#25618-aff in pt, rev in pt & rem-SLZ

2011 S.D. 14

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                        * * * *

STATE OF SOUTH DAKOTA,                             Plaintiff and Appellee,

v.

TROY BRUCE,                                        Defendant and Appellant.

                                        * * * *

                   APPEAL FROM THE CIRCUIT COURT OF
                       THE SIXTH JUDICIAL CIRCUIT
                     HUGHES COUNTY, SOUTH DAKOTA

                                        * * * *

                         HONORABLE LORI S. WILBUR
                                 Judge

                                        * * * *

MARTY J. JACKLEY
Attorney General

JOHN M. STROHMAN
Assistant Attorney General                         Attorneys for plaintiff
Pierre, South Dakota                               and appellee.

JACK C. MAGEE of
Magee Law Office, LLC
Pierre, South Dakota

AL ARENDT                                          Attorneys for defendant
Pierre, South Dakota                               and appellant.

                                        * * * *
                                                  CONSIDERED ON BRIEFS
                                                  ON JANUARY 10, 2011

                                                  OPINION FILED 04/06/11
#25618

ZINTER, Justice

[¶1.]         Troy Bruce was convicted of fifty-five counts of knowing possession of

child pornography. He appeals challenging the circuit court’s admission of other

acts evidence, the court’s limitation on cross-examination of an alleged third-party

perpetrator, the failure to bring his case to trial within 180 days of his initial

appearance, and the court’s imposition of a maximum sentence on ten counts

resulting in a 100-year sentence. We affirm in part, reverse in part, and remand

for resentencing.

                             Facts and Procedural History

[¶2.]         On December 23, 2008, police executed a search warrant at Bruce’s

apartment after Carol Pulscher, his roommate and estranged girlfriend, 1 reported

seeing child pornography on Bruce’s computer. The search revealed child

pornography on discs (CDs and DVDs) in Bruce’s locked safe and footlocker. The

State charged Bruce with fifty-five counts of knowing possession of child

pornography in violation of SDCL 22-24A-3. All charges were based on one DVD

found in the footlocker. The child pornography found in the safe was introduced as

other acts evidence. None of the child pornography found on the computer was

introduced at trial.

[¶3.]          Bruce initially appeared on December 24, 2008. At his arraignment

on a superseding indictment, the court scheduled a jury trial for May 19. As a



1.      At the time Pulscher reported the child pornography, Bruce and Pulscher
        had broken off their relationship but were still sharing the apartment.
        Bruce described their relationship as “distant.” Pulscher described their
        relationship as being “roommates.”

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result of pretrial motions, requests for continuances, and a mistrial, Bruce’s trial

was held on December 7, 2009, 90 days after the mistrial but 348 days after his

initial appearance.

[¶4.]        One pretrial issue involved the State’s use of other acts evidence in the

form of a disc containing child pornography. The disc was found in Bruce’s safe and

was stained with his semen. Another pretrial issue involved the court’s limitation

on Bruce’s cross-examination of Pulscher. Because no evidence of child

pornography on the computer was to be admitted at trial, the court limited Bruce’s

cross-examination of Pulscher regarding her prior statements about child

pornography she had observed on the computer.

[¶5.]        The jury found Bruce guilty of all fifty-five counts. On Counts 1

through 10, Bruce received maximum ten-year sentences to be served consecutively

for a total of 100 years. Bruce also received maximum ten-year sentences on the

remaining forty-five counts to be served concurrent with each other and concurrent

with the sentences on Counts 1 through 10. The sentences on the forty-five counts

were suspended.

[¶6.]        Bruce raises four issues on appeal:

        1.   Whether the circuit court abused its discretion in admitting
             other acts evidence of the child pornography disc that was
             stained with Bruce’s semen.

        2.   Whether the circuit court abused its discretion in limiting cross-
             examination of Carol Pulscher.

        3.   Whether the circuit court erred in denying Bruce’s motion to
             dismiss for failing to try the case within 180 days of his initial
             appearance.



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#25618

           4.      Whether the maximum sentence on ten of the fifty-five
                   counts was cruel and unusual punishment.

                                            Decision

                                 1. Other Acts Evidence

[¶7.]           Bruce’s semen was discovered on one of the child pornography discs

found in his safe. The circuit court ruled that the semen-stained disc was

admissible other acts evidence. The court further ruled that the stain would be

referred to as DNA rather than semen. However, on the first day of the second

trial, the court modified its ruling and allowed the State to disclose that the stain

was Bruce’s semen. 2 The court ruled that the evidence was relevant to prove

identity (who possessed the disc) and knowledge that the discs contained

pornographic content. The court performed the requisite balancing and ruled that

any prejudice did not substantially outweigh the evidence’s probative value. Bruce

contends that the circuit court abused its discretion in allowing the jury to hear

evidence that the stain was Bruce’s semen.

