State v. BrimState v. Brim
[¶ 1.] Todd Ronald Brim was convicted of ten counts of Rape in the Second Degree and five counts of Sexual Contact With a Child Under Sixteen. Brim appeals, raising four issues: whether the trial court (1) erred by denying his motion for judgment of acquittal; (2) erred by not properly admonishing the jury and venire at every recess and adjournment; (3) abused its discretion by not immediately excusing a jurоr with outside knowledge of the case; and, (4) abused its discretion by sentencing him to 325 years in the state penitentiary. We affirm on all issues.
BACKGROUND
[¶ 2.] At trial, evidence was presented that in March 2008, S.G. informed his mother that Brim had sexually abused him, his brother, and several neighborhood children for many years. S.G. met Brim, a neighbor and family friend, in 2004. S.G. and several neighborhood children frequently watched television, played computer games, and spent the night at Brim‘s house. Brim soon began touching S.G. on the shoulder or leg, and within a few months, the contact escalated to oral and anal sex. The sexual abuse took place not only at Brim‘s home, but also at Brim‘s workplace and several hotels in Sioux Falls. The abuse occurred neаrly every weekend for four years until S.G. reached the age of sixteen.
[¶ 3.] In the course of their investigation, the police interviewed three neighborhood children that Brim allegedly abused. K.G., S.G.‘s brother, reported that he met Brim in 2002 or 2003 when he was ten or eleven years old. The abuse, which included oral and anal sex, began sometime shortly thereafter, occurred nearly every
[¶ 4.] In May 2008, a Minnehaha County grand jury indicted Brim on eleven counts of Rape in the Second Degree and five counts of Sexual Contact With a Child Under Sixteen. The State later dismissed one count of Rape in the Second Degree.1 The case proceeded to trial in July 2009. S.G., K.G., R.H., T.P., and J.P. testified about the abuse in great detail, but were unable to provide dates specifying when the abuse occurred. At the close of the evidence, Brim‘s counsel made a motion for judgment of acquittal, which the trial court denied. The jury returned a guilty verdict on ten counts of Rape in the Second Degree and five counts of Sexual Contact With a Child Under Sixteen. Following a prе-sentence investigation, the trial court sentenced Brim to serve consecutive penitentiary sentences, totaling 325 years, for his multiple crimes.
ANALYSIS AND DECISION
[¶ 5.] 1. Whether the trial court erred by denying Brim‘s motion for judgment of acquittal.
[¶ 6.] Brim argues that the trial court erred by denying his motion for judgment of acquittal. “The denial of a motion for judgment of acquittal presents a questiоn of law” that we review de novo. State v. Klaudt, 2009 S.D. 71, ¶ 14, 772 N.W.2d 117, 122 (citations omitted). In measuring the sufficiency of the evidence, we ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (citations omitted). “[W]e accept the evidence and the most favorable inferences fairly drawn therefrom, which will support the verdict.” State v. Jensen, 2007 S.D. 76, ¶ 7, 737 N.W.2d 285, 288 (citation omitted). “Moreover, the jury is the exclusive judge of the credibility of the witnesses and the weight of the evidence.” Id. (citations omitted). This Court will not resolve conflicts in the evidence, assess the credibility of witnesses, or evaluate the wеight of the evidence. Id. (citations omitted).
[¶ 7.] Brim argues that the State did not meet its burden of proving beyond a reasonable doubt that the abuse occurred within a reasonable time of the dates charged in the indictment. The indictment charged eleven counts of Rape in the Second Degree:2 one count of rape against K.G. in 2004; five counts of rape against S.G. occurring in 2004, 2005, 2006, 2007, and May 2008;3 and, five counts of rape against R.H. occurring in 2004, 2005, 2006, 2007, and May 2008. The indictment also charged five counts of Sexual Contact
[¶ 8.] It is not always possible to know when crimes involving sexual abuse of minors occurred. State v. Muhm, 2009 S.D. 100, ¶ 23, 775 N.W.2d 508, 515. “Children, especially those who suffer traumatic events, cannot always remember precise times and dates.” State v. Swan, 2008 S.D. 58, ¶ 21, 753 N.W.2d 418, 423.
