State v. Sonen, 17667

• Decision Date: 19 March 1992
• Docket Number: No. 17667,17667
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. James SONEN, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 303

492 N.W.2d 303

STATE of South Dakota, Plaintiff and Appellee, v. James SONEN, Defendant and Appellant.

No. 17667.

Supreme Court of South Dakota.

Considered on Briefs March 19, 1992.

Decided Nov. 10, 1992.

Mark Barnett, Atty. Gen., Frank E. Geaghan, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Timothy J. Wilka of Wilka Law Office, Sioux Falls, for defendant and appellant.

WUEST, Justice.

James Sonen (Sonen) appeals his convictions for two counts of sexual contact with a child under sixteen years of age. We affirm in part and reverse in part.

FACTS

D.M. (victim), age 15, lived in Coleman, South Dakota. During trial, he testified about a series of twenty to twenty-five incidents of sexual contact by Sonen, age 34, that occurred between the summers of 1989 and 1990. Victim first reported these incidents to the authorities in November 1990 and an investigation ensued.

On March 18, 1991, Sonen was indicted for three counts of sexual contact with a child under age sixteen (SDCL 22-22-7) ¹ and three counts of contributing to the delinquency of a minor (SDCL 26-9-1). His jury trial took place on July 18 and 19, 1991. Sonen moved to dismiss all of the charges at the close of state's case. The trial court granted the motion as to the three counts of contributing to the delinquency of a minor but allowed the trial to proceed as to the three sexual contact counts. The jury ultimately returned guilty verdicts as to Counts I and III ² and a not guilty verdict as to Count II. A judgment and sentence were entered accordingly and this appeal followed. Additional facts will be set forth as they pertain to the issues on appeal.

ISSUE ONE

WHETHER SONEN WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL?

This court has often held that claims of ineffective assistance of counsel will not ordinarily be considered on direct appeal. The preferable means to consider incompetent counsel claims is through habeas corpus proceedings. There are many reasons for this rule including the fact that the attorney accused of incompetence is then provided an opportunity to defend his or her actions. An exception to the rule exists where representation at trial was so "ineffective and counsel's representation so casual that the trial record evidences a manifest usurpation of appellant's constitutional rights[.]"

State v. Aliberti, 401 N.W.2d 729, 732 (S.D.1987). (citations omitted). Or, as this court has summarized the above test, "ineffectiveness of counsel is an issue best raised on an appeal from habeas corpus proceedings unless trial counsel's actions amount to plain error." State v. Wurtz, 436 N.W.2d 839, 842 (S.D.1989).

Here, Sonen outlines several areas of alleged error by his trial counsel which he asserts rendered counsel's performance so ineffective and casual as to evince a manifest usurpation of his constitutional rights. As a result, Sonen contends these errors require review of counsel's performance in this direct appeal. We disagree. As we said in State v. Picotte, 416 N.W.2d 881, 882 (S.D.1987):

We have examined the record and find that Picotte's claims of ineffective assistance do not rise to the level of plain error. State v. Aliberti, supra. Therefore we will not review Picotte's ineffective assistance of counsel claims under the test presented in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

After our examination of the record in the instant case, we reach a like conclusion. Therefore, we decline Sonen's invitation to review the effectiveness of his counsel's representation in this direct appeal.

ISSUE TWO

WHETHER, THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT THE PROOF DID NOT HAVE TO ESTABLISH THE EXACT DATES OF THE OFFENSES WITH CERTAINTY?

The indictment specifically charged Sonen with three separate incidents of sexual contact allegedly occurring on November 12, 1989, February 27, 1990, and April 6, 1990. No "on or about" language was used. However, victim testified during state's case-in-chief that the November 12 incident actually occurred on November 13, 1989. Sonen offered alibi testimony for November 12, 1989 and February 27, 1990.

During jury instructions, the trial court instructed the jury:

The indictment charges that the offense was committed on a certain date. The proof need not establish with certainty the exact date of the offense alleged. It is sufficient if the evidence establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged.

Sonen objected to this "on or about" instruction which objection was overruled. He was subsequently found guilty of the November 12 and April 6 offenses but acquitted on the February 27, charge. He now asserts error in the giving of the "on or about" jury instruction because of the specific language of the indictment concerning dates; the indictment's failure to contain "on or about" language; and, the prejudice the instruction caused to his alibi defense.

