State v. Dillon, No. 21308.

• Court: Supreme Court of South Dakota
• Writing for the Court: KONENKAMP, Justice.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Farrell DILLON, Defendant and Appellant.
• Decision Date: 25 July 2001
• Docket Number: No. 21308.

632 N.W.2d 37
2001 SD 97

STATE of South Dakota, Plaintiff and Appellee,
v.
Farrell DILLON, Defendant and Appellant

No. 21308.

Supreme Court of South Dakota.

Considered on Briefs on January 8, 2001.

Decided July 25, 2001.

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Mark Barnett, Attorney General, Michele K. Bennett, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and appellee

Lelia L. Hood, Pierre, SD, Attorney for defendant and appellant.

KONENKAMP, Justice.

[¶ 1.] A jury found the defendant guilty on five counts of first degree rape and three counts of criminal pedophilia. In

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three instances, the same act of sexual penetration resulted in convictions for both pedophilia and rape. We conclude that a conviction on each offense for the same act violated the double jeopardy prohibitions in the United States and South Dakota Constitutions. We affirm in part, reverse in part, and remand for resentencing

Background

[¶ 2.] Farrell Dillon, the defendant, stood trial on four counts of first degree rape and three counts of criminal pedophilia for conduct committed on July 10, 1998, and three counts of first degree rape and two counts of criminal pedophilia for conduct committed on September 11, 1998.¹ He was charged with perpetrating these acts in his home against his daughter, K.D., and four of her friends, L.R., N.R., T.T., and S.R.B.

[¶ 3.] The matter surfaced on October 4, 1998. L.R. and N.R's mother asked seven-year-old N.R. if she would like to spend the night at K.D.'s home. L.R. began to cry, saying she did not want to go. The mother thought this strange because L.R. had stayed with K.D. many times before. The next day, the mother asked her eight-year-old daughter, N.R., what was wrong with her sister. N.R. responded that on the night of the school party Dillon had "tried to put his thing in [N.R.]" when she and her sister spent the night. N.R. also said that it happened to L.R. and to K.D. as well. The mother called the police.²

[¶ 4.] Officer Cathy Coffield interviewed L.R. and N.R. separately. Coffield learned that the school party occurred on September 11, 1998. L.R. told Coffield that after the party, L.R. and N.R. spent the night at K.D.'s. She reported that K.D.'s father "put his thing in mine." L.R. explained that this happened in Dillon's bedroom and that K.D. had taken L.R. and N.R. into his bedroom one at a time. L.R. told the officer that it also happened to her sister and K.D. Officer Coffield then spoke with N.R., who confirmed that these acts took place in Dillon's bedroom. N.R. told the officer that both K.D. and her sister, L.R., were present. L.R., on the other hand, said she was in another room when it happened to N.R. N.R. confirmed that K.D. had brought her into Dillon's bedroom and that "he did it." N.R. would not elaborate on what she meant.

[¶ 5.] Detective Sue Fox along with Deb Horan of the Department of Social Services first interviewed eight-year-old K.D. at her elementary school. Fox explained to K.D. that she wanted to talk about some things N.R. and L.R. had revealed. Horan later testified that K.D. "was very reluctant to talk to us." She described K.D.'s diffident response to questions about sexual contact: "When we would say those terms, she would almost go into the fetal position, covering up her entire face but one eye." Horan contrasted the child's earlier demeanor when she first entered the interview room: she was happy, upbeat, and friendly. K.D. would only discuss the time that L.R. and N.R. had stayed overnight and consistently said that L.R. went first, N.R. went second, and she went last.

[¶ 6.] Fox interviewed K.D. using pictures of a boy and a girl. By marking the

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pictures, K.D. indicated that Dillon's penis contacted L.R.'s genitalia and that he touched N.R. and K.D. in the same manner on the buttocks. In a later interview, K.D. would only say that Dillon "did sex" with the three girls and would not speak further with Fox or Horan. As Horan took K.D. back to her class, K.D. explained that she had not lied and that Dillon had touched her, L.R. and N.R

[¶ 7.] Fox interviewed L.R. on October 7, 1998.³ L.R. said that Dillon had tried to put "his private in her private." She also told Fox that "it hurt, felt gross, felt sickening." L.R. remarked that this had occurred on another occasion when she spent the night on K.D.'s birthday. On that night, Dillon had done the same thing to her and to K.D., N.R., T.T., and S.R.B. At the end of the interview, however, she said she had lied and that N.R. had not been at Dillon's home on the night of K.D.'s birthday party. Fox interviewed each of the girls, and all but T.T. stated, in their own words, that Dillon had put his penis in their vaginal area. T.T. consistently denied that this happened to her, although the other girls testified that Dillon had perpetrated the same type of contact on her.

