State v. Lykken

• Decision Date: 28 May 1992
• Docket Number: No. 17478,17478
• Citation: 39 A.L.R.5th 879,484 N.W.2d 869
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. David Lee LYKKEN, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 869

484 N.W.2d 869

39 A.L.R.5th 879

STATE of South Dakota, Plaintiff and Appellee, v. David Lee LYKKEN, Defendant and Appellant.

No. 17478.

Supreme Court of South Dakota.

Argued Jan. 13, 1992.

Decided April 22, 1992.

Rehearing Denied May 28, 1992.

Mark Barnett, Atty. Gen., Wade A. Hubbard, Deputy Atty. Gen., Pierre, for plaintiff and appellee.

Lee M. McCahren, Vermillion, for defendant and appellant.

WUEST, Justice.

Appellant (Lykken) was charged by indictment with first-degree rape, kidnapping, first-degree burglary, and simple assault. Lykken was also charged with being an habitual offender. After a jury trial, Lykken was found guilty on all counts charged in the indictment. He admitted to being an habitual offender. After a lengthy sentencing hearing, the trial court sentenced Lykken to a total of 225 years imprisonment. The court filed its judgment of conviction and sentence. Lykken filed a motion for a new trial which was denied. Lykken appeals raising the following issues:

I. Whether the trial court erred in refusing to admit into evidence explicit photographs and a tape recording of prior sexual conduct between Lykken and D.H.

II. Whether the trial court erred in denying Lykken's motion to dismiss (1) the kidnapping count because any movement or confinement during the rapes was merely incidental to the rapes and (2) the rape charge based upon a perceived lack of evidence to corroborate the victim's claims.

III. Whether the trial court erred in denying Lykken's motions for a mistrial based upon claimed misconduct by the State's Attorney.

IV. Whether Lykken's sentence violates the Eighth Amendment of the United States Constitution.

We affirm.

D.H., a sixteen-year resident of Vermillion, was a full-time student at the University of South Dakota and a part-time secretary for her church in early to mid-1990. She separated from her husband in May 1989 after a marriage of sixteen years. D.H. has two children. After the separation she was "lonely," "vulnerable" and "struggling." She met Lykken in a computer class in January 1990. At that time, D.H. was in counseling for her divorce. She found Lykken to be kind, comforting, and exceptionally attentive to her needs. Lykken and D.H. dated and enjoyed a close relationship for several months. This relationship included sexual intimacy.

D.H.'s primary concern became focused upon her divorce trial. Meanwhile, Lykken became very possessive and deeply involved in her divorce proceedings. D.H. found Lykken's interest quite "unusual." In fact, when she received her divorce decree, in June 1990, Lykken appeared more upset than she was. Indeed, Lykken became so upset he would cry and threaten suicide. At this point, because D.H. was becoming more concerned about the divorce and custody of her children and because of Lykken's bizarre behavior, D.H. began trying to terminate her relationship with Lykken. During the week she received her divorce decree, D.H. told Lykken she wished only to be his friend and no longer wished to be romantically involved with him. Nonetheless, D.H. was unsuccessful in her attempt to sever her relationship with Lykken as he continued to phone her and to stop by her apartment without warning. She would explain the relationship was over, and Lykken would indicate he understood. Nonetheless, he continued to return.

On June 11, when D.H. received her divorce papers, Lykken called her threatening suicide because of the decree. D.H. was frightened for him and told him to see a counselor. At a later meeting between the two, Lykken instructed her how to distribute his property after he died.

On June 15, D.H. again attempted to conclude their relationship by writing Lykken a letter telling him she desired only to be friends. Lykken ignored the letter. When they met again later, Lykken wept.

D.H.'s attempts to end the affair became more abrupt as she met with continued failure. At one point, when Lykken appeared uninvited at her apartment, she drew an imaginary line at the door and told him he was not to cross it. She eventually became "unfriendly," behavior that was unusual for her. Nonetheless, Lykken continued to invite himself to her apartment early in the morning or late at night throughout June and early July.

On one occasion, while D.H. was at her home outside of Vermillion, Lykken appeared at the residence and offered to mow the lawn at the residence which was quite large. D.H. initially refused his offer, but relented. Late that same evening, Lykken searched D.H. out at the home of a friend, J.I., to inform D.H. he had completed the mowing. D.H. was furious at Lykken's obsessive behavior.

On July 4, 1990, D.H. and J.I. visited the rural home so their children could enjoy fireworks. Again, Lykken appeared uninvited. D.H. permitted Lykken to remain, but the group departed early because of his presence.

