#26783-a-GAS

2014 S.D. 43

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

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

      v.

JERRY LEE CRAIG,                           Defendant and Appellant.

                                  ****

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

                                  ****

                     THE HONORABLE TONY L. PORTRA
                                Judge

                                  ****


MARTY J. JACKLEY
Attorney General

ANN F. MINES
Assistant Attorney General
Pierre, South Dakota                       Attorneys for plaintiff
                                           and appellee.

SCOTT R. BRATLAND
Watertown, South Dakota                    Attorney for defendant
                                           and appellant.


                                  ****
                                           CONSIDERED ON BRIEFS
                                           ON MAY 27, 2014

                                           OPINION FILED 07/02/14
#26783

SEVERSON, Justice

[¶1.]        C.T., then age nine, reported that her maternal grandfather—Jerry

Craig—sexually abused her. A jury convicted Craig of three counts of first degree

rape, three counts of sexual contact with a child under the age of sixteen, and one

count of aggravated incest. Craig appeals, arguing the circuit court erred by

restricting questioning, allowing him to proceed pro se at sentencing, and erred in

its sentence. He also argues his trial counsel was ineffective. We affirm.

                                   Background

[¶2.]        In May 2012, C.T. and her younger siblings (brother (S.C.) and sister

(A.T.)) lived with Craig and his wife in Presho, South Dakota. As a result of a

disagreement between Craig and the children’s mother (A.C.), A.C. drove to Presho

on May 10, 2012, to bring the children back with her to Aberdeen, South Dakota.

C.T. alleged to A.C. that Craig sexually abused her.

[¶3.]        A.C. reported the alleged abuse to the Department of Social Services

(DSS) on May 11, 2012. DSS contacted law enforcement in Aberdeen. Officer

Vance McInerney responded and discussed the allegations with A.C. Officer

McInerney then arranged an interview with Child’s Voice (a medical evaluation

center that evaluates children regarding the possibility of both child physical and

sexual abuse).

[¶4.]        Colleen Brazil of Child’s Voice interviewed C.T. on May 16, 2012. C.T.

alleged that inappropriate contact with Craig occurred, including kissing on the

lips, touching and penetrating her private parts, making her touch his private part,




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and rubbing and sucking her chest. Brazil interviewed C.T.’s siblings on May 22,

2012.

[¶5.]        On June 5, 2012, Officer Tanner Jondahl interviewed Craig. Craig

denied he sexually abused C.T. and claimed A.C. was retaliating against him. Craig

did admit one incident when he awoke and realized his hand was touching C.T.,

claiming he mistakenly thought he was holding his wife.

[¶6.]        On August 24, 2012, the State charged Craig with one count of first

degree rape, three counts of sexual contact with a child under the age of sixteen,

and one count of aggravated incest. A second indictment on April 19, 2013, charged

Craig with three counts of first degree rape, three counts of sexual contact with a

child under the age of sixteen, and one count of aggravated incest. The State

dismissed the previous indictment. On May 16, 2013, Craig appeared before the

Fifth Judicial Circuit Court for arraignment. He pleaded not guilty. After several

motions and hearings, a jury trial commenced on June 4, 2013.

[¶7.]        At trial, Brazil testified for the State about C.T.’s statements. Craig

wished to question Brazil about conclusions drawn from her interview with C.T.’s

brother (S.C.) as to S.C.’s credibility. The circuit court denied Craig’s request on

several grounds: not complying with SDCL 19-16-38; not a sufficient indicia of

reliability; no showing S.C. would testify or was unavailable; the testimony was not

relevant; and if allowed, “any value would be substantially outweighed by the

confusion it would cause the jury” as the testimony would result in a trial within a

trial. On June 5, the jury found Craig guilty.




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[¶8.]         Before sentencing, Craig requested that he be allowed to proceed

without counsel. The circuit court held hearings on June 24, 2013, and July 8,

2013, to address Craig’s request and address his questions. The circuit court

allowed Craig to proceed pro se but asked his appointed attorney to stay apprised.

Craig did not cooperate with the presentence report or complete a psycho-sexual

evaluation.

[¶9.]         On July 17, 2013, the circuit court sentenced Craig to 50 years

imprisonment on counts one, two, and three, respectively, to be served

consecutively. The circuit court further sentenced Craig to 10 years imprisonment

for each of the remaining counts, to be served concurrently with the 150 years

imposed on the first three counts.

