#29182-a-PJD
2020 S.D. 73
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
…
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
RICHARD SEIDEL, Defendant and Appellant.
…
APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
PERKINS COUNTY, SOUTH DAKOTA
…
THE HONORABLE ERIC J. STRAWN
Judge
…
JASON R. RAVNSBORG
Attorney General
PAUL S. SWEDLUND
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff and
appellee.
TIMOTHY J. BARNAUD
Belle Fourche, South Dakota Attorney for defendant and
appellant.
…
CONSIDERED ON BRIEFS
AUGUST 24, 2020
OPINION FILED 12/30/20
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DEVANEY, Justice
[¶1.] Richard Seidel appeals his convictions for kidnapping, rape,
aggravated assault, and commission of a felony with a firearm. He claims that the
circuit court abused its discretion in limiting defense counsel’s closing argument;
that the prosecutor engaged in misconduct during closing argument; and that the
circuit court erred in denying his motion for judgment of acquittal. He also claims
that his sentence is cruel and unusual in violation of the Eighth Amendment. We
affirm.
Factual and Procedural Background
[¶2.] J.S. separated from her husband, Richard Seidel, sometime in 2015
after he had an affair, and in September 2017, she filed for divorce. While they
were separated, J.S. continued to work as a bookkeeper for a company owned by
Richard—Bison Grain Company. On November 2, 2017, when J.S. arrived at Bison
Grain, Richard and an employee, Doug Lewton, were present. At around 11:45
a.m., Richard told Doug to take his lunch break “like [he] normally do[es].” Doug
later explained that he thought Richard’s statement was odd because he did not
take a lunch break at a set time, but he nevertheless left Bison Grain. Richard
disputes what happened next; however, we restate the evidence and testimony “in a
light most favorable to the jury’s verdict.” See State v. Huber, 2010 S.D. 63, ¶ 2,
789
N.W.2d 283, 286.
[¶3.] After Doug left, Richard and J.S. were alone at Bison Grain, and
according to J.S., Richard asked her to help him process a transaction on the
computer in the scale room. J.S. complied, and as she was typing, Richard slipped a
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zip tie around her neck, tightened it, and began choking her. She begged him to
stop making it tighter. Richard then pushed J.S. to the ground and took her cell
phone. J.S. blacked out shortly thereafter.
[¶4.] When J.S. awoke, she realized she was on her stomach on the floor of
the scale room and the zip tie was still around her neck. She noticed that she had
urinated and defecated, and her wrists and ankles were bound with zip ties. J.S.
saw that Richard had a gun, and she thought he was going to kill her. According to
J.S., Richard stood her up and put her in the backseat of his pickup, after which she
blacked out again.
[¶5.] When J.S. awoke, she could hear the pickup traveling down a gravel
road. Richard drove J.S. to their marital home outside of Bison where he continued
to live after the couple had separated. He parked the pickup in the garage, then cut
the zip tie from J.S.’s ankles and had her walk into the house while he pointed a
gun at her back. As the two walked to the bedroom, J.S. noticed a white garbage
bag with black draw strings on the kitchen counter. In the bedroom, J.S. noticed a
rope tied to the bottom part of the headboard. Although Richard did not use the
rope on J.S., she feared that he planned to rape and kill her.
[¶6.] Once in the bedroom, Richard used a utility knife to cut off J.S.’s coat,
shirt, and bra. He also removed her jeans and underwear and took her into the
master bathroom to shower and clean off the urine and feces. After the shower,
Richard shaved J.S.’s pubic area with an electric razor. He then had J.S. perform
oral sex on him at gunpoint. Next, he returned J.S. to the bedroom and bent her
over the bed. She asked him to use a lubricant if he was going to do anything
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anally. J.S. explained that Richard used lubrication from a tube in a bag under the
bed and penetrated her both vaginally and anally. During the anal penetration,
J.S. defecated, which upset Richard, so he took her to the shower again. Afterward,
Richard told her that she needed to listen to him about their divorce. J.S. promised
that she would stop the divorce, hoping this would prevent Richard from killing her.
Richard then appeared to calm down. He cut the zip ties from her wrists but
reminded her he had a gun and told her to put on other clothing.
[¶7.] J.S. walked from the bedroom to the laundry room to get dressed. At
some point, she placed part of a zip tie that had been cut from her wrist on top of
the refrigerator. According to J.S., Richard put her cut-up clothing in a white
garbage bag and placed her underwear and the bedding in the washing machine.
Thereafter, they left the house and drove to the airport where Richard stored his
private plane. When they arrived, J.S. noticed that the door to the hangar was open
and the blocks were removed from the plane’s tires, neither of which were typical.
At the airport, Richard cut the zip tie from J.S.’s neck and placed it in the white
garbage bag. He got out of the pickup, taking the bag with him, and told J.S. to
return in 20 minutes. He warned her that if she told the sheriff what happened he
would shoot himself.
