State v. Grey Owl, 13338

• Citation: 316 N.W.2d 801
• Decision Date: 02 October 1981
• Docket Number: No. 13338,13338
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Melvin Grey OWL, Defendant and Appellant. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 801

316 N.W.2d 801

STATE of South Dakota, Plaintiff and Appellee, v. Melvin Grey OWL, Defendant and Appellant.

No. 13338.

Supreme Court of South Dakota.

Considered on Briefs Oct. 2, 1981.

Decided March 10, 1982.

LeAnn Larson Finke, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

Max A. Gors of Maher, Gors & Dean, Pierre, for defendant and appellant.

HENDERSON, Justice.

ACTION

Melvin Grey Owl (appellant) appeals from a judgment of conviction, based on a jury verdict, of attempted rape and attempted incest. We affirm.

PROCEDURAL HISTORY

This case is before us for the second time. In State v. Grey Owl, 295 N.W.2d 748 (S.D.1980) (hereinafter referred to as Grey Owl I ) we reversed appellant's conviction of attempted rape and attempted incest because the trial court failed to instruct the jury with respect to the impeachment of the victim's testimony by a prior inconsistent statement.

Appellant was subsequently retried on the same charges. Again, the jury found appellant guilty as charged. The trial court sentenced appellant to five years imprisonment for the attempted rape conviction and one year imprisonment for the attempted incest conviction, the sentences to run concurrently. The judgment provided: " * * * and it is further ORDERED, that [appellant] be given credit for all days he has spent in the Hughes County Jail or the South Dakota State Penitentiary for prior proceedings relating to these offenses."

FACTS

The facts elicited at trial were essentially the same as those set forth in Grey Owl I at 748-750. For purposes of this appeal, the following synoptical factual recitation is sufficient.

The victim is the niece of appellant. According to her testimony, appellant and his children were spending the night at her trailer home when, after retiring, she awoke to find appellant leaning over her. The victim was clad only in a summer shirt, although she testified that she was also wearing a pair of summer shorts when she fell asleep. According to the victim, appellant was naked during an attack upon her. She testified that appellant placed his knee between her knees and tried to get on top of her and implored her to accept his advances; that she struggled to get up and he then forcibly pushed her back down; and that she finally struggled free. The victim then fled to neighbors Arlette All Around and Ronnie McBride. These three then returned to the victim's trailer but found no sign of appellant. The police were called and an inspection of Appellant pleaded an alibi defense. Thelma Grey Owl, appellant's sister, testified that appellant had spent the night in her home (which was located approximately 46 miles from the victim's trailer) and was with her at the time the victim was allegedly attacked. Ms. Grey Owl also testified that appellant and his children arrived at her home a few minutes past 11 p.m. the night in question, while the victim testified that the attack occurred at approximately 12:30 a. m.

the interior of the victim's trailer was made. Appellant was once again not found.

At trial, appellant's niece testified that the victim had told her that it was not true that appellant had tried to rape her. The victim admitted making this statement in an attempt to squelch any gossip pertaining to the incident.

ISSUES

I.

Did the retrial of appellant on the charge of attempted incest violate his constitutional right against double jeopardy? We hold that it did not.

II.

Was there sufficient evidence presented at trial to support the verdict of the jury? We hold that there was.

III.

Did the trial court err by refusing certain jury instructions submitted by appellant? We hold that it did not.

DECISION

I.

Appellant contends that the trial court erred by denying his motion to dismiss the attempted incest charge due to the completion of his sentence for that crime, as per the original judgment. On September 27, 1979, at the conclusion of the trial in Grey Owl I, appellant was sentenced to one year for attempted incest and immediately thereafter began his period of incarceration. This Court reversed appellant's conviction on September 3, 1980. Under SDCL 24-5-1, ¹ then, appellant had served his time of imprisonment under the attempted incest conviction at the time his conviction was overturned.