[¶8.]           SDCL 19-12-5 (Rule 404(b)) provides that evidence of other acts is not

admissible to prove character of a person, but is admissible for other purposes, such

as proof of identity and knowledge. “To determine the admissibility of other acts

evidence, the court must . . . determine: (1) whether the intended purpose is

relevant to some material issue in the case, and (2) whether the probative value of

the evidence is substantially outweighed by its prejudicial effect.” State v. Huber,

2.      Bruce strenuously complains that the circuit court changed its initial ruling.
        Bruce cites no authority requiring a trial court to adhere to an earlier
        evidentiary ruling following a mistrial. The only relevant issue is whether
        the trial court abused its discretion in admitting the evidence at the trial in
        which the defendant was convicted.

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#25618

2010 S.D. 63, ¶ 56, 789 N.W.2d 283, 301. “Once the evidence is found relevant,

however, the balance tips emphatically in favor of admission unless the dangers set

out in Rule 403 ‘substantially’ outweigh probative value.” State v. Wright, 1999

S.D. 50, ¶ 14, 593 N.W.2d 792, 799 (citing Edward J. Imwinkelried, Uncharged

Misconduct Evidence § 8.28, at 118-19 (Rev. ed. 1998) (quoting Fed. R. Evid. 403)).

“The party objecting to the admission of evidence has the burden of establishing

that the trial concerns expressed in [Rule 403 (in this case prejudice)] substantially

outweigh probative value.” Id. ¶ 16. Evidence does not cause danger of unfair

prejudice “merely because its legitimate probative force damages the defendant’s

case.” Id. For evidence to cause unfair prejudice, it must persuade the jury by

illegitimate and unfair means. Supreme Pork, Inc. v. Master Blaster, Inc., 2009

S.D. 20, ¶ 30, 764 N.W.2d 474, 484.

[¶9.]        Bruce argues that identifying the stain as his semen (rather than

DNA) did not enhance the probative value of the evidence. He also argues that

identifying the stain as semen caused undue prejudice because it allowed the jury

to engage in “rank speculation” about how the semen got there and what it meant.

Thus, he claims that the evidence had little if any probative value that was

substantially outweighed by unfair prejudice. We disagree.

[¶10.]       In State v. Dubois, 2008 S.D. 15, 746 N.W.2d 197, the defendant

claimed no knowledge of pornographic materials on his computer. He claimed that

someone else downloaded the pornography or that it was downloaded by mistake.

Id. ¶ 21. However, the defendant had been involved in an uncharged act involving

a “sexually charged” internet chat with a fifteen-year-old boy. Id. ¶ 24 n.6. We


                                         -4-
#25618

affirmed admission of the other sexual act to prove identity as well as knowledge of

the content and presence of child pornography on the defendant’s computer. See id.

¶¶ 21, 25. Considering the defendant’s claimed lack of knowledge, we agreed with

the circuit court’s findings of relevancy and lack of sufficient prejudice to overcome

the evidence’s probative value. Id. ¶¶ 22, 24-25.

[¶11.]       Like Dubois, we see no abuse of discretion in the admission of Bruce’s

sexually charged prior act to prove identity and knowledge of the content of the

disc. A substantial number of the charged acts involved possession of videos of

adult males masturbating on children. The presence of Bruce’s semen made it

more probable that Bruce had been sexually stimulated by the discs’ content.

Thus, this was a “sexual fingerprint” that was highly probative of the identity of

the possessor and the possessor’s knowledge of the discs’ pornographic content.

Further, this type of sexual fingerprint does not tend to prove such issues by

illegitimate or unfair means.

[¶12.]       Bruce also argues that he was denied a “statutory” right to have the

stain tested. We first note that procedurally, the State provided Bruce with

advance notice that the stain was very small and could be destroyed during testing.

Bruce responded that he would “tentatively waive” the ability to test the stain. He

stated that if he did not provide a final answer by eight o’clock a.m. on July 24,

2009, he was “probably going to waive” his right to independently test the stain.

Bruce did not make contact with the prosecution by eight a.m., and the prosecution

proceeded with the testing.




