*1
STATE Appellee, BRUCE,
Troy Defendant Appellant.
No. 25618. Dakota.
Supreme Court South on Briefs Jan.
Considered 6, 2011. April
Decided
Marty General, Jackley, Attorney J. Strohman, John M. Attorney Assistant General, Pierre, Dakota, Attorneys South plaintiff appellee. Magee Office, Jack C. of Magee Law LLC, Pierre, Dakota, Arendt, Al South Pierre, Dakota, South Attorneys for defen- appellant. dant and safe found in Bruce’s phy. The disc was ZINTER, Justice. Another stained with his semen. and was fif- convicted of Bruce was Troy limita- involved the court’s pretrial issue knowing possession ty-five counts Bruce’s cross-examination tion on challeng- appeals He pornography. no evidence of child Because Pulscher. of other circuit court’s admission ing the computer was to be pornography on the evidence, limitation on the court’s acts trial, limited Bruce’s at the court admitted alleged third-party of an cross-examination regarding of Pulscher cross-examination bring his case to the failure perpetrator, pornogra- about child prior her statements days appear- of his initial trial within 180 *4 computer. on the had observed phy she ance, imposition of maxi- the court’s and all jury guilty The found Bruce resulting in on ten counts mum sentences through fifty-five counts. On Counts part, affirm in 100-year sentence. We ten-year maximum sen- Bruce received and remand for resentenc- part, reverse in consecutively for a tences to be served ing. years. Bruce also received total of 100 History Procedural Facts and the re- ten-year maximum sentences on ex- police December On forty-five to be served con- maining counts apart- at Bruce’s a search warrant ecuted and concurrent current with each other Pulscher, roommate his ment after Carol through 10. the sentences on Counts reported seeing estranged girlfriend,1 and forty-five counts The sentences on the computer. on Bruce’s pornography child suspended. were on pornography revealed child The search ap- Bruce raises four issues on DVDs) (CDs in Bruce’s locked discs and peal: charged The and footlocker. safe court abused its 1. the circuit Whether knowing fifty-five counts Bruce with ev- admitting in other acts discretion in viola- pornography of child possession pornography child disc idence of the charges 22-24A-3. All were tion of SDCL Bruce’s se- that was stained with in found the footlocker. based on one DVD men. in found the safe pornography The child the circuit court abused its 2. Whether as other acts evidence. was introduced in cross-examina- limiting discretion found on pornography of the child None tion of Carol Pulscher. introduced at trial. computer was circuit court erred 3. Whether initially appeared on De- Bruce motion to dismiss denying Bruce’s arraignment At on cember 2008. his try the case within 180 failing for indictment, the court sched- superseding appearance. days of his initial jury May trial for 19. As a result of uled a on ten 4. maximum sentences Whether motions, continu- requests pretrial cruel and fifty-five of the counts was mistrial, ances, trial was and a Bruce’s punishment. unusual days after held on December days after his initial the mistrial but 348 Decision appearance. 1. Acts Evidence Other pretrial One issue involved 4.]
[¶
in the
Bruce’s semen was discover
[¶
of other acts evidence
7.]
State’s use
discs
one of the child
containing
pornogra-
ed on
form of a disc
apartment.
their relation-
reported
por-
Bruce described
time Pulscher
the child
1. At the
ship
described their
as "distant.” Pulscher
nography,
and Pulscher had broken off
sharing
relationship
being "roommates.”
relationship
as
but were still
their
safe. The circuit court ruled
dence
of establishing
found
his
has
burden
that
expressed
admissible
the trial concerns
that the semen-stained disc was
[Rule
(in
prejudice)] substantially
this case
other acts evidence. The court further
out-
weigh probative
value.” Id.
16. Evi-
ruled that the stain would be referred
However,
danger
does not cause
of unfair
as DNA rather than semen.
trial,
prejudice “merely because its legitimate
day
the first
of the second
the court
probative
damages
force
the defendant’s
ruling
modified its
and allowed the State to
case.” Id. For evidence to cause unfair
that the stain was Bruce’s semen.2
disclose
prejudice,
it
persuade
jury by
must
The court ruled that
the evidence was
illegitimate
unfair
(who
Supreme
means.
identity
prove
possessed
relevant to
Pork,
Blaster, Inc.,
Inc. v.
disc)
Master
knowledge
the discs
¶20, 30,
pornographic
contained
content.