Multiple sex offenses committed by adults upon ... children over a long period of time are very likely to result in an amalgamation of the crimes in the child‘s mind. The child is unlikely to be able to give any testimony approximating the date of any one separately describable offense even in the uncomplicated case. Where the number of offenses is so numerous even an adult would not be able to count them, the child‘s testimony will often be reduced to a general, and customarily abbreviated, recitation of what happened on a continuing basis.
Muhm, 2009 S.D. 100, ¶ 28, 775 N.W.2d at 517 (quoting People v. Jones, 51 Cal.3d 294, 313, 270 Cal.Rptr. 611, 792 P.2d 643, 653-54 (1990)).
[¶ 9.] This Court is thus “lenient in child sexual abuse cases where there are differences between the dates alleged in the indictment and those proven at trial.” Swan, 2008 S.D. 58, ¶ 12, 753 N.W.2d at 421 (citation omitted). Although an indictment should be as spеcific as possible, time is not a material element of crimes involving sexual abuse of minors. Muhm, 2009 S.D. 100, ¶¶ 23, 26, 775 N.W.2d at 515-16 (citing State v. Nuzum, 2006 S.D. 89, ¶ 18, 723 N.W.2d 555, 559; State v. Basker, 468 N.W.2d 413, 417 (S.D. 1991)). See Swan, 2008 S.D. 58, ¶ 12, 753 N.W.2d at 421 (citing State v. Darby, 1996 S.D. 127, ¶ 10, 556 N.W.2d 311, 316 (additional citation omitted)); State v. Smith, 1999 S.D. 83, ¶ 27, 599 N.W.2d 344, 351; State v. Floody, 481 N.W.2d 242, 247 (S.D. 1992); State v. Wurtz, 436 N.W.2d 839, 842-43 (S.D.1989); State v. Swallow, 350 N.W.2d 606, 608 (S.D.1984). Therefore, “the fact [that] a crime was committed on a date different from the one alleged in the indictment is not fatal to the charge.” Swan, 2008 S.D. 58, ¶ 12, 753 N.W.2d at 421 (citation omitted). “Unless the defendant demonstrates that he was deprived of his defense because of а lack of specificity, this [Court‘s] policy of leniency governs.” Id. (citation omitted).
[¶ 10.] The lack of precise dates of the abuse did not deprive Brim of his defense. As in Muhm, Brim‘s defense was a complete denial of any sexual act occurring during the entire period of time covered by the indictment. See 2009 S.D. 100, ¶ 24, 775 N.W.2d at 515. He presented no alibi evidence, raised no statute of limitations defense, and did not argue that the State failed to establish the victims’ ages at the time of the abuse. Instead, Brim attempted to undermine the victims’ credibility by pointing out the inconsistencies in their stories and their inability to provide precise dates. See id. ¶ 35, 775 N.W.2d at 521. Thus, the essence of the trial was the credibility of the victims’ testimony. See id. (citation omitted).
[¶ 12.] 2. Whether the trial court erred by not properly admonishing the jury and venire at every recess and adjournment.
[¶ 13.] Brim argues that the trial court erred by not admonishing the first panel of venirepersons to avoid contact with the media.5 But before the parties exercised their peremptory challenges, the trial court provided defеnse counsel the opportunity to inquire whether the venirepersons had seen or heard any media accounts of the proceedings. Four individuals indicated that they had, including Juror S.G. Outside the presence of the venire, Juror S.G. stated: “KELOLAND news said it‘s the second day in the Brim trial and that Mr. Brim is a convicted sex offender.” Because Juror S.G. knew of Brim‘s prior cоnviction, the trial court excused him. The three other venirepersons were also questioned, but the trial court determined that they had not seen or heard any prejudicial media accounts of the proceedings. Of those three individuals, only Juror T.J., who saw a news report on a different case, served on the jury. The trial court‘s failure to admоnish the first panel of venirepersons does not constitute reversible error as there is no indication that the failure to do so affected the verdict in this case. See State v. Iron Necklace, 430 N.W.2d 66, 78 (S.D.1988) (citing State v. Lang, 354 N.W.2d 723 (S.D.1984); Kost v. State, 344 N.W.2d 83 (S.D.1984)).
[¶ 14.] Brim also argues that the trial court erred by not admonishing the jury in accordance with
Jurors shall, at each adjournmеnt of court, whether permitted to separate or kept in charge of officers, be admonished by the court as follows: You are reminded that you are not to discuss any aspect of this case among yourselves or with anyone else and that you should not form or express any opinion on the case until it is given to you for decision.