                                          -5-
#25618

[¶13.]         With respect to the merits, Bruce has not cited a statute or case

suggesting reversible error whenever prosecution testing necessarily destroys

evidence and precludes further testing. 3 Instead, Bruce relies on the narrower

duty of the State to use good-faith in preserving evidence that could be exculpatory.

See Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281

(1988). Youngblood, however, is inapposite because Bruce does not allege that the

State destroyed the evidence in bad faith. See Carlson v. Minnesota, 945 F.2d 1026,

1029 (8th Cir. 1991). Moreover, courts have generally not found statutory or

constitutional violations when in good faith, evidence is necessarily destroyed in

the testing process making it unavailable for further testing by the defendant. See,

e.g., Baker v. State, 250 Ga. 187, 297 S.E.2d 9 (1982) (citing Partain v. State, 238

Ga. 207, 232 S.E.2d 46 (1977)); State v. Carlson, 267 N.W.2d 170 (Minn. 1978)

(discussing cases).

[¶14.]         In this case Bruce does not allege that the evidence was exculpatory,

that the State acted in bad faith, or that it was unnecessary to destroy the evidence

as a part of the testing process. Furthermore, the State provided notice before the

testing procedure was employed. Yet Bruce did not object or request an expert of

his choosing to be present during testing. Bruce has not identified a statutory or

constitutional right that was violated.



3.       Bruce cites State v. Hanson, 278 N.W.2d 198 (S.D. 1979). But Hanson
         involved the right to independently test marijuana, a contraband substance.
         Id. at 199. Therefore, Hanson’s holding was specifically “restricted to cases
         where the substance itself must be contraband in order to convict the
         defendant, and whether the alleged contraband is exculpatory depends on
         expert opinion.” Id. at 200.

                                           -6-
#25618

                         2. Cross-examination of Carol Pulscher

[¶15.]         Bruce presented a defense alleging that Pulscher was a third-party

perpetrator who had access to his footlocker, safe, and computer. Bruce also

argued to the court that Pulscher had given inconsistent statements about seeing

child pornography “videos” on his computer. Bruce pointed out that expert

evidence reflected that there were “images” but no “videos” of child pornography on

his computer. Therefore, Bruce speculated that if Pulscher incorrectly stated that

she had observed child pornography “videos” on the computer, she must have

obtained that knowledge from accessing his footlocker and safe. Based on this

speculation, Bruce contended that Pulscher’s purported inconsistency was proof

that she was a third-party perpetrator who planted the CDs and DVDs in the

footlocker and safe.

[¶16.]         The circuit court allowed the Pulscher third-party perpetrator defense

through Pulscher and other witnesses. 4 The court specifically allowed cross-

examination of Pulscher regarding her access to the safe and the footlocker. But

because no pornography was introduced from the computer, the court precluded the

State and Bruce from questioning Pulscher about what she had viewed on the

computer. The court reasoned that such evidence was not relevant and would

distract the jury from the real issue whether Bruce knowingly possessed the child


4.       The court permitted Bruce to call witnesses and cross-examine Pulscher to
         establish that she had access to the footlocker and the safe, the sources of all
         evidence relating to charged and uncharged acts. Bruce also examined
         witnesses (including Pulscher) to establish that Pulscher not only had access
         to the computer, but she frequently “burned” CDs. Bruce was allowed to
         question Pulscher whether she had burned discs and put them in the
         footlocker to frame Bruce.

                                            -7-
#25618

pornography on the DVD found in his footlocker. 5 On appeal, Bruce argues that

the circuit court’s limitation on cross-examination precluded him from presenting

his third-party perpetrator defense. See State v. Luna, 378 N.W.2d 229, 231-234

(S.D. 1985) (analyzing a defendant’s argument that “the trial court violated his

Sixth and Fourteenth Amendment rights by excluding certain third-party

perpetrator evidence that he sought to introduce”).

[¶17.]          “[T]here is no rule flatly prohibiting third-party perpetrator evidence

in South Dakota. Rather, if the proffered evidence is relevant but challenged as

unfairly prejudicial, confusing or misleading, we require trial courts to balance the

probative value of the evidence against the possible prejudicial effect.” State v.

Fisher, 2010 S.D. 44, ¶ 14, 783 N.W.2d 664, 669 (citation omitted). “Pursuant to

SDCL 19-12-3 [Rule 403], the evidence should ‘be excluded only if its probative

value is substantially outweighed by the harm likely to result from its admission,’”

which includes the danger of misleading the jury. State v. Faulks, 2001 S.D. 115, ¶

18, 633 N.W.2d 613, 619 (quoting State v. Braddock, 452 N.W.2d 785, 789 (S.D.