[¶10.]        After sentencing, Craig requested court-appointed counsel, who filed

an amended notice of appeal on August 15, 2013. Craig raises as issues: (1)

Whether the circuit court abused its discretion by restricting questioning about the

victim’s brother’s (S.C.’s) statements; (2) Whether the circuit court abused its

discretion by allowing Craig to proceed pro se at sentencing; (3) Whether Craig’s

sentence constitutes cruel and unusual punishment; and (4) Whether Craig received

ineffective assistance of counsel.

                                      Analysis

[¶11.]        (1)   Whether the circuit court abused its discretion by
                    restricting witness questioning about S.C.’s statements.

[¶12.]        Craig argues the circuit court abused its discretion by not allowing him

to question Brazil about statements made by the victim’s brother—S.C. Craig

attempted to present evidence that S.C. was interviewed, made statements about

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sexual abuse, and that the professionals at Child’s Voice found him not to be

credible. Craig sought to use the testimony to support his theory that the children’s

mother (A.C.) had coached the children as to what to say. Craig asserts SDCL 19-

16-8 (Rule 803(4)) (hearsay exception for statements made for medical diagnosis or

treatment) allowed the questioning. The State argues Craig did not raise SDCL 19-

16-8 (Rule 803(4)) before the circuit court, thus Craig’s argument is waived; or in

the alternative, Craig’s argument is without merit because the testimony is not

relevant to this case.

[¶13.]       The “ultimate decision to admit or not admit evidence is reviewable

under the ‘abuse of discretion’ standard[.]” State v. Herrmann, 2004 S.D. 53, ¶ 8,

679 N.W.2d 503, 507 (quoting State v. Davi, 504 N.W.2d 844, 849 (S.D. 1993)).

[¶14.]       Craig did not mention or argue SDCL 19-16-8 (Rule 803(4)) to the

circuit court, thus his argument that it should apply is waived. See State v. Eidahl,

495 N.W.2d 91, 94 (S.D. 1993). But, a hearsay exception is not determinative.

Craig sought S.C.’s statements through Brazil’s testimony to provide evidence that

A.C. coached the children, not to prove the truth of what they asserted (that sexual

abuse occurred). In that regard, S.C.’s statements were not hearsay. See SDCL 19-

16-1(3) (Rule 801(c)) (“‘Hearsay’ is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.”); State v. Harris, 2010 S.D. 75, ¶¶ 13-15, 789 N.W.2d

303, 308-09. As a result, whether Craig raised a hearsay exception is irrelevant.

[¶15.]       Regardless, the circuit court found S.C.’s statements not admissible on

other grounds, one being relevancy. The circuit court found “it to be of very little


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relevance in that whether one child made an allegation that was substantiated or

not, does not prove or disprove that another child was or was not abused.” See

SDCL 19-12-1 (Rule 401). Indeed, “[e]vidence which is not relevant is not

admissible.” SDCL 19-12-2 (Rule 402). Further, predicting a “trial within a trial,”

the circuit court also found the testimony inadmissible because “any value would be

substantially outweighed by the confusion that it would cause the jury.” See SDCL

19-12-3 (Rule 403) (stating evidence may be excluded if its probative value is

substantially outweighed by issue confusion, among others).

[¶16.]         In the end, questions involving evidence’s relevancy and the process of

balancing that evidence’s probative value versus the danger of confusing the issues

are left to the circuit court’s sound discretion. State v. Guthmiller, 2003 S.D. 83, ¶¶

28-29, 667 N.W.2d 295, 305-06. Because the circuit court found S.C.’s statements

not relevant and any value from them substantially outweighed by the confusion

they would cause, the circuit court did not abuse its discretion by prohibiting

testimony as to S.C.’s statements.∗




∗        Craig’s requested testimony may have been improper on other grounds.
         Essentially, Craig wanted Brazil to testify that S.C.’s claim lacked credibility.
         “Generally, one witness may not testify as to another witness’s credibility or
         truth-telling capacity because such testimony would invade the exclusive
         province of the jury to determine the credibility of a witness.” State v.
         Packed, 2007 S.D. 75, ¶ 37, 736 N.W.2d 851, 862 (quoting State v. McKinney,
         2005 S.D. 73, ¶ 32, 699 N.W.2d 471, 481). Although we have allowed a
         “generalized explanation of a child’s capacity to testify[,]” McKinney, 2005
         S.D. 73, ¶ 33, 699 N.W.2d at 481, and expert testimony regarding the
         “characteristics of sexually abused children and comparing those
         characteristics with the account and behavior of a particular child[,]” State v.
         Buchholtz, 2013 S.D. 96, ¶ 25, 841 N.W.2d 449, 457, Craig’s requested
         testimony of Brazil here was a direct, and thus potentially improper, inquiry
         into a witness’s credibility, when additionally the witness did not even testify.
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[¶17.]       (2)    Whether the circuit court abused its discretion by
                    allowing Craig to precede pro se at sentencing.

