#27673-a-SLZ

2017 S.D. 58

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                 ****
STATE OF SOUTH DAKOTA,                    Plaintiff and Appellee,

      v.

ROGER LEE KIHEGA,                         Defendant and Appellant.


                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE FIFTH JUDICIAL CIRCUIT
                    BROWN COUNTY, SOUTH DAKOTA

                                 ****

                  THE HONORABLE RICHARD A. SOMMERS
                               Judge

                                 ****

MARTY J. JACKLEY
Attorney General

ANN C. MEYER
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.


THOMAS J. COGLEY of
Ronayne & Cogley, PC
Aberdeen, South Dakota                    Attorneys for defendant
                                          and appellant.

                                 ****
                                          ARGUED OCTOBER 5, 2016
                                          REASSIGNED APRIL 20, 2017
                                          OPINION FILED 09/20/17
#27673, State v. Kihega

ZINTER, Justice (on reassignment).

[¶1.]        Roger Kihega appeals his convictions of first-degree robbery and

possession of a firearm by a convicted felon. He contends the State’s evidence was

insufficient to corroborate accomplice testimony. He also challenges a number of

the circuit court’s evidentiary rulings and its sentence. We affirm.

                          Facts and Procedural History

[¶2.]        On January 19, 2015, three men robbed the Casino Korner in

Aberdeen, South Dakota. The victims (the casino clerk and patrons) testified that

between 8:30 p.m. and 9:00 p.m., two masked men armed with handguns entered

the casino, discharged their weapons, and ordered everyone to get down on the floor.

One of the masked men then ordered the counter clerk to “get the money” while the

other took a wallet and cellphone from one of the patrons lying on the floor. After

taking approximately $4,600 in cash, the two fled in a getaway vehicle driven by a

third man.

[¶3.]        Following an investigation, law enforcement arrested Roger Kihega,

Gregory Two Hearts, and Michael Washington. Washington pleaded guilty to

robbery; Two Hearts was charged with aiding and abetting robbery; and Kihega was

charged with robbery and possession of a firearm by a convicted felon. This appeal

concerns Kihega.

[¶4.]        At Kihega’s trial, the State called Two Hearts to testify. Outside the

presence of the jury, the circuit court questioned Two Hearts whether he intended

to exercise his Fifth Amendment right to remain silent. Two Hearts would not

respond. Although Two Hearts subsequently received immunity, he continued to


                                         -1-
#27673

not respond to questions in chambers or in front of the jury, and the circuit court

jailed Two Hearts for contempt.

[¶5.]         Washington had cooperated with law enforcement and he testified. He

provided a detailed description of the three men’s individual acts inside the casino,

in their escape, and in their disposition of the robbery proceeds. He indicated that

he and Kihega, armed with .25 caliber and 9 millimeter handguns, entered the

casino and discharged their guns into the ceiling. Washington stayed in the back of

the casino where he took a patron’s wallet and cellphone while Kihega went to the

front counter and took the cash from the clerk. Washington testified that he and

Kihega then left the scene in the getaway vehicle driven by Two Hearts.

[¶6.]         With respect to the escape, Washington indicated that he snapped the

patron’s cellphone in half and threw it out of the car as the three fled to Hankinson,

North Dakota. While in Hankinson, they spent a “couple hours” at a casino

gambling before proceeding to the Mystic Lake Casino in Minnesota. There, they

obtained a hotel room, split up the stolen money, and continued gambling.

Washington testified that the three returned to Aberdeen a few days later.

Washington also testified that after he began cooperating with law enforcement

following his arrest, he received a “kite”1 from Kihega while the two were in jail.

Washington testified that in the kite, Kihega threatened Washington to “keep

quiet.” Kihega also instructed Washington to tell people that he had fabricated his

confession implicating Kihega.




1.      A kite is a note inmates use to communicate.
                                           -2-
#27673

[¶7.]         The State introduced other evidence tending to connect Kihega with

the robbery. That evidence included 24 audiotapes of jailhouse telephone

conversations between Kihega and his wife. In those conversations, Kihega

confirmed that he had sent the kite to Washington, telling him to keep quiet and to

“shut his f—ing mouth.” The audiotapes also revealed that Kihega had gone much

further to absolve himself of his participation in the robbery. Kihega requested his

wife tell Washington that he needed to “fix this” by concocting an excuse for his

confession. Kihega suggested that Washington claim he felt threatened or that he

heard the police would release him if he told them what they wanted to hear.

Kihega emphasized that there would be “consequences” for Washington’s disclosure

of Kihega’s participation in the robbery: Kihega said Washington was “f—ed” and

that Kihega would “fire on his little ass” if Washington said Kihega’s name. Kihega

also called Washington a “snitch” and said that, if he could, he would “knock

[Washington’s] f—ing voice box out,” explaining that “silence is our f—ing weapon.”

Kihega even acknowledged his low odds of escaping conviction for the robbery. He

stated he was “probably gonna be gone a while this time.”

