State Of South Dakota v. Ronald Brim

• Decision Date: 15 September 2010
• Docket Number: No. 25439.,25439.
• Citation: 2010 S.D. 74,789 N.W.2d 80
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Todd Ronald BRIM, Defendant and Appellant.
• Court: South Dakota Supreme Court

789 N.W.2d 80

2010 S.D. 74

STATE of South Dakota, Plaintiff and Appellee,

v.Todd Ronald BRIM, Defendant and Appellant.

No. 25439.

Supreme Court of South Dakota.

Argued Aug. 25, 2010.

Decided Sept. 15, 2010.

COPYRIGHT MATERIAL OMITTED.

Marty J. Jackley, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Mark Kadi, Minnehaha County Office of the Public Advocate, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

SEVERSON, Justice.

[¶ 1.] Todd Ronald Brim was convicted of ten counts of Rape in the Second Degree and five counts of Sexual Contact With a Child Under Sixteen. Brim appeals, raising four issues: whether the trial court (1) erred by denying his motion for judgment of acquittal; (2) erred by not properly admonishing the jury and venire at every recess and adjournment; (3) abused its discretion by not immediately excusing a juror with outside knowledge of the case; and, (4) abused its discretion by sentencing him to 325 years in the state penitentiary. We affirm on all issues.

BACKGROUND

[¶ 2.] At trial, evidence was presented that in March 2008, S.G. informed his mother that Brim had sexually abused him, his brother, and several neighborhood children for many years. S.G. met Brim, a neighbor and family friend, in 2004. S.G. and several neighborhood children frequently watched television, played computer games, and spent the night at Brim's house. Brim soon began touching S.G. on the shoulder or leg, and within a few months, the contact escalated to oral and anal sex. The sexual abuse took place not only at Brim's home, but also at Brim's workplace and several hotels in Sioux Falls. The abuse occurred nearly every weekend for four years until S.G. reached the age of sixteen.

[¶ 3.] In the course of their investigation, the police interviewed three neighborhood children that Brim allegedly abused. K.G., S.G.'s brother, reported that he met Brim in 2002 or 2003 when he was ten or eleven years old. The abuse, which included oral and anal sex, began sometime shortly thereafter, occurred nearly every weekend, and continued through May 2008. Like the others, R.H. began socializing with Brim when he was approximately ten years old. R.H. reported that Brim first engaged him in oral and anal sex when he was twelve or thirteen. R.H. alleged that the abuse occurred “too many [times] to count” and continued through May 2008. T.P. and J.P., brothers who lived in the same neighborhood, made similar allegations against Brim.

[¶ 4.] In May 2008, a Minnehaha County grand jury indicted Brim on eleven counts of Rape in the Second Degree and five counts of Sexual Contact With a Child Under Sixteen. The State later dismissed one count of Rape in the Second Degree. ¹ The case proceeded to trial in July 2009. S.G., K.G., R.H., T.P., and J.P. testified about the abuse in great detail, but were unable to provide dates specifying when the abuse occurred. At the close of the evidence, Brim's counsel made a motion for judgment of acquittal, which the trial court denied. The jury returned a guilty verdict on ten counts of Rape in the Second Degree and five counts of Sexual Contact With a Child Under Sixteen. Following a pre-sentence investigation, the trial court sentenced Brim to serve consecutive penitentiary sentences, totaling 325 years, for his multiple crimes.

ANALYSIS AND DECISION

[¶ 5.] 1. Whether the trial court erred by denying Brim's motion for judgment of acquittal.

[¶ 6.] Brim argues that the trial court erred by denying his motion for judgment of acquittal. “The denial of a motion for judgment of acquittal presents a question of law” that we review de novo. State v. Klaudt, 2009 S.D. 71, ¶ 14, 772 N.W.2d 117, 122 (citations omitted). In measuring the sufficiency of the evidence, we ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (citations omitted). “[W]e accept the evidence and the most favorable inferences fairly drawn therefrom, which will support the verdict.” State v. Jensen, 2007 S.D. 76, ¶ 7, 737 N.W.2d 285, 288 (citation omitted). “Moreover, the jury is the exclusive judge of the credibility of the witnesses and the weight of the evidence.” Id. (citations omitted). This Court will not resolve conflicts in the evidence, assess the credibility of witnesses, or evaluate the weight of the evidence. Id. (citations omitted).

[¶ 7.] Brim argues that the State did not meet its burden of proving beyond a reasonable doubt that the abuse occurred within a reasonable time of the dates charged in the indictment. The indictment charged eleven counts of Rape in the Second Degree: ² one count of rape against K.G. in 2004; five counts of rape against S.G. occurring in 2004, 2005, 2006, 2007, and May 2008; ³ and, five counts of rape against R.H. occurring in 2004, 2005, 2006, 2007, and May 2008. The indictment also charged five counts of Sexual Contact With a Child Under Sixteen: ⁴ one count of sexual contact with J.P. in 2002; one count of sexual contact with T.P. in 2002; and, three counts of sexual contact with K.G. in 2005, 2006, and 2007. Because the State presented limited evidence supporting the specific dates, Brim asserts that the trial court erred by denying his motion for judgment of acquittal.