[¶18.]       Craig argues that he did not knowingly, intelligently, and voluntarily

waive his right to counsel because none of the circuit court’s warnings applied to his

situation. The State argues the circuit court appropriately warned Craig and that

he knowingly, intelligently, and voluntarily waived his right to counsel.

[¶19.]       “In a criminal action a defendant has both a constitutional right to be

represented by counsel and a constitutional right to represent himself; it is the

defendant’s choice.” State v. Hirning, 2011 S.D. 59, ¶ 13, 804 N.W.2d 422, 426

(quoting State v. Bruch, 1997 S.D. 74, ¶ 14, 565 N.W.2d 789, 791). “Appeals

asserting an infringement of a constitutional right are reviewed de novo.” Id. (citing

State v. Asmussen, 2006 S.D. 37, ¶ 11, 713 N.W.2d 580, 586).

[¶20.]       “[I]n order for a defendant to exercise the right to self-representation

and waive the right to representation by counsel, a voluntary, knowing and

intelligent waiver must be made by the defendant.” Id. ¶ 14 (quoting Asmussen,

2006 S.D. 37, ¶ 30, 713 N.W.2d at 590). “[A]t a minimum, a defendant ‘must be

aware of the dangers and disadvantages of self-representation.’” Id. ¶ 15 (quoting

Bruch, 1997 S.D. 74, ¶ 15, 565 N.W.2d at 792).

             On appeal, waiver of the right to counsel will not be found
             knowingly and intelligently made unless the trial court (1)
             warns the defendant of the dangers of self-representation or, (2)
             unless the record indicates circumstances from which this
             [C]ourt can [determine that] the defendant was aware of the
             danger and made a knowing and intelligent waiver. While in
             some cases there may be a record showing a defendant is aware
             of the pitfalls of self-representation, an admonition from the
             trial court is preferred as it eliminates any doubt.

Id. (quoting Bruch, 1997 S.D. 74, ¶ 15, 565 N.W.2d at 792).

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[¶21.]       To ensure that a defendant “knows what he is doing and his choice is

made with eyes open[,]” Id. ¶ 16 (quoting State v. Raymond (Raymond II), 1997 S.D.

59, ¶ 11, 563 N.W.2d 823, 826), this Court suggested that a trial court provide a

five-factor warning to a defendant:

             (1) that presenting a defense is not a simple matter of telling
             one’s story, but requires adherence to various technical rules
             governing the conduct of a trial;

             (2) that a lawyer has substantial experience and training in trial
             procedure and that the prosecution will be represented by an
             experienced attorney;

             (3) that a person unfamiliar with legal procedures may allow the
             prosecutor an advantage by failing to make objections to
             inadmissible evidence, may not make effective use of such rights
             as the voir dire of jurors, and may make tactical decisions that
             produce unintended consequences;

             (4) that a defendant proceeding pro se will not be allowed to
             complain on appeal about the competency of his representation;
             and

             (5) that the effectiveness of his defense may well be diminished
             by his dual role as attorney and accused.

Id. (quoting State v. Patten, 2005 S.D. 32, ¶ 10, 694 N.W.2d 270, 273).

[¶22.]       Here, the circuit court held a presentencing hearing on June 24, 2013.

It addressed letters Craig sent indicating his frustration with his appointed counsel.

When the circuit court introduced the hearing, it stated: “At some point Mr. Craig

had made the court aware that he wished to have a different attorney appointed for

him on this matter.” Craig interrupted the court, and clarified, “I do not want

another attorney, and I do have another letter to offer to the court.” The circuit

court clarified Mr. Craig’s request: “Are you asking the court to appoint you a

different attorney or are you asking the court to let you dismiss your attorney and

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represent yourself?” Craig responded, “It would be the latter.” To which the court

asked, “To represent yourself?” Craig responded, “Yes.” The circuit court then

warned Craig of the five factors set forth in our precedent:

