State v. Sprik

• Citation: 520 N.W.2d 595
• Decision Date: 23 May 1994
• Docket Number: No. 18469,18469
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Calvin Earle SPRIK, Defendant and Appellant. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 595

520 N.W.2d 595

STATE of South Dakota, Plaintiff and Appellee, v. Calvin Earle SPRIK, Defendant and Appellant.

No. 18469.

Supreme Court of South Dakota.

Considered on Briefs May 23, 1994.

Decided Aug. 10, 1994.

Mark Barnett, Atty. Gen., Ann C. Meyer, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Robin L. Zephier, Pennington County Public Defender's Office, Rapid City, for defendant and appellant.

SABERS, Justice.

Defendant appeals his convictions for Third Degree Rape and habitual offender. We affirm.

FACTS

According to testimony presented at trial, thirteen-year-old N.G. met the defendant, Calvin Sprik (Sprik), at Hardee's on Fifth Street in Rapid City, South Dakota on the evening of September 14, 1992. Enticed by the promise of free drugs, N.G. left Hardee's with Sprik. The two walked in the direction of Memorial Park. As they were walking, Sprik, who was carrying a bedroll attached to a backpack, pointed down an alley and told N.G. that he was sleeping under the stairwell. N.G. repeatedly asked Sprik for the "dope," but Sprik told her to wait.

When N.G. and Sprik stopped by a little creek in Memorial Park, N.G. sat on a picnic table and smoked a cigarette. N.G. again asked Sprik if he had the "dope." Sprik sat on the ground and rummaged through the backpack he was carrying, claiming that was where he kept the drugs. Sprik asked N.G. to come and sit down beside him. N.G. squatted next to Sprik. When she began to feel uncomfortable, however, she attempted to stand. Sprik then pushed N.G. to the ground and told her that he was going to "fuck her." N.G. began to cry. Sprik forced N.G. to have sexual intercourse with him, then withdrew his penis, sat on the picnic table, and forced N.G. to perform fellatio. Sprik then pushed N.G. onto the ground and forced her to have sexual intercourse with him again. N.G. was forced to engage in fellatio a second time, and sexual intercourse a third time. Sprik's position, through other witnesses, was that he was not with N.G.

N.G. was able to escape and flag down a car after convincing Sprik that she saw someone. The driver of the car took N.G. to a house N.G. said was her home. It was actually her boyfriend's home. At trial, N.G. admitted lying to the driver about her residence, about her boyfriend being her brother, and about her father being a "cop."

The driver reported the rape to the police and directed them to where she had dropped off N.G. The police recognized N.G. because her mother had reported her as a runaway earlier that evening. The officers interviewed N.G., took her home, and then to the hospital. Although N.G. told police officials that Sprik forced her to go to the park, she later admitted this was a lie. Police found Sprik asleep under the stairwell he had pointed out to N.G. N.G. identified Sprik from a patrol car as her attacker.

Sprik was charged with three counts of Second Degree Rape, a felony, in violation of SDCL 22-22-1(2); or, in the alternative, three counts of Third Degree Rape, a felony, in violation of SDCL 22-22-1(5) (formerly statutory rape). Under Counts I, III, and V of the Information, Sprik was charged:

That on or about the 14th day of September, 1992, in the County of Pennington, State of South Dakota, Calvin Earle Sprik did commit the public offense of Second Degree Rape (Felony) in that he did then and there commit an act of sexual penetration with [N.G.] through the use of force, coercion or threats of immediate and great bodily harm against [N.G.], accompanied by apparent power of execution, in violation of SDCL 22-22-1(2)[.]

Under Counts II, IV, and VI, Sprik was charged in the alternative:

That on or about the 14th day of September, 1992, in the County of Pennington, State of South Dakota, Calvin Earle Sprik did commit the public offense of Third Degree Rape (Felony) in that he did then and there being at least three years older than [N.G.], feloniously accomplish an act of sexual penetration with [N.G.], said [N.G.] being more than ten (10) years of age and less than sixteen (16) years at the time of said act of sexual penetration, in violation of SDCL 22-22-1(5).

Sprik was also charged in a Part II Information with being a habitual offender.

Sprik was tried to a jury. After nearly five hours of deliberation, Sprik was convicted of Count II of the Information, Third Degree Rape. The jury returned verdicts of not guilty on all other counts. The trial court found Sprik guilty of being a habitual offender and sentenced him to serve twenty-five years in the penitentiary. Sprik appeals.

1. Whether the trial court erred in denying Sprik's Motions to Dismiss and for Judgment of Acquittal with respect to Counts III through VI of the Information.

