State v. Hinger
600 N.W.2d 542
S.D.
1999
Check Treatment

*1 Sufficiency 2. of the Evidence with dili evidence reasonable found this viewing rule with trial. The gence before argues next that the [¶ 19.] Gehm a new grounds as doubt “new evidence” was to sustain her evidence insufficient age-old policy: Litiga an expresses trial on the six counts of third de convictions finality. Acker practical tion have a must gree rape. question The is did the State States, 340 U.S. mann v. United from which the present sufficient evidence (1950). 209, 211-12, L.Ed. 207 71 S.Ct. reasonably find the defendant jury could justice of our criminal purposes One charged. jury If the guilty of the crimes guilt or questions to decide system is E.W.F., enough then there was believed fairly. promptly and See Unit innocence stated, previously we it is for evidence. As Johnson, 106, 112, 66 327 U.S. ed States factfinder, weigh not this Court (1946) 464, 467, (objec L.Ed. 562 S.Ct. judge credibility evidence and law). cannot goal criminal That tive of in the record was witnesses. The evidence accomplish if accused after served those sufficient to sustain Gehm’s convictions. they have done before trial what should Affirmed. exploring expend vigorous effort trial — for evidence of their their own resources Justice, MILLER, Chief innocence. SABERS, AMUNDSON, and know for cer We can never GILBERTSON, Justices, concur. tain, course, new what influence this jurors. had on the may information have impeachment doubt that about Jere

We grand on his

my’s eavesdropping claimed much effect. Wil

parents would have had

lis, troubling, More 396 N.W.2d at 154. hand, it

the other new alibi. Yet Gehm’s if the verdict would enough is not to ask 1999 SD 91 question possibly be different. Dakota, Plaintiff STATE of South different. Id. at 153— probably would Appellee, answer no. Her alibi 54. To that we must any certainty still could not establish at the time and she was elsewhere Timothy HINGER, Eldon Defendant place charged in the indictment. See Siers Appellant. Class, (citation omitted)(alibi No. 20783. must be inclu

sive). only prove can sometime She Supreme Dakota. Court South day training or at each she was either school, leaving precise her son’s uncertain Considered on Briefs June ly mornings where she was on the covered July Decided testimony. E.W.F.’s It still comes down His against to his word hers. truthfulness severely tested cross-examination apparently with his inconsistencies say giv

stood attack. cannot We

en more the result grist impeachment, Consequent probably

would be different.

ly, we the trial court did not abuse its find grant a new

discretion when it refused to remaining

trial on count three or

counts. *2 Barnett, Gen., Atty.

Mark Grant Gorm- Gen., Pierre, Atty. plaintiff for ley, Asst. appellee. Tinan, Donna L. Bucher of Smith & Mitchell, Bucher, appel- for defendant and lant.

