#29191-a-JMK
2021 S.D. 13
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
…
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
JASON MICHAEL MILES, Defendant and Appellant.
…
APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
HUGHES COUNTY, SOUTH DAKOTA
…
THE HONORABLE M. BRIDGET MAYER
Judge
…
JASON R. RAVNSBORG
Attorney General
PATRICIA ARCHER
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff and
appellee.
JUSTIN L. BELL of
May, Adam, Gerdes & Thompson, LLP
Pierre, South Dakota Attorneys for defendant and
appellant.
…
CONSIDERED ON BRIEFS
AUGUST 24, 2020
OPINION FILED 02/24/21
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KERN, Justice
[¶1.] Jason Miles (Miles) pled nolo contendere to three counts of possession
of child pornography, a Class 4 felony, pursuant to a plea agreement. The circuit
court sentenced him to ten years in the state penitentiary, with six years suspended
on each count and credit for time served. The court ordered counts 1 and 2 to be
served consecutively with count 3 to run concurrently. Miles appeals, contending
that his sentence violates the Eighth Amendment and constitutes an abuse of
discretion. We affirm.
Facts and Procedural History
[¶2.] In January 2019, Division of Criminal Investigation (DCI) Special
Agent Toby Russell (Agent Russell) conducted an online investigation into the
practice of sharing child pornography files using the BitTorrent network. 1 Agent
Russell connected to Miles’s computer using special investigative BitTorrent
software and obtained a partial download of two individual video files located at an
Internet Protocol (IP) address in Pierre, South Dakota. Agent Russell selected
these files because the file names indicated that they may contain child
pornography. One of the files contained a video of graphic child pornography, but
the other file could not be viewed. 2 He obtained a subpoena for the subscriber
1. BitTorrent is a type of Peer to Peer (P2P) file sharing software that allows
users to connect to other users of the BitTorrent software. Once connected,
“Torrent” files may be downloaded from another user’s computer.
2. Agent Russell focused his investigation on the viewable video file on Miles’s
computer, because he recognized the specific file name and video as one
frequently downloaded by those using child pornography. The seventeen-
(continued . . .)
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information for this IP address held by Midcontinent Communications. The
information received from Midcontinent revealed that Miles was the customer using
this IP address in Pierre.
[¶3.] In early February 2019, law enforcement officers obtained a warrant to
search Miles’s house. During the search of his residence, Miles told law
enforcement that he did not know why his IP address was associated with child
pornographic activity. Miles admitted that he used BitTorrent but said that there
was nothing on any of his computers that related to child pornography. However,
after conducting a search of his computer’s hard drive, the forensic analyst
discovered 18 separate images of child pornography. 3 Miles claimed that, although
the images were found on the hard drive, none of the images were accessible from
his desktop. Miles claimed that the computer’s operating system automatically
saved the images in an area of the computer inaccessible to him without special
software. However, prior to being saved, the files containing the images had to be
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(. . . continued)
minute video depicted an adult male engaging in anal and oral intercourse
with a prepubescent girl.
3. DCI agents also found 18 additional images of child erotica and 45 images
which appeared to depict individuals younger than 18 involved in sexual acts.
Because of the difficulty in discerning the ages of the children in the images,
the agents were unable to conclusively determine whether the images
constituted child pornography under SDCL 22-24A-3(3). Agents also located
numerous search terms on Miles’s computer which were commonly used to
find and download child pornography.
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downloaded on Miles’s computer and opened. 4 None of the other electronic devices
law enforcement seized from Miles’s house contained child pornography.
[¶4.] In July 2019, a Hughes County grand jury indicted Miles on ten counts
of possession of child pornography under SDCL 22-24A-3(3). 5 Pursuant to the
terms of a plea agreement, on August 20, 2019, Miles pled nolo contendere to three
counts of possession of child pornography in exchange for dismissal of the remaining
seven counts. After the entry of his plea, the court ordered a presentence
investigation and a psychosexual evaluation.
[¶5.] Miles appeared for sentencing on November 14, 2019. The court
sentenced Miles on each count to serve ten years in the state penitentiary with six
years suspended and gave him credit for time served. The circuit court ordered
4. All but one of the illegal images were found in the System Volume
Information. The System Restore file automatically saves the system to a
restore point at regular intervals so that, if a problem develops, the user can
recreate the system and all data at that save point. Miles’s computer
automatically saved the images to the restore point when Miles downloaded
and opened them. These files were hidden from Miles within the System
Volume Information unless Miles used special software to retrieve them.