1990)). A trial court’s evidentiary ruling that limits cross-examination will be

reversed only when there is a clear abuse of discretion as well as a showing of

prejudice to the defendant. State v. Fasthorse, 2009 S.D. 106, ¶ 14, 776 N.W.2d

233, 238. “Prejudice results when a reasonable jury probably would have had a




5.       Bruce again complains that the circuit court changed its ruling between the
         two trials. But as previously noted, the only relevant issue is whether the
         court abused its discretion in making the evidentiary ruling that affected the
         outcome of the trial in which he was convicted.

                                           -8-
#25618

significantly different impression if otherwise appropriate cross-examination had

been permitted.” State v. Carter, 2009 S.D. 65, ¶ 31, 771 N.W.2d 329, 338-39.

[¶18.]       In this case, the circuit court balanced the probative value of the

evidence against the dangers of confusion. Our review of the evidence reflects little

if any indication of inconsistent statements. The record reflects that Pulscher

never stated she saw “videos” play on the computer or that she opened any of the

files. Rather, when viewed in context, her prior statements to the police indicated

that she saw images that she thought were downloaded videos because they were in

a video section of a computer program. With respect to her grand jury testimony,

she testified that she saw file names rather than actually viewing “videos.” And

with respect to her testimony at the first trial, she indicated that she had observed

still images rather than videos. Thus, the complete record reflects a lack of

inconsistency in the prior statements. At best, the proposed cross-examination

would have involved nothing more than counsel’s argument with Pulscher about

another possible meaning of her words. Considering this fragile factual foundation

together with the speculative assumptions necessary for inconsistent computer

statements to support the theory that Pulscher planted pornography in the

footlocker, the circuit court did not abuse its discretion in restricting the cross-

examination. See State v. Garza, 1997 S.D. 54, ¶ 29, 563 N.W.2d 406, 412

(affirming exclusion of evidence where there was no foundation for admission of

third-party perpetrator evidence). Additionally, considering the physical evidence

together with Bruce’s actual cross-examination of Pulscher, we see no possibility




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#25618

that the jury would have reached a different conclusion had more extensive cross-

examination been permitted.

                                3. The 180-day Rule

[¶19.]       Bruce argues that the circuit court erred in failing to dismiss the

indictment because the time between his initial appearance and ultimate trial

exceeded the 180-day period allowed under SDCL 23A-44-5.1. “We review the

determination . . . whether the 180 day period . . . expired as well as what

constitutes good cause for delay under a de novo standard.” State v. Andrews, 2009

S.D. 41, ¶ 6 n.1, 767 N.W.2d 181, 183 n.1.

[¶20.]       On December 24, 2008, Bruce made an initial appearance on the

complaint. Approximately one month later, the circuit court set a May 19 trial

date. On April 7, Bruce asked to reschedule the trial and agreed to a July 27 trial

date. On July 28, Bruce and the State jointly requested another continuance and

agreed to a September 8 trial date. The trial commenced on September 8, but

resulted in a mistrial that same day. Bruce’s jury trial was ultimately held on

December 7-9. Accordingly, 258 days expired between Bruce’s initial appearance

and the mistrial. An additional 90 days expired between the mistrial and the

ultimate trial. And a total of 348 days expired between the initial appearance and

the ultimate trial.

[¶21.]       Bruce contends that the circuit court erred in excluding the time taken

to resolve his defense motions. Bruce contends those days should not be excluded

because they did not “cause” any additional delay. Bruce points out that trial dates

were set before his motions and his motions did not require the previously set trial

dates to be altered. See SDCL 23A-44-5.1(4)(a) (only excluding days “resulting
                                      -10-
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from” certain defense motions). Bruce also contends that the circuit court

erroneously excluded certain days between the mistrial and ultimate trial to

accommodate the pregnancy of a State witness. Bruce argues that the pregnancy

continuance did not qualify as the “unavailability of evidence material to the state’s

case” and the continuance was not reduced to a written order as required by SDCL

23A-44-5.1(4)(c).

[¶22.]       We do not address Bruce’s contentions because a mistrial occurred and

neither party acknowledges the correct method of counting time when a mistrial

has been declared. See SDCL 23A-44-5.1(3). When the mistrial rule is applied

with the rule excluding days for defense-requested continuances, both of Bruce’s

trials were held within the 180-day limit.