[¶8.]         Detective Jeff Neal, who investigated the robbery, also testified. He

indicated he had confirmed that the cell phone stolen in the robbery had “pinged” on

a route that would have been used in the three men’s escape. Neal also obtained

Kihega’s check-in receipt and player’s card2 for the Mystic Lake Casino, which

provided physical evidence of Kihega’s presence with the robbers in their escape and




2.      A card which earns rewards for playing certain types of slot machines and at
        some tables.
                                         -3-
#27673

disposition of robbery proceeds. Neal also obtained an in-custody telephone

recording made by Kihega to his wife on April 16, 2015, after Washington began

cooperating with law enforcement. In the recording, Kihega’s wife asked him

whether he thought law enforcement possessed surveillance footage of him in the

North Dakota casino visited by Washington and Two Hearts. He admitted: “I’m

sure they do.”

[¶9.]         Kihega moved for a judgment of acquittal at the conclusion of the

State’s evidence. He argued the State did not corroborate Washington’s accomplice

testimony. The circuit court denied the motion and submitted the corroboration

question to the jury. The jury found Kihega guilty of both charges. Kihega appeals,

and we restate the issues3 as follows:

              1.     Whether Washington’s accomplice testimony was
                     sufficiently corroborated.

              2.     Whether the circuit court erred in admitting certain
                     evidence.

              3.     Whether the circuit court violated Kihega’s right of
                     confrontation by allowing Neal to testify that he had
                     corroborated some of Washington’s story through an
                     interview with Two Hearts.

              4.     Whether Kihega’s sentence violated the Eighth
                     Amendment’s ban on cruel and unusual punishment.

                                         Decision

              1.     Corroboration of Accomplice Testimony




3.      Kihega also raises a “cumulative error” issue. In light of our disposition, we
        do not address it.

                                           -4-
#27673

[¶10.]         Kihega observes that Washington was an accomplice and that a

“conviction cannot be had upon the testimony of an accomplice unless it is

corroborated by other evidence which tends to connect the defendant with the

commission of the offense.” SDCL 23A-22-8. Kihega argues Washington’s story was

not corroborated with any other evidence “tending to connect” him with the robbery.

See id. Therefore, he contends that the evidence was insufficient as a matter of law

and that the circuit court should have granted his motion for judgment of acquittal.4

[¶11.]         Corroborative evidence may not “merely show[] the commission of the

offense, or the circumstances thereof” but must “tend[] to connect the defendant

with the commission of the offense.” SDCL 23A-22-8. However, “[a]ccomplice

testimony need not be corroborated by evidence sufficient to sustain a conviction.

The mandate of SDCL 23A-22-8 is satisfied where the corroborative evidence in

some substantial degree tends to affirm the truth of the testimony of the accomplice

and establish the guilt of the accused.” State v. Smithers, 2003 S.D. 128, ¶ 30,

670 N.W.2d 896, 902. “In deciding this sufficiency question, circumstantial

evidence may satisfy the corroboration requirement.” Id. ¶ 30, 670 N.W.2d at 903.

Additionally, “[t]he accused himself can provide the necessary corroboration.”

Id. ¶ 30, 670 N.W.2d at 902. “[W]hether the corroboration is sufficient is a question

of fact for the jury.” Id.

[¶12.]         Here, the jury received both physical and testimonial evidence that

clearly “tend[ed] to affirm the truth of” Washington’s story. See id. Although the




4.       “We review the denial of a motion for acquittal de novo.” State v. Traversie,
         2016 S.D. 19, ¶ 9, 877 N.W.2d 327, 330.
                                           -5-
#27673

victims could not identify Kihega because the robbers covered their faces, the

victims confirmed Washington’s highly detailed description of each robber’s

different acts inside the casino during the robbery. Additionally, Detective Neal

testified that bullet holes found in the ceiling of the casino matched the caliber of

ammunition that Washington claimed he and Kihega had used. Neal also testified

that shell casings matching both calibers were discovered on the floor, and a slug

from a .25 caliber bullet was found lodged under a shingle on the roof. Neal further

testified that a cellphone carrier confirmed that it had recorded a “pinging [from the

patron’s stolen cellphone] a few miles north of Aberdeen,” a location on the escape

route. These detailed facts unquestionably tended to affirm the truth of

Washington’s story because they could have been known only by the robbers who

were actually inside the casino and the getaway car.

[¶13.]       The State also introduced physical and testimonial evidence

circumstantially “tend[ing] to connect” Kihega with the robbery. See SDCL 23A-22-

8; Smithers, 2003 S.D. 128, ¶ 30, 670 N.W.2d at 902. Detective Neal contacted the

Mystic Lake Casino and obtained a receipt confirming Kihega had checked in on

January 20, 2015, at 4:23 a.m. Neal also confirmed that Kihega’s Mystic Lake

Casino player’s card was activated at 5:29 a.m. on the same day. Moreover,

Kihega’s own acts and statements tended to connect him to the robbery. Numerous

telephone recordings reflected his consciousness of guilt and his attempts to destroy

the evidence disclosing his participation in the robbery. He admitted law

enforcement probably had surveillance footage of him in the North Dakota casino

with Washington and Two Hearts during their escape; he repeatedly attempted to


                                          -6-
#27673

silence Washington and get him to retract his confession implicating Kihega in the

robbery; and Kihega even acknowledged he would likely be found guilty of the

robbery.