MILLER, Chief Justice. (Hinger) Timothy Eldon charged degree rape, with first SDCL 22-22-1(1) contact with a child and sexual age of sixteen. 22-22-7. under the SDCL Hinger pled guilty degree to first After the sexual con- rape, the state dismissed charge. tact 22-22-1(1), first de- Under SDCL gree rape penetration “is an act of sexual if the victim accomplished any person years age.” It is a Class is less than ten 22-22-1, mandatory with a felony, SDCL minimum years sentence of ten for a first twenty years subsequent offense and 22-22-1.2. The maximum offense. SDCL imprisonment life and a fine of penalty 22-6-1(3). $25,000. SDCL im- Hinger was sentenced to life pay ordered to court costs prisonment and coun- restitution for the victim’s as well as him involved to allow seling expenses life. Because he was to resume a normal County SO/Simple Davison As- imprisonment, Hinger to life sentenced 6/25/90 sault-dismissed SDCL 24-15^4. parole. eligible PD/Underage Mitchell Con- 12/28/90 pro- and remand for reverse 4.] We Assault-Un- sumption-Simple *3 opinion. with ceedings consistent Occupancy-all lawful counts dismissed FACTS Assault- PD/Simple Mitchell 3/12/91 Hinger twenty-eight years is now [¶ 5.] dismissed family from a drink- He comes where old. PD/Simple Mitchell Assault- 7/20/91 were and violence common- ing, arguing, Disorderly reduced to conduct- sexually by his He abused place. fine, costs, susp. on days $50 verbally and physically . grandfather conditions by his mother. abused Patrol/DUI, Highway 1st SD 12/6/91 offense-plea days of guilty-30 Hinger hearing impaired [¶ 6.] jail, conditions hearing aids in both ears. He has a wears Theft, Mitchell 1st PD/Petty 1/23/92 of impairment, spine, curvature speech degree-plea guilty petty to long-standing problems hyperac- theft-costs, days susp. on anger. He tivity, depression and has been conditions shows”) (known frequent “no a client Mitchell PD/Simple Assault- 3/4/92 Mental Health Center Dakota since dismissed and is on Prozac. SO/Disorderly Davison County 1/26/93 that he Hinger believes has a tenth Conduct-dismissed attended education. He grade South Minnehaha County 3/1/96 SO/Domes- Deaf, Dakota School for Northern VioIence-obstructing-Re- tie Black Co-op and the Workshop, Hills Hills sisting Arrest-plea guilty program. fine, Simple Assault-$100 seventeen, age days jail, resisting Since the susp., dismissed alcohol. He abusing completed has been program par- inpatient one alcohol and has County Minnehaha 4/3/96 SO/Ob- inpatient other ticipated programs. structing-Resisting two Arrest-Do- Violence-plea guilty mestic has also referred to AA and He Resisting days Arrest-180 community which he programs, alcohol has jail, 170 susp.-simple assault successfully completed of his because dismissed through. failure to follow Because of his PD/DUI, Mitchell 2nd offense- 4/20/96 alcoholism, history he has had of unsta- fíne, jail, 90 days susp. $300 financial, work, living arrange- ble PD/DUI, Huron 2nd offense- 4/22/96 Disability ments. income through SSDI fíne, susp., days, $1000 has allowed him to survive. susp. Hinger’s involvement the crimi- Mitchell Vio- 5/10/96 PD/Domestic justice nal area includes: lence-Simple Assault-dis- PD/Simple Mitchell Assault— 8/13/88 missed dismissed Minnehaha County 6/1/96 SO/Grand PD/Simple Mitchell Assault- 6/14/89 Theft amended Unautho- dismissed rized use of a Motor Vehicle- days, susp. Mitchell 2/11/90 PD/Vandalism-Inten- Madison, Property Damage, SO/Disorderly tional 3rd WI 4/12/97 an Conduct-Obstructing Offi- degree-Simple Assault-Under- cer age Consumption of Alcohol- County/DUI dismissed Union 5/4/98 blaming his sister and County/Obstruction- Mated between Davison 5/4/98 event, nephew reporting Appear Failure to stating T made a mistake. I never Mitchell Contact PD/Sexual 5/8/98 illegal shoulda done it. It’s for me to 16; Under Sexual Contact with ” do that to a minor.’ to Consent Person Unable (cid:127) usually His sexual fantasies involve simple assaults and do- majority males, although adult he has had fan- charges from inci- mestic violence stem children, tasies about sex with a re- members when family dents with mark he distanced himself from. Many were drinking. had been dismissed some- family he or members did because (cid:127) IQ His full him in placing scale *4 the situation. thing positive to correct mentally range. the mild retarded observed, The court services officer His academic abMties are at the third just quick of these fixes were “[m]ost (Fifth grade grade and fourth level. that.” reading generally abMties demon- leading Hinger’s literacy). The incidents to strate plea reported occurred in were guilty (cid:127) responses suggested of his “[S]ome in prosecuted in and were 1998.1 such, possibility PedophMa. As Hinger during July admitted that he diagnosis provided that was on a ‘rule seven-year-old had sexual contact with his basis, simply indicating out’ in nephew by placing finger neph- his his possibility needs to be considered as a once, in penis ew’s anus and his his anus warranting investigation. and further case, neph- In and Hinger twice. each his professes This is an individual who Hinger’s in apartment. ew were alone bisexuality, but to have a appears who time, drinking who had each Hinger, preference for relation- homosexual nephew asked his to remove his clothes. ships. appears He to choose his vic- placed nephew lap He then on his and availability, tim due to rather than to penetrated According nephew’s him. to find, go community to out into (who sister), nephew mother select, ‘groom’ and a victim. Mr. humiliation, and pain has suffered fears to in- Hinger appear did have some Hinger, and does not want to be near him. sight inappropriateness into the of his actions, part presentence inves- to [¶ 11.] As and the need control his psychologi- to a children. tigation, by being submitted behavior with However, a report appeared present cal evaluation. This of this evalua- he part, reoffending, given tion revealed in moderate risk of his remorse, empathy, lack lack of and (cid:127) a was limited as historian lack of control of severe Alcohol De- deficits, along intellectual with a his pendence.” propensity to minimize and rationalize actions, illegal project his blame on (cid:127) long history “He had a of inner has others, exaggerate depressive and to experiences and behavior which have attempt legal in an to evade symptoms social, vocational, legal, in and resulted actions. consequences his impairment. He has disre- personal (cid:127) laws, garded typical social norms and complain “He went on to that he didn’t blamed, strong a antisocial why demonstrating

