State v. Herrmann

Decision Date21 April 2004
Docket NumberNo. 22892.,22892.
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Brandon Lee HERRMANN, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Lawrence E. Long, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, SD, Attorney for plaintiff and appellee.

Darren Magee, Office of the Minnehaha Co., Public Defender, Sioux Falls, SD, Attorney for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] After a jury convicted Brandon Lee Herrmann of kidnapping and raping a seven year old child, Herrmann was sentenced to life imprisonment in the South Dakota State Penitentiary without the possibility of parole. On appeal, Herrmann argues the trial court abused its discretion when it allowed into evidence particular photographs and videotape demonstrating the injuries sustained by the victim. He also challenges the trial court's decision to admit certain hearsay statements made by the victim. Finally, Herrmann contends his life sentence must be overturned as grossly disproportionate. For the reasons set forth in this opinion, we reject Herrmann's claims and affirm his sentence.

FACTS AND PROCEDURE

[¶ 2.] On the morning of December 19, 2001, Mother dropped off her seven year old daughter P.V. at Friend's residence in Sioux Falls, South Dakota. Mother's work day began earlier than the start of P.V.'s school day, and she often took her daughter to Friend's house so P.V. would have a safe place to stay before school. P.V. generally walked to school with her friends from the neighborhood, but on this particular morning the other children had already left for school. A neighborhood teenager offered to walk P.V. to school, but she declined and proceeded to walk to school by herself.

[¶ 3.] At approximately 10:30 a.m., a school official left a message on Friend's telephone informing him that P.V. had not made it to school. He received the message during his lunch break and immediately contacted Mother. Soon thereafter, law enforcement began searching for P.V. Later that day, Detective David Dunteman found P.V. wandering in the area where she had last been seen. P.V. told Detective Dunteman that she had been picked up on her way to school by a man and a baby. She also said that the man had fed her lunch and given her a bath. Further investigation revealed the presence of both blood and fecal matter in P.V.'s panties. Medical personnel then uncovered evidence that P.V. had been sexually assaulted resulting in extensive trauma to both her vaginal and rectal areas.

[¶ 4.] Eventually, law enforcement determined the sexual assault occurred at the residence of Jason Frye. Although Frye admitted to participating in the crime, Frye insisted Herrmann forced him to take part in the assault. As part of a plea agreement, Frye pleaded guilty to kidnapping P.V. and received a sentence of thirty-five years in the South Dakota State Penitentiary. A grand jury subsequently indicted Herrmann on two counts of Kidnapping and one count of Rape in the First Degree.

[¶ 5.] Frye testified for the State at Herrmann's trial and related the following version of events. According to Frye, he received several phone calls from Herrmann on the morning of the crime. In one of the calls, Herrmann told Frye he had a "surprise" for him. Herrmann then took P.V. to Frye's house and told him he wanted to rape the little girl. Herrmann, Frye, P.V., and Frye's young son proceeded upstairs to Frye's bedroom. Frye told his son to go to his room and shut the door. After Herrmann asked Frye to assault the girl, Frye penetrated P.V.'s vagina with his finger but stopped when he noticed she was bleeding. Herrmann proceeded to penetrate the victim's vagina with his finger and penis. Frye testified P.V. cried in pain throughout the assault and pleaded with Herrmann to stop. Frye also testified Herrmann indicated he had ejaculated into the victim.

[¶ 6.] After this assault, Frye fed his son and P.V. macaroni and cheese. Herrmann then told Frye he wanted to rape P.V. again, and he directed Frye to take the girl's clothes and wash them. While Frye washed the clothes, Herrmann raped P.V. anally. Herrmann proceeded to bathe P.V. and use a douche on her. Frye further testified Herrmann told him he had previously molested the girl in his car. This assault resulted in bloodstains in Herrmann's vehicle. DNA testing concluded the blood stains were from P.V. Frye and Herrmann later dropped off P.V. in the area near her school.

[¶ 7.] In addition to Frye's testimony concerning the rape, the trial court allowed into evidence certain statements made by P.V. to law enforcement and Colleen Brazil of Child's Voice. The State also called as a witness Dr. Richard Kaplan, the pediatrician who had examined P.V. shortly after she was found. Dr. Kaplan testified P.V.'s injuries were the result of rape and consistent with trauma caused by an adult male penis. In order to demonstrate the extent and nature of P.V.'s injuries, the trial court allowed into evidence certain photographs, videotape, and medical testimony. The State further presented evidence that the semen found in P.V.'s panties matched a sample of Herrmann's DNA. At the conclusion of the trial, a jury returned a verdict finding Herrmann guilty on all three counts. Herrmann was sentenced to life imprisonment without the possibility of parole for Kidnapping and received a second life sentence for Rape in the First Degree. He now raises the following issues for our review:

1. Whether the trial court abused its discretion when it allowed the State to present certain photographs and videotape demonstrating the injuries sustained by P.V.

2. Whether the trial court abused its discretion when it admitted certain hearsay statements made by P.V. pursuant to SDCL 19-16-38.

3. Whether Herrmann's life sentence for kidnapping and rape was grossly disproportionate in violation of the Constitutional prohibition against cruel and unusual punishment.