[¶14.]       Contrary to the dissent, the foregoing facts are “relevant” to the

corroboration question. See dissent ¶ 54. “Evidence is relevant if . . . [i]t has any

tendency to make a fact more or less probable than it would be without the

evidence.” SDCL 19-19-401. The evidence detailed above certainly makes

Washington’s story and Kihega’s participation in the robbery “more . . . probable

than [they] would be without the evidence.” Id. Kihega concedes this point himself,

noting that his statements “on their face . . . incriminate [him].” This evidence was

clearly relevant.

[¶15.]       We acknowledge the dissent’s point that the evidence of Kihega’s

participation in the escape and disposition of the robbery proceeds, though

substantial, did not directly show his physical presence inside the Aberdeen casino.

But that point overlooks the fact that the contemporaneous escape and disposition

of the robbery proceeds are the res gestae of the offense itself. The dissent’s point

also fails to give meaning to the law that circumstantial and direct evidence have

equal weight, State v. Riley, 2013 S.D. 95, ¶ 18, 841 N.W.2d 431, 437, and

corroboration may be established by circumstantial evidence alone. State v. Nelson,

310 N.W.2d 777, 779 (S.D. 1981).

[¶16.]       Indeed, in Nelson, we affirmed a grand theft conviction for property

stolen in Bismarck, North Dakota, even though the corroborating evidence only

showed that the defendant was later near Estelline, South Dakota, in the company


                                          -7-
#27673

of the accomplice and the stolen property. Id. at 779.5 That analogous

corroboration was sufficient because “a close association between the defendant and

an accomplice in the area where the crime was committed . . . may sufficiently

connect the defendant with the commission of the crime to furnish the necessary

corroboration of an accomplice’s testimony.” Id. Kihega’s close association with

Washington and Two Hearts after the robbery requires the same result here.

[¶17.]         Moreover, the dissent’s argument overlooks the audiotapes in which

Kihega incriminated himself. In those tapes, Kihega repeatedly attempted to

silence Washington and get him to retract his story implicating Kihega in the

robbery. This was relevant evidence that certainly “tended to connect” Kihega with

the robbery. See id. Ultimately, we cannot accept the dissent’s premise that

evidence showing Kihega’s participation in the robbery escape, his disposition of the

robbery proceeds, and his consciousness of guilt and attempt to cover up the crime

have no “tend[ency] to connect” him with the robbery as a matter of law. See

SDCL 23A-22-8.

[¶18.]         As previously noted, “whether corroboration is sufficient is a question

for the jury.” Smithers, 2003 S.D. 128, ¶ 30, 670 N.W.2d at 902. Here, after being

correctly instructed on corroboration, the jury found that Washington’s testimony




5.       The dissent’s analysis reflects its failure to give meaning to these rules on
         circumstantial evidence. Although the dissent correctly recites the rule that
         corroborative evidence need only “tend[] to connect” the defendant with the
         offense, its analysis wrongly requires more. In the dissent’s view, the
         evidence must directly connect Kihega to the robbery. See dissent ¶¶ 50, 53,
         54. However, the law of circumstantial evidence does not require a direct
         connection or link.

                                           -8-
#27673

was sufficiently corroborated. Taken together, the victims’ testimony, the ballistics

evidence, the confirmation of the three men’s escape and disposition of robbery

proceeds, and Kihega’s own words “tended to connect” him to the robbery. See

SDCL 23A-22-8. The corroboration rule is not a codification of some new super

burden of proof that is to be mechanically applied in cases involving accomplices. It

is a rule intended to protect defendants from convictions based solely on the

testimony of accomplices who may have a motive to make up an unverifiable story.

Kihega’s conviction does not present us with such a case. We affirm the circuit

court’s denial of Kihega’s motion for a judgment of acquittal.

              2.    Admission of Evidence

[¶19.]        Kihega argues the circuit court erred in admitting into evidence: (a) 24

audiotapes of conversations between Kihega and his wife; (b) Neal’s rebuttal

testimony regarding an April 16 call Kihega made to his wife; and (c) Neal’s

testimony disclosing out-of-court witness statements regarding Kihega’s various

residences.

[¶20.]        “[E]videntiary rulings are presumed correct[.]” State v. Berget,

2014 S.D. 61, ¶ 13, 853 N.W.2d 45, 51-52. We review those rulings for an abuse of

discretion. State v. Engresser, 2003 S.D. 47, ¶ 15, 661 N.W.2d 739, 746. An abuse

of discretion is “a fundamental error of judgment, a choice outside the range of

permissible choices, a decision, which, on full consideration, is arbitrary or

unreasonable.” State v. Kvasnicka, 2013 S.D. 25, ¶ 17, 829 N.W.2d 123, 127-28. “If

error is found, it must be prejudicial before this Court will overturn the trial court’s

evidentiary ruling.” State v. Harris, 2010 S.D. 75, ¶ 8, 789 N.W.2d 303, 307.


