State v. McKinney

• Decision Date: 15 June 2005
• Docket Number: No. 23374.,23374.
• Citation: 699 N.W.2d 471,2005 SD 73
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Patrick Ryan McKINNEY, Defendant and Appellant.
• Court: South Dakota Supreme Court

699 N.W.2d 471

2005 SD 73

STATE of South Dakota, Plaintiff and Appellee, v. Patrick Ryan McKINNEY, Defendant and Appellant.

No. 23374.

Supreme Court of South Dakota.

Considered on Briefs on April 25, 2005.

Decided June 15, 2005.

Lawrence E. Long, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Julie Hofer, Hofer Law Office, Sioux Falls, South Dakota, Attorney for defendant and appellant.

ZINTER, Justice.

[¶ 1.] A jury convicted Patrick Ryan McKinney of first-degree rape, sexual contact with a child under sixteen years of age, and sexual exploitation of a minor. McKinney appeals raising issues concerning his sentence, his right of confrontation, the sufficiency of the evidence, and a child abuse expert's opinion evidence. We affirm.

Facts and Procedural History

[¶ 2.] McKinney and Colleen O'Bleness met in early 2001. After O'Bleness' husband died in May 2001, she began dating McKinney. In August 2001, McKinney moved into O'Bleness' home, where she lived with her two daughters; K.H., who was fourteen years old at the time of trial and J.H., who was nine years old at trial. McKinney and O'Bleness were married on February 16, 2002.

[¶ 3.] In January 2003, O'Bleness and McKinney began having marital problems because McKinney was not contributing financially to the household. After confiding in her pastor about her marital troubles, after seeing adult pornography on the computer in their bedroom, and after noticing that McKinney had changed his password without telling her, O'Bleness decided to find out if he was spending money on pornography. O'Bleness had a program installed on the computer that identified a variety of photographs and files that could be pornographic, including twenty to thirty pornographic pictures of young children. After finding the pictures, O'Bleness turned the computer over to the police and had McKinney removed from the home.

[¶ 4.] O'Bleness subsequently told her daughters that she was going to talk to the police about some inappropriate and illegal things that she had found on the computer. J.H. responded that she could prove McKinney had pictures on the computer because she had seen a picture of a "naked girl." J.H. also testified that, one time when she was playing on the computer, McKinney told her that he wanted to show her something. J.H. indicated that McKinney then showed her "a little movie type thing" in which a man was licking a little girl "on her private[s]." On another occasion, when O'Bleness and her other daughter were not at home, J.H. was shown a movie on a DVD. J.H. testified that this movie involved adults who were not wearing any clothes. Although she tried to leave while the movie was playing, McKinney prevented her from leaving the room.¹

[¶ 5.] At some point during this same period, J.H. developed an infection that required application of a vaginal medication. O'Bleness usually applied the medication after J.H. took her evening bath. One night, J.H. was home alone with McKinney. After taking her evening bath and getting ready for bed, McKinney reminded her that she had not yet applied her medication. McKinney offered to apply the medication even though J.H. told him that she did not want him to because her mother was not there. J.H. later agreed to let McKinney insert the medication but, when he attempted to do so, she told him to stop because she was uncomfortable. McKinney then told J.H. that he could apply the medicine with his finger and she told him to stop after he had used his finger. McKinney then licked her in her vaginal area and told her that his licking her would help her infection. Although J.H. told him to stop, he kept licking until he heard a car door slam. McKinney told J.H. not to tell anyone about the incident.

[¶ 6.] J.H. testified that on another occasion McKinney had shown her a vibrator when her mother and sister were not at home. J.H. stated that McKinney had also turned the vibrator on and put it directly on her "private parts."

[¶ 7.] After this abuse came to light, J.H. met with Colleen Brazil, a forensic interviewer from Child's Voice, a medical evaluation center where children are evaluated for possible physical and sexual abuse. During this interview, J.H. made several statements to Brazil about McKinney's sexual abuse. The interview was videotaped and played for the jury.

[¶ 8.] The jury convicted McKinney of all three charges. McKinney was sentenced to fifty years for rape, fifteen years for sexual contact with a child less than sixteen years of age, and two years for sexual exploitation of a minor, all to be served consecutively. McKinney's motion for a new trial was denied. McKinney now appeals raising the following issues:

(1) Whether the trial court's consecutive sentence of 67 years for three offenses was cruel and unusual punishment under the Eighth Amendment;

(2) Whether the use of J.H.'s hearsay statements to the forensic interviewer denied McKinney the right to confront and cross-examine the witnesses against him;

(3) Whether the evidence was sufficient to find McKinney guilty beyond a reasonable doubt;

(4) Whether the trial court abused its discretion by allowing a child abuse expert to testify.

