD 577 N.W.2d added).32 the bathroom. age girls they while used phasis recog- If we continue to are to Justice, MEIERHENRY, joins Eighth principle proportionality nize a this dissent. cases, courts circuit should Amendment permitted pick and choose facts not be original their sentence and support

that support those facts that do not

ignore I would reverse sentence

sentence.33 Pre-

and remand instructions Judge of Circuit

siding the Second Judicial judge assign Blair’s to a different case Bult, sentencing. State v. proper See (.Bult IV). (S.D.1996) fender, possible and like offenses and offenders are and faced a one hundred prison. similarly punished leniency ... unwarranted remand, guilty pleaded to four On Helland generate punishment and excessive both dis- possessing pornography. counts of child respect for the In Result law." Concurrence judge same circuit court sentenced This ¶ goes on at 82. The concurrence in result hearing, Helland. At the Hel- does not "fall conclude Blair's offense possess land admitted that he continues category....” Id. into the most serious pornography despite the fact this, upholds Despite all of Blair’s sentence against proceedings ongoing been him had grounds we not examine on the should years. Ultimately, two the same circuit aggregate, but the sentence in the examine judge suspended all but six months individually. conviction each Helland's sentеnce. grain we of sand Whether measure one remand, 32. Proportionality Review—On time, a a tree at a desert remains desert one several of other defendants submitted cases Similarly, in and forest remains a forest. photographing who had been convicted of a case, eight-year five sentences to be served prosecutor in an obscene act. The of- sentence, consecutively forty-year amount to a a fered no cases and did not submit brief i.e., a offense distinguishing cases submitted sentence that does not fit the of the offender, Only imposed one in those Blair. of the defendants and a that was sentence manner, cases received as severe as Blair. sentences illogical inconsistent with Bon- in an young girl photographed a That defendant progeny. case ner and its This undermines during multiple rapes over the course a principle behind the the fundamental Bonner three-year period. guilty pleaded He also "Equal Justice decision: words Under being a habitual offender. Because Blair’s lofty just inscrip- Law" call more than appears grossly disproportionate, I sentence Bonner, ¶30, 12, 577 N.W.2d tion. judge remand so could would another con- Writing a concurrence result analysis. proper proportionality duct technically preserve prece- may Bonner dent, practical purposes, all Bonner but for is 33. The author of in result the concurrence is Finally, ends” dead in this case. if "review That the author Bonner decision. finding that sentence does even why troubling it is the concurrence in grossly why did appear disproportionate, upholds despite noting result Blair's sentence thirty-three page and a take a decision nine important "it is page concurrence in result to rationalize logical methodology, casеs follow so that punishment it? fits the offense and of- around Curran’s notes offender acknowledged that the had ma- also cases evaluation. jor The circuit court also differences.6 remorse, Court, Blair’s compar- the reviewed level of [¶ 17.] As ordered v. engaged disproportionali- circuit court in a it to that the defendant in State Stahl, 154, ty analysis using Hinger/Bonner fac- 2000 SD 619 N.W.2d 870.7 County prohibited Pennington ten-year 6. two file number 01-832. In sexual act to terms concurrently Spack, charged rape State with sen- v. defendant be served twenty degree rape with counts of third of his tences. thirteen-year-old daughter, fiancée’s nine Stahl, 7. In defendant was convicted of possession pornography counts of of child possession marijuana, mari- distribution of 22-22-23.1, under and nine SDCL counts juana marijuana drug- and distribution of filming prohibited a act minor a zone, counts, felony four free total of under 22-22-23. The defendant that case twenty-four year prison received a sentence. engaged in sexual relations with the victim 154, ¶ 3, SD N.W.2d at 2000 619 871. three-year period photo- over a of time. The statement, graphing charges report were based on fact that pre-sentence Stahl In his girl photographed only caring defendant while she proclaimed his crime was in too performing plea helping fellatio on him. Under much and his fellow man and agreement, charges. defendant sentenced on he was innocent of the He rape degree possess two third to two he counts in the claimed did not or distribute time, drug- twenty years marijuana any yet terms of to be served consecu- in a alone addition, zone, tively. despite taped recordings defendant was sen- doc- free filming umenting drug jury's tenced on two minor in a both sales and the counts of 61 However, cir- resentencing, At Blair’s when a defen again years challenges ten dant a sentenсe on imposed Eighth cuit court penitentiary grounds, on each of the five convictions Amendment our review is con consecutively, using for a total of ducted the standards set out in to be served State Bonner, 30, v. fifty years. the circuit court 1998 SD 577 N.W.2d ¶1, 72, v. Piper, State 2006 SD 709 suspended two each conviction N.W.2d 783, conditions, employ 810-11. resulting following in a sentence of We with well-established principles reviewing when forty years. ap- Blair raises one issue on proportionality given of a sentence: forty-year peal: Whether sentence grossly disproportionate to his crimes To a challenge proportionality assess and therefore constitutes cruel and unusu- we first determine whether the sentence al punishment. appears grossly disproportionate. To this, accomplish we consider the conduct involved, conduct, past relevant STANDARD OF REVIEW Legislature utmost deference to the Generally, sentence sentencing and the court. If cir- statutory maximum within the is reviewed suggest gross cumstances fail to dispro- by this Court under the abuse of discretion portionality, our review ends. 73, McKinney, standard. State v. 2005 SD ¶ ¶ Bonner, 30, 17, Id. 72 (quoting 1998 SD ¶ 10, I) 471, (McKinney 699 476 N.W.2d 577 (citing N.W.2d at 580 Harmelin v. ¶ Goodroad, 46, 40, (citing State v. 1997 SD 957, 1000, Michigan, 501 111 U.S. S.Ct. 126, (citing 563 135 State v. 2680, (1991))). 2704, 115 L.Ed.2d 836 We Anderson, 46, ¶ 30, 1996 SD 546 N.W.2d compare also “the sentence with the crimi- 402)). 395, give ‘great deference to ‘We nal acts defendant committed the con- decisions made trial sequences upon of those acts the victims ” ¶ Garber, 2, 13, courts.’ v. State 2004 SD ¶ Bonner, 30, 22, society.” (quoting 674 N.W.2d 323 State Harmelin, (citing 577 N.W.2d at 581 501 Milk, U.S. at S.Ct. Gehrke, N.W.2d 421, (citing State v. Estelle, (quoting L.Ed.2d 836 Rummel v. (S.D.1992))).