5. SDCL 22-24A-3(3) provides:
A person is guilty of possessing, manufacturing, or distributing
child pornography if the person: (1) Creates any visual depiction
of a minor engaging in a prohibited sexual act, or in the
simulation of such an act; (2) Causes or knowingly permits the
creation of any visual depiction of a minor engaged in a
prohibited sexual act, or in the simulation of such an act; or (3)
Knowingly possesses, distributes, or otherwise disseminates any
visual depiction of a minor engaging in a prohibited sexual act,
or in the simulation of such an act. . . . A violation of this section
is a Class 4 felony. If a person is convicted of a second or
subsequent violation of this section within fifteen years of the
prior conviction, the violation is a Class 3 felony.
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counts 1 and 2 to be served consecutively and count 3 to be served concurrently,
providing for 20 years of supervision. Further, the court ordered that Miles
complete sex offender treatment during his incarceration. Miles appeals, raising
two issues for our review:
I. Whether Miles’s sentence violates the Eighth
Amendment’s prohibition against cruel and unusual
punishment.
II. Whether the circuit court abused its discretion in
sentencing Miles.
Standard of Review
[¶6.] When reviewing a sentence challenged on Eighth Amendment grounds,
we conduct a de novo review. State v. Chipps, 2016 S.D. 8, ¶ 31,
874 N.W.2d 475,
486. “We generally review a circuit court’s decision regarding sentencing for abuse
of discretion.”
Id.
Analysis and Decision
Cruel and Unusual Punishment
[¶7.] “The Eighth Amendment to the United States Constitution . . .
prohibits ‘cruel and unusual punishments,’ which the United States Supreme Court
has interpreted to include ‘the right not to be subjected to excessive sanctions.’”
State v. Quevedo, 2020 S.D. 42, ¶ 19,
947 N.W.2d 402, 406 (quoting Roper v.
Simmons,
543 U.S. 551, 560,
125 S. Ct. 1183, 1190,
161 L. Ed. 2d 1 (2005)).
[¶8.] In reviewing a sentence challenged under the Eighth Amendment, our
first determination is “whether the sentence imposed is grossly disproportionate to
its corresponding offense.” State v. Yeager,
2019 S.D. 12, ¶ 4,
925 N.W.2d 105, 108.
A review for gross disproportionality requires us to “first compare the gravity of the
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offense—i.e., ‘the offense’s relative position on the spectrum of all criminality’—to
the harshness of the penalty—i.e., ‘the penalty’s relative position on the spectrum of
all permitted punishments.’” State v. Rice, 2016 S.D. 18, ¶ 13,
877 N.W.2d 75, 80.
And, “[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.’” Chipps,
2016 S.D. 8, ¶ 38,
874 N.W.2d at 489
(quoting Solem v. Helm,
463 U.S. 277, 291,
103 S. Ct. 3001, 3010,
77 L. Ed. 2d 637
(1983)).
[¶9.] We begin this relatively straightforward review by examining the
gravity of Miles’s offense. Miles possessed child pornography—that is, images and
videos depicting the criminal victimization and exploitation of children. As we
observed in State v. Bruce, children are harmed during production of each video and
picture.
2011 S.D. 14, ¶ 30,
796 N.W.2d 397, 406. In recognition of the severity of
this conduct, the Legislature criminalized each act of downloading an image,
extending legislative protection to each exploited child in each picture.
Id.
Possession of these images is an egregious offense because it not only perpetuates
the harm to some of the most vulnerable members of our society, but it also invades
their privacy and furthers the profit motive of the manufacturers and distributors of
child pornography. State v. McKinney,
2005 S.D. 74, ¶ 29,
699 N.W.2d 460, 468-70
(citing United States v. Norris,
159 F.3d 926, 929-30 (5th Cir. 1998)). 6
6. See also United States v. Weis,
487 F.3d 1148, 1153 (8th Cir. 2007)
(“attempt[s] to divorce the consumption of child pornography from the harm
(continued . . .)
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[¶10.] Miles argues that he is less culpable and the offense is less serious
because he did not produce the child pornography, did not commit sexual acts with
minors, and did not have the child pornography in a readily accessible part of his
computer. In Miles’s view, the sentencing court erred in assessing the gravity of the
offense because it did not apply the factors set forth in Bruce, 2011 S.D. 14,
796
N.W.2d 397.
[¶11.] In Bruce, the circuit court sentenced the defendant to serve 100 years
in prison for possession of 55 counts of child pornography. Id. ¶¶ 1-2,
796 N.W.2d at
400. Bruce appealed, challenging his sentence on Eighth Amendment grounds. Id.
¶ 27,
796 N.W.2d at 405. He argued that due to the wide range of conduct
criminalized in SDCL 22-24A-3—including not just possession, but also
manufacturing and distributing the images—the sentencing court must insure that
the most severe penalties should be reserved for the most serious conduct and
offenders. Id. ¶ 31,
796 N.W.2d at 406-07. Because his offenses involved only
possession of the images, Bruce argued the circuit court erred by imposing the
lengthy sentences. Id. ¶ 34,
796 N.W.2d at 408.
[¶12.] Concluding that the sentences were grossly disproportionate to the
“offense and offender,” this Court remanded for resentencing with the
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(. . . continued)
inflicted upon its victims ha[ve] been rejected by Congress . . . and the
Supreme Court.”); United States v. Whiting, 165 F.3d 631, 634 (8th Cir. 1999)
(“The purpose of laws prohibiting child pornography is not to police the
morals of the public, but to protect children . . . .”); United States v. Coutentos,
651 F.3d 809, 817 (8th Cir. 2011) (“The ongoing harm is to the victim’s
‘reputation and emotional well-being’ . . . ‘haunting the children in years to
come.’” (citations omitted)).
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recommendation “that courts look at two additional determinants when assessing
the seriousness of a child pornography offense: (1) the specific nature of the
material and (2) the extent to which the offender is involved with that material.”
Id. ¶¶ 32, 39, 796 N.W.2d at 407, 409 (quoting State v. Blair,
2006 S.D. 75, ¶ 83,
721
N.W.2d 55, 76 (Konenkamp, J., concurring in result)).
[¶13.] Miles argues that the factors in Bruce control our analysis and that the
circuit court erred by not assessing them. While we agree that these factors are
useful considerations for a circuit court in assessing “the circumstances of the
crime” and are relevant to “the gravity of the offense[,]” Chipps,
2016 S.D. 8, ¶ 36,
874 N.W.2d at 488, they are neither controlling of our gross disproportionality
review, nor mandatory considerations for the sentencing court. As we reiterated in
State v. Rice, our Eighth Amendment jurisprudence has undergone a course
correction.
2016 S.D. 18, ¶ 21,
877 N.W.2d at 83. “[W]e depart[ed] from Bonner
(and its progeny [including Bruce,
2011 S.D. 14, ¶ 32,
796 N.W.2d at 407]) to the
extent that its Eighth Amendment analysis deviates from that explained in
Chipps.”
Id.
[¶14.] Here, Miles downloaded and possessed 18 images of child pornography
and a video of child pornography. The psychosexual evaluation described these
images and the video, and they speak for themselves. 7 Relying upon the range of
conduct discussed in Bruce, Miles argues that his actions fall on the lower end of the
7. Pornographic images found in Miles’s possession included depictions of
children between the ages of 4–14 years of age exposing their breasts,
genitalia, or rectums. Several images also showed children with adult males
exposing their genitals or penetrating the children vaginally or anally.
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spectrum and that the prohibited materials found on his computer were more akin
to “lewd exhibitionism.” 2011 S.D. 14, ¶ 31,
796 N.W.2d at 406-07. While we
disagree with Miles’s characterization, at least with respect to some of the images
located on his computer, regardless of how they are described, his knowing
possession of such material unquestionably constitutes possession of child
pornography under SDCL 22-24A-3, a grave offense.
[¶15.] Next, we examine the harshness of Miles’s penalty. Miles received
three ten-year sentences, each with six years suspended. The court ordered two of
the sentences to run consecutively, with the final sentence running concurrently.
However, our analysis under the Eighth Amendment is “not concerned with the
harshness of a penalty relative to the range of punishments permitted for a
particular offense.” Rice,
2016 S.D. 18, ¶ 19,
877 N.W.2d at 82. Rather, “the
harshness of the penalty refers to the penalty’s relative position on the spectrum of
all permitted punishments.” State v. Holler,
2020 S.D. 28, ¶ 13,
944 N.W.2d 339,
343. The spectrum of sentences the Legislature has authorized ranges from the
most severe penalties of death (Class A felonies) and mandatory life imprisonment
(Class A and B felonies) down to Class 6 felonies carrying a maximum sentence of
two years imprisonment. See Chipps,
2016 S.D. 8, ¶ 41,
874 N.W.2d at 490; see also
SDCL 22-6-1.
[¶16.] The circuit court’s sentence leaves Miles parole eligible within a few
years, subject to a long period of supervision. The court’s sentence is much lower
than the most severe punishment available on the spectrum of all criminal
punishments and is not grossly disproportionate to his conduct. Because Miles has
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not met the threshold inquiry of demonstrating gross disproportionality, our review
ends.