                                           -9-
#27673

             a.     Audiotapes.

[¶21.]       Kihega first argues the audiotapes of his jailhouse conversations with

his wife were not relevant. He contends his “statements contained no evidence

pertinent to whether or not Kihega committed” any crime. But as previously

discussed, Kihega’s statements showed his consciousness of guilt, his attempts to

cover up his participation in the robbery, and his attempts to get Washington to

retract his confession implicating Kihega. This was circumstantial evidence of his

participation in the crime. Nelson, 310 N.W.2d at 779.

[¶22.]       Kihega also argues the audiotapes were unduly prejudicial. A “court

may exclude relevant evidence if its probative value is substantially outweighed” by

the danger of “unfair prejudice[.]” SDCL 19-19-403 (Rule 403). “The law favors

admitting relevant evidence no matter how slight its probative value.” State v.

Bunger, 2001 S.D. 116, ¶ 11, 633 N.W.2d 606, 609. The “admission of . . . evidence

is favored under [Rule 403], and the judicial power to exclude such evidence should

be used sparingly.” Supreme Pork, Inc. v. Master Blaster, Inc., 2009 S.D. 20, ¶ 30,

764 N.W.2d 474, 484.

[¶23.]       Kihega contends the audiotapes were unfairly prejudicial because the

State “intended to portray [him] in a negative light.” He points out the tapes

“contained multiple curse words and displayed Kihega in various states of anger.”

But the rule does not exclude this kind of evidence. “[V]irtually all relevant

evidence presented at trial is harmful to the other party[.]” Id. ¶ 30, 764 N.W.2d at

484. To cause “unfair prejudice, the evidence must persuade the jury in an unfair

and illegitimate way.” Id.; see also Old Chief v. U.S., 519 U.S. 172, 117 S. Ct. 644,

136 L. Ed. 2d 574 (1997). Here, the tapes did not risk persuading the jury in an
                                        -10-
#27673

unfair or illegitimate way. They were used to connect Kihega with the crime. The

tapes were relevant, and the circuit court did not abuse its discretion in

determining that any prejudice engendered by Kihega’s use of coarse language and

apparent frustration with Washington did not substantially outweigh the tapes’

probative value.

[¶24.]       Kihega next argues the conversations with his wife were confidential

communications protected by spousal privilege. “A communication is confidential if

it is made privately by any person to his or her spouse during their marriage and is

not intended for disclosure to any other person.” SDCL 19-19-504(a). Kihega

acknowledges his conversations were electronically monitored by jailers. Therefore,

he attempts to distinguish his case from State v. McKercher, 332 N.W.2d 286, 287-

88 (S.D. 1983), where this Court held that the presence of a jailer in the same room

rendered the privilege unavailable. Kihega contends that McKercher does not apply

because it did not involve electronic monitoring of conversations.

[¶25.]       Kihega’s focus on the method of monitoring overlooks the relevant

question: whether he had an expectation of privacy in the communications.

McKercher emphasized the expectation of privacy requirement, noting that

“anything said [in front of a jailer] could not legitimately be intended as private.”

Id. at 288. This Court explained that spousal privilege did not protect such

statements because “[that defendant] was a prison detainee who, under the

circumstances, knew or should have expected his conversation would be overheard

or monitored and would not be private.” Id. (emphasis added). Kihega also had no

expectation of privacy in these conversations. Before he placed the calls, he


                                          -11-
#27673

received notice that his telephone conversations would be monitored and recorded.

The circuit court did not abuse its discretion in admitting the audiotapes.

               b.     Neal’s rebuttal testimony concerning Kihega’s April 16 call
                      to his wife.

[¶26.]         During the State’s rebuttal on the final day of trial, the State asked

Detective Neal to testify about the content of an April 16 recorded telephone

conversation between Kihega and his wife.6 Neal testified that Kihega’s wife had

asked whether Kihega thought law enforcement possessed a video recording of the

three men at the casino in North Dakota. Kihega responded, “I’m sure they do.”

The State offered the testimony to rebut Kihega’s alibi claim that he was last seen

at a friend’s residence in Cokato, Minnesota, at a time that may not have permitted

his presence during the robbery in South Dakota. Kihega objected on the ground of

hearsay. The State contended the exchange was admissible under the hearsay

exception for adoptive admissions. See SDCL 19-19-801(d)(2)(B). The circuit court

admitted the evidence.

[¶27.]         On appeal, Kihega challenges the court’s admission of both his wife’s

question and his answer. He contends the exchange should have been excluded

because his wife’s statement was in the form of a question, which was not an

“assertion” that could have been adopted by Kihega. See SDCL 19-19-801(d)(2)(B)

(an adoptive admission is not hearsay if it is a “statement” and “one the party

manifested that it adopted or believed to be true”); SDCL 19-19-801(a) (a statement




6.       Although the State possessed the audio recording, it appears that the State
         asked Neal to testify to relevant portions of the exchange in order to avoid
         confrontation issues regarding Two Hearts.
                                            -12-
#27673

is “a person’s oral assertion, written assertion, or nonverbal conduct, if the person

intended it as an assertion”).