(1) Constitutionality of Sentence

[¶ 9.] McKinney was sentenced to a total of sixty-seven years for the three convictions; first-degree rape, sexual contact with a child under age sixteen, and sexual exploitation of a minor. The three convictions arose from three separate incidents. Additionally, in a related criminal action, he was sentenced to one hundred years for twenty felony convictions for possessing child pornography.² However, McKinney contends that the sixty-seven year sentence was "extremely severe and is, in reality, a life sentence."³ Prior to all of these incidents, he had no criminal record. Therefore, McKinney argues that the sentence is "grossly disproportionate to the offense[s] committed" in violation of the Eighth Amendment.

[¶ 10.] Our standard of review on this issue is well settled.

"[To] assess a challenge to proportionality we first determine whether the sentence appears grossly disproportionate. To accomplish this, we consider the conduct involved, and any relevant past conduct, with utmost deference to the Legislature and the sentencing court." If the sentence does not appear grossly disproportionate, no further review is necessary. If the sentence does appear grossly disproportionate, an intra- and inter-jurisdictional analysis shall be conducted. We also consider "the gravity of the offense and the harshness of the penalty;" and other relevant factors, such as the effect this type of offense has on society.⁴

Guthmiller, 2003 SD 83, ¶ 43, 667 N.W.2d at 309 (internal citations omitted). However, "limited principles [are used] in our constitutional review of sentences." State v. Garber, 2004 SD 2, ¶ 28, 674 N.W.2d 320, 327 (citing State v. Milk, 2000 SD 28, ¶ 14, 607 N.W.2d 14, 18). These limiting principles require "`substantial deference to the legislature's broad authority to determine the types and limits of punishment' and [adherence to] the notion that `the Eighth Amendment does not mandate adoption of any one penological theory.'" State v. Pasek, 2004 SD 132, ¶ 33, 691 N.W.2d 301, 311 (citations omitted). We ultimately review a sentence within statutory limits under an abuse of discretion standard. 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).

[¶ 11.] McKinney argues his sentence was grossly disproportionate because it was the legislature's "intent to reserve the most severe sanctions for the most serious combinations of the offense and the background of the offender." State v. Bonner, 1998 SD 30, ¶ 25, 577 N.W.2d 575, 582 (citation omitted). However, the range of sanctions authorized for first-degree rape is a mandatory minimum ten-year sentence to a maximum sentence of life imprisonment without parole. SDCL 22-22-1.2(1), SDCL 22-6-1, and SDCL 24-15A-32. Therefore, because McKinney was not sentenced to life, his reliance upon the "most serious sanction" language of Bonner has little application here.

[¶ 12.] Moreover, McKinney's pre-sentence investigation justified his sentence. That investigation revealed that McKinney had an admitted interest in sadism and in having sex with strangers. He was a member of several online pornographic websites and had recently been convicted of twenty felonies involving child pornography. In a sexual-psychological assessment, McKinney scored in the "low to moderate" range to re-offend, but he continued to deny any of the sexual misconduct. Thus, his realistic chances of successful treatment and rehabilitation were questionable at best. As we stated in State v. Clegg, 2001 SD 128, ¶ 6, 635 N.W.2d 578, 580:

[A]fter exercising the right to trial, a defendant's continued refusal to take accountability may be considered as a sign of lack of remorse. State of Wisconsin v. Fuerst, 181 Wis.2d 903, 915, 512 N.W.2d 243, 247 (1994). "Repentance has a role in penology. But the premise of our criminal jurisprudence has always been that the time for repentance comes after trial." Scott v. United States, 419 F.2d 264, 270 (D.C.Cir.1969). A sentencing court may consider a defendant's denial as part of its decision whether the defendant can be successfully rehabilitated. Rehabilitation must begin with an offender's acknowledgment of personal fault.

[¶ 13.] Furthermore, although not initially used in determining gross disproportionality, we may consider "the consequences of [the defendant's] acts upon the victims and society" in ultimately determining the constitutionality of the sentence. Bonner, 1998 SD 30, ¶ 22, 577 N.W.2d at 581 (citing Harmelin v. Michigan, 501 U.S. 957, 1000, 111 S.Ct. 2680, 2704, 115 L.Ed.2d 836, 868 (1991)). In this case, J.H. wrote a letter to the trial court in which she described...