Because Sonen was acquitted of the February 27 charge and offered no alibi for the April 6 charge, we find those counts of the indictment unaffected by his argument on this issue. As to the November 12 charge, we note that a similar argument was raised in State v. Nelson, 310 N.W.2d 777 (S.D.1981). In Nelson, the defendant was charged in an information with the theft of a horse trailer "on or about March 17, 1979[.]" Nelson, 310 N.W.2d at 779. However, state's proof during trial showed that the offense could have occurred on March 17 or 18, 1979. The defendant later produced alibi evidence for the date of March 17, 1979. On appeal, the defendant contended the trial court's "on or about" jury instruction deprived him of his alibi defense. We observed:

"Except where time is of the essence, it is not error to give an instruction that submits the happening of the offense at anytime within the limitation period." The fact that an alibi defense is interposed does not, ipso facto, make the "on or about" instruction erroneous. Rather, this court must examine whether or not the jury is misled by the instruction into improperly rejecting the alibi.

Nelson, 310 N.W.2d at 779 (citations omitted). We concluded that, "[t]he [information] read 'on or about' the 17th. Appellant had an alibi for the 17th. The jury instruction explaining the phrase 'on or about' was not prejudicial to appellant in view of the fact that he needed an alibi for the 17th and 18th to be effective." Nelson, 310 N.W.2d at 779.

Although a jury instruction was not at issue in State v. Cochrun, 434 N.W.2d 370 (S.D.1989), the defendant did contend that "on or about" language in his indictment prejudiced his alibi defense. Rejecting that argument, we concluded the "on or about" language in the indictment was sufficient to apprise the defendant of the approximate time of the crime so as to enable him to prepare his alibi defense.

Here, in contrast with Nelson and Cochrun, no "on or about" language was used in the indictment. Rather, the incident was alleged to have occurred on a date certain, i.e. November 12, 1989. Neither Nelson nor Cochrun provide much guidance on what effect an "on or about" jury instruction has on an alibi defense when the charging instrument alleges the crime occurred on a date certain and alibi evidence is offered for that date. As support for its holding, however, Nelson relies in part on State v. Siems, 535 S.W.2d 261 (Mo.Ct.App.1976). Siems does address the propriety of jury instructions broadening the time of commission of the offense under circumstances more similar to those in the instant case. Siems provides in pertinent part:

Except where time is of the essence, it is not error to give an instruction that submits the happening of the offense at anytime within the limitation period. Time is not of the essence in a crime of the nature here considered. However, the State has the burden of proof to establish the presence of the accused at the time and place of the offense. Therefore, when an alibi defense is interposed, time may be of decisive importance even though not of the essence of the offense. With the foregoing principles in mind, we find that the instruction given was not error. When a specific date is presented as the date of the alleged crime, an instruction covering a broad period of time may not be given which would nullify an alibi defense supported by substantial evidence.

Siems, 535 S.W.2d at 266 (citations and footnote omitted) (emphasis added).

Siems, supra, relies on State v. Chittim, 261 S.W.2d 79 (Mo.1953) as authority for its rule concerning jury instructions broadening the time of commission of the offense when a specific date is presented as the date of the alleged crime. Chittim was charged in the first count of an information with the crime of molesting a minor with immoral intent, "on August 7, 1951[.]" Chittim, 261 S.W.2d at 79. During trial, the victim testified that she had had sexual intercourse with Chittim, "on August 7, 1951[.]" Id. at 80. Chittim denied having sexual intercourse with the victim on August 7, 1951, or at any other time. Five additional witnesses verified an alibi for Chittim on August 7, 1951. Chittim was, nevertheless, convicted and, on appeal, challenged a jury instruction broadening the time of the alleged commission of the offense. He contended the instruction ignored his alibi defense. The Missouri High Court held:

Prosecutrix positively fixed August 7, 1951, as the date of the crime. The state tried the case on the theory that the act of intercourse took place on that date. In fact, the state objected to a question asked one of appellant's character witnesses because the question did not limit the time prior to August 7, 1951, which objection was sustained by the trial court.

The issue presented by the state was that the act of intercourse took place on August 7, 1951, and that issue was accepted by the defense. Therefore, there was...