[¶28.]       We agree with Kihega’s point that, generally, questions cannot be the

basis for adoptive admissions because questions are usually not assertions. As the

Seventh Circuit observed, unlike an assertion, a question is “designed to elicit

information and a response[.]” United States v. Love, 706 F.3d 832, 840 (7th Cir.

2013). Here, rather than making an assertion, Kihega’s wife appears to have

genuinely wondered whether law enforcement possessed surveillance footage of him

with the other robbers at the North Dakota casino. Therefore, her question could

not have been the predicate for an adoptive admission by Kihega. See United States

v. Williams, 445 F.3d 724, 735 (4th Cir. 2006) (distinguishing for purposes of

adoptive admission analysis between questions accusing a defendant “of killing

someone and ask[ing] him to explain it,” which includes an implicit accusatory

statement, and questions only inquiring if a defendant “had killed someone”); State

v. Thompson, 283 A.2d 513, 520 (N.J. 1971); but see United States v. Jinadu, 98

F.3d 239, 244 (6th Cir. 1996).

[¶29.]       Nevertheless, the circuit court did not err in admitting the exchange.

Because the inquiry by Kihega’s wife was not an assertion, her portion of the

exchange was not within the hearsay prohibition. “An inquiry is not an ‘assertion,’

and accordingly is not and cannot be a hearsay statement.” United States v. Oguns,

921 F.2d 442, 449 (2d Cir. 1990). That is because such questions are not “offered for

the truth” of the subject referenced in the question. United States v. Thomas,

451 F.3d 543, 548 (8th Cir. 2006). Further, the question was not offered to prove


                                         -13-
#27673

Kihega’s presence in the North Dakota casino; rather, it was offered to give context

for Kihega’s answer. “Statements providing context for other admissible statements

are not hearsay because they are [also] not offered for their truth.” United States v.

Tolliver, 454 F.3d 660, 666 (7th Cir. 2006); accord Williams, 445 F.3d at 736.

[¶30.]         The remaining question concerns the admissibility of Kihega’s answer.

Kihega argues his response constituted improper rebuttal evidence. Kihega notes

that he did not introduce evidence in his case disputing he was with Washington

and Two Hearts in the North Dakota casino. Kihega contends his presence there

after the robbery was not relevant to rebut his alibi that he was in Minnesota before

the robbery.

[¶31.]         We agree with the circuit court’s determination that this evidence was

relevant to rebut Kihega’s alibi. Kihega’s conceded association with the other

robbers during their escape did relate to events after the robbery, but it was

relevant because the escape was part of the res gestae of the offense. Additionally,

as we stated in Nelson, an association with accomplices in the possession of stolen

property after the crime circumstantially connects the defendant with the

commission of the crime. 310 N.W.2d at 779. Thus, Kihega’s answer was relevant

to circumstantially rebut his alibi, and the circuit court did not abuse its discretion

in admitting the evidence.

               c.    Neal’s testimony disclosing out-of-court witness statements
                     regarding Kihega’s various residences.

[¶32.]         During rebuttal regarding Kihega’s Minnesota alibi, the State asked

Detective Neal whether Kihega had “consistent residences” and whether he stayed



                                          -14-
#27673

in different places in Minnesota and South Dakota. The following exchange

occurred:

             Q.     During your investigation in this case have you became
                    [sic] familiar with the Defendant’s living arrangements?
             A.     I have somewhat, yes.
             Q.     Did he have consistent residences?
             A.     No.
             Q.     Can you explain to the jury what you mean by that,
                    please?
             A.     From what I’ve heard, talking to different people, it
                    sounds like—

At this point Kihega made a hearsay objection, but the circuit court allowed Neal to

finish his answer. Neal continued: “[it] sounds like [Kihega] moves from place to

place, [and] has different places that he stays.” Kihega argues Neal’s answer

introduced inadmissible hearsay.

[¶33.]       We do not reach the hearsay question because even if Neal’s answer

was improper, its admission was harmless error. In State v. Davi, 504 N.W.2d 844,

855 (S.D. 1993), we held “that although it was error for the trial court to admit

hearsay statements . . . the error was harmless as the evidence was cumulative of

other evidence presented independently at trial.” The alleged error is also harmless

here. Kihega did not object to Neal’s first answer that Kihega did not have

consistent living arrangements and residences, and Neal’s subsequent answer did

not add much more than the source of Neal’s information—“different people.”

Moreover, Kihega’s own alibi witness was a different person who confirmed that

Kihega had inconsistent living arrangements. The alibi witness testified that

Kihega “leaves when he wants to” and that “[n]obody really knows [Kihega’s] plans


                                         -15-
#27673

but him.” We find the alleged error “was harmless and did not contribute to the

verdict obtained.” See State v. Zakaria, 2007 S.D. 27, ¶ 21, 730 N.W.2d 140, 146.