The six-part Information set forth three separate crimes of Second Degree Rape in violation of SDCL 22-22-1(2) (Counts I, III, and V), or, in the alternative, three separate crimes of Third Degree Rape in violation of SDCL 22-22-1(5) (Counts II, IV, and VI). ¹ The jury convicted Sprik only of Count II--Third Degree Rape in violation of SDCL 22-22-1(5). Sprik argues that an accused cannot be charged with more than one count of sexual assault for the same offense against the same victim on the basis of the same continuous act. According to Sprik, "the duplicitous charging practice violates his rights secured to him under the Fifth and Fourteenth Amendments of the U.S. Constitution[ ] and Article VI, Sections 2 and 9 of the S.D. Constitution."

To accept Sprik's argument would be to hold that a defendant can perform as many acts of penetration as possible during a sexual encounter or transaction and be subject to punishment for only one act of penetration. See Michigan v. Wilson, 196 Mich.App. 604, 493 N.W.2d 471, 474 n. 2 (1992). These facts indicate, however, that there were five separate "acts of sexual penetration" over the course of approximately two hours. (Sexual intercourse, fellatio, sexual intercourse, fellatio, and sexual intercourse.) Therefore, we conclude that under SDCL 22-22-1 and SDCL 22-22-2, the "Legislature intended to punish separately each criminal sexual penetration," Wilson, 493 N.W.2d at 474 (citations omitted), and it was not inappropriate to charge Sprik with more than one count of sexual penetration. See generally Johnson v. Alaska, 762 P.2d 493, 495 (Alaska Ct.App.1988) ("Separate convictions for multiple acts of penetration involving different openings of the victim's or the defendant's body are permissible."); Rodriquez v. Alaska, 741 P.2d 1200, 1208 (Alaska Ct.App.1987) (although a continuous transaction, there was a completed sexual act followed by another separate sexual act).

Sprik also argues that the counts "were not specifically set out as specific incidents of specific conduct in which to bar multiple or subsequent prosecution of each count upon conviction or acquittal thereof." To be sufficient, an information must state all of the elements of the offense charged, fairly inform the defendant of the charge against him, and enable the defendant to plead an acquittal of conviction in bar of future prosecutions for the same offense. State v. Oster, 495 N.W.2d 305, 307 (S.D.1993) (citations omitted); State v. Floody, 481 N.W.2d 242, 246 (S.D.1992) (citations omitted). This court "has consistently held that an indictment is generally sufficient if it employs the language of the statute or its equivalent." Oster, 495 N.W.2d at 307 (citations omitted).

This court addressed similar arguments in State v. Wurtz, 436 N.W.2d 839 (S.D.1989) and Floody, 481 N.W.2d 242. In both instances, this court held against the defendant, noting that "[a] party may proceed with proof, outside of the information itself, to determine the charge which the conviction was based upon in order to raise it as a bar to a subsequent prosecution." Floody, 481 N.W.2d at 247 (quoting Wurtz, 436 N.W.2d at 843).

During the preliminary hearing, and at trial, N.G. testified that she was penetrated vaginally three times and orally twice. The State moved, at the close of the preliminary hearing, to amend the complaint to conform to the evidence to five separate acts rather than three because "I believe the victim's testimony here substantiates more acts of sexual penetration than what was originally charged out in the complaint." The State's motion was denied. Finally, a separate decision was required by the jury on all counts. See Floody, 481 N.W.2d at 247. "Inasmuch as the language of the indictment properly incorporate[d] the statutory law of South Dakota, we find the indictment to be sufficient." Oster, 495 N.W.2d at 307-08.

Sprik argues that neither the Information nor the jury instructions described Counts I through VI as divisible incidents of sexual penetration. Therefore, according to Sprik, the jurors did not know which act of sexual penetration was attributable to which specific count and this led to a compromise verdict. In support, Sprik cites to a question from the jury during deliberations asking whether the sequence was vaginal, oral, vaginal.

While it may be true that Sprik "has no way of knowing which alleged act of penetration qualified as Third Degree Rape" nor does he "know which alleged act he was acquitted of," we find this harmless, if error. Whether the jury rejected the State's theory of the case, finding instead that the entire attack against N.G. constituted one count of Third Degree Rape, or simply found Sprik guilty beyond a reasonable doubt of only one of the three charged incidents of penetration, Sprik's conviction on Count II will prevent retrial based upon any alleged incidents of rape against N.G. occurring on September 14, 1992 at Memorial Park in Rapid City, South Dakota. Floody, 481 N.W.2d at 247 n. 7 (citing Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990)). This clearly protects Sprik against Double Jeopardy.

2. Whether the trial court abused its discretion in denying Sprik's request to use N.G.'s...