State v. Buchhold

• Decision Date: 31 January 2007
• Docket Number: No. 23839.,23839.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Ralph BUCHHOLD, Defendant and Appellant.
• Court: South Dakota Supreme Court

727 N.W.2d 816

2007 SD 15

STATE of South Dakota, Plaintiff and Appellee, v. Ralph BUCHHOLD, Defendant and Appellant.

No. 23839.

Supreme Court of South Dakota.

Argued August 30, 2006.

Decided January 31, 2007.

Lawrence E. Long, Attorney General, Steven R. Blair, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Brian L. Utzman, Alan L. Smoot, Smoot & Utzman, Rapid City, South Dakota, Attorneys for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] Ralph Buchhold (Buchhold) was convicted by a jury of one count of second degree rape, six counts of third degree rape, and four counts of sexual contact with a child under the age of sixteen. He was sentenced to 25 years in the state penitentiary on the second degree rape count and 15 years on each of the third degree rape and sexual contact counts. The sentences are to be served consecutively. We affirm.

FACTS AND PROCEDURE

[¶ 2.] A child, (hereinafter referred to as A.B.), was born to Ralph and Kathleen Buchhold on August 22, 1988. During the initial years of A.B.'s life, Buchhold was largely absent from the home. He served overseas as an active duty member of the United States Air Force.

[¶ 3.] Buchhold was discharged from the Air Force on January 1, 1995. At that time he joined his family in Rapid City, South Dakota. During the next few years, A.B., who was seven when her father returned from the Air Force, enjoyed a fairly normal upbringing. The Buchholds welcomed a second daughter into their family in 1998.

[¶ 4.] A.B.'s life began to change in 1999, after her eleventh birthday. During this time, A.B.'s father, Buchhold, began to make sexual advances towards her. This started when Buchhold came into A.B.'s room one day and began touching her in the breast area on the outside of her clothes. Although A.B. did not understand the inappropriateness of the act at this time, it made her uncomfortable. She attempted to slide away from Buchhold. Buchhold persisted and once again made inappropriate contact with A.B. on the outside of her clothes. This initial episode ended when Buchhold left A.B.'s room after she yelled at him and shoved him away.

[¶ 5.] The first encounter was followed by another in A.B.'s bedroom where Buchhold placed his hands inside A.B.'s pants. Buchhold told A.B. at this time that she was made for his pleasure. This episode again ended when A.B. shoved Buchhold away.

[¶ 6.] Following these initial episodes, A.B. told her mother, Kathleen, about what her father had been doing to her. Kathleen confronted Buchhold about the allegations, but came away from the meeting distrusting A.B. After this meeting, Buchhold told A.B. that if she would keep her mouth shut the sexual advances would not happen again. However, within a short period of time Buchhold's behavior resumed and his sexual advances became more extreme.

[¶ 7.] A.B. was still eleven years old the first time she was raped by her father. Buchhold ordered A.B. into his room where he removed A.B.'s clothes and forced her, kicking and crying, to have vaginal sex with him. A.B. continued to cry complaining about the pain that the penetration was causing her. Buchhold dismissed A.B.'s pleas and finally subdued her struggling by squeezing his hand around her throat until she ceased.

[¶ 8.] Thus, began an ordeal for A.B. that lasted four years. During this period, Buchhold's rape and sexual abuse of his daughter escalated to an almost daily occurrence. It was not until A.B. was 15 that she was able to overcome her fear and humiliation in order to report the abuse from Buchhold. On December 13, 2003, a Rapid City police officer was dispatched to the Buchhold residence in response to a reported rape.

[¶ 9.] On February 12, 2004, Buchhold was indicted by a Pennington County Grand Jury on one count of second degree rape, six counts of third degree rape and four counts of sexual contact with a minor. A warrant was immediately issued for Buchhold's arrest. Aware that he was about to be arrested, Buchhold left South Dakota to do a "photo shoot." He traveled to various places under an assumed name. A Canadian by birth, he tried to arrange the purchase of a home in Canada under the name Thomas Keyes. Before he reached Canada, however, he was apprehended in New Jersey on May 14, 2004.¹ Buchhold made his initial appearance on all charges before a Pennington County Magistrate on June 24, 2004. His trial commenced on July 13, 2005.

[¶ 10.] During the trial, A.B. testified to at least ten separate instances of rape or sexual contact perpetrated upon her by her father. In addition A.B. testified that from 1999 through 2003, like instances of rape and sexual contact escalated from a once or twice weekly occurrence to as frequent as every other day or almost daily. Dr. Lori Strong, a pediatrician specializing in the treatment of children who suffer sexual and other physical abuse, testified on direct examination by the State that a vaginal examination of A.B. revealed a hymenal irregularity. The doctor asserted that this irregularity could not have existed from birth and was not attributable to any sort of natural infirmity such as a urinary tract infection. In Dr. Strong's opinion A.B.'s hymenal irregularity was due to a penetration injury. She stated that this kind of injury was consistent with someone experiencing a history of sexual abuse like that relayed by A.B.