The
performed the requisite balancing
court
argues that identifying
[¶ 9.] Bruce
any prejudice
and ruled that
did not sub-
(rather
DNA)
stain as his semen
than
did
stantially outweigh
proba-
the evidence’s
not
probative
enhance the
value of the
*5
tive value. Bruce contends that the circuit
argues
identifying
evidence. He also
that
allowing
court abused its discretion in
the stain
prejudice
as semen caused undue
jury to hear evidence that the stain was
it
jury
engage
because
allowed the
to
in
Bruce’s semen.
speculation”
“rank
about how the semen
got
Thus,
it
there and what meant.
he
(Rule
SDCL 19-12-5
[¶ 8.]
that
any
claims
the evidence had little if
404(b)) provides that evidence of other acts
probative
substantially
value that was
out-
prove
is not admissible to
character of a
weighed by
prejudice.
unfair
We dis-
but is admissible for other
person,
pur
agree.
proof
identity
poses, such as
of
and knowl
Dubois,
15,
edge.
admissibility
“To determine the
of
In State v.
2008
S.D.
evidence,
197,
other acts
the court must
...
746 N.W.2d
the defendant claimed to
(1)
pur
knowledge
determine:
whether the
have no
of pornographic
intended
mate-
pose
computer.
is relevant to some material issue in rials on his
He claimed that
(2)
case,
probative
whether the
someone else downloaded the
substantially
by
value of the evidence is
out
or that it was downloaded mistake.
Id.
¶
However,
weighed by
prejudicial
its
effect.” State v.
21.
the defendant had been
Huber,
63, 56,
288,
uncharged
involving
in
act
a
789 N.W.2d
involved
an
relevant,
chat
“sexually charged”
301. “Once the evidence is found
internet
with a
however,
tips emphatically
fifteen-year-old boy.
the balance
in
Id.
24 n. 6. We
other
dangers
favor of admission unless the
set
affirmed admission of the
sexual act
‘substantially’
of
outweigh
prove identity
knowledge
out
Rule 403
as well as
pornog-
of child
probative
Wright,
presence
value.” State v.
1999 the content and
¶50, 14,
computer.
(citing raphy
799
the defendant’s
See
¶¶
Imwinkelried,
Uncharged
Considering
Edward J.
Mis
id.
25.
defendant’s
(Rev.
8.28,
agreed
§
we
knowledge,
conduct Evidence
at 118-19
claimed lack of
ed.1998)
403)).
(quoting
findings
relevancy
“The
the circuit
of
Fed.R.Evid.
court’s
party objecting
prejudice to the admission of evi-
and lack of sufficient
over-
complains
ing
strenuously
the cir-
The
relevant
issue is
Bruce
that
mistrial.
changed
ruling.
cuit court
its initial
whether the trial court abused its discretion
authority requiring
admitting the evidence at the trial in which
cites no
a trial court to
evidentiary ruling
was convicted.
adhere to an earlier
follow-
defendant
that
probative
preserving
the evidence’s
value.
Id.
evidence
could be excul-
come
¶¶ 22,
patory.
Youngblood,
See Arizona v.
24-25.
51, 58,
333, 337,
U.S.
109 S.Ct.
Dubois,
no
Like
we see
abuse
(1988). Youngblood,
L.Ed.2d
howev-
prior
in the admission of Bruce’s
discretion
er,
inapposite
is
because Bruce does not
sexually charged
prove identity
act to
allege
destroyed
evi-
A
knowledge of the content of the disc.
bad faith.
Carlson v.
See
charged
number of the
acts
substantial
(8th
Minnesota,
945 F.2d
Cir.
possession
involved
of videos of adult
1991). Moreover,
generally
have
courts
masturbating
males
on children. The
statutory
not found
or constitutional vio-
presence of Bruce’s semen made it more
faith,
good
lations when in
evidence is
sexually
probable that Bruce had been
necessarily destroyed
testing pro-
in the
Thus,
by
stimulated
the discs’ content.
making it
cess
unavailable
further
fingerprint”
this was a “sexual
that was
See,
testing by
e.g.,
the defendant.