understand he was as it many years ago. persistent so He vac- character. He has shown happened pursuant may be is no limitation on the time within to this section commenced There prosecution felony which be commenced. SDCL 23A-42-1. tion, for Class must prior be- time to the time the victim In addi- age twenty-five years comes or within seven provides, part, SDCL 22-22-1 crime, whichever is of the commission of "[n]otwithstanding [prosecutions § 23A-42-2 longer.” A, B, charge brought than Class or a1] other found the recommendations implemented and modulate his emotions inability to psychological in the evaluation. behavior, long-standing resulting interpersonal anger with problems the trial sentencing Hinger appears sense of self His conflicts. said, in part: court unstable, acting his often with very probably I think that THE COURT: seeking impulsive, attention in an out you acquainted time I became person- These deficits his manner. I juvenile you when were multiple, resistant ality have been Marie, your Ser- you kicked Court think He therapeutic efforts. multifaceted Officer, charged were then you vices coun- outpatient involved has been juvenile of in disposed with assault medication man- seling, psychotropic Black Hills and remanded to the treatment, alcohol treat- day agement, correctly. Coop if I remember ment, hospitalizations. psychiatric n n n n n n change in this area prognosis The poor.” quite time, you THE Since COURT: report concluded: system in and out of the court have been basis, *5 all fairly regular and for strongly I would on “Recommendations: you have practical purposes, ordered intents and Hinger that Mr. recommend break for given this break and that relapse pre- offender to attend sexual your time in period period a considerable prolonged for a program vention setting. I life. very in a controlled of time that his sen- further recommend

would any has I don’t see this court requirement that he tencing include the sentencing. to alternative when comes pro- in an alcohol treatment be involved n n n n n n very setting. in a controlled gram, again and judgment THE COURT: Be the future, point in the If released at some you con- of the court that sentence candidate for a prime

he would be Penitentiary for the fined the State halfway placement, house prolonged your natural lifetime. You balance sobriety testing bodily mandating of the custody are remanded to the sher- very close compliance, for fluids of sentence. purposes iff for of execution Psychiatric up follow monitoring. require court that restitution be will warranted, minimum monitor his at a to counseling expenses made for all medication, and also his antidepressant indirectly directly related to or re- precautions of suicide. Suicide risk in— assisting lated to in the victim to resume sentencing takes should be intensified as You standpoint. a normal life from that long prison if a term place, particularly custody sher- are remanded to the of the given.” iff of execution of sentence. purposes offense, nature of the Due to the totality I from the do see the victim recommended a the state and that we have an individual who report sentence, if not a significant penitentiary as to capable will be of rehabilitation so disturbing upon Based life sentence. problem to not offend or be serious which, report psychological nature of the I society type and believe sentence believed, they painted prospect a dim interests, only society’s is not best rehabilitation, they argued that a life also may You be seated. your but own. Hinger’s attor- appropriate. sentence was background offered an ney argued that his ISSUE excuse, an for his behav- explanation, not Is life sentence for did take re- argued ior. He pun- degree rape cruel and unusual sponsibility and was a can- first for his actions Eighth didate for violation of penitentiary if ishment rehabilitation appears grossly dispropor- the United States Consti- Amendment to this, accomplish To we con- tionate. tution? involved, the conduct sider argues his life sen conduct, with utmost past relevant is cruel and degree rape tence for legislature deference to the contends that and he punishment unusual If circum- sentencing court. these Amend Eighth the sentence violates suggest gross dispro- fail to stances Constitution. ment to the United States If, ends. portionality, our review Jensen, 1998 SD hand, appears the other the sentence (1998), we reiter- 623-24 grossly disproportionate, may, we review: principles of sentence ated examining the other Solem addition Recently approach altered its Court intra-, factors, conduct an and inter- pur of sentences that to examination jurisdictional analysis aid our com- Eighth Amendment portedly violate the circuit parison or remand to the ' cruel and unusual prohibition against comparison conduct before re- such Bonner, 1998 SD punishment. may also consider sentencing. We will longer 575. No N.W.2d factors, such as the ef- other relevant appli test be the “shock the conscience” society type of this of of- upon fect analysis cable to federal constitutional fense. Id. In Eighth under the Amendment. stead, will be proportionality review 30, 17, 577 identi guided by principles” “common Kennedy Supreme in the fied Justice *6 1991, “In the amend- Legislature on this is pronouncement court’s latest rape 22-22-1 the of a ed SDCL to make ¶¶ (referring to Harme sue. Id. 15-16 age a 1 years child less than ten of Class 957, 111 Michigan, lin v. 501 U.S. S.Ct. amendment, felony. Prior to the (1991)) 2680, (modifying 115 L.Ed.2d 836 2 Helm, 277, felony. as a crime was classified Class v. 463 U.S. 103 S.Ct. Solem (1983)). Peterson, 3001, 24, § 77 L.Ed.2d 637 These ch. v. See SD Law 8.” State ¶ are as follows: principles 22, 389, 140 557 N.W.2d 394. change was to increase (1) The effect of this grant courts must sub- reviewing from legislature’s penitentiary penalty to the the maximum stantial deference authority to determine the twenty-five years imprisonment broad to life (2) punishment; types and limits 22-6-1(4); parole. without SDCL SDCL Eighth Amendment does not man- addition, 22-6-1(3); In 24-15-4. SDCL any adoption penological date one 22-22- enacted SDCL legislature 1992 the (3) “are theory; divergences marked provides, part: 1.2 which inevitable, result often beneficial If convicted of of the any adult is (4) structure”; pro- of the federal violations, shall im- following the court by review federal courts portionality following minimum sentences: pose the objective fac- should informed tors. (1) 22- of subdivision For violation Gehrke, v. 423 n. State 491 N.W.2d 22-1 Harmelin,

