State Dakota v. Bruce

• Decision Date: 06 April 2011
• Docket Number: No. 25618.,25618.
• Citation: 2011 S.D. 14,796 N.W.2d 397
• Parties: STATE of South Dakota, Plaintiff and Appellee,v.Troy BRUCE, Defendant and Appellant.
• Court: South Dakota Supreme Court

796 N.W.2d 397

2011 S.D. 14

STATE of South Dakota, Plaintiff and Appellee,

v.Troy BRUCE, Defendant and Appellant.

No. 25618.

Supreme Court of South Dakota.

Considered on Briefs Jan. 10, 2011.Decided April 6, 2011.

Marty J. Jackley, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.Jack C. Magee of Magee Law Office, LLC, Pierre, South Dakota, Al Arendt, Pierre, South Dakota, Attorneys for defendant and appellant.

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 maximum sentences 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 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.

4. Whether maximum sentences 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, 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 to have 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 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 prior sexually charged 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.

[¶ 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, 194, 297 S.E.2d 9, 15 (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 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. Because Bruce has identified no violation of his statutory or constitutional rights, he has no basis to appeal the testing process or procedures used in this case.

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...