State v. Perovich

• Decision Date: 25 July 2001
• Docket Number: No. 21509.,21509.
• Citation: 632 N.W.2d 12,2001 SD 96
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Kim PEROVICH, Defendant and Appellant.
• Court: South Dakota Supreme Court

632 N.W.2d 12

2001 SD 96

STATE of South Dakota, Plaintiff and Appellee, v. Kim PEROVICH, Defendant and Appellant.

No. 21509.

Supreme Court of South Dakota.

Considered on Briefs on April 24, 2001.

Decided July 25, 2001.

Mark Barnett, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, for plaintiff and appellee.

Paula D. Camp, Pennington County Public Defender's Office, Rapid City, for defendant and appellant.

SABERS, Justice

[¶ 1.] Kim Perovich was convicted and sentenced to ten terms of life imprisonment. We affirm five of the convictions, reverse five duplicate convictions and remand for resentencing.

FACTS

[¶ 2.] Perovich was engaged to marry Donna Robinson. Donna had two nieces; K.R., age nine and R.R., age six. Perovich had been a family friend during his childhood and was re-introduced to Donna through her sister Tammy Robinson, the mother of K.R. and R.R. Tammy and her two children, K.R. and R.R., began to reside with Donna after frozen pipes forced the family to move from their previous home. Perovich visited the home frequently and would stay overnight on occasion.

[¶ 3.] There was no indication of unusual behavior or characteristics of abuse demonstrated by the two girls. The children did not shy away from Perovich or avoid him and no one observed anything unusual. Then, in the early morning hours of August 22, 1999, Donna, Perovich, and the girls went with Tammy to deliver copies of the Rapid City Journal to her vendors. Donna drove the van, Perovich, K.R., R.R. and Tammy were passengers. Tammy testified that toward the end of the route she saw Perovich move toward the back of the van with K.R. She testified that at first the two were horseplaying, then it became quiet for ten to fifteen minutes. When she looked back to see what was occurring, she saw K.R. and Perovich under a blanket. She observed an "up and down" motion around K.R.'s midsection. Tammy then dropped a paper and asked K.R. to retrieve it. The group finished the route. Tammy, her husband David, K.R. and R.R. went to a local store to purchase breakfast and shopped for about twenty minutes. No one discussed the incident.

[¶ 4.] They went to Donna's for breakfast. Tammy testified that she asked K.R. if someone touched her "down there." K.R. answered "just [Perovich], mommy." Tammy confronted Perovich and Donna. During this confrontation, R.R. also claimed Perovich had touched her. Tammy took K.R. and R.R. to the hospital at Donna's request.

[¶ 5.] The girls were examined at the hospital by Dr. Daniel Hoffman. The doctor elected to only do an external examination, as he was under the mistaken impression the abuse had taken place three to five days earlier. The doctor found no signs of trauma to the genital area of either girl. Dr. Hoffman explained at trial that these findings were not surprising and with digital penetration "we would not typically find anything." He agreed that the lack of such a finding could be consistent with the claims by the victims.

[¶ 6.] While at the Hospital K.R. and R.R. were visited by the sexual assault response team. Officer Kline of the Rapid City police department interviewed the two girls separately. These interviews were also attended by Nurse Shaye Krcil. During her interview, K.R. stated that Perovich took her to the back of the van, pulled down her shorts and "touched me here" referencing her genital area. In addition, she stated "he stuck his fingers inside me and moved them up and down." She also stated he pulled out his penis and made her touch it with her hands. K.R. relayed that this had happened a couple days earlier and had also happened to her sister R.R.

[¶ 7.] During R.R.'s interview she confirmed that Perovich touched K.R and recounted her own incidents with Perovich. She said Perovich had "sucked her tongue, licked her neck, sucked her privates, and stuck his fingers in her privates." She stated it happened three or four different times.

[¶ 8.] The two girls were later interviewed by Detective Sauvage of the Pennington County Sheriff's Office. K.R. stated that she had been touched in her "bad part" in the van and that Perovich had done the same on prior occasions. R.R. told the Detective of instances where Perovich had touched her while she was in the living room, in the dining room and in the van on other occasions.

[¶ 9.] Perovich was indicted and convicted of two counts of rape and criminal pedophilia against K.R. and three counts of rape and criminal pedophilia against R.R. Perovich was sentenced as a habitual offender based on his prior felony conviction for writing checks with insufficient funds. The trial court sentenced Perovich to ten mandatory life sentences due to his status as a habitual offender. The trial court determined that the five first-degree rape sentences were to run consecutive, and all criminal pedophilia sentences were to run concurrently to the rape sentences.

[¶ 10.] Perovich raises six issues on appeal:

1. Whether the trial court erred in allowing R.R. to testify by a writing and in receiving same as evidence.

2. Whether the trial court erred by allowing repeated leading questions and by allowing the prosecutor to interpret for R.R.

3. Whether the trial court erred in denying Perovich's motion for a mistrial based upon R.R's demeanor in the presence of the jury.

4. Whether the trial court erred in finding that there was sufficient evidence for the convictions relating to R.R.

5. Whether the alleged cumulative errors regarding R.R.'s testimony compromised the verdict on all counts.

6. Whether the trial court erred in sentencing Perovich to five consecutive and five concurrent life terms.

STANDARD OF REVIEW

[¶ 11.] In determining the sufficiency of the evidence to constitute the crime, the question is "whether there is sufficient evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt." State v. Larson, 1998 SD 80, ¶ 9, 582 N.W.2d 15, 17. Whether a new trial should be granted is left to the sound judicial discretion of the trial court, and this Court will not disturb the trial court's decision absent a clear showing of abuse of discretion. Tunender v. Minnaert, 1997 SD 62, ¶ 9, 563 N.W.2d 849, 851 (citation omitted). Likewise, evidentiary rulings made by the trial court are presumed correct and are reviewed under an abuse of discretion standard. State v. Goodroad, 1997 SD 46, ¶ 9, 563 N.W.2d 126, 129. Under this standard, "not only must error be demonstrated, but it must also be shown to be prejudicial error." State ex rel Dep't of Transp. v. Spiry, 1996 SD 14, ¶ 11, 543 N.W.2d 260, 263 (quoting Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 258 (S.D.1976)). "The test is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion." Goodroad, 1997 SD 46, ¶ 9,563 N.W.2d at 129 (citing State v. Rufener, 392 N.W.2d 424, 426 (S.D.1986)). Questions of law are reviewed de novo with no deference given to the trial court. City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771.

[¶ 12.] 1. WHETHER THE TRIAL COURT ERRED IN ALLOWING R.R. TO TESTIFY BY A WRITING AND IN RECEIVING SAME AS EVIDENCE.

[¶ 13.] When R.R. was called to the stand to testify she brought with her a stuffed bear, cried during the testimony and would not respond to certain questions. R.R. did answer general questions, but when asked about Perovich's contact with her, she would become unresponsive. After she repeatedly failed to respond, the prosecutor asked R.R. if she could write the answers. R.R. acceded and wrote out her answers the best she could. In response to the prosecutor's questioning, R.R. wrote that Perovich touched her "privet" with his "fegen" and "tug." The prosecutor attempted to have R.R. read the words she wrote to the jury but R.R. refused. The trial court admitted the written testimony and it was shown to the jury.

[¶ 14.] Perovich contends that allowing R.R. to testify in this manner violated his right to confront his accuser as guaranteed by the state and federal constitutions.

The Sixth Amendment of the United States Constitution provides, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. The South Dakota Constitution provides similar protections: "In all criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation against him; to have a copy thereof; to meet the witnesses against him face to face...." S.D. Const. art. VI, § 7. The so-called Confrontation Clause provides two specific protections for criminal defendants. Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40, 53 (1987). The first is being the right to face his accusers and the second is the right to cross-examine those who testify against him. Id.

State v. Karlen, 1999 SD 12, ¶ 37, 589 N.W.2d 594, 602.

[¶ 15.] The Confrontation Clause does not guarantee effective cross-examination, but guarantees the opportunity to confront the witness. See id. Therefore, our inquiry is whether Perovich was denied an opportunity for effective cross-examination. A review of the record reveals he was given such an opportunity.

[¶ 16.] Perovich's counsel was allowed to cross-examine R.R. on the contents of her testimony and handwritten notes. He inquired where she had learned the words she had written, and in actuality elicited more details concerning the allegation of touching than did the prosecutor. We acknowledge defense counsel's statement that this examination was difficult and he had to be careful not to create a negative reaction with the jury. However, Perovich's counsel was given the opportunity to examine R.R. on all her statements, including the handwritten responses. His choice of trial strategy does not effect the...