[¶23.]       SDCL 23A-44-5.1(1) and (2) require that those charged with crimes be

brought to trial within 180 days of their initial appearance. However, the court

must exclude “[t]he period of delay resulting from a continuance granted at the

request or with the consent of the defendant or his counsel provided it is approved

by the court and a written order filed.” SDCL 23A-44-5.1(4)(b). In this case, at the

April 7 hearing, the defense agreed to continue the May 19 trial to July 27, which

resulted in a delay of 69 days (May 19 to July 27). A conforming order was filed.

Similarly, at the July 28 hearing, the defense requested a continuance resulting in

a postponement of the trial until September 8, a period of 42 days. A conforming

order was filed. Therefore, those 111 days (69+42) are excluded. Id.

[¶24.]       Further, if the “defendant is to be tried again following a mistrial, . . .

[the 180-day] period shall commence to run from the date of the mistrial[.]” SDCL


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23A-44-5.1(3). See also State v. Shilvock-Havird, 472 N.W.2d 773, 776 n.1 (S.D.

1991) (stating that upon 23A-44-5.1(3)’s effective date, if a “defendant is to be tried

again following a mistrial, . . . such period [180 days] shall commence to run from

the date of the mistrial[.]”). As the Nebraska Supreme Court observed under its

virtually identical rule: “Once a mistrial is granted, the speedy trial clock is

restarted. . . . [I]f a defendant ‘is to be tried again following a mistrial . . . ,’ the 6-

month period ‘shall commence to run from the date of the mistrial[.]’” State v.

Dockery, 273 Neb. 330, 333, 729 N.W.2d 320, 323 (2007) (citing Neb. Rev. Stat. §

29-1207(3)).

[¶25.]         Consequently, a new 180-day clock began when Bruce’s mistrial was

declared. SDCL 23A-44-5.1(3). Because a new clock started on the day of the

mistrial, the 90 days between the September 8 mistrial and the December 7 retrial

were chargeable against the new 180-day time period allowed for retrial rather

than against the time allowed for the first trial. As a result, only 258 days (348-90

= 258) are chargeable against the 180-day time period allowed for the first trial,

and the remaining ninety days are chargeable against the second 180-day time

period allowed for the retrial.

[¶26.]         Applying excluded days to the appropriate time periods, 111 of the 258

days used for the first trial must be excluded because those 111 days resulted from

defense requested continuances. Thus, only 147 (258-111 = 147) of the 180 days

available for the first trial were used. Further, when the mistrial occurred, the

clock restarted and only 90 of the 180 days available for retrial were used. Because




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both trials were held within their respective 180-day limits, the circuit court did

not err in denying the motion to dismiss.

                         4. Cruel and Unusual Punishment

[¶27.]       Bruce was convicted of possessing one DVD containing fifty-five videos

of child pornography. He received the ten-year maximum sentence on all fifty-five

counts. Forty-five of the sentences were suspended, but the sentences on the

remaining ten counts were to be served consecutively resulting in a total sentence

of 100 years. Bruce contends that this sentence was cruel and unusual punishment

under the Eighth Amendment.

[¶28.]       “Sentencing decisions are perhaps the most difficult responsibility for

trial judges, encompassing circumstances both obvious and elusive.” State v.

Bonner, 1998 S.D. 30, ¶ 11, 577 N.W.2d 575, 578. “It is not for us to engage in

appellate resentencing, or to ‘micromanage the administration of criminal justice’

in South Dakota, even when individual trial judges impose widely different

punishments for the same offense.” Id. (quoting State v. DePiano, 187 Ariz. 27, 31,

926 P.2d 494, 498 (1996)). Instead, “[w]e take an extremely deferential review of

sentencing—generally, a sentence within the statutory maximum will not [be]

disturbed on appeal.” Id. ¶ 10.

[¶29.]       With respect to Eighth Amendment claims, we first review the

sentence for proportionality:

             [W]e first determine whether the sentence appears grossly
             disproportionate. To accomplish this, we consider the conduct
             involved, and any relevant past conduct, with utmost deference
             to the Legislature and the sentencing court. If these
             circumstances fail to suggest gross disproportionality, our
             review ends. If, on the other hand, the sentence appears grossly

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             disproportionate, we may, in addition to examining the other
             Solem factors, conduct an intra-and inter-jurisdictional analysis
             to aid our comparison or remand to the circuit court to conduct
             such comparison before resentencing. We may also consider
             other relevant factors, such as the effect upon society of this
             type of offense.