             Court: Mr. Craig, as I said, I’m obligated to tell you certain
             points, and I would just like you to bear with me because the
             Supreme Court has indicated this is what needs to happen. So
             what you need to consider in deciding whether or not you want
             to represent yourself is that presenting a defense is not a simple
             matter of telling one’s story but requires adherence to various
             technical rules governing the conduct of a trial, in this case it
             would be governing the conduct of the sentencing hearing since
             the trial has already happened. That a lawyer has substantial
             experience and training in trial procedure and that the
             prosecution will be represented by an experienced attorney.
             That a person unfamiliar with legal procedures may allow the
             prosecutor an advantage by failing to make objections to
             admissible evidence, may not make effective use of such rights
             as the voir dire of jurors and may make technical decisions that
             produce unintended consequences. That a defendant proceeding
             pro se, meaning representing yourself, will not be allowed to
             complain on appeal about the competency of his representation,
             and finally that the effectiveness of his defense may well be
             diminished by his dual role as attorney and accused. Do you
             understand the information that I’ve just presented to you?
             Craig: Yes, but the jury was inflamed against me, I do
             understand, and it went undone.
             Court: So – given the caution that I’ve provided you today
             regarding the danger of representing yourself, is it still your
             intention to represent yourself?
             Craig: Yes, sir, it is.
             Court: And you would represent yourself at the sentencing
             hearing in this matter?
             Craig: Yes, sir.

[¶23.]       At another presentencing hearing on July 8, 2013, the circuit court

again asked: “Mr. Craig, are you going to continue to represent yourself?” Craig

responded, “My gosh, yes, if I had done it in the first place, I wouldn’t be here like

this.” On the day of sentencing, July 17, 2013, the circuit court asked Craig
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whether he wished to have assistance from his previous counsel. Craig responded:

“No, not by any means.”

[¶24.]       Here, the circuit court warned Craig of the five factors stated in our

precedent. Craig argues, however, that the five factors do not apply to his

situation—proceeding pro se at sentencing. We disagree. The five factors warn the

defendant of trial aspects that also apply to sentencing, i.e., not just telling a story,

technical aspects, experience of opposing counsel, missing objections, waiving

ineffective counsel, and diminished effectiveness when taking dual role of attorney

and accused. Regardless, the five-factor warning is not a per se requirement for a

voluntary, knowing, and intelligent waiver.

[¶25.]       “[A]s an alternative to the five factors, a waiver may be

constitutionally acceptable ‘as long as there are circumstances present that indicate

the circuit court was able to ascertain that the defendant was fully aware of the

dangers of self-representation.’” Hirning, 2011 S.D. 59, ¶ 17, 804 N.W.2d at 427

(quoting Asmussen, 2006 S.D. 37, ¶ 31, 713 N.W.2d at 590). Those circumstances

depend on the particular facts surrounding each case, “including the background,

experience, and conduct of the accused,” Id., defendant’s involvement in previous

criminal trials, representation by counsel before trial, and the explanation for

proceeding pro se indicate an awareness of the difficulties of self-representation.

State v. Van Sickle, 411 N.W.2d 665, 667 (S.D. 1987).

[¶26.]       Here, the circuit court had ample opportunities to “ascertain that

[Craig] was fully aware of the dangers of self-representation.” Hirning, 2011 S.D.

59, ¶ 17, 804 N.W.2d at 427 (quoting Asmussen, 2006 S.D. 37, ¶ 31, 713 N.W.2d at


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590). Those opportunities included presiding over Craig’s trial, holding two

hearings on this issue, personally addressing Craig, warning Craig of the five

factors, and hearing Craig’s unequivocal requests to proceed pro se. In the end, “the

record indicates circumstances from which this [C]ourt can [determine that Craig]

was aware of the danger and made a knowing and intelligent waiver.” Id. ¶ 15

(quoting Bruch, 1997 S.D. 74, ¶ 15, 565 N.W.2d at 792).

[¶27.]        (3)    Whether Craig’s sentence constitutes cruel and unusual
                     punishment.

[¶28.]        First, Craig argues that the circuit court erred by sentencing Craig

without the necessary information. The State argues that the circuit court had

sufficient information regarding Craig’s background to properly sentence him.

[¶29.]        An appropriate sentence requires that the sentencing court “acquire a

thorough acquaintance with the character and history of the [person] before it. This

study should examine 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.” State v. Hinger, 1999 S.D. 91, ¶

21, 600 N.W.2d 542, 548 (quoting State v. Bonner, 1998 S.D. 30, ¶ 19, 577 N.W.2d

575, 580). “The sentencing court should also consider rehabilitation prospects.” Id.