[¶ 8.] It is not always possible to know when crimes involving sexual abuse of minors occurred. State v. Muhm, 2009 S.D. 100, ¶ 23, 775 N.W.2d 508, 515. “Children, especially those who suffer traumatic events, cannot always remember precise times and dates.” State v. Swan, 2008 S.D. 58, ¶ 21, 753 N.W.2d 418, 423.

Multiple sex offenses committed by adults upon ... children over a long period of time are very likely to result in an amalgamation of the crimes in the child's mind. The child is unlikely to be able to give any testimony approximating the date of any one separately describable offense even in the uncomplicated case. Where the number of offenses is so numerous even an adult would not be able to count them, the child's testimony will often be reduced to a general, and customarily abbreviated, recitation of what happened on a continuing basis.

Muhm, 2009 S.D. 100, ¶ 28, 775 N.W.2d at 517 (quoting People v. Jones, 51 Cal.3d 294, 313, 270 Cal.Rptr. 611, 792 P.2d 643, 653-54 (1990)).

[¶ 9.] This Court is thus “lenient in child sexual abuse cases where there are differences between the dates alleged in the indictment and those proven at trial.” Swan, 2008 S.D. 58, ¶ 12, 753 N.W.2d at 421 (citation omitted). Although an indictment should be as specific as possible, time is not a material element of crimes involving sexual abuse of minors. Muhm, 2009 S.D. 100, ¶¶ 23, 26, 775 N.W.2d at 515-16 (citing State v. Nuzum, 2006 S.D. 89, ¶ 18, 723 N.W.2d 555, 559; State v. Basker, 468 N.W.2d 413, 417 (S.D.1991)). See Swan, 2008 S.D. 58, ¶ 12, 753 N.W.2d at 421 (citing State v. Darby, 1996 S.D. 127, ¶ 10, 556 N.W.2d 311, 316 (additional citation omitted)); State v. Smith, 1999 S.D. 83, ¶ 27, 599 N.W.2d 344, 351; State v. Floody, 481 N.W.2d 242, 247 (S.D.1992); State v. Wurtz, 436 N.W.2d 839, 842-43 (S.D.1989); State v. Swallow, 350 N.W.2d 606, 608 (S.D.1984). Therefore, “the fact [that] a crime was committed on a date different from the one alleged in the indictment is not fatal to the charge.” Swan, 2008 S.D. 58, ¶ 12, 753 N.W.2d at 421 (citation omitted). “Unless the defendant demonstrates that he was deprived of his defense because of a lack of specificity, this [Court's] policy of leniency governs.” Id. (citation omitted).

[¶ 10.] The lack of precise dates of the abuse did not deprive Brim of his defense. As in Muhm, Brim's defense was a complete denial of any sexual act occurring during the entire period of time covered by the indictment. See 2009 S.D. 100, ¶ 24, 775 N.W.2d at 515. He presented no alibi evidence, raised no statute of limitations defense, and did not argue that the State failed to establish the victims' ages at the time of the abuse. Instead, Brim attempted to undermine the victims' credibility by pointing out the inconsistencies in their stories and their inability to provide precise dates. See id. ¶ 35, 775 N.W.2d at 521. Thus, the essence of the trial was the credibility of the victims' testimony. See id. (citation omitted).

[¶ 11.] This question was within the exclusive province of the jury, and the jury resolved this basic credibility dispute against Brim. See id. (citation omitted). Evidence was presented that Brim engaged these children in oral or anal sex nearly every weekend for several years. Although the children were not able to provide exact dates of the abuse, they established their approximate age at the time of the abuse and described when the abuse occurred in relation to other events. At trial, the State presented dated receipts of Brim's weekend visits to Sioux Falls hotels where the abuse was alleged to have occurred. The State's eventual dismissal of Count X, which it could not prove occurred within a reasonable time of the date charged in the indictment, demonstrates its diligence in ensuring the accuracy of the indictment. See supra ¶ 4 n. 1. The victims' testimony and the evidence presented at trial were consistent with the dates charged in the indictment, and the precise dates of the abuse were not critical to the issues in this case. We conclude that the trial court did not err by denying Brim's motion for judgment of acquittal.

[¶ 12.] 2. Whether the trial court erred by not properly admonishing the jury and venire at every recess and adjournment.

[¶ 13.] Brim argues that the trial court erred by not admonishing the first panel of venirepersons to avoid contact with the media. ⁵ But before the parties exercised their peremptory challenges, the trial court provided defense counsel the opportunity to inquire whether the...