Double jeopardy is the basis of appellant's contention. The United States Constitution, Amend. V, provides that "[n]o person shall ... be subject for the same offense to be twice put in jeopardy of life or limb[.]" Article VI, Sec. 9 of the South Dakota Constitution provides: "No person shall ... be twice put in jeopardy for the same offense." Although this Court reversed appellant's conviction in Grey Owl I, this does not prevent the State from retrying him on the same charges. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); accord United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978); State v. Percy, 81 S.D. 519, 137 N.W.2d 888 (1965).

The constitutional guaranty against double jeopardy does three things: (1) it protects against a second prosecution for the same offense after acquittal, Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); (2) it protects against a second prosecution for the same offense after conviction, In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889); and (3) it protects against multiple punishments for the same offense, United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931). It is this third double jeopardy prohibition which appellant argues prevents the State from retrying him for attempted incest.

Appellant maintains that the United States Supreme Court has impliedly held that a defendant may not be retried for an offense when, under the original conviction, he has completely satisfied the sentence for that particular crime. The language appellant relies upon is found in United States v. Ewell, 383 U.S. 116, 121, 86 S.Ct. 773, 777, 15 L.Ed.2d 627, 631 (1966), wherein the Court stated: "It has long been the rule that when a defendant obtains a reversal of a prior, unsatisfied conviction, he may be retried in the normal course of events."

Three years later the U. S. Supreme Court expounded upon this area more fully in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In Pearce, the Court stated (footnote omitted):

We think it is clear that this basic constitutional guarantee [of double jeopardy] is violated when punishment already exacted for an offense is not fully "credited" in imposing sentence upon a new conviction for the same offense.

....

We hold that the constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully "credited" in imposing sentence upon a new conviction for the same offense.

Id. at 718-719, 89 S.Ct. at 2077, 23 L.Ed.2d at 665. Here, the trial court specifically gave appellant credit for the time he had already served in prison.

Upon retrial, it is permissible to impose a greater sentence on reconviction of a defendant than was imposed on the original conviction provided that there are legitimate reasons for the increase, such as an unfavorable prison record or an updated pre-sentence investigation. ² North Carolina v. Pearce, supra; see also Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).

Even though appellant was sentenced to serve the same term of imprisonment on the attempted incest conviction as imposed in Grey Owl I, under the applicable statutes he could have received a prison sentence of five years upon reconviction. SDCL 22-4-1(1); SDCL 22-22-19; SDCL 22-6-1(5). Any increase in sentence, of course, would have had to comply with the provisions of North Carolina v. Pearce, supra, and Williams v. New York, supra.

Hence, we hold that appellant was not subjected to double jeopardy due to the potential increase in sentence which the trial court could have imposed when appellant was reconvicted of attempted incest plus the fact that he was fully credited for the time he had already served on this charge.

II.

Appellant secondly contends that the uncorroborated testimony of the victim was insufficient to sustain the jury's guilty verdict because the victim's testimony was improbable and fairly impeached. Essentially, appellant argues that there was insufficient evidence to support the verdict.

In determining the sufficiency of evidence on appeal the test is whether or not there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilty beyond a reasonable doubt. In making this determination, this court will accept that evidence and the most favorable inferences that can be fairly drawn therefrom which will support the verdict.

State v. Wilson, 297 N.W.2d 477, 480 (S.D.1980); see State v. Lien, 305 N.W.2d 388 (S.D.1981); State v. Brammer, 304 N.W.2d 111 (S.D.1981).

In South Dakota it is not essential to a sexual offense conviction that the testimony of the victim be corroborated by other evidence. State v. Goff, 86 S.D. 354, 195 N.W.2d 521 (1972); see also SDCL 23A-22-15.1. The exception to this principle is stated in State v. Dachtler, 43 S.D. 407, 411, 179 N.W. 653, 653 (1920), cited with approval in State v. Fulks, 83 S.D. 433, 160 N.W.2d 418 (1968):

[A] person may be convicted of the crime of rape upon the uncorroborated testimony of the complaining witness, yet ... this cannot be rightfully done where, from the whole record, it appears that such testimony is unreliable, improbable, or where such witness has been fairly impeached[.]

There is no doubt that the victim's testimony in this case was impeached. Accordingly, the testimony of the victim must be corroborated to create sufficient evidence for the case to be submitted to the jury.

Several witnesses testified to circumstances which support the victim's...