State v. Chernotik

• Citation: 2003 SD 129,671 N.W.2d 264
• Decision Date: 22 October 2003
• Docket Number: No. 22304.,22304.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Charles CHERNOTIK, Defendant and Appellant.
• Court: Supreme Court of South Dakota

671 N.W.2d 264

2003 SD 129

STATE of South Dakota, Plaintiff and Appellee, v. Charles CHERNOTIK, Defendant and Appellant.

No. 22304.

Supreme Court of South Dakota.

Considered on Briefs January 13, 2003.

Reassigned May 7, 2003.

Decided October 22, 2003.

Lawrence E. Long, Attorney General, Becky Janssen, Assistant Attorney General, Pierre, for plaintiff and appellee.

Steven R. Smith, Andera & Smith Law Firm, Rapid City, for defendant and appellant.

ZINTER, Justice (on reassignment).

[¶ 1.] Charles Chernotik was convicted of raping his stepbrother, J.C., in the family hot tub at J.C.'s home in Chamberlain. Chernotik appeals claiming error in (1) amending the complaint after the statute of limitations expired, and (2) in introducing other acts evidence. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] J.C. was interviewed by the Department of Social Services, the Sheriff's office, and the Chamberlain Police Department on April 24, 2001. That interview occurred two days before J.C.'s twenty-fifth birthday, which was also two days before the statute of limitations was to expire on the crime at issue in this case. In the interview, J.C. disclosed a course of sexual molestation perpetrated upon him by Chernotik. The molestation began when J.C. was approximately five years old and continued until he was sixteen.

[¶ 3.] On April 25, 2001, the day before J.C.'s twenty-fifth birthday and the day before the statute of limitations was to expire, the State filed a complaint against Chernotik. Count III alleged the crime of rape in violation of SDCL 22-22-1. Rape can occur under seven different "circumstances" according to this statute.¹ Count III alleged that this rape occurred by fellatio with J.C. under forcible circumstances as described in subdivision (2) of SDCL 22-22-1. Count III specifically alleged that Chernotik:

Did perform sexual penetration on another through the use of force, coercion or threat of immediate and great bodily harm against the victim, to-wit: did perform fellatio upon J.C., date of birth being April 26, 1976, through the use of threat or intimidation during the calendar year 1995 in Chamberlain, South Dakota, in violation of SDCL 22-22-1(2).

The factual incident underlying Count III involved an act of fellatio with J.C. in his parents' hot tub at their home in Chamberlain. The incident is hereinafter referred to as "the hot tub incident."

[¶ 4.] On May 30, 2001, about a month after the statute of limitations expired, the State filed two amendments to Count III. The first amendment changed the alleged date of the offense from 1995 to "on or between May 1990." The second amendment changed the "circumstances" alleged. It still charged rape in the hot tub incident, but it changed the circumstance to that described in subdivision (5) of SDCL 22-22-1.² Rape committed under that circumstance is commonly referred to as statutory rape.

[¶ 5.] On June 4, 2001, the court conducted a preliminary hearing. J.C. testified that he was forced to perform the fellatio on Chernotik in the hot tub incident in November 1986.³ To conform the charge to J.C.'s testimony concerning this date, the State again amended Count III to allege that the date of the offense was "on or about 1986."

[¶ 6.] Chernotik objected to these amendments and moved to dismiss Count III on the ground that the statute of limitations had expired before the amendments were made. The statute of limitations at issue provided that an action for rape "may be commenced at any time prior to the time the victim becomes age twenty-five or within seven years of the commission of the crime, whichever is longer." SDCL 22-22-1. Although Chernotik was originally charged one day before J.C.'s twenty-fifth birthday, Chernotik contends that the charge was not timely because the amendments were made after the statute of limitations had expired on J.C.'s twenty-fifth birthday.

[¶ 7.] Chernotik also objected to "other acts" evidence involving J.C. and another victim. The other victim, C.O., was J.C.'s sister and Chernotik's stepsister. The acts involving C.O. began in the summer of 1978 when C.O. was seven and Chernotik was twelve. C.O. was awakened during the night to find Chernotik taking off her swimsuit bottom. She disclosed that Chernotik digitally penetrated her, fondled her and himself, put his genitals in her face, and rubbed himself on her. She testified that similar acts occurred for the next seven years. Chernotik was not charged with the offenses against C.O. because the statute of limitations had expired. The trial court allowed the other acts to prove a common plan or scheme, absence of mistake or accident, and proof of motive, intent, opportunity, knowledge, continuing course of conduct and identity.