               3.    Kihega’s Right of Confrontation

[¶34.]         During his case, Kihega attempted to impeach Detective Neal’s

testimony by asking him about a number of things he failed to do to corroborate

Washington’s confession. For example, Kihega suggested that Neal had not

substantiated or corroborated Washington’s version of events with “anyone . . . who

can recall seeing [Kihega] . . . in the days subsequent to January 19 in Aberdeen[.]”

Although Neal had interviewed Two Hearts after January 19, both parties knew

that Two Hearts was in jail for contempt and unavailable as a witness at that point

in the trial. Therefore, the State attempted to rehabilitate Neal by having him

disclose that he had interviewed someone: Two Hearts. The circuit court allowed

only this limited rehabilitation, prohibiting the State from going “into the specifics

of what Mr. Two Hearts said.” The State then asked Neal whether he had

corroborated “some of [Washington’s] admissions about the robbery with Greg Two

Hearts,” and Neal confirmed that he had. Kihega now argues this answer violated

his Sixth Amendment right to confront and cross-examine Two Hearts. See

Crawford v. Washington, 541 U.S. 36, 52, 124 S. Ct. 1354, 1365, 158 L. Ed. 2d 177;

State v. Carothers, 2006 S.D. 100, ¶ 16, 724 N.W.2d 610.7

[¶35.]         Kihega concedes “no actual [hearsay] statement [of] Two Hearts was

introduced.” However, he contends his inability “to cross-examine Two Hearts




7.       We review such questions concerning constitutional rights de novo. State v.
         Spaniol, 2017 S.D. 20, ¶ 23, 895 N.W.2d 329, 338.
                                           -16-
#27673

about any alleged corroborating statements” effectively “allowed the State an even

greater windfall than if Two Hearts had actually testified.” The State responds that

Kihega opened the door to such an inquiry when he repeatedly accused Neal of not

having substantiated or corroborated Washington’s version of events with anyone.

At trial, the State pointed out that Kihega had pursued this line of impeachment

knowing that the State had corroboration from Two Hearts but could not respond.

Thus, as the State puts it: “the State was simply following up on the fact that Neal

had taken steps to corroborate Washington’s story with Two Hearts[.]”

[¶36.]       We conclude that in this context, Neal’s limited answer was not

prohibited by the Sixth Amendment. We first note that Neal’s answer was not

hearsay. Two Hearts’s out-of-court statements were not repeated by Neal in court,

and Neal’s testimony was not offered to prove the truth of Two Hearts’s out-of-court

statements. Rather, Neal’s testimony rebutted the defense’s inference that Neal

had failed to corroborate Washington’s story with anyone. As the Seventh Circuit

noted in a similar legal context, “[T]he Sixth Amendment does not bar out-of-court

statements when the statement is not offered to prove the truth of the matter

asserted; thus, the Sixth Amendment poses no bar to the admission of non-hearsay

statements.” United States v. James, 487 F.3d 518, 525 (7th Cir. 2007). See also

United States v. Cruz, 993 F.2d 164, 169 (8th Cir. 1993). We have also noted that

when this kind of out-of-court statement is not offered to prove the truth of the

matter asserted, “the Confrontation Clause is satisfied if the defendant had the

opportunity to cross-examine the person repeating the out-of-court statement.”

State v. Johnson, 2009 S.D. 67, ¶ 23, 771 N.W.2d 360, 369 (citing Tennessee v.


                                         -17-
#27673

Street, 471 U.S. 409, 414, 105 S. Ct. 2078, 2081-82, 85 L. Ed. 2d 425 (1985)); accord

Glen Weissenberger & James J. Duane, Weissenberger’s Federal Evidence § 801.2,

at 521-22 (Matthew Bender, 7th ed.) (“Testimonial hearsay is barred by the Sixth

Amendment only if the statement is offered as evidence of the truth of what was

said by that witness, and only if that witness does not testify about the statement at

trial.”). Here, Neal’s answer was not used to prove something Two Hearts stated,

and Neal was subject to cross-examination regarding his answer. Kihega’s right of

confrontation was not violated.

[¶37.]       Kihega contends Neal’s answer also had the practical effect of allowing

one accomplice (Two Hearts) to corroborate another accomplice (Washington).

Kihega observes that “South Dakota case law does not allow for one accomplice to

corroborate the testimony of another accomplice.” See State v. Dominiack, 334

N.W.2d 51, 54 (S.D. 1983). Kihega notes that he “requested and was refused the

opportunity to have a jury instruction included which informed the jury on the

issue.” However, Neal’s answer was not offered to prove that Washington’s story

was corroborated by Two Hearts, and the State did not argue to the jury that it was.

Further, the jury was correctly instructed on the law of accomplice corroboration.

We conclude that Kihega was not convicted solely on the testimony of one

accomplice corroborating another.

             4.    Cruel and Unusual Punishment

[¶38.]       Kihega was sentenced to fifty years in the penitentiary, with twelve

years suspended and 224 days credited for time served on the robbery conviction.