Further, when a conviction is under SDCL 22-22-1.2, a sentencing court receives

extra information as spelled out by SDCL 22-22-1.3 (“Any person convicted of a

felony violation as provided in subdivisions 22-24B-1(1) to (15), inclusive, and (19)

shall have included in the offender’s presentence investigation report a psycho-

sexual assessment . . . .”).



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[¶30.]       Craig argues error in that the psycho-sexual evaluation was

incomplete. But Craig refused to participate fully in the evaluation. As a result,

Craig’s argument that the evaluation lacked necessary information is without

merit.

[¶31.]       In addition to receiving the brief psycho-sexual evaluation, the circuit

court received a presentence report, observed Craig at trial and at the sentencing

hearing, observed Craig’s conduct in front of the court, and evaluated witness

testimony. The circuit court noted that Craig was 55 years old, had a prior felony,

refused to participate in any meaningful way in the psycho-sexual evaluation, and

accepted zero responsibility for his crime. The circuit court also noted Craig’s

refusal to accept responsibility and his blame towards the victim’s mother, his

attorney, and the court, when it found Craig’s rehabilitation prospect to be minimal.

On review, the circuit court had sufficient information to “acquire a thorough

acquaintance with the character and history of [Craig.]” Hinger, 1999 S.D. 91, ¶ 21,

600 N.W.2d at 548 (quoting Bonner, 1998 S.D. 30, ¶ 19, 577 N.W.2d at 580).

[¶32.]       Next, Craig argues the 150-year sentence imposed was cruel and

unusual. The State argues that Craig received a sentence within the statutory limit

and was not cruel and unusual considering his crime.

[¶33.]       When a defendant challenges a sentence as cruel and unusual under

the Eighth Amendment, this Court reviews it for gross disproportionality:

             [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.

Bonner, 1998 S.D. 30, ¶ 17, 577 N.W.2d at 580 (citation omitted).

[¶34.]       In this case, the circuit court noted Craig’s conduct involved repeated

sexual abuse of his nine-year-old grand-daughter—a grand-daughter that was

placed in his care. Instead of protecting C.T., Craig victimized her. The circuit

court aptly stated that the legislature has determined these crimes are very heinous

and the court should send a clear message to the defendant and public that this

conduct will not be tolerated. We agree, and indicative of that determination, the

maximum punishment is life imprisonment. SDCL 22-22-1, SDCL 22-22-1.2, &

SDCL 22-6-1. The circuit court sentenced Craig to 50 years imprisonment on counts

one, two, and three, respectively, to be served consecutively. The maximum penalty

for Craig’s remaining counts is fifteen-years imprisonment. SDCL 22-22-7, SDCL

22-22A-3(2), & SDCL 22-6-1. The circuit court sentenced Craig to ten years on each

remaining count to run concurrently with the 150-year total sentence.

[¶35.]       In review, the jury convicted Craig of a heinous crime with a severe,

legislatively-directed penalty, which his sentence was within. Considering the

crime, the circumstances here “fail to suggest gross disproportionality[.]” Bonner,

1998 S.D. 30, ¶ 17, 577 N.W.2d at 580. As a result, “our review ends.” Id.

[¶36.]       (4)    Whether Craig received ineffective assistance of counsel.

[¶37.]       Craig argues his trial counsel was ineffective for failing to subpoena

S.C. and A.C., and for failing to present evidence to the jury regarding C.T.’s

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identification of his penis. The State argues counsel’s representation was not

deficient, and in the alternative, that Craig fails to demonstrate prejudice.

[¶38.]       “To prevail on a claim of ineffective assistance of counsel, a defendant

must show that his counsel provided ineffective assistance and that he was

prejudiced as a result.” Fast Horse v. Weber, 2013 S.D. 74, ¶ 14, 838 N.W.2d 831,

836 (quoting State v. Hannemann, 2012 S.D. 79, ¶ 11, 823 N.W.2d 357, 360). “To

establish ineffective assistance, a defendant must show that counsel’s

representation fell below an objective standard of reasonableness.” State v.

Thomas, 2011 S.D. 15, ¶ 21, 796 N.W.2d 706, 713. “The question is whether

counsel’s representation ‘amounted to incompetence under prevailing professional

norms, not whether it deviated from best practices or most common custom.’” Id.

