State v. Perkins, 16337

• Decision Date: 12 July 1989
• Docket Number: No. 16337,16337
• Citation: 444 N.W.2d 34
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. John PERKINS, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 34

444 N.W.2d 34

STATE of South Dakota, Plaintiff and Appellee, v. John PERKINS, Defendant and Appellant.

No. 16337.

Supreme Court of South Dakota.

Argued March 20, 1989.

Decided July 12, 1989.

Ron Campbell, Asst. Atty. Gen., Pierre, On the brief: Karen E. Cremer, Asst. Atty. Gen., and Roger A. Tellinghuisen, Atty. Gen., Pierre, for plaintiff and appellee.

Gregory G. Rediger, Miller, for defendant and appellant.

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

Defendant John Perkins (Perkins) was charged by information with three counts of second-degree rape, under SDCL 22-22-1(5), stemming from three incidents involving a female minor. After a Hand County jury convicted Perkins on all three counts, the trial court imposed a sentence of fifteen years in the State Penitentiary and a $10,000 fine for each of the three convictions (total: 45 years, $30,000 in fines). The three sentences were to be served consecutively. Perkins, aged twenty-seven at the time of his trial, appeals his convictions and sentences, alleging that the trial court erred in three regards:

I Admission of evidence concerning other bad acts;

II Admission of testimony from a Sheriff regarding incriminating statements made by Perkins in violation of his right against self-incrimination; and

III Imposition of three consecutive fifteen-year sentences and $30,000 in fines constituted cruel and unusual punishment.

We affirm.

FACTS

The charges against Perkins stem from three sexual encounters with a young girl, D.J.K., all of which took place within the defendant's dwelling. D.J.K. testified that Perkins penetrated her vagina on each occasion, as follows:

--Incident 1--

In the summer of 1982, twelve-year-old D.J.K. went to Perkins' trailer house to visit his wife Donna, who was not home at the time. Perkins asked D.J.K. if she wanted "to mess around" and, despite her negative answer, proceeded to kiss her, fondle her breasts, and move his finger in and out of her vagina. He desisted after hearing a car outside and instructed her not to tell anyone. D.J.K. gave her mother an edited version of the event, saying only that he had grabbed her breasts.

--Incident 2--

The next encounter occurred in June or July, 1984, when D.J.K. was fourteen years old. Perkins called her at home and arranged for her to baby-sit for his children that night. As D.J.K. lived a distance away, she stayed overnight, and slept on a couch in the living room after Perkins returned from a bar with an unidentified woman (his marriage to Donna had ended in divorce). During the night, Perkins entered the living room, which was lit by a light in the kitchen, sat down on the couch, and began rubbing D.J.K.'s breasts. He inserted his hand under her clothes and moved his fingers in and out of her vagina. He then pulled off her clothing, had conventional intercourse with her, and ejaculated on her stomach.

--Incident 3--

Perkins' last sexual adventure with D.J.K. happened in February or March 1985, when D.J.K. was fifteen. He again hired her as a baby-sitter. At this time, Perkins was married to a new wife, Barbara, and was living in the basement of her parents' home. D.J.K. again stayed overnight, and slept on a couch. During the night, she arose to go to the bathroom, but was followed into the bathroom by Perkins. He asked her if she wanted "to mess around," as he had in the 1982 incident, and, despite her refusal, started kissing her and rubbing her breasts. As in the earlier incidents, Perkins penetrated her vagina with his fingers. He then took her hand, placed it on his penis, and showed her how he wanted her to manually stimulate him. She performed the desired act, which culminated in his ejaculation.

--BAD ACTS TESTIMONY--

D.J.K.'s testimony was followed by that of two additional young girls, M.K., D.J.K.'s younger sister, and P.B., who is not related to the other girls. M.K. recounted three separate instances of sexual contact with Perkins: 1) In 1984, at age thirteen, after babysitting at Perkins' trailer, he sat on the couch she was sleeping on, touched her breast, grabbed her hand, moved it toward his penis, and stopped after she pulled her hand away; 2) in 1985, at age fourteen, after babysitting for Perkins in Eckstein's basement, he sat on the couch with her and started rubbing her breasts, desisting only when she began to scream; and 3) in 1986, when she was fifteen, at his residence at Lake Byron, Perkins put a hand on her breast, reached for her vagina, saying "oh, love me, love me," and stopped after she kicked him and reminded him of his crying, pregnant wife, who was in another room.