[¶8.] J.S. left the airport in the pickup after she saw Richard fly away in the
plane. She then went to Bison Grain to get her cell phone. J.S. sent a snapchat
message to her daughter-in-law Kristen Seidel around 1:30 p.m. informing her that
she was “scared” and if she was “not back by 2,” Kristen should “come look for
[her].” J.S. testified that she returned to the airport to pick up Richard and drove
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him to another house they owned by Bison Grain. She explained that after she
dropped Richard off, he got into his Cadillac and drove off. In an attempt to have
things appear normal, J.S. got into her own vehicle (a red dually pickup) and drove
to the post office and bank.
[¶9.] At approximately 1:50 p.m., J.S. returned to Bison Grain, and Kristen
was there waiting for her. Kristen described J.S. as “pretty distraught” and noted
that she was crying. J.S. told Kristen what had happened. Despite Kristen’s
urging, J.S. resisted telling law enforcement, claiming she did not want Richard to
kill himself. Doug came in from the shop at this point, and both he and Kristen
convinced J.S. to report what had occurred. Kristen took J.S. to the police station in
Doug’s pickup because J.S. did not want Richard to see her pickup leave Bison
Grain or see it parked outside the police station.
[¶10.] J.S. was too afraid to go into the police station, so Kristen went inside.
After learning that the sheriff was not in town, Kristen asked a deputy to speak to
J.S. outside in Doug’s pickup. When Deputy Matthew Kindsvogel first approached
J.S., he observed that she was crying and frantic in her movements and that she
had a red mark on her neck. The deputy recorded his conversation with J.S.
wherein she related what Richard had done to her. Deputy Kindsvogel
photographed the marks on J.S.’s neck, wrists, and elbow and determined that J.S.
should be seen by medical personnel. Kristen then took J.S. to a medical clinic in
Bison. A physician assistant at the clinic observed that J.S. had broken blood
vessels in her eyes, petechiae (pinpointed, round spots caused by broken capillaries)
on her right forehead, abrasions on her elbow, and ligature marks on her wrists and
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neck. He also observed that J.S. had bloody post nasal drip in her throat, and
because of the trauma to her neck, he recommended that J.S. be taken to the
emergency room at the hospital in Spearfish for an examination.
[¶11.] At approximately 5:30 p.m., Kristy Schumacher, a nurse specially
trained in conducting examinations of sexual assault victims, examined J.S. During
her initial assessment, Nurse Schumacher observed a ligature mark on J.S.’s neck
which had “several stripes going vertically within it” consistent with the teeth of a
zip tie. She also observed that the whites of both of J.S.’s eyes were red from
“hemorrhaging in the eye sclera.” The nurse further observed broken capillaries on
the right side of J.S.’s forehead and eye. Although the nurse did not observe visible
injuries to J.S.’s vagina or anus, she noted that J.S.’s vaginal and anal openings
were very tender based on J.S.’s reaction of holding onto the bed railing tightly and
crying during the examination.
[¶12.] While at the Spearfish hospital, Dr. Matthew Finke also examined
J.S.’s injuries. Dr. Finke reported that J.S. had a subconjunctival hematoma on the
lateral part of her left eye. He also reported that because of the hemorrhaging in
her eye and J.S.’s reported tenderness around “the laryngeal cartilage, which is
kind of the Adam’s apple” part of the neck, he ordered a CT angiogram of the head
and neck to rule out airway and vessel issues. The test indicated normal vessels
and no fracture of the laryngeal cartilage.
[¶13.] After law enforcement’s initial contact with J.S., officers located
Richard as he was driving toward Bismarck, North Dakota. Law enforcement also
obtained search warrants for Richard’s residence, airplane, pickup, and Bison
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Grain. During a search of the residence, law enforcement found J.S.’s jeans and
undergarments in the dryer and bed linens in the washing machine. They also
found a bag containing sex paraphernalia and lubricant on a shelf in the closet of
the master bedroom. Officers found a box of white garbage bags with black draw
strings in a closet and a portion of a zip tie on the top of the refrigerator. Although
the officers did not find the specific garbage bag taken by Richard when he flew
away in his airplane, they did uncover a portion of a zip tie on the floor inside the
plane. Various items were submitted for testing at the South Dakota Forensic
Laboratory. Forensic examiners identified J.S.’s DNA on swabs from Richard’s
penis, from the partial zip tie located on top of the refrigerator, and from an electric
razor head found in the master bathroom. They also determined that Richard could
not be excluded as a source of the DNA obtained from the vaginal swabs collected
from J.S.
[¶14.] On November 14, 2017, a grand jury indicted Richard with alternative
counts of kidnapping, and one count each of rape, aggravated assault, and
commission of a felony with a firearm. He pled not guilty, and a jury trial was held
on July 22–26, 2019. The State called numerous witnesses, including J.S., Kristen,
Doug, multiple law enforcement officers, Dr. Finke, and Nurse Schumacher.
Richard’s defense theory centered on his claim that his entire interaction with J.S.
on November 2 was consensual, including the sex acts. 1 Defense counsel’s opening
statement alluded to a history between Richard and J.S. of rough but consensual
1. The trial transcript refers to “J.N.” rather than “J.S.” because by the time of
trial, Richard and J.S. were divorced and she was no longer using her
married name.
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sex. Defense counsel called multiple witnesses to testify about J.S.’s demeanor and
behavior within an hour of the alleged incident, and within several days and
months after the incident, to suggest that her behavior was not consistent with
someone who had been violently attacked and raped.
[¶15.] After the State rested, Richard moved for judgment of acquittal on all
counts. The court denied the motion. Richard renewed the motion after the defense
rested, but the court denied it again. Before closing argument, the State filed two
motions in limine—one to preclude defense counsel from arguing that Richard and
J.S. had engaged in consensual sex on the date in question, and the other to
specifically preclude any mention of Richard and J.S. engaging in “erotic
asphyxiation.” The latter motion pertained to defense counsel’s comment to the jury
during his opening statement that Richard and J.S. had previously “engaged in
something called ‘erotic asphyxiation’, where a person’s breath is held by a small
cord-type deal that was actually a pet collar to enhance an orgasm.” The State
asserted that defense counsel should be precluded from making such an argument
in closing because no evidence had been admitted at trial to support this suggestion.
The court denied the State’s motion to preclude defense counsel from arguing the
acts were consensual but granted the State’s motion precluding defense counsel
from referring to erotic asphyxiation.
[¶16.] Ultimately, the jury found Richard guilty of first-degree kidnapping,
rape, aggravated assault, and commission of a felony with a firearm. The circuit
court sentenced him to 45 years for the kidnapping, 25 consecutive years for the
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rape, five consecutive years for the commission of a felony with a firearm, and 15
concurrent years for the aggravated assault.
[¶17.] Richard appeals, asserting the following issues for our review: 2
1. Whether the circuit court abused its discretion when it
granted the State’s motion in limine regarding erotic
asphyxiation.
2. Whether prosecutorial misconduct occurred, depriving
Richard of his right to a fair trial.
3. Whether the circuit court erred in denying Richard’s
motion for judgment of acquittal.
4. Whether cumulative error occurred, denying Richard of
his right to a fair trial.
5. Whether Richard’s sentence is grossly disproportionate in
violation of the Eighth Amendment.
Analysis and Decision
1. Whether the circuit court abused its discretion when
it granted the State’s motion in limine regarding
erotic asphyxiation.
[¶18.] Richard claims he “was deprived of a key argument in his case when
the [circuit] court granted the State’s motion in limine regarding erotic
asphyxiation.” He asserts that there was sufficient evidence in the record to allow
the jury to consider this defense. In particular, he argues that the jury could have
reasonably inferred that the marks on J.S.’s neck were the result of erotic
asphyxiation because there was a lack of evidence, testimony or otherwise, to
support J.S.’s claim that she was violently attacked. He also claims that the
inference is reasonable because, in his view, the red marks on J.S.’s neck were not
2. Richard’s counsel on appeal is different than his counsel at trial.
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consistent with her claim that the zip tie was so tight that she blacked out, or with
her claim that Richard cut the zip tie off with a utility knife. 3 Finally, he asserts
that although J.S. denied engaging in erotic asphyxiation on prior occasions, his
contrary argument is supported by the bag of sex toys found in the Bison residence. 4
[¶19.] Richard posits his claim as a denial of his right to present his theory of
the defense. However, the circuit court did not bar Richard from presenting
evidence in support of his theory that J.S.’s injuries were the result of consensual
sexual acts, nor did the court prohibit defense counsel from arguing the same. The
court only precluded defense counsel from specifically referring to erotic
asphyxiation. The court’s ruling was based on a finding that there were no facts
introduced at trial to support the suggestion that Richard and J.S. had engaged in
erotic asphyxiation either before or during the charged offenses. The court noted
that although “there was mention of sex toys . . . there was no buildup of facts with
regard to previous uses of those items” or “any testimony with regard to [ ] the
erotic asphyxiation.”
[¶20.] It is well settled that in closing argument, “[c]ounsel has a right to
discuss the evidence and inferences and deductions generated from the evidence
3. In response to similar arguments defense counsel made to the circuit court,
the State pointed to defense counsel’s failure to account for the fact that a
gun was used, and that J.S. had passed out, had injuries to her neck,
petechiae on her face, and blood in her eye. More importantly, the State
noted that her wrists were bound and injured. The State asserted that
defense counsel cannot “make up facts” or “throw things out to confuse the
jury, [or] prejudice the jury.”
4. The only identifiable items in a photo of the bag of sex toys introduced at trial
are a dildo and a tube of lubricant.
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presented.” State v. Patterson, 2017 S.D. 64, ¶ 20,
904 N.W.2d 43, 50 (quoting State
v. Smith,
1999 S.D. 83, ¶ 42,
599 N.W.2d 344, 353). However, “[c]losing arguments
are not evidence”, see Smith,
1999 S.D. 83, ¶ 48,
599 N.W.2d at 354, and courts may
limit arguments “to the facts in evidence and reasonable inferences flowing
therefrom”, see Richardson v. Bowersox,
188 F.3d 973, 980 (8th Cir. 1999) (citation
omitted). We review the circuit court’s decision to grant the State’s motion in limine
for an abuse of discretion. See Fix v. First State Bank of Roscoe,
2011 S.D. 80, ¶ 23,
807 N.W.2d 612, 619 (reviewing the court’s evidentiary ruling related to closing
argument for an abuse of discretion); State v. Bausch,
2017 S.D. 1, ¶ 12,
889 N.W.2d
404, 408 (reviewing an in limine ruling for an abuse of discretion).
[¶21.] A review of the trial record supports the circuit court’s observation that
Richard did not present any evidence to support his erotic asphyxiation theory. The
only mention of erotic asphyxiation during the entire trial was when defense
counsel posed the following questions and received the following responses from
J.S.:
Q: And you engaged in erotic asphyxiation because that’s
something the two of you had done before; isn’t that true?
A: Never.
Q: And he used a small little cat collar around your neck that
you wanted him to use; isn’t that true?
A: No.
Q: And you’re the one who brought those zip ties in there;
isn’t that correct?
A: No.
Richard did not testify at trial, so J.S.’s testimony denying such conduct was not
refuted. Defense counsel tried to broach the general topic of erotic asphyxiation by
asking Dr. Finke if “there are ways for people to engage in manual strangulation to
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enhance the sexual pleasure,” but the State objected to the question as “[b]eyond
the scope of this witness”, and the court sustained the objection. Defense counsel
was nevertheless allowed to elicit from Dr. Finke that he could not “tell by looking
at a person’s neck whether they engaged in the activity willingly or not[.]”
However, no witness provided testimony supporting a claim that Richard and J.S.
had previously engaged in such willing activity, and defense counsel conceded in his
argument to the court that he was “not allowed to talk about cat collars because
that did not come in.” Because there was simply no evidence in the record from
which the jury could reasonably infer that Richard and J.S. engaged in erotic
asphyxiation, the court did not abuse its discretion in precluding such an argument.
[¶22.] Despite the circuit court’s ruling, defense counsel was allowed, over the
State’s objection, to argue to the jury that J.S. had consented to being bound.
Counsel asserted that “one would not expect to see defensive marks . . . [b]ecause
that would mean she was going along with it.” He then noted that because there
were no claw marks on J.S.’s neck and her long fingernails were all intact, the
evidence suggested she was not being choked involuntarily. In addition, defense
counsel pointed out that by the time the doctor saw J.S. later in the evening on the
day of the alleged assault, the striation marks from the zip tie on her neck were no
longer visible. In counsel’s view, the fading marks would be “consistent with [J.S]
going along with this.” Finally, counsel pointed to the evidence in the record
suggesting that J.S. had gone back to the marital home after the alleged assault
and suggested this was inconsistent with someone who had just been raped at this
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location. 5 Therefore, we conclude that Richard was not prevented from presenting
the central theory of his defense to the jury.
2. Whether prosecutorial misconduct occurred,
depriving Richard of his right to a fair trial.
[¶23.] Richard contends the prosecutor committed misconduct during closing
argument by telling the jury that Dr. Finke had testified it would not be possible for
J.S. to inflict these wounds upon herself. Richard asserts this was a
misrepresentation of the doctor’s testimony. Richard also claims that the
prosecutor “deceptively described” a letter Richard had written to J.S. by
characterizing it “in a way that was likely to mislead the jury as to its contents.”
He acknowledges that the letter was admitted at trial, but claims the prosecutor
committed misconduct because he “plainly insinuated that a letter tantamount to a
confession was among the evidence in the record” when the letter “had barely been
mentioned during the course of the trial, and its contents were never laid out for the
jury[.]” Finally, Richard asserts that the prosecutor knowingly proffered false
testimony from J.S. about the gun she claimed Richard had used, and also proffered
misleading testimony from J.S.’s divorce attorney regarding a civil suit she filed—
after the trial was concluded—against Richard for the same acts for which he was
being tried in the criminal case.
5. Defense counsel suggested that the reason J.S. went back to the house was to
plant evidence, namely the zip tie on the refrigerator and a ziplock bag of
bullets in the pocket of Richard’s jeans found in a clothes hamper. The
overarching theory of the defense was that J.S. engaged in all of these acts in
order to use them as a basis for obtaining a more favorable divorce settlement
or a monetary award against Richard in a civil lawsuit.
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[¶24.] Richard’s trial counsel did not object to any of these alleged instances
of prosecutorial misconduct. Richard therefore requests that we review these
claims for plain error. Under SDCL 23A-44-15, “[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of
a court.” “To establish plain error, an appellant must show ‘(1) error, (2) that is
plain, (3) affecting substantial rights; and only then may this Court exercise its
discretion to notice the error if (4) it seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.’” Bausch, 2017 S.D. 1, ¶ 27,
889 N.W.2d at
412 (alteration in original) (quoting State v. Buchhold,
2007 S.D. 15, ¶ 22,
727
N.W.2d 816, 822).
[¶25.] It is well established that in closing argument, “[c]ounsel has a right to
discuss the evidence and inferences and deductions generated from the evidence
presented.” Smith,
1999 S.D. 83, ¶ 42,
599 N.W.2d at 353. Therefore, “[h]e or she
may ‘discuss the evidence, pointing out discrepancies and conflicts in the testimony,
and argue that the evidence in the record supports and justifies a conviction[.]’” Id.
¶ 46,
599 N.W.2d at 354 (citation omitted). However, a prosecutor “may not seek a
conviction at any price.” Id. ¶ 42,
599 N.W.2d at 353. As such, “[p]rosecutorial
misconduct implies a dishonest act or an attempt to persuade the jury by use of
deception or by reprehensible methods.” State v. Bariteau,
2016 S.D. 57, ¶ 23,
884
N.W.2d 169, 177 (citation omitted).
[¶26.] Here, a review of the record does not support Richard’s
characterization of the prosecutor’s conduct, let alone show that prosecutorial
misconduct occurred. First, the prosecutor did not misrepresent Dr. Finke’s
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testimony. Rather, the prosecutor explained the doctor’s responses to defense
counsel’s cross-examination regarding hypothetical scenarios where similar injuries
could result from activities other than someone being unwillingly strangled.
[¶27.] During trial, in response to defense counsel’s question about kids
holding their breath under water and bursting blood vessels in their eyes, Dr. Finke
stated, “I personally am not aware of that, but it could be possible.” Defense
counsel also asked Dr. Finke whether coughing, sneezing, or vomiting could burst a
blood vessel in the eye, and he agreed that could happen. But on redirect, the State
asked Dr. Finke if these types of activities would result in marks on the neck, and
he responded, “No.” During closing argument, the prosecutor’s full commentary on
Dr. Finke’s testimony, without focusing solely on one statement in isolation, was as
follows:
He testified about his examination of her, and he said that based
on everything, even looked at the video - - or the picture, which
he said he didn’t recall from that day, is consistent with a sexual
assault and consistent with manual strangulation. But what he
also said is, “You can’t do that to yourself.” Petechiae in the eye
- - or on the forehead, excuse me, the redness in the eye, the
throat, that takes pressure. That takes force. Defense even
threw out a hypothetical to him about children holding their
breath and breaking blood vessels in their eye. Doctor said, “No.
That’s not really it.” But, again, that wouldn’t cause a zip tie
mark to your neck. That wouldn’t cause marks to your wrists.
So, again, it is consistent with what her version of events were
that day.
A review of the prosecutor’s statements as a whole, particularly considering the
context of the underlying trial testimony, does not support Richard’s contention that
the State misrepresented Dr. Finke’s testimony.
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[¶28.] Next, there is no merit to Richard’s claim that the prosecutor used
“deceptive innuendo” and “patently deliberate” deception when referring, during
rebuttal, to letters found in Richard’s desk at Bison Grain. These writings appeared
to have been written by Richard to J.S. prior to the incident at issue. In them,
Richard expressed sorrow and regret for his drinking and adultery. He promised to
change and proposed certain changes to save the relationship before either of them
filed for divorce. The prosecutor accurately noted that one letter contained a
statement that the letter was written against his lawyer’s advice. It further
expressed that despite his efforts as detailed in the letter, Richard knew he was
losing the battle because J.S. had moved out and filed for divorce. The prosecutor
argued that this evidence showed Richard had a motive to perpetrate these acts
upon J.S. This was a fair argument in response to defense counsel’s suggestion that
J.S. either set up or exaggerated the whole incident in an attempt to extract a more
favorable property settlement in the divorce.
[¶29.] Richard’s additional claims—that the State “knowingly presented
misleading and potentially perjured testimony from” J.S. and from her divorce
attorney—are likewise unfounded. 6 Beyond appellate counsel’s bald accusations,
there is no evidence that the prosecution introduced perjured testimony by either
J.S. or her divorce attorney. Rather than outlining any prosecutorial misconduct,
appellate counsel’s critique of J.S.’s testimony is nothing more than a routine attack
on a witness’s credibility based on perceived inconsistencies in the evidence.
6. Allegations of suborning perjury are indeed serious and should only be made
when based on a firm foundation. Appellate counsel’s accusations here are
disturbing, given their unfounded nature.
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Moreover, the allegedly perjured testimony from J.S.’s divorce attorney was in fact
elicited by defense counsel. Appellate counsel’s argument further overlooks the fact
that J.S.’s divorce attorney ultimately acknowledged that J.S. would not waive her
right to bring a civil suit against Richard and that nothing prevented her “from
filing a lawsuit tomorrow[.]”
[¶30.] Because Richard’s prosecutorial misconduct claims are unfounded, he
has failed to establish even the first prong of plain error.
3. Whether the circuit court erred in denying Richard’s
motion for judgment of acquittal.
[¶31.] Richard argues that the State failed to present sufficient evidence to
support a conviction on each offense. In regard to the kidnapping conviction, he
claims that the evidence is insufficient because the State only presented J.S.’s
uncorroborated testimony that Richard took her from Bison Grain without her
consent. Richard contends the evidence is similarly insufficient to prove aggravated
assault because the State failed to present evidence corroborating J.S.’s account of
the alleged assault, such as trace evidence of fecal or urine matter on the floor at
Bison Grain. In regard to the rape conviction, Richard argues that no trier of fact
could conclude beyond a reasonable doubt that he raped J.S. because the medical
professionals did not find evidence of injuries to her vagina or anus; law
enforcement did not find evidence of fibers on the bedroom or bathroom floor to
support her statement that he cut off her clothing; and the marks on J.S.’s wrists
and neck were not sufficiently probative to establish nonconsensual sex. Finally,
Richard contends that J.S.’s uncorroborated testimony that he used a gun to commit
the offenses was insufficient given her allegedly conflicting statements as to
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whether she could describe the gun, and because no such gun was found during the
investigation.
[¶32.] “We review a denial of a motion for judgment of acquittal de novo.”
State v. Armstrong, 2020 S.D. 6, ¶ 12,
939 N.W.2d 9, 12. “In measuring the
sufficiency of the evidence, we ask ‘whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” State v. Brim,
2010
S.D. 74, ¶ 6,
789 N.W.2d 80, 83 (quoting State v. Klaudt,
2009 S.D. 71, ¶ 14,
772
N.W.2d 117, 122). It is well settled that we “will not resolve conflicts in the
evidence, assess the credibility of witnesses, or evaluate the weight of the evidence.”
Id. Rather, “we accept the evidence and the most favorable inferences fairly drawn
therefrom, which will support the verdict.” State v. Jensen,
2007 S.D. 76, ¶ 7,
737
N.W.2d 285, 288 (quoting State v. Lewis,
2005 S.D. 111, ¶ 8,
706 N.W.2d 252, 255).
“Moreover, the jury is . . . the exclusive judge of the credibility of the witnesses and
the weight of the evidence.”
Id. (citations omitted).
a. Kidnapping
[¶33.] The jury found Richard guilty of first-degree kidnapping in violation of
SDCL 22-19-1(3), which defines this crime as follows:
Any person who, either unlawfully removes another person from
the other’s place of residence or employment, or who unlawfully
removes another person a substantial distance from the vicinity
where the other was at the commencement of the removal, or
who unlawfully confines another person for a substantial period
of time, with any of the following purposes:
...
(3) To inflict bodily injury on or to terrorize the victim or another
....
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[¶34.] A review of the record reveals sufficient evidence for the jury to
conclude that Richard removed J.S. from Bison Grain for the purpose of inflicting
bodily injury upon her or to terrorize her. J.S. testified in detail regarding Richard’s
act of forcefully removing her from Bison Grain. Further, Doug testified that
Richard told him to leave for his lunch like he normally does when, according to
Doug, he does not take lunch during the normal lunch hour. The jury could
therefore infer that Richard ordered Doug to leave so he could be alone with J.S. to
perpetrate these unlawful acts. J.S.’s testimony regarding the events that
transpired later at the marital home further supports the jury’s finding that
Richard removed her from her place of employment to another location to injure or
terrorize her.
b. Aggravated Assault
[¶35.] “Any person who . . . [a]ttempts to induce a fear of death or imminent
serious bodily harm by impeding the normal breathing or circulation of the blood of
another person by applying pressure on the throat or neck, or by blocking the nose
and mouth[ ] is guilty of aggravated assault.” SDCL 22-18-1.1(8). Richard’s
argument on this charge centers on the State’s failure to produce evidence
corroborating J.S.’s claim that she urinated and defecated after Richard strangled
her. Even though such evidence is not necessary to sustain the conviction, and the
jury—not this Court—must evaluate the weight, if any, to give to the asserted lack
of corroborating evidence, Richard’s argument overlooks the fact that there was
evidence corroborating many aspects of J.S.’s testimony. The jury heard testimony
from law enforcement who found J.S.’s jeans and underwear in the dryer at the
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marital home where the events had transpired. Several witnesses also described
the ligature marks on J.S.’s neck as appearing consistent with the markings from a
zip tie. These, along with the broken blood vessels on J.S.’s face and in her eye,
supported the State’s argument that Richard had placed a zip tie around J.S.’s neck
and impeded her normal breathing to induce a fear of death or imminent serious
bodily harm.
c. Rape
[¶36.] The jury found Richard guilty of second-degree rape under SDCL 22-
22-1(2), which provides that “[r]ape is an act of sexual penetration accomplished
with any person under any of the following circumstances: . . . Through the use of
force, coercion, or threats of immediate and great bodily harm against the victim or
other persons within the victim’s presence, accompanied by apparent power of
execution[.]” Although Richard claims more evidence of injury or other
corroboration was necessary to prove beyond a reasonable doubt that he raped J.S.,
on appeal, we will not set aside a jury verdict unless “the evidence and all
reasonable inferences to be drawn therefrom fail to sustain a rational theory of
guilt.” State v. Berhanu, 2006 S.D. 94, ¶ 7,
724 N.W.2d 181, 183 (citation omitted).
Moreover, when a conviction turns in large part upon the credibility of witnesses, a
circuit court properly leaves “to the jury the pervasive issue of credibility and
considering the evidence as a whole[.]” State v. Guthrie,
2001 S.D. 61, ¶ 50,
627
N.W.2d 401, 422.
[¶37.] Here, J.S.’s testimony alone, if believed by the jury, was sufficient to
establish the elements of rape. But in addition, the jury heard testimony that law
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enforcement located several items in the house consistent with her explanation of
what had occurred there—pubic hairs in the bathroom, J.S.’s DNA on the razor,
lubricant in the bedroom, the partial zip tie on top of the refrigerator, the bed linens
in the washing machine, and J.S.’s jeans and undergarments in the dryer. Further,
Nurse Schumacher testified that based on her observations during J.S.’s medical
exam, J.S.’s vaginal and anal openings were very tender. This evidence is sufficient
to support a finding of the elements of rape beyond a reasonable doubt.
d. Commission of a Felony with a Firearm
[¶38.] The jury convicted Richard of violating SDCL 22-14-12, which
provides: “Any person who commits or attempts to commit any felony while armed
with a firearm . . . is guilty of a Class 2 felony for the first conviction.” Richard
maintains that aside from J.S.’s testimony, “[t]here is no other evidence that the
gun allegedly used even exists, except the bullets that were recovered at the
residence.” He further contends J.S. gave contradictory statements, raising
questions as to the reliability of her description of the gun he allegedly used during
the events in question.
[¶39.] Contrary to Richard’s suggestion, we do not reweigh evidence or pass
on the credibility of witness testimony. See Brim, 2010 S.D. 74, ¶ 6,
789 N.W.2d at
83. Like the other charges, the jury could reasonably have concluded based on J.S.’s
testimony alone, wherein she described the gun and how it was used, that Richard
used a gun while perpetrating the felonies at issue. The jury could also rely on the
fact that law enforcement discovered bullets at the scene in the pocket of a pair of
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Richard’s jeans located in a clothes hamper, consistent with the type of bullet used
in the gun described by J.S. (a .357 magnum revolver).
[¶40.] Because our review of the evidence in the light most favorable to the
prosecution supports that the jury could have found the essential elements of the
crimes beyond a reasonable doubt, the circuit court did not err in denying judgment
of acquittal on all counts on which Richard was convicted.
4. Whether cumulative error occurred, denying
Richard of his right to a fair trial.
[¶41.] Richard restates the errors alleged in the previous issues and claims
that the cumulative effect of these errors denied him of his constitutional right to a
fair trial. Because Richard has not established an error on any of the above issues,
we need not address this argument. State v. Hemminger, 2017 S.D. 77, ¶ 41,
904
N.W.2d 746, 759 (declining to review a claim of cumulative error based on the Court
finding a lack of error on the other issues raised).
5. Whether Richard’s sentence is grossly
disproportionate in violation of the Eighth
Amendment.
[¶42.] Richard challenges the constitutionality of his sentence for multiple
reasons. He claims that his 75-year sentence is grossly disproportionate because
the circuit court, in effect, gave him a life sentence. He also contends that his 45-
year sentence for kidnapping—nearly twice as long as that received for rape and
aggravated assault—is grossly disproportionate because the court did not consider
what he describes as the incidental nature of the kidnapping in the commission of
his other crimes. Regarding his total sentence, Richard asserts that the “court
effectively ignored all mitigating factors” and “summarily disregarded any and all
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evidence of” his good character. Finally, in his view, the court erroneously inferred
without evidentiary support that he executed his crimes with premeditation, and
then used that erroneous determination to impose a severe sentence.
[¶43.] There are generally two types of sentence challenges—an Eighth
Amendment violation and an abuse of discretion. Although Richard characterizes
his challenge to the circuit court’s sentence as an Eighth Amendment claim and
quotes our law governing proportionality review, his arguments only dispute the
appropriateness of the court’s particular sentence based on the facts of this case and
Richard’s unique characteristics. The State’s brief likewise seems to conflate the
two types of sentence challenges. The State first identifies our law governing
proportionality review, but then—within that constitutional analysis—quotes
language from State v. Bonner, 1998 S.D. 30, ¶ 19,
577 N.W.2d 575, 580, setting
forth what a court is to consider in exercising its discretion when imposing a
sentence. Because Richard characterized his sentencing challenge as an Eighth
Amendment claim, we address that claim first, although we also review the
sentence for an abuse of discretion.
a. Eighth Amendment
[¶44.] “In answering the threshold question of gross disproportionality” “the
gravity of the offense refers to the offense’s relative position on the spectrum of all
criminality.” State v. Chipps, 2016 S.D. 8, ¶ 35,
874 N.W.2d 475, 487. Similarly, an
examination of the harshness of the penalty looks “to the penalty’s relative position
on the spectrum of all permitted punishments.” Id. ¶ 37,
874 N.W.2d at 488. “This
comparison rarely ‘leads to an inference of gross disproportionality’ and typically
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marks the end of our review[.]” Id. ¶ 38, 874 N.W.2d at 489 (citation omitted).
However, “[i]f the penalty imposed appears to be grossly disproportionate to the
gravity of the offense, then we will compare the sentence to those ‘imposed on other
criminals in the same jurisdiction’ as well as those ‘imposed for commission of the
same crime in other jurisdictions.’”
Id. (quoting Solem v. Helm,
463 U.S. 277, 291,
103 S. Ct. 3001, 3010,
77 L. Ed. 2d 637 (1983)).
[¶45.] Richard’s attempt to minimize the gravity of his offenses ignores that
the jury found him guilty of multiple acts: kidnapping J.S. to inflict bodily injury or
to terrorize her; assaulting her by cutting off her oxygen supply; and raping her—all
while armed with a gun. These crimes indisputably sit on the more serious end of
the spectrum of all criminality and “often warrant severe penalties.” See, e.g., State
v. Traversie,
2016 S.D. 19, ¶ 17,
877 N.W.2d 327, 332 (reviewing sentences for
kidnapping and assault); State v. Yeager,
2019 S.D. 12, ¶ 6,
925 N.W.2d 105, 109
(explaining that “[r]ape is a heinous crime”). In regard to the harshness of the
penalties imposed, Richard has not established that the circuit court violated his
constitutional right to be free from cruel and unusual punishment. He faced a life
sentence for the kidnapping conviction and received a 45-year sentence. He faced a
maximum possible sentence of 50 years for the rape conviction and received a 25-
year consecutive sentence. He faced a maximum possible sentence of 25 years for
his conviction of commission of a felony with a firearm and received the mandatory
minimum sentence of five consecutive years. His remaining sentence (15 years for
aggravated assault) was ordered to run concurrent to the other sentences.
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[¶46.] When the gravity of the offenses is compared to the harshness of the
penalties, Richard’s sentences do not appear grossly disproportionate. Because
Richard has not met the threshold requirement of gross disproportionality, our
review under the Eighth Amendment ends.
b. Abuse of Discretion
[¶47.] “Before sentencing a defendant, the court is to ‘acquire a thorough
acquaintance with the character and history of the [person] before it.’” State v.
Diaz, 2016 S.D. 78, ¶ 47,
887 N.W.2d 751, 765 (alteration in original) (quoting State
v. Lemley,
1996 S.D. 91, ¶ 12,
552 N.W.2d 409, 412). In doing so, the court should
consider the defendant’s “‘general moral character, mentality, habits, social
environment, tendencies, age, aversion or inclination to commit crime, life, family,
occupation, and previous criminal record[,]’ as well as the rehabilitative prospects of
the defendant.” State v. Overbey,
2010 S.D. 78, ¶ 36,
790 N.W.2d 35, 44 (quoting
State v. Blair,
2006 S.D. 75, ¶ 27,
721 N.W.2d 55, 63). On appeal, we will reverse a
sentence upon a showing of an abuse of discretion—“a fundamental error of
judgment, a choice outside the range of permissible choices, a decision, which, on
full consideration, is arbitrary or unreasonable.” State v. Holler,
2020 S.D. 28, ¶ 10,
944 N.W.2d 339, 342 (citation omitted).
[¶48.] Contrary to Richard’s characterization of the circuit court’s sentencing
decision, the court carefully addressed each of the penological factors of retribution,
deterrence, incapacitation, and rehabilitation. In doing so, the court considered the
mitigating factors, including his lack of criminal history, his contributions to his
community, and the multitude of letters submitted in support of Richard. The court
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also considered that Richard had recently married, which suggested to the court
that he is able to take on responsibility. However, “in the midst” of these mitigating
factors, the court identified a common thread—attempts to justify why Richard did
what he did. The court recounted one particular letter written in support of
Richard explaining the combative and contentious nature of J.S. and Richard’s
relationship and alleging J.S. was the aggressor and someone with a goal to destroy
Richard. In the court’s view, even if both Richard and J.S. “had engaged in button-
pushing in the past, no one deserves to be kidnapped, bound with zip ties around
their neck, pass out, lose consciousness, urinate themselves, be thrown into the
back of a pickup truck with the door slammed, only to have the pressure released so
they can endure a brutal rape vaginally and anally upon being revived.” The court
noted that the many letters from the community in support of Richard failed to
understand his “dual persona” and “Jekyll and Hyde” nature.
[¶49.] Ultimately, the court considered Richard’s prospects for rehabilitation
unlikely based on the heinous nature of the crimes in this case. The court also
disagreed with the psychosexual assessment that Richard would be safe in the
community in light of the calculation and deliberation required to perpetrate these
crimes against J.S. After considering everything presented, including the
testimony, presentence investigation report, psychosexual assessment, letters of
support, victim impact statement, and considerations relevant to rehabilitation, the
court imposed a “significant sentence.” Based on our review of the record, the court
did not abuse its discretion in imposing a total sentence of 75 years.
[¶50.] Affirmed.
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[¶51.] GILBERTSON, Chief Justice, and KERN, JENSEN, and SALTER,
Justices, concur.
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