Beсause the record reflects that the trial court‘s admonishment of the jury at each recess and adjournment was in substantial compliance with
[¶ 15.] Brim finally argues that the trial court erred by not admonishing the jury to avoid contact with the media.
[¶ 16.] 3. Whether the trial court abused its discretion by not immediately excusing a juror with outside knowledge of the case.
[¶ 17.] Brim argues that the trial court abused its discretion by not immediately excusing Juror J.R., a juror with outside knowledge of the case. Following the direct examination of R.H., Juror J.R. indicated that she needed to privately speak with the trial judge. Outside the presence of the jury, she informed the judge that she was a good friend of Brim‘s boyfriend. Brim moved to excuse Juror J.R. The trial court denied the motion, but later granted Brim‘s motion to remove Juror J.R. during the selection of the alternate jurors. In removing Juror J.R., the trial court stated in the presence of the jury: “We are going to take two people off the list. The lady in the back row, third from the back, there is some concern about information that you may or may not have, so I am going to excuse you from thе trial.”
[¶ 18.] Brim argues that Juror J.R. should have been immediately excused and that the failure to do so raised the risk that the jury was contaminated by Juror J.R.‘s outside knowledge of the case. “A trial court has broad discretion in determining juror disqualification.” State v. Verhoef, 2001 S.D. 58, ¶ 12, 627 N.W.2d 437, 440 (citation omitted). “To reverse a trial court‘s decision to refuse to excuse a juror for cause, actuаl, material prejudice must be shown.” Id. (citation omitted). Juror J.R. did not participate in jury deliberations, and Brim presented no evidence that Juror J.R. used her knowledge of the case to influence the jury. Indeed, the trial court admonished the jurors not to discuss the case amongst themselves at each recess and adjournment, and it is presumed that jurors understand and abide by the trial court‘s instructions. Gettysburg Sch. Dist. 53-1 v. Helms & Assoc., 2008 S.D. 35, ¶ 11, 751 N.W.2d 266, 271 (citing First Nat‘l Bank of Minneapolis v. Kehn Ranch, Inc., 394 N.W.2d 709, 720 (S.D.1986)). Consequently, Brim has not demonstrated that the jury was contaminated by Juror J.R.‘s outside knowledge of the case and has not established prejudice.
[¶ 19.] 4. Whether the trial court abused its discretion by sentencing Brim to 325 years in the state penitentiary.
[¶ 20.] Brim has also appealed his sentence, claiming it constitutes cruel and unusual punishment under the
[¶ 21.] In evaluating whether Brim‘s sentence constitutes cruel and unusual punishment under the Eighth Amendment, “[w]e first determine whether the sentence appears grossly disproportionate.” See Steichen, 2009 S.D. 4, ¶ 30, 760 N.W.2d at 394 (citations оmitted). “To accomplish this, we consider the conduct involved, and any relevant past conduct, with utmost deference to the Legislature and the sentencing court.” Id. (citations omitted).
An appropriate sentence requires that: “the sentencing court should ‘acquire a thorough acquaintance with the character and history of the man before it.’ This study should еxamine the defendant‘s ‘general moral character, mentality, habits, social environment, tendencies, age, aversion or inclination to commit crime, life, family, occupation, and previous criminal record.‘”
Bonner, 1998 S.D. 30, ¶ 19, 577 N.W.2d at 580 (citations omitted). “We also consider the gravity of the offense and the harshness of the penalty, and other relevant fаctors, such as the effect this type of offense has on society.” Steichen, 2009 S.D. 4, ¶ 30, 760 N.W.2d at 394 (internal quotations and citations omitted). “If the sentence does not appear grossly disproportionate, no further review is necessary.” Id. (citations omitted). “If the sentence does appear grossly disproportionate, an intra- and inter-jurisdictional analysis shаll be conducted.” Id. (citations omitted).
[¶ 22.] Brim‘s sentence does not appear grossly disproportionate. Rape in the Second Degree is a Class 1 felony, and the maximum statutory sentence is a fifty-year period in the state penitentiary and a $50,000 fine.
[¶ 23.] Affirmed.
[¶ 24.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.