Lead Opinion
A jury found the defendant guilty of the crime of rape stemming from sexual intercourse with a child under the age of fifteen years. He was sentenced to a term of ten years. We affirm the conviction but remand for recоnsideration of the sentence.
The defendant questions the constitutionality of the statute (SDCL 22-22-1(4)) under which he was convicted. As it relates to this case, the statute reads:
Rape is an act of sexual penetration accomplished with any person other than the actor’s spouse under any one or more of the following circumstances:
(4) Where the victim is less than fifteen years of age.
The defendant contends that in enacting the challenged statute, the lеgislature intended to incorporate a presumption of incapacity to consent rather than a rule of substantive law. Defendant then argues that the presumption, whether rebuttable or conclusive, is arbitrary and irrational, and thus unconstitutional under the test framed in Tot v. United States,
The territorial legislature acknowledged the common law prohibition against carnal knowledge with a female under age ten in the penal сode of 1877.
During this time span, Ex parte Nesson,
This statute does not presume to declare that it shall be conclusively presumed that all females under 18 years of age are*495 virtuous, or that they are mentally incapable of determining the element of right and wrong as relating to sexual aсts, and therefore mentally incapable of consenting to such acts, but it declares a rule of public policy, under which, as stated above, it attempts to protect all females of immature age, and through them the public, from the consequences, not only of their, lack of judgment, but of lack of virtue where the same may be lacking
. The common expression used by the courts “that the female is conclusively presumed incapable of consenting to the act of sexual intercourse” is inaccurate. It would be more correct to say that the consent of the female is void [citation omitted]; that is, void аs to the male.
It is true, as defendant notes, that we have used language since Nesson indicating that the question of consent is for the jury. See: State v. Fox,
Immediately prior to 1975, the pertinent parts of the statute read as follows:
Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator under either of the following circumstances:
(1) Where the female is under the age of sixteen years[.]
In 1975, the legislature substantially revised SDCL 22-22-1 to read, in pertinent part:
Rape is an act of sexual penetration accomplished with any person under any оne or more of the following circumstances:
(2) Where the victim is incapable, because of physical or mental incapacity, of giving consent to such act; a person sixteen years of agе or less shall be presumed incapable of consenting to such acts[.]
In State v. Heisinger,
A statutory presumption is a rule of evidence and must be carefully distinguished frоm statutory provisions which create substantive law, as the former provision had done..
We then construed the 1975 amendment to create a rebuttable presumption that a person sixteen years of agе or less was incapable of consenting to sexual acts. We reaffirmed that construction in State v. Watson,
It appears that the legislature, by 1977 S.D.Sess. Laws, Ch. 189, § 51, essentially reenacted the pre-1975 rape law. The defendant was charged and convicted under the 1977 version. On reconsidering its experiment with the 1975 revision, the legislature apparently determined that, as a matter of policy, our traditional black and white apprоach was preferable to the troublesome evidentiary problems involved in the gray zone of rebuttable or conclusive presumptions regarding capacity to consent.
Having reached this cоnclusion, we avoid the constitutional presumption arguments of appellant. His further contention that the trial court erred in refusing evidence of facts relating to the victim’s ability to consent to sexual intercourse is thus also immaterial.
The defendant objects to jury instruction No. 12 on the ground that it shifted the burden of proof from the State to the defendant in violation of his constitutional rights. The challenged instruction reads as fоllows:
A charge such as that made against the defendant in this case is one which, generally speaking, is easily made, and once made is difficult to disprove even if the*496 defendant is innocent. From the nature of the case such as this, the complaining witness and the defendant usually are thе only witnesses testifying directly as to the alleged acts constituting the crime. Therefore, the law requires that you examine the testimony of the prosecuting witness with caution and consider and weigh it in light of all the circumstаnces shown. In giving this instruction, the Court does not mean to imply an opinion as to the credibility of any witness or the weight to be given his or her testimony, (emphasis supplied)
The record reveals, however, that counsel for the defendant did not object to the proposed instruction. Indeed, defense counsel offered an instruction with identical language which was refused. Failure of a defendant upon settling of instructions to object to a particular instruction precludes appellate consideration of a claim that the instruction was prejudicial. SDCL 15-6-51(b), 23-42-6(5)
Finally, the defendant claims the sentence cannot stand because it was based upon unreliable and inaccurate information concerning his past conduct.
This court has consistently recognized the broаd discretion of the trial judge in determining the kind and extent of punishment to be imposed within the limits fixed by statute. State v. Robinson,
In regard to reliability, defendant argues that the presentence report whiсh he requested contained incomplete and hearsay matters. In State v. Carsten,
This, however, does not dispose of the second part of appellant’s claim that the court relied on inaccurate conclusions in pаssing sentence. Questions of constitutional magnitude involving due process are reached when a prisoner is sentenced on the basis of assumptions concerning his criminal record which were materially untrue. United States v. Tucker,
The fact is, that you were convicted in 1975 of raping an 8 and 10 year old girl, four counts of lewd and lucidious [sic] acts. Now that is a fact.
This statement was either a misunderstanding or a misreading of the record. The state concedes that defendant was acquitted of all charges relating to the eight-year-old girl (although the record itself is vague on this point). More significantly, however, the record doеs not permit the conclusion that there were any rape convictions. In State v. Carsten, supra, at 710, we quoted with approval from United States v. Herndon,
The judgment 'of conviction is affirmed; the case is remanded, however, for reconsideration of the defendant’s sentence.
Notes
. Dakota Territory Penal Code § 320 (1877).
. 1887 Dak.Sess. Laws Ch. 133 § 1, pages 10 through 14, 2nd degree rape; under the age of 10, 1st degree rape.
1890 S.D.Sess. Laws, Ch. 4, § 1, 16 years. 1907 S.D.Sess. Laws, Ch. 11, § 1, 18 years. 1972 S.D.Sess. Laws, Ch. Í54, § 21, 16 years.
. SDCL 23-42-6, repealed by 1978 S.D.Sess. Laws, Ch. 178, § 5.77, effective July 1, 1979. See SDCL 23A-24 — 2 for similar reenactment.
. SDCL 19-9-6 provides:
Nothing in §§ 19-9-3 to 19-9-5, inclusive, precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
Concurrence Opinion
(concurring in result).
Due to the position I have taken with respect to sentencing in State v. Coe,