[¶ 8.] At trial, N.R. testified that on September 11, 1998, Dillon "put his penis into my crotch." She explained that this happened in his bedroom and that L.R. and K.D. were also there. S.R.B. told the jury that Dillon had "touched [her] between her legs," and on cross-examination she affirmed that Dillon's penis had gone inside her and that it had hurt. T.T. testified by using pictures, indicating that Dillon had touched L.R. and K.D. with his penis. She called this "bunning." K.D. also testified with the assistance of diagrams. She explained that "Farrell" had touched her with his penis where she went to the bathroom. She also said that she saw this happen to L.R. and N.R.

[¶ 9.] Dillon took the stand and denied all allegations. He testified that the girls' stories were inventions, molded with the aid of law enforcement, social workers, psychologists, and doctors. He also said that his daughter, K.D., is "slow" and easily susceptible to the influence of her friends. Dillon's grandmother, who lives in the same house, confirmed that no impropriety occurred on the nights the girls stayed over. Dillon's experts testified that it would be unusual for a molester to perpetrate sexual abuse in front of other children or to have other children participate. Using the term "confabulation," one expert explained that children might give interviewers "the information they want as subsequent to the questions that are directed to them."

[¶ 10.] The jury convicted Dillon of the following charges. For the July 10, 1998 incident he was convicted of first degree rape involving K.D. and S.R.B.; he was also convicted of criminal pedophilia for his contact with S.R.B. On the September 11, 1998, allegations, he was convicted of first degree rape involving K.D., L.R., and N.R.; he was also convicted of criminal pedophilia for his contact with L.R. and N.R. The jury found him not guilty of charges relating to sexual contact with T.T. He was also acquitted of crimes against L.R. on July 10, 1998. He was sentenced to a total of 175 years, twenty years for each first degree rape conviction and twenty-five years for each criminal pedophilia conviction. All sentences were to run consecutively. Dillon appeals.

1. Double Jeopardy

[¶ 11.] Dillon contends that with a single act of sexual penetration, his convictions

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for both criminal pedophilia and first degree rape constitute multiple punishments violating the prohibition on double jeopardy. See State v. Augustine, 2000 SD 93, ¶ 11, 614 N.W.2d 796, 797 (citations omitted). The State responds that Dillon waived any double jeopardy challenge by failing to raise it below. Even a fundamental right may be deemed waived if it is raised for the first time on appeal. State v. Henjum, 1996 SD 7, ¶ 13, 542 N.W.2d 760, 763.

[¶ 12.] Nonetheless, because of the length of the sentences and the likelihood the question will arise again, we address this issue under the plain error rule and the doctrine allowing courts to rectify constitutional error. See SDCL 23A-44-15 (plain error rule). See State v. Morato, 2000 SD 149, ¶ 27, 619 N.W.2d 655, 663 (citing State v. Nelson, 1998 SD 124, ¶ 7, 587 N.W.2d 439, 443). A finding of plain error requires (1) error, (2) that is plain, (3) affecting substantial rights; and only then may we exercise our discretion to notice the error if (4) it "seriously affects the fairness, integrity, or public reputation of judicial proceedings." State v. Robinson, 1999 SD 141, ¶ 17, 602 N.W.2d 730, 735 (quotations in original). When an asserted error implicates an infringement of a constitutional right, we employ a de novo standard of review. State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488.

[¶ 13.] The Double Jeopardy Clause of the Fifth Amendment declares that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." South Dakota's Constitution provides that "No person shall ... be twice put in jeopardy for the same offense." SD Const. Art. VI, § 9. These provisions shield criminal defendants from both multiple prosecutions and multiple punishments for the same criminal offense if the Legislature did not intend to authorize multiple punishments in the same prosecution. United States v. Dixon, 509 U.S. 688, 735, 113 S.Ct. 2849, 2876, 125 L.Ed.2d 556 (1993); Augustine, 2000 SD 93, ¶ 11, 614 N.W.2d at 797.

[¶ 14.] Ultimately, when the same act violates two statutory provisions, whether one act is punishable as separate offenses raises a question of legislative intent. See Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 2411, 85 L.Ed.2d 764 (1985). Established double jeopardy jurisprudence confirms that the Legislature may impose multiple punishments for the same conduct without violating the Double Jeopardy Clause if it clearly expresses its intent to do so. See id. at 778-79, 105 S.Ct. at 2411-12, 85 L.Ed.2d 764. For example, in Gore v. United States, the Supreme Court upheld three consecutive sentences based on a single illicit drug sale that violated three statutes...