Bak-
identity
highly probative
pos-
of the
State,
er v.
250 Ga.
297 S.E.2d
possessor’s knowledge
sessor and
(1982)
State,
(citing
Partain v.
Further,
pornographic
the discs’
content.
(1977));
Ga.
proceeded testing. with the 2. Cross-examination Carol Pulscher merits, respect presented to the Bruce With defense Bruce not alleging third-party has cited statute or case that Pulscher was a suggesting perpetrator reversible error whenever who had access to his footloek er, safe, prosecution testing necessarily destroys computer. argued and Bruce also precludes evidence and testing.3 given further to the court that Pulscher had incon Instead, seeing por Bruce relies on the narrower sistent statements about duty good-faith of the State to use “videos” on nography computer. his Hanson, 3. Bruce cites State 278 N.W.2d to cases where the substance itself must be defendant, (S.D.1979). But Hanson involved the contraband in order to convict the right independently marijuana, alleged test a con- and whether the is excul- contraband Therefore, patory depends expert opinion.” traband substance. Id. at 199. on Id. at holding specifically Hanson’s was "restricted 200. pointed expert ing third-party Bruce out that evidence certain perpetrator evi- introduce”). dence that he “images” sought reflected that there were but no pornography “videos” of child his com- flatly is no rule “[T]here Therefore, that if puter. speculated Bruce prohibiting third-party perpetrator evi incorrectly Pulscher stated that she had Rather, South Dakota. if the pornography observed child “videos” on proffered evidence is relevant but chal computer, she must have obtained that lenged unfairly prejudicial, as confusing or knowledge accessing from his footlocker misleading, require we trial courts to bal and Based on this speculation, safe. probative ance the value of the evidence purported Bruce contended that Pulscher’s against possible prejudicial effect.” inconsistency proof was that she was a ¶ Fisher, 44, State v. 2010 S.D. third-party perpetrator planted who (citation omitted). “Pur in the footlocker and safe. CDs DVDs 403], suant to SDCL 19-12-3 [Rule only evidence should ‘be excluded if its The circuit court allowed the probative substantially value is outweighed third-party perpetrator Pulscher defense by likely the harm to result from its ad through Pulscher and other witnesses.4 ” mission,’ which danger includes the specifically The court allowed cross-exami- Faulks, misleading jury. State v. regarding nation of Pulscher her access to 115, 18, (quot 633 N.W.2d the safe and the footlocker. But because Braddock, ing State v. 452 N.W.2d no from was introduced (S.D.1990)). A trial evidentiary court’s computer, the court precluded the State ruling limits cross-examination will be questioning from Pulscher reversed when is a there clear abuse comput- about what she had viewed on the of discretion a showing preju as well as er. The court reasoned that such evidence Fasthorse, dice to the defendant. State v. was not relevant and would distract jury from the real issue whether Bruce “Prejudice jury results when a reasonable *7 knowingly possessed pornogra- the child probably significantly would have had a phy on the DVD found in his footlocker.5 impression different if appropri otherwise appeal, argues On Bruce that the circuit permit ate cross-examination had been court’s limitation on cross-examination Carter, 65, 31, ted.” State v. 2009 S.D. precluded presenting him from his third- 329, 771 N.W.2d 338-39. party perpetrator defense. v. See State Luna, 229, (S.D.1985) case, 378 N.W.2d 231-34 In this the circuit court (analyzing a argument defendant’s that probative balanced the value of the evi- “the trial court violated his against dangers Sixth the of confusion. rights by Fourteenth Amendment exclud- Our review of if the evidence reflects little permitted again complains The court Brace to call 5. Bruce that witnesses the circuit court and cross-examine Pulscher to establish that changed ruling its between the two trials. safe, she had access to the footlocker and the noted, previously only But as the relevant relating charged the sources of all evidence issue is whether the court abused its discre- uncharged acts. Bruce also examined evidentiary making ruling tion in that Pulscher) (including witnesses to establish affected the outcome of trial in which he that Pulscher not had access to the com- was convicted. puter, frequently but she “burned” CDs. question Bruce was allowed to Pulscher put whether she