P.B.'s testimony recounted an incident which happened in 1986, when she was fifteen, during an overnight stay at Perkins' trailer. While sleeping on a couch, she was awakened by Perkins, who sat down, whispering unintelligibly. He took her hand and moved it to his penis, at which point she jerked her hand from his grasp. He then left, after telling her that he would leave her alone.

Before and during trial, defense counsel made motions to suppress the "bad acts" testimony of M.K. and P.B., but the trial court declined to do so. The trial court entered findings of fact and conclusions of law to the effect that the "bad acts" testimony demonstrated, by clear and convincing evidence: 1) An intent to commit the acts charged; 2) a plan; 3) identity; 4) a course of continuous criminal action against young women engaged in a babysitting capacity; and 5) motive, opportunity, preparation and knowledge regarding commission of the acts charged. As a matter of law, the trial court concluded that the testimony was relevant to material issues, and that its probative value was not substantially outweighed by the danger of unfair prejudice to the defendant. Hence, the bad acts testimony was admitted.

--INCRIMINATING STATEMENTS--

Perkins also submitted a pretrial motion to suppress statements he made during conversations with Sheriff Chuck Fechner. Although a suppression hearing concerning such statements was apparently held on May 19, 1988, no transcript of the hearing was included in the record for this Court's review. The trial court's findings of fact and conclusions of law, memorandum opinion incorporated into such findings and conclusions, and the Sheriff's memoranda of the meetings indicate that three conversations were at issue: 1) An interrogation by the Sheriff, lasting forty-five minutes to an hour, on September 3, 1987, during which Perkins denied touching the breasts or vaginas of D.J.K. and M.K., and stated that he did not remember taking their hands and placing them on his penis; if the latter happened, then he must have been "in a trance or sleepwalking." The second interview took place on September 25, 1987, at which time Perkins denied any wrongdoing and repeated his sleepwalking or trance assertion. According to Sheriff Fechner, Perkins also claimed that D.J.K. tried to follow him into the bathroom at his in-laws' residence, and that he simply told her to wait outside. Perkins was given Miranda warnings before this second interview, and appears to have waived counsel and spoken voluntarily. A later conversation with the Sheriff, which occurred while Perkins was in a car being transported, was not used at trial by agreement of the parties. ¹ At trial, Perkins' statements from the first two interviews were used for impeachment and rebuttal purposes.

Regarding the sentences Perkins received, we again note that this Court has been provided with no transcript. Perkins received the statutory maximum sentence for each count, and $10,000 of a possible $15,000 fine for each count.

DECISION

I. BAD ACTS

The bad acts testimony of M.K. and P.B. was admissible under SDCL 19-12-5, which provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The challenged testimony demonstrates a consistent pattern of molesting young girls with whom Perkins was long acquainted, when they were within his home. In each instance, Perkins approached the victim, and began fondling their breasts. Between the charges stemming from the D.J.K. incidents, and the four acts involving the other girls, a total of seven sexual encounters were presented. In four of the seven, the victim was present in the home as a baby-sitter staying overnight. In a fifth, the P.B. incident, the victim was spending the night after staying late to help Perkins' wife with a new baby, i.e. babysitting. Although Perkins asserts that the incidents involving M.K. and P.B. were so different as to be irrelevant, the factual patterns are remarkably similar. The only real difference between the bad acts and the rape incidents is that D.J.K. made no physical act to stop Perkins, whereas P.B. and M.K. did. Circumstances which surrounded the various acts and Perkins' behavior up to the point of physical resistance (which D.J.K. did not offer) are virtually the same. Perkins was not charged and convicted with a singular crime, based upon prior criminal or "wrong" conduct as the dissent of Sabers, J., postulates; rather, Perkins was charged with a series of criminal acts reflecting a plan to engage in sexual activity with very young girls. These acts typified the same plan toward underage victims which this Court determined was admissible in State v. Dace, 333 N.W.2d 812, 816 (S.D.1983).

This defendant has no more valid complaint about evidence of his "other acts" than Roden did in State v. Roden, 380 N.W.2d 669 (S.D.1986). ² Roden sexually assaulted little girls within his household. Perkins sexually attacked little girls in his house. This evidence was not unfairly prejudicial because its effect resulted from legitimate probative force of the evidence;...