D.H. received her divorce decree on July 9, 1990. That evening Lykken phoned D.H., and D.H. told him she did not feel up to dealing with him that evening. Lykken told her he was "really depressed" and needed someone to talk to desperately. Having observed this type of behavior in the past, D.H. chose not to respond to Lykken. Lykken shouted, "Well, excuse me!" and hung up. He phoned again at midnight, asking D.H. to pray with him. D.H. was tired and just listened to him. Lykken had a "message from God" for her. When the phone call terminated, D.H. went to sleep.

J.I. was present at the Fourth of July episode, and also remembered the mowing incident. She also recalled that Lykken kept attempting to get D.H.'s attention and would come to J.I.'s residence looking for D.H. After Lykken completed his call to D.H., he called J.I. Lykken was agitated about D.H.'s child custody order and began crying. J.I. was frightened during this call.

At approximately 1:15 A.M. on July 10, 1990, D.H. awoke to find someone sitting at the edge of her bed. Although it was quite dark in the bedroom, she recognized Lykken's voice as he said, "Dottie, why can't you love me?" D.H. told Lykken to leave, but he turned on the bedroom light and said he wanted to make love to her one more time before he died.

Lykken's advances became physical and D.H. pushed him away twice. Twice he slammed her hard onto the bed. Lykken had never treated D.H. that way before. As their struggles continued, Lykken tried to pull D.H.'s underwear off. She told him that he did not really want to do this, but he continued anyway. She put her legs together and crossed her ankles, but Lykken pinned her and was able to remove her panties.

D.H. noticed her bedroom door was closed and locked. Lykken told her to remove her nightshirt, but she refused. Lykken then growled, "Take it off!" At one point, as Lykken was attempting to remove D.H.'s shirt, he held her throat so that she could not breathe.

D.H.'s children were in the apartment when this occurred. She was concerned about her children hearing the struggle and being frightened. D.H. choked Lykken back until he released his grip on her throat. Lykken ordered, in a tone different than his normal voice, "Don't piss me off!" which frightened D.H. even more. Finally, she removed her nightshirt out of fear. At that point, Lykken climbed on top of D.H., pinning her legs. He then fondled her breasts and penetrated her vagina. While this was occurring, D.H. attempted to think about other things and tried to look away from Lykken. However, Lykken forced her to continue looking at him.

At one point, Lykken lost his erection and lamented to D.H. that he could not do anything right, not "even leave a sperm sample for the police." He forced her to hold his testicles while he masturbated until his erection returned.

At least four rapes took place, most episodes lasting fifteen to twenty-five minutes. Throughout the ordeal, Lykken would chat with D.H. when he was not raping her. He told D.H. that, before he killed himself, he should kill her ex-husband and then asked D.H. for a few minutes to escape so that he could kill himself before she called the police.

At about 4:15 A.M., the rapes terminated. Because he had ejaculated on her back, Lykken wiped D.H. off with tissues which he then threw in the trash. He then asked D.H. whether she wanted to call the police. D.H. lay quietly, in fear for her life, remembering that he had looked "like an animal." She begged Lykken to leave before her children awoke. Lykken left at approximately 4:45 A.M.

After D.H. heard Lykken leave, she threw her underwear away and inspected her home. The front door was still locked, and the inside chain-lock was still attached. Earlier she had left the patio storm door open, but had locked the inside screen door. She re-locked that door and returned to bed. D.H. remained in bed until 9:00 A.M. refusing to answer the phone. She remained in the bedroom even after the children were awake, explaining that she was sick. At 9:00 A.M., D.H. informed J.I. of the incident. They determined D.H. should get her children to safety, talk to her minister, and then call the police.

As D.H. proceeded to depart from Vermillion to bring her children to her grandmother's residence, Lykken intercepted her and attempted to block her with his pickup as she drove down a Vermillion street. D.H. was able to swerve onto a lawn and outmaneuver Lykken. When she returned to Vermillion, D.H. went to the house of her minister. While she was at the minister's home, Lykken drove by.

At about noon, the minister, D.H., and others went to the police station in Vermillion where they met with Detective Ray Hoffman. At D.H.'s apartment, Hoffman secured the bed sheets, D.H.'s underwear and the discarded tissues. Lykken was subsequently arrested. Lykken claimed he and D.H. talked all night, and that he left in the morning. Detective Hoffman later obtained samples of D.H.'s blood and samples of Lykken's blood and hair. The evidence was sent to the Division of Criminal Investigation. The State...