had burned discs and them in the footlocker to frame Bruce. ... what constitutes expired statements. as well as any of inconsistent indication never stated delay reflects Pulscher cause for under a de novo good The record comput- on the play Andrews, that she saw “videos” standard.” State v. 2009 S.D. opened any ¶6 of the files. er or that she 181, 1, n. 183 n. 1. context, Rather, prior her when viewed 24, 2008, On December Bruce that she police to the indicated statements the com- appearance made an initial images thought that she were down- saw later, plaint. Approximately one month they were in a video loaded videos because May the circuit court set a 19 trial date. program. With re- computer section of April Bruce asked to reschedule the On testimony, spect grand jury to her she agreed July trial and to a 27 trial date. she saw file names rather testified that July jointly Bruce and the On actually viewing than “videos.” And with requested agreed another continuance and trial, testimony at the first respect to her trial September 8 trial date. The that she had observed still she indicated September commenced on but resulted Thus, images than the com- rather videos. day. jury a mistrial that same Bruce’s inconsistency a lack plete record reflects ultimately trial was held on December 7-9. best, prior pro- in the statements. At Accordingly, days between expired would have in- posed cross-examination initial appearance Bruce’s and the mistrial. argu- than nothing volved more counsel’s days An expired additional 90 between the possible ment with Pulscher about another mistrial and the ultimate trial. A total of meaning of her word “videos.” Consider- days expired ap- initial between the ing fragile factual foundation for a case pearance and the ultimate trial. together of inconsistent statements speculative assumptions necessary for Bruce contends that the circuit [¶21.] computer sup- inconsistent statements to excluding court erred in the time taken to port theory por- planted Pulscher resolve his defense motions. Bruce con- footlocker, in the the circuit nography days tends those should not be excluded court did not abuse its discretion re- they any because did not “cause” addition- stricting the cross-examination. See State delay. points al out that trial dates Garza, were set before his motions and his mo- (affirming exclusion of evidence require previously tions did not set where there was no foundation for admis- trial dates to be altered. See SDCL 23A- evidence). third-party perpetrator sion 5.1(4)(a)(only excluding days “resulting 44— Additionally, considering physical evi- *8 motions). from” certain defense Bruce together dence with Bruce’s actual cross- also contends that the circuit court errone- Pulscher, possi- examination of we see no ously days excluded certain between the bility jury that have reached a the would mistrial and ultimate trial to accommodate different conclusion had more extensive pregnancy the of a witness. Bruce permitted. cross-examination been that argues pregnancy the continuance did 180-day 3. The Rule qualify “unavailability not as the of evi- argues that the cir [¶ 19.] material that to the state’s case” and cuit court the failing erred to dismiss the continuance was not reduced to a writ- indictment because the time between his 23A-44-5.1(4)(c). ten order. See SDCL initial appearance and ultimate trial ex do not address Bruce’s con- [¶ 22.] We 180-day period ceeded the allowed under tentions because a mistrial occurred and SDCL 23A-44-5.1. review the deter “We day period party acknowledges mination ... neither the correct whether 180 counting method of time when a mistrial Consequently, a new 180-day been declared. See 23A-44- began has SDCL clock when Bruce’s mistrial was de- 5.1(3). applied 23A-44-5.1(3). the mistrial rule When is clared. SDCL Because a days excluding with the rule for defense- new clock day started of the mistri- continuances, requested al, both of Bruce’s days the 90 between the September 8 180-day trials were held within the limit. mistrial and the December 7 retrial were chargeable against 180-day the new time 23A-44-5.K1) (2) SDCL re- period allowed for retrial rather than quire charged that those with crimes be against the time allowed for the first trial. brought days to trial within 180 of their = (348-90 result, 258) As a only days However, appearance. initial the court are chargeable against the 180-day time delay must period “[t]he exclude result- period trial, allowed for the first and the ing from a continuance at granted remaining ninety days chargeable are request or with the consent of the defen- against the second 180-day period time provided approved dant or his counsel it is allowed for the retrial. by the court and a written order filed.” 