STANDARD OF REVIEW

[¶ 8.] Herrmann seeks to challenge several evidentiary rulings made by the trial court. On appeal, this Court presumes a trial court's evidentiary rulings were proper and will affirm absent an abuse of discretion. State v. Perovich, 2001 SD 96, ¶ 11, 632 N.W.2d 12, 15. While the "ultimate decision to admit or not admit evidence is reviewable under the `abuse of discretion' standard, the court's preliminary determination of whether the hearsay evidence is reliable will not be overturned unless it is clearly erroneous." State v. Davi, 504 N.W.2d 844, 849 (S.D. 1993) (citing Matter of R.S.S., 474 N.W.2d 743, 749 (S.D.1991)). In addition, we will not reverse unless error is "demonstrated... [and] shown to be prejudicial error." State v. Smith, 1999 SD 83, ¶ 39, 599 N.W.2d 344, 353.

[¶ 9.] Herrmann also seeks to have his life sentence overturned on the grounds it was grossly disproportionate in violation of the Eighth Amendment. We employ a limited review to challenges based upon the proportionality of a particular sentence. State v. Milk, 2000 SD 28, ¶ 10, 607 N.W.2d 14, 17. This Court gives great deference to decisions made by the Legislature and sentencing courts, and sentences within the statutory maximum will rarely be overturned on appeal. State v. Garber, 2004 SD 2, ¶ 13, 674 N.W.2d 320, 323 (quoting State v. Bonner, 1998 SD 30, ¶ 14, 577 N.W.2d 575, 579); Milk, 2000 SD 28, ¶ 10, 607 N.W.2d at 17.

ANALYSIS AND DECISION
[¶ 10.] 1. Whether the trial court abused its discretion when it allowed the State to present certain photographs and videotape demonstrating the injuries sustained by P.V.

[¶ 11.] The trial court allowed the State to present certain video and photographic evidence showing the extent of the injuries sustained by P.V. as a result of the sexual assault. The photographs were still images generated from a video tape of a forensic exam conducted by Dr. Kaplan. Herrmann's counsel unsuccessfully objected to the photographic evidence on the grounds it was unfairly prejudicial to the defendant and would only serve to arouse the passion or prejudice of the jury. Herrmann now renews this argument on appeal. We review the trial court's decision to admit the photographic evidence under the abuse of discretion standard. State v. Knecht, 1997 SD 53, ¶ 7, 563 N.W.2d 413, 417.

[¶ 12.] To begin, we note when a defendant pleads not guilty, the State has the burden of proving every element of the crime. State v. Mollman, 2003 SD 150, ¶ 17, 674 N.W.2d 22, 28. The State has the right to present its case in any manner it sees fit so long as it stays within the evidentiary rules, and "[w]e have consistently held that the State is not bound by a defendant's offer to stipulate to facts." Id., ¶ 18. In this case, because one of the charges against Herrmann was rape, the State had the burden of proving penetration. In order to show penetration, the State offered photographs of P.V.'s injuries obtained from the medical exam conducted shortly after she was found. A trial court may admit photographs into evidence if they "`accurately portray anything that a witness may describe in words' or they are `helpful in clarifying a verbal description of objects and conditions.'" Id., ¶ 16 (quoting State v. Owens, 2002 SD 42, ¶ 89, 643 N.W.2d 735, 756-57). The trial court found the photographs at issue would be helpful to the jury in understanding the medical testimony of Dr. Kaplan. In fact, Dr. Kaplan testified that non-medically trained individuals might not even be able to tell there were injuries depicted in the video without sufficient medical explanation. Given Dr. Kaplan's testimony and considering the State's ability to present its evidence in the manner it sees fit, we believe the photographic evidence was relevant in order to show penetration.

[¶ 13.] Under SDCL 19-12-3 (Fed R Evd 403) a trial court may refuse to allow relevant evidence that is unfairly prejudicial...

To continue reading

Request your trial
18 cases
  • State v. Blair
    • United States
    • Supreme Court of South Dakota
    • August 16, 2006
    ...17 (quoting Gehrke, 491 N.W.2d at 423)). Thus, this Court will rarely overturn a sentence within the statutory maximum on appeal. State v. Herrmann, 2004 SD 53, ¶ 26, 679 N.W.2d 503, 511 (citing Garber, 2004 SD 2, 28, 674 N.W.2d at [¶ 21.] However, when a defendant challenges a sentence on ......
  • State v. Lassiter
    • United States
    • Supreme Court of South Dakota
    • January 12, 2005
    ...held that the State is entitled to establish each element of the crime in its own manner within recognized rules of evidence. State v. Herrmann, 2004 SD 53, ¶ 12, 679 N.W.2d 503, 507. When a defendant enters a complete denial to a charged offense which contains an intent element, the state ......
  • State v. Saucier
    • United States
    • Supreme Court of Connecticut
    • July 17, 2007
    ...Perry v. Alessi, 890 A.2d 463, 470 (R.I.2006); Floyd v. Floyd, 365 S.C. 56, 81-82, 615 S.E.2d 465 (Ct.App.2005); State v. Herrmann, 679 N.W.2d 503, 507 (S.D. 2004); State v. Saylor, 117 S.W.3d 239, 247-48 (Tenn.2003), cert. denied, 540 U.S. 1208, 124 S.Ct. 1483, 158 L.Ed.2d 133 (2004); Zuli......
  • People v. Edwards
    • United States
    • Court of Appeals of Colorado
    • July 15, 2004
    ...261 Mich.App. 624, 683 N.W.2d 687 (2004)(plain error); State v. Pullen, 594 S.E.2d 248 (N.C.Ct.App.2004)(plain error); State v. Herrmann, 679 N.W.2d 503 (S.D.2004)(harmless error); Brooks v. State, 132 S.W.3d 702 (Tex.App.2004)(harmless We recognize that the standard for determining whether......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT