State v. Wurtz

• Decision Date: 01 September 1988
• Docket Number: No. 16090,16090
• Citation: 436 N.W.2d 839
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Ruben M. WURTZ, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 839

436 N.W.2d 839

STATE of South Dakota, Plaintiff and Appellee, v. Ruben M. WURTZ, Defendant and Appellant.

No. 16090.

Supreme Court of South Dakota.

Considered on Briefs Sept. 1, 1988.

Decided March 1, 1989.

Frank Geaghan, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on the brief.

Richard Braithwaite of Braithwaite Law Offices, Sioux Falls, for defendant and appellant.

HENDERSON, Justice.

PROCEDURAL HISTORY/SENTENCING/AFFIRMANCE

Defendant Ruben M. Wurtz (Wurtz) was convicted of four counts of sexual contact with a minor (SDCL 22-22-7) after a jury trial in the circuit court for Edmunds County. ^* The trial court sentenced Wurtz to four concurrent terms, of four years each, in the State Penitentiary. Wurtz appeals, alleging 1) that the assistance provided by his trial counsel was ineffective, and 2) that his conviction on four identically worded counts violated constitutional prohibitions against double jeopardy. We affirm. For posterity, it should be noted that counsel on appeal was not trial counsel.

FACTS

In December 1986, Wurtz, a mechanic, lived in the basement of a farmhouse owned by his employer. The alleged victim of divers sexual contacts (by Wurtz) was a fifteen-year-old boy, T.B., who, with his family, resided in the upstairs portion of the house from December 1986 until April 1, 1987. T.B. and Wurtz associated with each other extensively during T.B.'s stay there.

--Incident One--

Shortly after T.B. and his family moved to another residence, he informed his mother of four sexual incidents between him and Wurtz. According to T.B., the first incident occurred in January 1987, when he and Wurtz were alone in a machine shop at the farm. Wurtz, who had been drinking, prevented T.B. from leaving, grabbed his arm and pulled him to a couch. When on the couch, Wurtz lay on top of him, undid T.B.'s pants, and proceeded to massage T.B.'s penis. During this activity, Wurtz had an erection. At one point, T.B. attempted to knee Wurtz in the groin, and Wurtz, angered, told him "stop or I'll just do it more." Wurtz apologized for his actions two days later.

--Incident Two--

T.B. testified that the second incident occurred on a cold night about two weeks later. He and Wurtz were in a pickup truck on a county road, a mile from the farm, with T.B. driving. Wurtz stopped the truck by extending his leg across the cab and hitting the brake. T.B. was subjected to similar treatment as in the first incident, with Wurtz undoing T.B.'s pants and playing with his penis. Wurtz, at one point, said "Let me try to make you a hard-on."

--Incident Three--

The third sexual encounter happened a few weeks later in the farmhouse basement. T.B., this time wearing sweat pants, was forced onto his back, and resisted unsuccessfully. The string on T.B.'s sweat pants was torn in the process. Wurtz succeeded in getting his hand onto T.B.'s penis, and played with it.

--Incident Four--

The last encounter, in T.B.'s narrative, occurred on the night of a steak fry party. In the machine shop, Wurtz grabbed T.B., forced him onto the couch again, and then grabbed T.B.'s hand. Wurtz, essentially, masturbated himself with T.B.'s hand, to the point of ejaculation, after which he let T.B. leave. T.B., at trial, was uncertain as to the date this event occurred, and linked it only to the night of the steak fry.

T.B.'s explanation for his continued association with Wurtz was that Wurtz had taught him about vehicle repair, which he enjoyed. His mother testified that T.B. had great difficulty in relating these events to her, crying often.

In an Information filed September 22, 1987, Wurtz was charged with four separate counts of sexual contact with a child, under SDCL 22-22-7, which provides:

Any person, fourteen years of age or older, who knowingly engages in sexual contact with another person, other than his spouse when such other person is under the age of sixteen years is guilty of a Class 4 felony. If the actor is less than three years older than the other person, he is guilty of a Class 1 misdemeanor.

The parts of the Information relevant to this appeal read as follows:

COUNT ONE

(FIRST INCIDENT)

That between December 15, 1986 and March 1, 1987, in the County of Edmunds, State of South Dakota, Rueben [sic] M. Wurtz, did commit the public offense of sexual contact with child under 16 in violation of SDCL 22-22-7 in that he did knowingly engage in sexual contact with [T.B.], a child under the age of 16 years, a Class Four felony.