[¶ 11.] Prior to trial, the State gave notice of its intent to elicit testimony about statements of a sexual nature allegedly made to other young women by Buchhold. The circuit court ruled that the statements would not be admissible since they were not similar to the charges Buchhold faced; thus, being unduly prejudicial and not evidence of motive, opportunity, intent, preparation, or absence of mistake or accident in relation to the charges. See SDCL 19-12-5 (Rule 404(b)).

[¶ 12.] During the trial, the State played a videotape of an interview of Buchhold conducted by Pennington County Sheriff's Deputy, Misti Walker. Due to a redaction error the jury was allowed to hear a portion of the videotape that included the statement from Walker to Buchhold, "Her friends say that you make these sexual com —. . . ." Defense counsel moved for a mistrial contending that the intent of the court's ruling at the Rule 404(b) hearing had been violated. The circuit court denied the motion on the ground that the fragmentary statement did not violate the intent of the Rule 404(b) ruling and thus was not unduly prejudicial to Buchhold's ability to have a fair trial.

[¶ 13.] Following the conclusion of the first day of the trial, Buchhold was escorted from the courtroom by a uniformed deputy sheriff. He was apparently placed in restraints in preparation for transport back to the Pennington County jail after leaving the courtroom. He was then taken by the deputy to await an elevator. Before Buchhold could board the elevator, four jurors, who had inadvertently been excused, saw him shackled under the supervision of the deputy. Though defense counsel did not ask for a mistrial, he did discuss the incident with the circuit court. The circuit court, aware of the incident, noted that the jurors had immediately returned to the courtroom without any resulting effect. Considering there to be no prejudicial consequence to Buchhold, the judge dismissed the incident.

[¶ 14.] Finally, during closing arguments, the state's attorney recalled for the jury the testimony of Dr. Strong. He specifically recounted the doctor's discussion about the hymenal irregularity. The state's attorney reiterated Dr. Strong's contention that the irregularity was consistent with what one might find in a child who had been the victim of prolonged sexual abuse. He concluded this discussion by stating that it was another piece of the puzzle and convincing evidence beyond a reasonable doubt that rape had occurred. Defense counsel had no objection to the state's attorney's statement.

[¶ 15.] Buchhold was found guilty on all eleven counts on July 14, 2005. On September 6, 2005, he was given the maximum sentence on all counts to be served consecutively; thus, totaling 175 years.

[¶ 16.] On appeal, Buchhold raises six issues:

1. Whether Buchhold was properly convicted of and sentenced on the mutually exclusive crimes of third degree rape and sexual contact with a minor under the age of sixteen.

2. Whether sentencing Buchhold to the maximum allowable on each count, to be served consecutively, constitutes cruel and unusual punishment.

3. Whether the statutory 180-day rule was violated.

4. Whether the circuit court erred when it failed to grant Buchhold's motion for a mistrial when the State failed to redact portions of a videotape that was shown to the jury.

5. Whether Buchhold's ability to have a fair trial was unduly prejudiced when members of the jury saw him in restraints while in the custody of a sheriff's deputy.

6. Whether the state's attorney committed prosecutorial misconduct when referencing expert testimony during closing arguments.

STANDARD OF REVIEW

[¶ 17.] "In determining the sufficiency of the evidence on review, the question presented is whether there is evidence in the record which, if believed by the fact finder, is sufficient to sustain a finding of guilt beyond a reasonable doubt." State v. Lewandowski, 463 N.W.2d 341, 343-44 (S.D.1990). This Court reviews sentencing within statutory limits under the abuse of discretion standard. State v. McKinney, 2005 SD 73, ¶ 10, 699 N.W.2d 471, 476 (citing State v. Goodroad, 1997 SD 46, ¶ 40, 563 N.W.2d 126, 135 (citing State v. Anderson, 1996 SD 46, ¶ 30, 546 N.W.2d 395, 402)). "We give `great deference to sentencing decisions made by trial courts.'" State v. Garber, 2004 SD 2, ¶ 13, 674 N.W.2d 320, 323 (quoting State v. Milk, 2000 SD 28, ¶ 10, 607 N.W.2d 14, 17 (citing State v. Gehrke, 491 N.W.2d 421, 422 (S.D.1992))). However, when a defendant challenges a sentence on Eighth...