2 501 (S.D.1992)(citing U.S. (l)[first un- rape of a child degree 2703-04, 998-1001, 115 at 111 S.Ct. at ten], years ten for a age der the 867-68). summarizing In L.Ed.2d at twenty years for a offense and approach, opinion the Bonner this new subsequent offensef.] following steps: forth the set § 1. If the sen- ch. 164 1992 SD Sess.L. challenge proportion- assess a [T]o circum- mitigating finds tencing whether the ality we first determine 548

stances, may depart mandatory from the “most severe” sanction was reserved 22-22-1.4.2 minimum sentence. SDCL “the most serious combinations of the of- background fense and the of the offender.” The substantial increase Id. degree rape for the first penalty maximum ten, imposi- of a child under as well as the An appropriate sentence re minimum mandatory

tion of sentences for quires that: offense reflects the subsequent first and Peterson, public intent. State sentencing court should “ac- changes at reflect an N.W.2d 394. These quire thorough acquaintance accelerating protecting concern with chil- history the character and ¶ dren, Bonner, 1998 SD 30 at study man before it.” This should increasing at and an into- 577 N.W.2d “general examine a defendant’s exploitation lerance for sexual of chil- character, mentality, moral habits ¶ 33, Raymond, dren. State SD 59 environment, tendencies, social age, N.W.2d aversion or inclination to commit crime, life, family, occupation, and addition, legisla previous criminal record.” punishment of a ture’s establishment years imprisonment range of ten life Winter, Chase 534 N.W.2d at 354- ten, degree rape the first of a child under Pack, (quoting at 667- clearly shows its intent that: (citations omitted)). The sentenc- more serious commissions ing court should also consider rehabil-

crime to deserve sentences at the harsh II, prospects. itation Bult spectrum. pre er end of the is a “[I]t N.W.2d at 328. justice cept punishment for the v. Lemley, State SD graduated propor crime should be 409, 412.