Id. ¶ 17. The threshold question of proportionality involves a comparison of “the

gravity of the offense . . . to the harshness of the penalty.” Ewing v. California, 538

U.S. 11, 28, 123 S. Ct. 1179, 1189, 155 L. Ed. 2d 108 (2003). This involves

examining “‘objective factors to the maximum possible extent,’ comparing the

sentence with the criminal acts defendant committed and the consequences of those

acts upon the victims and society.” Bonner, 1998 S.D. 30, ¶ 22, 577 N.W.2d at 581

(quoting Harmelin v. Michigan, 501 U.S. 957, 1000, 111 S. Ct. 2680, 2704, 115 L.

Ed. 2d 836, 868 (1991) (quoting Rummel v. Estelle, 445 U.S. 263, 274-75, 100 S. Ct.

1133, 1139, 63 L. Ed. 2d 382 (1980))). In fashioning an appropriate sentence,

courts must also look to the character and history of the defendant. Id. ¶ 19. This

requires an examination of a defendant’s “general moral character, mentality,

habits social environment, tendencies, age, aversion or inclination to commit crime,

life, family, occupation, and previous criminal record” as well as rehabilitation

prospects. Id. “[I]ncapacitation and deterrence are [also] valid goals of

sentencing.” Id. ¶ 21.

[¶30.]       With respect to the penalty for possession of child pornography, we

have noted that “[c]rimes against children, especially sex offenses, have increased

nationwide by epidemic proportions”; as a result, our Legislature has imposed

significant penalties for persons who exploit children for sexual gratification. State

v. Blair, 2006 S.D. 75, ¶ 24, 721 N.W.2d 55, 62. Further, “each act of downloading

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an image of child pornography is a separate offense.” State v. McKinney, 2005 S.D.

74, ¶ 27, 699 N.W.2d 460, 468 (citing State v. Martin, 2003 S.D. 153, ¶ 42, 674

N.W.2d 291, 303). “That is because the legislative rationale of protecting the

children exploited during the production process ‘extends to each child in each

picture.’” Id. (quoting Martin, 2003 S.D. 153, ¶ 42, 674 N.W.2d at 303). See also

Dubois, 2008 S.D. 15, ¶ 42, 746 N.W.2d at 210.

[¶31.]         However, SDCL 22-24A-3 criminalizes a wide range of misconduct

involving different levels of seriousness and culpability. The same statute not only

prohibits possession of child pornography, but also manufacturing and distribution

of those materials. Id. Additionally, the seriousness of the prohibited sexual acts

depicted ranges from lewd exhibitionism, to masturbation, intercourse, sadism,

masochism, sexual bestiality, incest, sadomasochistic abuse and sexual battery.

SDCL 22-24A-2(16). 6 Finally, the Legislature prescribed a wide range of penalties

from probation and no incarceration to ten years in the penitentiary. See SDCL 22-

6-1(7); SDCL 22-24A-3.



6.       Prohibited sexual acts include:

               [A]ctual or simulated sexual intercourse, sadism, masochism, sexual
               bestiality, incest, masturbation, or sadomasochistic abuse; actual or
               simulated exhibition of the genitals, the pubic or rectal area, or the
               bare feminine breasts, in a lewd or lascivious manner; actual physical
               contact with a person's clothed or unclothed genitals, pubic area,
               buttocks, or, if such person is a female, breast with the intent to
               arouse or gratify the sexual desire of either party; defecation or
               urination for the purpose of creating sexual excitement in the viewer;
               or any act or conduct which constitutes sexual battery or simulates
               that sexual battery is being or will be committed.

         SDCL 22-24A-2(16).

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[¶32.]       When such statutory ranges are established, the legislative intent is

that “the more serious commissions of [the] crime . . . deserve sentences at the

harsher end of the spectrum. ‘[I]t is a precept of justice that punishment for the

crime should be graduated and proportioned to the offense.’” Bonner, 1998 S.D. 30,

¶ 25, 577 N.W.2d at 582 (quoting Weems v. United States, 217 U.S. 349, 367, 30 S.

Ct. 544, 549, 54 L. Ed. 793, 798 (1910)). “Thus a trial court’s sentence ought to be

proportionate to the particulars of the offense and the offender.” Id. See Blair,

2006 S.D. 75, ¶ 27, 721 N.W.2d at 63 (applying this rule to a case involving child

pornography). “Imposing the maximum possible term where the circumstances of

the crime only justify a sentence at a lower range violates legislative intent to

reserve the most severe sanctions for the most serious combinations of the offense

and the background of the offender.” Bonner, 1998 S.D. 30, ¶ 25, 577 N.W.2d at

582. Further, we now adopt Justice Konenkamp’s recommendation “that courts

look at two additional determinants when assessing the seriousness of a child

pornography offense: (1) the specific nature of the material and (2) the extent to

which the offender is involved with that material.” Blair, 2006 S.D. 75, ¶ 83, 721

N.W.2d at 76 (Konenkamp, J., concurring in result). “[T]he more depraved and

invasive the abuse and the more involved the offender is with the material

depicting it, the greater the seriousness of the offense.” Id.