23A-44-5.1(4)(b). case, SDCL In this at Applying days excluded to the April hearing, agreed defense appropriate periods, time 111 of the 258 May July continue the 19 trial which days used for the first trial must be ex- delay resulted in a days (May of 69 19 to days cluded because those 111 resulted 27). July conforming A order was filed. requested from defense continuances. = Similarly, July hearing, at the the de- (258-111 Thus, 147) only 147 of the 180 requested resulting fense a continuance days available for the first trial were used. a postponement Septem- of the trial until Further, occurred, when the mistrial period days. conforming ber A days clock restarted and 90 of the 180 Therefore, order was 111 days filed. those available for retrial were used. Because (69+42) be must excluded. Id. both trials were held respec- within their limits, 180-day tive the circuit court did Further, if the “defendant is to denying not err in the motion to dismiss. mistrial, ... again following be tried [the 180-day] period shall to run commence Cruel Unusual Punishment A from the date of the SDCL mistrial[J” [¶ 27.] Bruce was convicted of 23A-44-5.1(3). See also State v. Shilvock- possessing containing fifty-five one DVD Havird, (S.D. 776 n. pornography. videos of child He received 1991) 23A-44-5.1(3)’s (stating upon ten-year maximum sentence on all fif date, effective if a “defendant is to be tried ty-five Forty-five counts. of the sentences mistrial, again following a ... period such suspended, were but the sentences on the [(180 days)] shall to run from commence remaining ten counts were to be served mistrial[.]”). the date of the As the Ne consecutively in a resulting total sentence Supreme braska under its Court observed years. of 100 Bruce contends that virtually identical rule: “Once a mistrial is sentences were cruel and punish unusual *9 granted, speedy trial clock is restart Eighth ment under the Amendment. again ed.... a defendant ‘is to be tried [I]f ...,’ following peri “Sentencing a mistrial [¶ the 6-month decisions 28.] od ‘shall run perhaps responsibili commence to from the date of are the most difficult ” Dockery, ty judges, encompassing State v. 273 for trial circum mistrial[.]’ (2007) 330, 333, 320, Neb. 729 323 stances both obvious and elusive.” v. N.W.2d State ¶ 29-1207(3)). Bonner, 30, 11, (citing § 577 Neb.Rev.Stat. 1998 S.D. 406 2704, 2680, 957, 1000, 115 111 S.Ct. engage in for us to
575,
“It is not
578.
(1991)
836,
(quoting Rummel
868
‘micromanage L.Ed.2d
resentencing, or to
appellate
Estelle,
263, 274-75, 100 S.Ct.
justice’ in
445 U.S.
criminal
v.
of
the administration
(1980))). In
1133, 1139,
Dakota,
trial
407
chism,
incest,
bestiality,
sadomaso-
is
sexual
the offender
involved with that materi-
abuse,
Blair,
battery.
75, 83,
and sexual
SDCL al.”
2006 S.D.
chistic
22-24A-2(16).6
J.,
Finally,
Legislature
(Konenkamp,
at 76
the
in re-
concurring
sult).
a
from
range
penalties
depraved
wide
of
more
prescribed
“[T]he
and invasive
years
ten
and no incarceration to
the abuse and the more
probation
involved the of-
22-6-1(7);
penitentiary.
it,
the
in the
See SDCL
fender is with
material depicting
the
greater
22-24A-3.
the seriousness of
SDCL
the offense.”
Id.
statutory
[¶
When such
32.]
respect to
[¶ 33.] With
the seriousness
established,
are
in
ranges
legislative
the
offense,
of
pornography
this
the
involved
is that “the
tent
more serious commissions
images
much more than lewd
but less than
crime ...
at the
of
deserve sentences
[the]
the
possible
by
worst
material covered
the
spectrum.
‘[I]t
end of the
is a
harsher
disc
statute. The
on which the conviction
justice
of
precept
punishment
for the
was
contains
separate
based
two
videos.
propor
graduated
crime should be
”
post-pubescent
One involves three
girls
Bonner,
to the
1998 S.D.
tioned
offense.’
play
a scene in
acting
which one girl
¶ 25,
(quoting
577
at
N.W.2d
582
forces the other two to disrobe and dis-
States,
349, 367,
v. United
Weems
U.S.
play
vaginal
their anal and
openings. The
(1910)).
544, 549,
30 S.Ct.
54 L.Ed.
is a compilation
second video
of videos.
ought
“Thus a trial
to be
court’s sentence
Most of the scenes involve adult males
proportionate
particulars
to the
the of
masturbating
pre-pubescent
females
Blair,
and the
See
fense
offender.” Id.