On the firearms conviction, he received a concurrent five-year sentence. On appeal,

Kihega argues his sentence constitutes cruel and unusual punishment within the
                                        -18-
#27673

meaning of the Eighth Amendment. This Court “generally reviews a circuit court’s

decision regarding sentencing for abuse of discretion.” State v. Chipps, 2016 S.D. 8,

¶ 31, 874 N.W.2d 475, 486. “However, when the question presented is whether a

challenged sentence is cruel and unusual in violation of the Eighth Amendment, we

conduct a de novo review.” Id. We first determine “whether the sentence[] imposed

. . . [is] grossly disproportionate to [the] offense[].” Id.

[¶39.]        A review for gross disproportionately requires us to “first compare the

gravity of the offense—i.e., ‘the offense’s relative position on the spectrum of all

criminality’—to the harshness of the penalty—i.e., ‘the penalty’s relative position on

the spectrum of all permitted punishments.’” State v. Rice, 2016 S.D. 18, ¶ 13,

877 N.W.2d 75, 80 (quoting Chipps, 2016 S.D. 8, ¶¶ 35-38, 874 N.W.2d at 489). “If

the penalty imposed appears to be grossly disproportionate to the gravity of the

offense, then we will compare the sentence to those ‘imposed on other criminals in

the same jurisdiction’ as well as those ‘imposed for commission of the same crime in

other jurisdictions.’” Chipps, 2016 S.D. 8, ¶ 38, 874 N.W.2d at 489 (quoting Solem

v. Helm, 463 U.S. 277, 291, 103 S. Ct. 3001, 3010, 77 L. Ed. 2d 637 (1983)).

[¶40.]        Kihega committed robbery, which involves “the intentional taking of

personal property . . . in [the] possession of another from the other’s person or

immediate presence, and against the other’s will, accomplished by means of force or

fear of force[.]” SDCL 22-30-1. “[T]he force used in a robbery ‘makes the violation of

the person more atrocious than private stealing.’” State v. Robertson, 740 A.2d 330,

334 (R.I. 1999) (quoting 4 William Blackstone, Commentaries *242). Indeed,

“[a]rmed robbery is one of the most serious offenses in a civilized society. It is


                                            -19-
#27673

fraught with danger of serious physical harm, even death—not only to the victim

but also to any person at the scene.” State v. Fisher, 321 So. 2d. 519, 520 (La. 1975).

And because Kihega used a gun, the level of the offense was enhanced to robbery in

the first degree. SDCL 22-30-6.

[¶41.]       “In conducting the threshold comparison between the crime and the

sentence, we also consider other conduct relevant to the crime.” Chipps, 2016 S.D.

8, ¶ 40, 874 N.W.2d at 490. In this case, Kihega not only brandished a firearm, but

discharged it inside the casino, demanding that everyone get down on the ground.

Kihega also held the counter clerk at gunpoint as he ordered her to fill the bag with

money. A crime like this is clearly on the graver end of the spectrum of criminality.

[¶42.]       We next examine the harshness of the penalty. Because the court

imposed a term of years, Kihega is eligible for parole under SDCL 24-15-4, which

this Court takes into consideration. See State v. McCahren, 2016 S.D. 34, ¶ 36, 878

N.W.2d 586, 601. Given the gravity of Kihega’s offense, the penalty imposed does

not appear to be grossly disproportionate.

[¶43.]        Kihega also contends the circuit court abused its discretion in

imposing the sentence. “Within constitutional and statutory limits, the trial courts

of this state exercise broad discretion when deciding the extent and kind of

punishment to be imposed.” Rice, 2016 S.D. 18, ¶ 23, 877 N.W.2d at 83. “[A]

sentence within the statutory maximum generally will not be disturbed on appeal.”

Id.

[¶44.]       Kihega’s sentence was under the statutory maximum. However, he

claims his sentence greatly exceeded others imposed in Brown County since 2010.


                                         -20-
#27673

Kihega also notes that Washington received a fifteen-year sentence with ten years

suspended and that the average sentence for others during that period had been

sixteen years. Kihega argues that similarly situated defendants should not “receive

diametrically opposite punishments.” State v. Bonner, 1998 S.D. 30, ¶ 18,

577 N.W.2d 575, 580. “This principle naturally flows from the notion that ‘when . . .

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.”’”

Rice, 2016 S.D. 18, ¶ 24, 877 N.W.2d at 83 (quoting State v. Bruce, 2011 S.D. 14,

¶ 32, 796 N.W.2d 397, 407). But “[e]ven so, the fact that [defendants] plead[] guilty

to the same offense does not mean they share the same level of culpability for that

offense.” Id. We look at “past records, demeanor, degree of criminal involvement,

etc.,” when evaluating the justness of such a disparity. Id.

[¶45.]       Here, the circuit court observed that Kihega had a violent background,

which included convictions of serious crimes. On the other hand, Kihega

acknowledges Washington’s criminal history was less severe. Thus, this difference

in sentencing does not reflect an abuse of discretion.

[¶46.]       Kihega further argues the circuit court failed to consider testimony

highlighting his chances for rehabilitation. We disagree. The circuit court

expressly noted that any “significant sentence” would keep Kihega, at thirty-four

years of age, “in the penitentiary for a long time.” The court also noted that thirty-

eight years was “a long time” and that Kihega “had a difficult background.”