[¶33.]       With respect to the seriousness of this offense, the pornography

involved much more than lewd images but less than the worst possible material

covered by the statute. The disc on which the conviction was based contains two

separate videos. One involves three post-pubescent girls play acting a scene in


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which one girl forces the other two to disrobe and display their anal and vaginal

openings. The second video is a compilation of videos. Most of the scenes involve

adult males masturbating on pre-pubescent females (some infants), with a few

scenes of fellatio, cunnilingus and intercourse. One scene involves a pre-pubescent

boy involved in fellatio. Because each scene is extremely short (a matter of

seconds), it is not apparent whether this compilation was downloaded as one video

or whether each scene was edited together by Bruce.

[¶34.]         With respect to Bruce’s involvement, he was convicted of possessing

the one DVD containing fifty-five images. Although thirty other discs containing

child pornography images were found, the court “consider[ed] Counts 1 through 10

as one act” for the purpose of determining parole eligibility. 7 Additionally, there

was no evidence that Bruce manufactured or distributed child pornography.

Finally, there was no evidence suggesting that Bruce had ever sexually abused a

child, had sexual contact with a child, or solicited a child for sexual images. This

was a case of simple possession of images.

[¶35.]         Bruce’s character and history reflect that he was a divorced forty-eight

year old with three children, one who was still a minor. Other than a careless

driving offense, Bruce had no prior criminal history. He was a former member of

the National Guard and a veteran who had served in Saudi Arabia and Iraq during

Operation Desert Storm. Following his military service, Bruce obtained a bachelor

of sciences degree in nursing and began work as an emergency room nurse. At the



7.       The court considered the suspended forty-five counts as separate
         transactions.

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time of this offense, he had changed his type of nursing but was still gainfully

employed as a nurse at a hospital. Although a psychosexual evaluation was

attempted, the evaluator indicated that an assessment of Bruce’s rehabilitation

prospects was premature until the appeals process ended. The evaluator was also

unable to provide information regarding risk factors or treatability.

[¶36.]       Other gross disproportionality challenges to maximum or near

maximum sentences have failed because they involved a combination of more

serious conduct and a more criminally culpable offender. For example, in Dubois

we found no gross disproportionality in a maximum sentence of ten years on each of

three counts, to be served consecutively. 2008 S.D. 15, ¶ 40, 746 N.W.2d at 209-10.

But those “charges derived from contact (via telephone and internet) Dubois had

with a twelve to thirteen-year-old” where Dubois solicited the child for sexual

images and succeeded in obtaining them. Id. ¶ 44. “Furthermore, Dubois

unsuccessfully attempted to set up face-to-face meetings with the minor.” Id.

Unlike Bruce, we emphasized, “Dubois was more than a passive participant; he

actively preyed on at least one child.” Id. ¶ 46.

[¶37.]       In State v. McKinney, we found no gross disproportionality in a

middle-range sentence of five years on each of twenty counts of possession of child

pornography, totaling 100 years. 2005 S.D. 74, ¶ 32, 699 N.W.2d at 470. But

unlike Bruce, McKinney had not only been convicted of child pornography, the

sentencing court considered a contemporaneous conviction of rape, sexual contact

with a minor, and sexual exploitation of a minor. Id. ¶ 28. Moreover, McKinney’s

pornography was used not just for his own sexual gratification, but “to further the


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sexual abuse of his stepdaughter.” Id. ¶ 32. We held that McKinney’s sentence

was not grossly disproportionate considering that “his sexual deviance progressed

from child pornography, to sexual exploitation, to sexual contact, and ultimately

rape” of his stepdaughter. Id. ¶ 28.

[¶38.]       Finally, in State v. Blair we found no gross disproportionality in near

maximum sentences for filming children in prohibited sexual acts. 2006 S.D. 75, ¶

1, 721 N.W.2d at 56. Although Blair was producing the pornography for his

personal use, he filmed his daughter and her adolescent friends. Id. ¶¶ 6-11. Also,

under the guise of dispensing “therapy,” he “cornered” two of the girls in his

basement for hours in an effort to convince them to show him their breasts and to

share erotic thoughts with him. Id. ¶¶ 4-5. These girls also reported that he

exposed himself to them and touched them inappropriately. Id. “Considering all

the circumstances, an eight year prison term for each offense, two years less than

the maximum penalty, [was] not grossly disproportionate to the crimes he

committed.” Id. ¶ 79 (Konenkamp, J., concurring in result).