(some infants), with a few scenes of fella-
¶75, 27,
at
(ap
N.W.2d
tio, cunnilingus and intercourse. One
involving
this rule to a
plying
case
child
pre-pubescent
scene
a
boy
involves
in-
pornography).
maximum
“Imposing the
volved in fellatio. Because each scene is
term
possible
where the circumstances of
(a
extremely
seconds),
short matter of
it is
only justify
the crime
at a lower
sentence
apparent
compilation
not
whether this
was
violates
to
range
legislative intent
reserve
one
downloaded as
video or whether each
most severe
sanctions for
most
together by
scene was edited
Bruce.
serious combinations of the
and the
offense
Bonner,
background of
respect
the offender.”
[¶ 34.] With
Bruce’s involve-
ment,
at
he was convicted of
possessing
Further, we
adopt
containing fifty-five
now
Justice Konen- one
Al-
images.
DVD
look
kamp’s
though thirty
containing
recommendation “that courts
other discs
found,
images
at two additional
when
determinants
as
were
the court
sessing
pornog
1 through
seriousness of a child
Counts
“considered]
as one
(1)
offense:
raphy
specific
purpose
determining parole
nature of
act” for
(2)
material and
eligibility.7 Additionally,
the extent
which
there was no evi-
female,
sexual
6. Prohibited
acts include:
breast with the intent to arouse or
gratify
party;
sexual desire
of either
intercourse,
or simulated
[AJctual
sexual
purpose
or urination
defecation
for the
sadism, masochism,
bestiality,
sexual
in-
viewer;
creating
excitement in the
sexual
cest, masturbation,
or
sadomasochistic
any
or
or
act
conduct which constitutes
abuse; actual or
of the
simulated exhibition
battery
sexual
or simulates that sexual bat-
area,
pubic
genitals, the
or the
or rectal
tery being or
is
will be committed.
breasts,
feminine
in a
or lascivi-
bare
lewd
22-24A-2(16).
SDCL
manner;
physical
ous
actual
contact
person’s
genitals, pu-
suspended forty-
clothed or unclothed
7. The
considered the
court
area, buttocks, or,
separate
person
bic
if such
is a
five counts as
transactions.
*11
Bruce,
Id.
we
with the minor.”
Unlike
or distrib-
that Bruce manufactured
pas-
a
was more than
Finally,
emphasized,
there
“Dubois
pornography.
child
uted
at
actively preyed
he
participant;
had
sive
that Bruce
suggesting
evidence
was no
¶ 46.
child,
least one child.” Id.
a
had sexual
sexually abused
ever
child,
a child for
a
or solicited
contact with
no
McKinney,
In
we found
simple
was a case of
images. This
sexual
middle-range
in a
gross disproportionality
images.
of
possession
twenty
years
five
on each of
sentence of
pornography,
of child
history
possession
counts of
character and
Bruce’s
¶74, 32, 699
years.
forty-eight
totaling
a divorced
reflect that he was
Bruce,
at
But unlike
McKin-
children,
470.
one who was N.W.2d
year old with three
child
ney
not
been convicted of
driv-
had
minor. Other than a careless
still a
sentencing court consid-
offense,
pornography,
criminal
prior
Bruce had no
ing
rape,
contemporaneous
ered
convictions
a
member of the
history. He was
former
minor,
a
and sexual
had
sexual contact with
and a veteran who
National Guard
¶
exploitation of a minor.
Id.
28. More-
Iraq during
and
in Saudi Arabia
served
over, McKinney’s pornography was used
Following his
Desert Storm.
Operation
gratification,
service,
just
not
for his own sexual
obtained a bachelor
military
abuse of his
began
and
but “to further
the sexual
degree
nursing
in
of sciences
¶
Id.
32. We held
stepdaughter.”
At the
emergency
work as an
room nurse.
offense,
McKinney’s
grossly
was not
dis-
changed his
sentence
time of this
he had
considering that “his sexual
gainfully
proportionate
em-
type
nursing
but was still
pornogra-
progressed from
hospital. Although
a
at a
deviance
ployed as nurse
con-
phy,
exploitation,
to sexual
sexual
attempted,
evaluation was
psychosexual
a
tact,
ultimately
step-
of his
rape”
indicated that an assessment
the evaluator
¶
daughter.