Notes

notes victims, families, his he caused his their court characterized the ‍​‌‌‌‌​​‌‌​​​‌‌​‌‌‌‌​​​‌​​​​‌​​‌​‌​​‌‌​​‌​‌​​‌‌‌​‍circuit family and himself. felony lack of a as “irrele- prior conviction

was done the results to to notes were referred Curran’s in its decision. object any Blair sentencing judge.30 prosecutor had a consistent Nor did the or offer McKinney, 30. The service officer in this case See State v. 471, 476; Weber, highly experienced. Although report is Ganrude ¶96, 11, binding on either the circuit court 810. It N.W.2d Court, justice deserves would we were some consideration. offend notions if dismiss, grounds, pre-sentence report We have when used results of without report support a the results are favorable defendant. defendant's sentence. to the argument regards counseling As to findings, those Dr. Curran conclud- circumstances, these I notes. Under ed: would not afford the same level of defer- Cameron scored in the Range Low Risk findings ence to as the plurality. (0 to 39 percentile) on Sex Item Truth- Additionally, it important recognize is (Risk 20). fulness Scale Percentile He that Blair pleaded guilty every charge was truthful when responding to test brought forward can State. How having items an obvious sexual connota- plurality the circuit court conclude tion and relationship. regard With that he responsibility has not taken for his inquiry, areas of the sex related crimes? scale scores likely are accurate and val- Finally, the circuit court want- id. ed Blair’s sentence to ensure that his Rather than focus on whether Blair was “daughter age was of sufficient when [he] truthful in relation to matters collateral to got longer out that would no [he] convictions, the proper focus should kind of threat to her.” goals One of the have been his rehabilitation prospects sentencing is to remove incorrigible of- terms the crimes which he was Bult, society. fenders from State v. convicted. The circuit court essentially re- (S.D.1995) (Bult III). jected positions experienced earlier, as mentioned Blair’s con- officer, Curran, court service Dr. pros- duct did not include sexual contact or vio- ecutor, the South Dakota cases submitted lence. Nor has there been a showing that review, for proportionality this Court’s de- incapable of rehabilitation. At the cisions in Hinger, Bonner and and this

Case Details

Case Name: State v. Blair

Court Name: South Dakota Supreme Court

Date Published: Aug 16, 2006

Citation: 721 N.W.2d 55

Docket Number: 23463

Court Abbreviation: S.D.