tioned to the offense.” Weems Unit 1998 SD 30 at States, ed at U.S. S.Ct. N.W.2d at 580. When defendant is con 549, 54 L.Ed. at Thus a trial victed of a violation listed in 22-22- SDCL court’s ought proportion to be *7 1.2, a sentencing court receives “extra in ate to the particulars the of offense and regarding formation” the sex offender. maximum Imposing the offender. the (S.D. 325, Bult v. Leapley, 507 N.W.2d 329 possible term where the circumstances 1993)(Henderson, specially concurring). J. of the a a only justify crime sentence at Under SDCL 22-22-1.3: range legislative lower violates intent “to reserve the most severe sanctions for Any person convicted of a violation list- the most serious combinations of the §ined 22-22-1.2 shall in have included background offense and the of the of presentence his investigation report an Milbourn, fender.” v. People 435 Mich. assessment which shall include the fol- (1990). 630, 1, 17 lowing information: the offender’s sexu- Bonner, ¶ 25, State v. 1998 30 at 577 SD intellectual, history; al and aca- adaptive N.W.2d at 582. functioning; demic social and emotional functioning; previous legal history; pre- received the most severe imprisonment history; sanction—life a first of- vious treatment victim selec- —for fense, tion; degree rape community; first of a child under risk to the and treat- ten. The question becomes whether this options ment recommended. 2. provides: SDCL parture mandatory 22-22-1.4 from the sentence im- posed by finding § 22-22-1.2. The court’s sentencing may impose court a sen- mitigating by tence of required by other that which circumstances allowed than is § mitigat- upon by 22-22-1.2 if the court finds that section and the factual basis relied ing require writing. circumstances exist which a de- the court shall be in Here, raped should Hinger admittedly only imposed sentence when such, nephew. seven-year-old his As trial court: member, exploit- Hinger, family a trusted determine [C]an from the facts of the a vile young ed a child committed principal previous offense and the con- Raymond, crime. v. SD 59 See State that victions rehabilitation is so un- ¶ 33, at at 829. His criminal N.W.2d likely as to be from removed consider- contact, however, sexual was confined ation the sentencing; that interests one victim 1993. July on two occasions society of demand that the convict be pattern There was no further of sexual kept off the streets for the rest of his abuse, allegations other any and no of ... and that life the life sentence not Compare, after victims before or that. constitute excessive retribution. ¶¶ Peterson, 28-30, 1996 SD 140 at ¶54, Pulfrey, 548 N.W.2d at 395-396; Ray- 557 N.W.2d at (citations omitted). ¶ mond, at at SD 59 N.W.2d ¶ Peterson, State 1996 SD 140 at addition, In this is N.W.2d at 395. “We therefore have deter- felony stranger conviction. While he no only mined trial court impose should justice system, majority the criminal the life when princi- sentence the of the facts charges against him lodged have pal previous offense the convictions dismissed. escalation in his criminal Any unlikely make rehabilitation so that it is activity due to has been his alcoholism from removed consideration sentenc- not criminal be- escalation sexual ing.” Raymond, State 1997 SD 59 at havior. ¶ 35, N.W.2d at [¶ While circumstances trial this case the of this seemingly suggest case life general that “I made the observation do grossly disproportionate, the totality report see from there is another factor that must exam we be capable have an individual who will sentencing ined. A always court must con so as rehabilitation to not offend or be a pros sider a defendant’s rehabilitation problem soeiety[.]” serious While our pects, State v. 1998 SD 30 at otherwise, the record suggests review of particularly N.W.2d this is capable the issue whether important in where a cases life sentence is is a fact to be question under rehabilitation decid consideration. by Pulfrey, ed trial court. State recognized We have a life while 39. Our SD parole [sic] sentence without extracts review the issue is hindered retribution, com- deters convict from specific findings absence of issue of crime, mitting removes him from *8 amenability Hinger’s to rehabilitation and street, puts and would-be felons on no- recidivism, compulsive whether behavior was high penalty tice of the or the level pedophilia. rose to See completely goal eschews the of rehabili- J.J., 317, People in Interest 454 N.W.2d tation. (S.D.1990); Chamley, 325 1997 SD 325, Butt v. Leapley, ¶ 62, 607, (Gilbertson, 568 N.W.2d Weiker, (S.D.1993); State 342 N.W.2d dissenting part concurring J. and 7, (S.D.1983), denied, cert U.S. part)(studies suggest some child molesters S.Ct. L.Ed.2d high are not curable and have reeidivision (1984). rates). Raymond, 1997 SD 59 at Consequently, N.W.2d at 830. Therefore, and we reverse re- This court has stated is a direct the to make rehabilitation mand. We trial court specific findings factor which must be ruled out is a before whether may imposed. capable life sentence A life and whether pedophile he Hingers to reconsider and rehabilitation findings. those light AMUNDSON, SABERS,

[1126.] Justices,

GILBERTSON, concur. KONENKAMP, Justice, concurs

in result.

KONENKAMP, (concurring in Justice

result). be re agree I this case should analysis proportionality for a

manded record based on the

resentencing because grossly appears life sentence

before us the resentencing the On

disproportionate. into account the factors should take

set forth State including reha however, that agree, I

bilitation. do to have the sen remanding

we should findings of fact con enter

tencing court As pedophilia.

cerning rehabilitation in the first required are not

circuit courts rea fact-findings on the to make

instance decisions, they sentencing

sons for their so on remand. to do required

should not be departs from only

It when a court required that it is

mandatory sentence findings mitigating on the

make factual 22-22-1.4.

circumstances. SDCL SD 115 Dakota, Plaintiff of South

STATE Appellant, SPARKS, a/k/a, Philip

Craig Richman, Defendant

M. Appellee.

No. 20806. *9 Dakota.

Supreme Court of South on Briefs June

Considered Aug.

Decided