Nevertheless, the court reiterated its overriding concern with Kihega’s proven

record of criminal violence. Here, the court imposed a sentence below the


                                         -21-
#27673

maximum, and Kihega is eligible for parole. We have previously stated that the

possibility of parole aids in striking “a balance between retribution, rehabilitation,

and deterrence.” See id. ¶ 28, 877 N.W.2d at 85 (emphasis added). Given the wide

latitude sentencing courts possess, we do not believe the court abused its discretion.

[¶47.]       Affirmed.

[¶48.]       GILBERTSON, Chief Justice, and KERN, Justice, concur.

[¶49.]       SEVERSON, Justice, and WILBUR, Retired Justice, dissent.



SEVERSON, Justice (dissenting).

[¶50.]       I respectfully dissent. The evidence introduced in this case merely

shows the commission of the offense and the circumstances thereof. It does not

connect Kihega to the commission of the robbery.

[¶51.]       “The standard of review for a motion for acquittal is ‘whether the State

set forth sufficient evidence from which the jury could reasonably find the

defendant guilty of the crime charged.’” State v. Talarico, 2003 S.D. 41, ¶ 38, 661

N.W.2d 11, 24 (quoting State v. Larson, 1998 S.D. 80, ¶ 9, 582 N.W.2d 15, 17).

SDCL 23A-22-8 provides: “A conviction cannot be had upon the testimony of an

accomplice unless it is corroborated by other evidence which tends to connect the

defendant with the commission of the offense. The corroboration is not sufficient if

it merely shows the commission of the offense, or the circumstances thereof.”

“Corroborating evidence need not be sufficient alone to sustain a conviction.”

Talarico, 2003 S.D. 41, ¶ 38, 661 N.W.2d at 24. “Evidence is sufficient to

corroborate the testimony of an accomplice if it tends to ‘affirm the truth of the


                                          -22-
#27673

testimony of the accomplice and establish the guilt of the accused.’” Id. (quoting

State v. Phyle, 444 N.W.2d 380, 382 (S.D. 1989)).

[¶52.]       “There is no requirement that every material fact testified to by the

accomplice be corroborated.” State v. Graham, 2012 S.D. 42, ¶ 39, 815 N.W.2d 293,

307. “[C]ircumstantial evidence can satisfy requirements of corroboration.” State v.

Nelson, 310 N.W.2d 777, 779 (S.D. 1981). Thus, “a close association between the

defendant and an accomplice in the area where the crime was committed may

sufficiently connect the defendant with the commission of the crime to furnish the

necessary corroboration of an accomplice’s testimony.” Id.; accord State v. Schafer,

297 N.W.2d 473, 475 (S.D. 1980); State v. McDowell, 391 N.W.2d 661, 667 (S.D.

1986). “Corroboration may [also] be found from the defendant’s opportunity and

motive to commit the crime and his proximity to the place where the crime was

committed.” Graham, 2012 S.D. 42, ¶ 34, 815 N.W.2d at 306.

[¶53.]       Washington’s testimony regarding the details of the robbery was

largely corroborated by other witnesses at trial. Those witnesses confirmed that a

robbery occurred, there were two male robbers, shots were fired, and property was

stolen. Law enforcement also confirmed that Washington testified truthfully about

the type of weapons involved. But, crucially, such evidence does not “tend[] to

connect the defendant with the commission of the offense.” See SDCL 23A-22-8. No

witness testified that he or she saw Kihega in or around Aberdeen on the day of the

offense or with Washington. Kihega’s only established association with Washington

was at a casino in a different town and different state, hours after the offense.

Detective Neal testified that no weapons, ammunition, clothing, bandanas, gloves,


                                         -23-
#27673

cell phones, money, or money bands were found after the robbery. No evidence

indicated Kihega owned, possessed, or had access to the weapons involved. Nothing

in Kihega’s conversations with his wife connected Kihega to the robbery. No motive

or opportunity evidence was introduced.

[¶54.]       Therefore, in this case, the corroborating evidence “merely shows the

commission of the offense, [and] the circumstances thereof.” See id. The State’s

argument that the bigger picture of the robbery is corroborated is unavailing in

light of the fact that these details are not relevant to Kihega’s involvement in the

offense. They certainly corroborate Washington’s testimony as to the circumstances

of the offense. But no corroborating evidence linking Kihega to the robbery was

introduced. “The jury exclusively judges witness credibility and weighs evidence.”

Graham, 2012 S.D. 42, ¶ 29, 815 N.W.2d at 305. However, there must be sufficient

corroborating evidence from which the jury could determine that Kihega was

connected to the crime. Our statute is clear, “[t]he corroboration is not sufficient if

it merely shows the commission of the offense, or the circumstances thereof.” SDCL

23A-22-8. Finding no evidence that sufficiently corroborates Washington’s

testimony, Kihega’s conviction should be reversed, and the Court need not reach the

remaining three issues presented.

[¶55.]       WILBUR, Retired Justice, joins this dissent.




                                          -24-