Id. 28.
prospects
rehabilitation
was
of Bruce’s
appeals process
until the
ended.
premature
in Blair we found no
Finally,
provide
also unable to
The evaluator was
disproportionality in near maximum
gross
or treat-
regarding
information
risk factors
prohibited
in
filming
for
children
sentences
ability.
¶ 1,
sexual acts. 2006 S.D.
Although
producing
at 56.
Blair was
gross disproportionality
Other
use,
personal
his
he
maximum
for
challenges to maximum or near
daughter and her adolescent
they in-
filmed his
sentences have failed because
¶¶
Also,
Id.
6-11.
under
of more serious con-
friends.
volved combination
“cor-
guise
dispensing “therapy,”
he
criminally culpable
and a more
of-
duct
in
girls
found nered” two of the
his basement
example,
fender. For
Dubois we
to convince them to
in a maximum hours
an effort
gross disproportionality
no
to share erotic
three
show him their breasts and
years
of ten
on each of
sentence
¶¶
These
counts,
thoughts with him.
Id.
4-5.
consecutively. 2008
to be served
¶
exposed himself
girls
reported
But
also
that he
at 209-10.
(via
inappropriately.
to them and touched them
“charges
those
derived from contact
circumstances,
internet)
“Considering all
an
had
Id.
telephone and
Dubois
offense,
term for each
eight year prison
Dubois
thirteen-year-old”
where
twelve
penalty,
than the maximum
images
years
two
less
the child for sexual
solicited
disproportionate to the
grossly
not
obtaining
[was]
succeeded in
them.
Id.
(Konen-
committed.” Id.
“Furthermore,
unsuccessfully at-
crimes he
Dubois
result).
J.,
kamp,
concurring
up
meetings
to set
face-to-face
tempted
*12
These cases
Dakota,
[¶ 39.]
demonstrate that
In
gross
South
dispari-
inty
Bruce’s maximum sentences were not re-
the
length
possession
sentence
for
of
served for the most serious combination of
child pornography exists.
example,
For
in
Martin,
background
criminal conduct and
of the State v.
2003 S.D.
674 N.W.2d
offender. We therefore conclude that
the
this
defendant’s
posses-
sentence for
exceedingly
the
rare
in
is
case
which sion of child pornography was a term of
grossly dispropor-
years
Bruce’s sentences were
two
in the penitentiary with all but
“particulars
forty-five days
jail
tionate
of the offense
in
suspended subject to
Bonner,
and the offender.” See
additional
In
present case,
conditions.
¶30, 25,
judgment legislatures of state Although determin- 74-75. ultimately recognized he ing appropriate punishments. “gross The South that disproportionality analysis Legislature Dakota posses- has classified performed separate must be for each sen- whole, sion of depicting children as tence” rather than the cumulative felony, a class four punishable by a fine of he aggre- noted consideration of the up twenty thousand dollars and a gate may term sentence be appropri- sometimes up years Blair, penitentiary. to ten in the ate. Id. 78 n. 22. Also in Justice 22-24A-3, Sabers, joined SDCL 6-1. by a dissent Justice Dakota the South invite examination under aggregate that the Meierhenry, contended be bail shall not gross dis- “Excessive reviewed for Constitution: should be sentence *13 (citing n. nor cru- imposed, fines required, See id. excessive proportionality. Const, Bonner; 1998 S.D. v. art. discussing State inflicted.” S.D. punishments el view, 575). either Under for the VI, § is not an excuse 23. This imposed sentence 100-year aggregate crime, to review open should be but we disproportionate. grossly case is this with con- that conflict aggregate penalties principles. stitutional gross disproportionali- Extreme invites to the crime the sentence ty of scrutiny. Ewing v. constitutional MEIERHENRY, Justice, joins Califor-
nia,
U.S.
S.Ct.
writing.
special
this
Helm,
(2003);
Solem
L.Ed.2d
(1983). Amend- Eighth Not does States Constitution
ment United punishment, but cruel and unusual
prohibit 22- of SDCL disparate application may also pornography cases
24A-3 in child