COUNT TWO

(SECOND INCIDENT)

That between December 15, 1986 and March 1, 1987, in the County of Edmunds, State of South Dakota, Rueben [sic] M. Wurtz, did commit the public offense of sexual contact with child under 16 in violation of SDCL 22-22-7 in that he did knowingly engage in sexual contact with [T.B.], a child under the age of 16 years, a Class Four felony.

COUNT THREE

(THIRD INCIDENT)

That between December 15, 1986 and March 1, 1987, in the County of Edmunds, State of South Dakota, Rueben [sic] M. Wurtz, did commit the public offense of sexual contact with child under 16 in violation of SDCL 22-22-7 in that he did knowingly engage in sexual contact with [T.B.], a child under the age of 16 years, a Class Four felony.

COUNT FOUR

(FOURTH INCIDENT)

That between December 15, 1986 and March 1, 1987, in the County of Edmunds, State of South Dakota, Rueben [sic] M. Wurtz, did commit the public offense of sexual contact with child under 16 in violation of SDCL 22-22-7 in that he did knowingly engage in sexual contact with [T.B.], a child under the age of 16 years, a Class Four felony contrary to the statute in such case made and provided against the peace and dignity of the State of South Dakota.

An Amended Information was filed at a pretrial conference, on November 17, 1987. This new document, to which defense counsel did not object, extended the time frame of each of the alleged offenses for an additional month (from December 15, 1986 to April 1, 1987).

DECISION

Wurtz first claims that he was not provided with adequate and effective assistance of counsel, which is guaranteed by both Article VI, Sec. 7, of the South Dakota Constitution, and the Sixth Amendment to the United States Constitution. Our standard for evaluating such claims is derived from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), where the United States Supreme Court enunciated two requirements that a defendant must meet to be successful:

First, ... that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, ... that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. See Woods v. Solem, 405 N.W.2d 59, 61 (S.D.1987).

Wurtz, in this case, faces an additional hurdle, in that this Court has repeatedly held that 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. Hammond, 357 N.W.2d 278, 279 (S.D.1984).

Generally, this court has considered the issue of inadequacy of counsel only on appeal from post-conviction hearings, but where the defense at trial was so ineffective and counsel's representation so casual that the trial record evidences a manifest usurpation of appellant's constitutional rights, the claim of ineffective assistance of counsel will be reviewed on direct appeal.

State v. Phipps, 318 N.W.2d 128, 131 (S.D.1982); State v. McBride, 296 N.W.2d 551 (S.D.1980). Here, the alleged ineffectiveness is based on three aspects of defense counsel's performance: 1) Failure to impeach the testimony of the victim regarding three of the incidents; 2) failure to challenge the vagueness of the indictment; and 3) failure to move for dismissal of Counts Two, Three, and Four on the grounds of double jeopardy.

We consider Wurtz' first allegation of ineffectiveness only to determine whether his counsel's conduct constituted plain error. His second and third allegations, however, cannot be meaningfully analyzed without consideration of the merits of his separate double jeopardy argument, which we reject on its merits. Obviously, as they are conceptually unsound, they cannot form the basis of an ineffective counsel claim. See State v. Loop, 422 N.W.2d 420, 423 (S.D.1988).

The arguments regarding cross-examination in this case are within the realm of trial tactics. This Court's function is not to second-guess the tactical decisions of trial counsel, nor will we substitute our own theoretical judgment for that of the trial attorney. Woods, 405 N.W.2d at 62; Jones v. State, 353 N.W.2d 781, 784 (S.D.1984). The victim, a boy with, by his own testimony, a learning disability ("It takes me longer to understand things") could stir up jurors' emotions on cross-examination on unessential details. In Jibben v. State, 343 N.W.2d 788 (S.D.1984), we observed that a minor victim of incest, because of her age and the nature of the offense, was "likely to win sympathy as a complaining witness." Jibben, 343 N.W.2d at 789-90. As it was, defense counsel's cross-examination was extensive, and exposed numerous gaps in T.B.'s memory.

Wurtz' argument that his counsel should have attacked T.B.'s testimony regarding the truck incident is of little merit, as the testimony he would use to impeach was possibly more damaging to Wurtz than it would be to the State. The seriousness of T.B.'s confusion as to dates is undercut by the fact that time is not necessarily a material element of SDCL 22-22-7. See State v. Swallow, 350 N.W.2d 606, 608 (S.D.1984).

Vagueness as to the charges on the information, and the related question of double...