[¶ 8.] The trial evidence reflected that the hot tub incident occurred in the fall of 1986 when J.C. was ten and Chernotik was nineteen years old. As at the preliminary hearing, J.C. testified that Chernotik undressed and followed J.C. into the hot tub at the family home. Chernotik then stimulated himself and forced J.C.'s mouth on Chernotik's penis. This continued for several minutes until Chernotik ejaculated into J.C.'s mouth, and Chernotik forced J.C. to ingest the semen. The jury found Chernotik guilty of the hot tub incident involving J.C. and not guilty on five other counts involving D.R., Chernotik's stepdaughter.

[¶ 9.] Chernotik raises two issues on appeal:

1. Whether the State could amend the complaint after the statute of limitations expired.

2. Whether the trial court erred in admitting other acts evidence.

DECISION

A Complaint, Amended After the Statute of Limitations Has Expired, May Relate Back.

[¶ 10.] Chernotik concedes that filing of the initial complaint on April 25, 2001, timely "commenced" a rape charge against him. See SDCL 23A-42-4 (stating that a charge is "deemed commenced by the filing of a complaint, information or indictment ..."). The question is whether the amendments of May and June 2001 charged a new offense that was barred by the statute of limitations, or, whether those amendments related back to the time of filing the original complaint. Chernotik argues that the amendments were substantive changes that were substantially different than the original charge. He also argues that original and amended charges were mutually exclusive. He therefore contends that the amendments did not relate back.

[¶ 11.] SDCL 23A-6-19 permits amendments, but does not address the relation back doctrine. It provides in part:

If trial has not commenced, a prosecuting attorney may amend an information to allege, or to change the allegations regarding, any offense arising out of the same alleged conduct of the defendant that gave rise to any offense alleged in the original information. If the change alleges a new offense, the defendant has the right to a preliminary hearing on the new offense.

Id. (emphasis added).

[¶ 12.] Here, the changes in the time and statutory circumstance of the rape arose "out of the same alleged conduct of the defendant," i.e., the hot tub incident. Moreover, the trial court offered Chernotik a continuance of the preliminary hearing. However, that offer was not accepted. Therefore, although Chernotik did not have a new preliminary hearing, he was given that opportunity and declined to exercise that statutory right.

[¶ 13.] Instead of exercising his right to another preliminary hearing, Chernotik argues that the amended complaint was barred by the statute of limitations. The State responds by arguing that the filing of the initial complaint unconditionally tolled the statute of limitations. We do not agree that the filing of the complaint unconditionally tolled the statute of limitations for all amendments. Instead, the statute of limitations is tolled, and amendments relate back to the filing of an initial complaint, if certain conditions are met.

[¶ 14.] Although "relation back" jurisprudence is a question of first impression in this Court, many other jurisdictions have addressed the issue. Those jurisdictions hold that when the government commences a prosecution by filing a timely charging document, the filing of an amendment after the statute of limitations has expired will not divest the court of jurisdiction unless the amendment broadens or substantially amends the original charges. See, e.g., United States v. Schmick, 904 F.2d 936, 940 (5thCir.1990)

; United States v. Elliott, 849 F.2d 554, 561 (11thCir.1988); United States v. Friedman, 649 F.2d 199, 204 (3dCir.1981); United States v. Grady, 544 F.2d 598, 601-02 (2dCir.1976); State v. Almeda, 211 Conn. 441, 560 A.2d 389, 392 (1989); Benitez v. State, 111 Nev. 1363, 904 P.2d 1036, 1036 (1995). We agree with these authorities.

[¶ 15.] Under this relation back test, we first determine whether these amendments broadened the original charge. SDCL 22-22-1 defines rape as "an act of sexual penetration accomplished with any person under any of [seven] circumstances...."⁴ Id. (emphasis added). Subsection (2) (forcible rape), is the circumstance originally pleaded. Under that circumstance, a rape occurs "[t]hrough the use of force, coercion, or threats of immediate and great bodily harm against the victim...." Subsection (5) (statutory rape), is the circumstance alleged in the amendments. Under that circumstance a rape occurs "[i]f the victim is ten years of age, but less than sixteen years of age, and the perpetrator is at least three years older than the victim...." Forcible rape is a Class 2 felony, punishable by up to twenty-five years imprisonment and a fine of $25,000. However, the amended charge of statutory rape is a Class 3 felony, punishable by up to fifteen years imprisonment and a fine of $15,000. SDCL §§ 22-22-1, 22-6-1. Thus, these amendments did not broaden the original charge to a more serious crime, but rather narrowed it to a less serious crime.⁵

[¶ 16.] Moreover, the incident charged in the amendments is not substantially...