[¶39.]       These cases demonstrate that Bruce’s maximum sentences were not

reserved for the most serious combination of criminal conduct and background of

the offender. We therefore conclude that this is the exceedingly rare case in which

Bruce’s sentence was grossly disproportionate to the “particulars of the offense and

the offender.” See Bonner, 1998 S.D. 30, ¶ 25, 577 N.W.2d at 582. Because Bruce

did not present comparative information with which to conduct an intra- and inter-

jurisdictional analysis, we reverse and remand to the circuit court to consider that

evidence on resentencing. See id. ¶ 26 (“Since we have received no comparative


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information to conduct the within and without analysis, we remand to the circuit

court so that information can be supplied and the sentencing judge can take it into

account on resentencing.”).

[¶40.]       Affirmed in part, reversed in part, and remanded.

[¶41.]       GILBERTSON, Chief Justice, and KONENKAMP, Justice, concur.

[¶42.]       SEVERSON and MEIERHENRY, Justices, concur with a writing.



SEVERSON, Justice (concurring).

[¶43.]       I join in the majority opinion but write to comment on the current

charging and review practices of child pornography cases in South Dakota. A

significant tenet of the United States Supreme Court’s jurisprudence concerning

the Eighth Amendment is deference to the judgment of state legislatures in

determining appropriate punishments. The South Dakota Legislature has

classified possession of pornography depicting children as a class four felony,

punishable by a fine of up to twenty thousand dollars and a term of up to ten years

in the penitentiary. SDCL 22-24A-3, -6-1.

[¶44.]       In South Dakota, gross disparity in the sentence length for possession

of child pornography exists. For example, in State v. Martin, 2003 S.D. 153, 674

N.W.2d 291, the defendant’s sentence for possession of child pornography was a

term of two years in the penitentiary with all but forty-five days in jail suspended

subject to additional conditions. In the present case, the aggregate sentence is a

term of 100 years in the penitentiary. Yet the facts of the two cases are similar:

both involve the possession but not the manufacture or distribution of multiple


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computer-based images of child pornography. The difference in the length of the

sentences for these similar crimes is shocking.

[¶45.]         SDCL 22-24A-3, which criminalizes the possession, manufacture, and

distribution of child pornography, has not significantly changed. But this Court’s

interpretation of SDCL 22-24A-3, particularly our endorsement of charging each

act of downloading an image of child pornography as a separate offense, has led to a

dramatic escalation in the potential length of sentences for this crime. The cost to

taxpayers for lengthy incarceration – in this case, a virtual life sentence – is

significant.

[¶46.]         In examining consecutive sentences for gross disproportionality, we

should not be blind to the aggregate sentence. In State v. Blair, Justice

Konenkamp, in a concurrence in result, examined whether imposing consecutive

sentences creates an issue of gross disproportionality. 2006 S.D. 75, ¶¶ 77-78, 721

N.W.2d 55, 74-75. Although he ultimately recognized that “gross disproportionality

analysis must be performed for each separate sentence” rather than the cumulative

whole, he noted that consideration of the aggregate sentence may sometimes be

appropriate. Id. ¶ 78 n.22. Also in Blair, Justice Sabers, in a dissent joined by

Justice Meierhenry, contended that the aggregate sentence should be reviewed for

gross disproportionality. See id. ¶ 109 n.33 (citing and discussing State v. Bonner,

1998 S.D. 30, 577 N.W.2d 575). Under either view, the 100-year aggregate

sentence imposed in this case is grossly disproportionate.

[¶47.]         Extreme gross disproportionality of the sentence to the crime invites

constitutional scrutiny. Ewing v. California, 538 U.S. 11, 123 S. Ct. 1179, 155 L.


                                          -21-
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Ed. 2d 108 (2003); Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637

(1983). Not only does the Eighth Amendment to the United States Constitution

prohibit cruel and unusual punishment, but the disparate application of SDCL 22-

24A-3 in child pornography cases may also invite examination under the South

Dakota Constitution: “Excessive bail shall not be required, excessive fines imposed,

nor cruel punishments inflicted.” S.D. Const. art. VI, § 23. This is not an excuse

for the crime, but we should be open to review of aggregate penalties that conflict

with constitutional principles.

[¶48.]       MEIERHENRY, Justice, joins this special writing.




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