(quoting Harrington v. Richter, ___ U.S. ___, 131 S. Ct. 770, 788, 178 L. Ed. 2d 624

(2011)). “There is a strong presumption that counsel’s performance falls within the

wide range of professional assistance and the reasonableness of counsel’s

performance is to be evaluated from counsel’s perspective at the time of the alleged

error and in light of all circumstances.” Id. (quoting Steichen v. Weber, 2009 S.D. 4,

¶ 25, 760 N.W.2d 381, 392-93). To demonstrate prejudice, a defendant must show

“there is a reasonable probability that, but for counsel[’]s unprofessional errors, the

result of the proceeding would have been different.” Id. ¶ 28 (quoting Dillon v.

Weber (Dillon II), 2007 S.D. 81, ¶ 8, 737 N.W.2d 420, 424). “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id.

(quoting Dillon II, 2007 S.D. 81, ¶ 8, 737 N.W.2d at 424-25) See Strickland v.

Washington, 466 U.S. 668, 695, 104 S. Ct. 2052, 2068-69, 80 L. Ed. 2d 674 (1984)


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(“When a defendant challenges a conviction, the question is whether there is a

reasonable probability that, absent the errors, the factfinder would have had a

reasonable doubt respecting guilt.”).

[¶39.]       First, this Court must determine whether this is one of the “rare cases”

where an ineffective-assistance-of-counsel claim is ripe for review on direct appeal.

Hannemann, 2012 S.D. 79, ¶ 12, 823 N.W.2d at 360. “Ineffective-assistance-of-

counsel claims are generally not considered on direct appeal[,]” Thomas, 2011 S.D.

15, ¶ 23, 796 N.W.2d at 714, because “it is only through habeas corpus that a

sufficient record can be made to allow the appropriate review[.]” Hannemann, 2012

S.D. 79, ¶ 12, 823 N.W.2d at 360 (quoting State v. Petersen, 515 N.W.2d 687, 688

(S.D. 1994). “The development of a habeas record [ ] provides this Court with ‘a

more complete picture of what occurred.’” Id. (quoting Thomas, 2011 S.D. 15, ¶ 23,

796 N.W.2d at 714) (“allow[ing] attorneys charged with ineffectiveness to explain or

defend their actions and strategies”). This Court will “depart from this principle

only when trial counsel was so ineffective and counsel’s representation so casual as

to represent a manifest usurpation of the defendant’s constitutional rights.” Id.

(quoting Thomas, 2011 S.D. 15, ¶ 23, 796 N.W.2d at 714).

[¶40.]       Craig argues that his counsel should have subpoenaed S.C. to testify,

and, if ruled unavailable, then counsel should have questioned Brazil about S.C.’s

statements. But the circuit court barred the testimony based in part on reasons

unrelated to the alleged attorney error, ruling that S.C.’s offered testimony was of

very little relevance and that admitting S.C.’s statements would lead to a trial

within a trial with any value being substantially outweighed by the confusion that


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it would cause. As a result, we cannot say that Craig’s trial counsel was “so

ineffective and counsel’s representation so casual as to represent a manifest

usurpation of [Craig’s] constitutional rights.” Id. (quoting Thomas, 2011 S.D. 15, ¶

23, 796 N.W.2d at 714). Therefore, Craig’s claim on this ground is not ripe for

review on direct appeal.

[¶41.]       Next, Craig argues that his counsel should have subpoenaed the

victim’s mother (A.C.). He claims A.C. had a motive to coach the children. But not

subpoenaing A.C. could have been a reasonable trial strategy. As such, this

argument is not ripe for review on direct appeal.

[¶42.]       Lastly, Craig argues that his counsel should have raised C.T.’s

identification of his penis as an issue to the jury. When interviewed by Brazil, C.T.

referred to Craig’s penis as “circular and long and a weird point that would stick out

at the tip.” Craig maintained that C.T. was describing an uncircumcised penis

when he, in fact, was circumcised. But avoiding any reference to an accused

abuser’s penis may have been a valid trial strategy. As such, this argument is not

ripe for review on direct appeal.

                                    Conclusion

[¶43.]       In review, the circuit court found S.C.’s statements to be irrelevant and

confusing, thus it did not abuse its discretion by barring their admission. Also, the

record supports that Craig knowingly and intelligently waived his right to counsel

at sentencing. Further, the circuit court had sufficient information to acquire a

thorough acquaintance of Craig’s character and history and the subsequent

sentence was not grossly disproportionate. Lastly, the record does not establish a


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manifest usurpation of Craig’s constitutional rights, thus Craig’s ineffective

assistance of counsel claim is not ripe for direct appeal. We affirm.

[¶44.]       GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

WILBUR, Justices, concur.




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