Abuse of Discretion
[¶17.] It is well established that “[c]ircuit courts exercise broad discretion in
imposing sentences . . . .” Yeager, 2019 S.D. 12, ¶ 11,
925 N.W.2d at 110. The court
abuses its discretion when it makes a “fundamental error of judgment, a choice
outside the range of permissible choices . . . .” Rice,
2016 S.D. 18, ¶ 23,
877 N.W.2d
at 83. “[A] sentence within the statutory maximum [generally] will not [be]
disturbed on appeal.” Bruce,
2011 S.D. 14, ¶ 28,
796 N.W.2d at 406. Before
imposing a sentence, however, the court must become thoroughly acquainted with
the character and history of the defendant by considering the “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.” Yeager,
2019 S.D. 12, ¶ 12,
925 N.W.2d at 110.
[¶18.] At the sentencing hearing, Miles urged the court to suspend the
imposition of his sentence, place him on probation with no further jail time, and
order him to complete mental health treatment. In support of his request, Miles
argued that he had no history of sexual offenses and that a felony conviction would
seriously impact his ability to secure future employment. The State requested three
ten-year sentences with six years suspended on each count, all to run concurrently.
[¶19.] A review of the sentencing transcript reveals that the circuit court
considered the salient contents of the presentence report, reflecting Miles’s limited
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criminal history, as well as the contents of the psychosexual evaluation prepared by
Dr. Scott Pribyl. The information contained in these reports revealed that at the
time of sentencing, Miles was 38 years old, had no dependents, and had a stable
work history for the past four years. Although Miles grew up in an abusive and
neglectful family, Miles completed his high school education.
[¶20.] During the presentence interview, Miles reported abusing alcohol,
marijuana, and Adderall, and having difficulty with personal relationships and
depression. When confronted by Dr. Pribyl, Miles persisted in his claim that he
could not remember viewing or accessing child pornography. He also denied
intentionally using the search terms found on his computer. Miles did not, however,
affirmatively deny viewing the child pornography that law enforcement found on his
hard drive.
[¶21.] Prior to imposing the sentence, the circuit court noted that Miles failed
to accept responsibility for these offenses. The court found “incredulous,” Miles’s
explanation that he may have accidently downloaded the images of child
pornography. The court also rejected any inference that the downloads were the
result of Miles’s actions while in “a drunken stupor,” when contrasted with his
repetitive internet searches using terms designed to locate child pornography. “A
defendant’s remorse and prospects for rehabilitation are proper considerations in
sentencing.” State v. Clegg, 2001 S.D. 128, ¶ 9,
635 N.W.2d 578, 581. Because
“rehabilitation must begin with the offender’s acknowledgment of personal fault[,]
[t]he inability or unwillingness to accept personal responsibility may be considered
by a sentencing court as an indicator that a defendant’s rehabilitation prospects are
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limited.” Blair, 2006 S.D. 75, ¶ 52,
721 N.W.2d at 68 (citation omitted). The circuit
court did not err by considering Miles’s lack of remorse and inability to accept
responsibility for his criminal conduct.
[¶22.] Miles also argues that the circuit court abused its discretion by
imposing consecutive sentences on counts 1 and 2. In fashioning its sentence, the
circuit court observed that it was providing for a long period of supervision for Miles
after his release from prison. Although consecutive sentences may be harsh for
each offense under SDCL 22-24A-3(3), “[t]he South Dakota Legislature has
authorized the[ir] imposition . . . .” Yeager,
2019 S.D. 12, ¶ 16,
925 N.W.2d at 111.
From our review of the record, it is apparent that the circuit court’s sentence was
designed to protect the community and ensure that Miles would “not be [engaged in]
this kind of conduct” when he rejoined society.
[¶23.] Finally, Miles contends that this Court has failed to adequately define
“abuse of discretion” in the context of criminal sentencing proceedings. He urges us
to adopt the standard articulated in United States v. Garcia,
512 F.3d 1004, 1006
(8th Cir. 2008). 8 This standard is used to review a district court’s application of the
sentencing factors in
18 U.S.C. § 3553 “regardless of whether the sentence is inside
or outside” the range of the federal sentencing guidelines.
Id. (citing Gall v. United
States,
552 U.S. 38, 51,
128 S. Ct. 586, 597,
169 L. Ed. 2d 445 (2007)). Miles has
8. The Eighth Circuit has determined that “an abuse of discretion may occur
when (1) a court fails to consider a relevant factor that should have received
significant weight; (2) a court gives significant weight to an improper or
irrelevant factor; or (3) a court considers only the appropriate factors but in
weighing those factors commits a ‘clear error of judgment.’” United States v.
Haack, 403 F.3d 997, 1004 (8th Cir. 2005).
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failed to show that the application of these factors would support a finding of an
abuse of discretion by the circuit court. Thus, it is unnecessary to graft this
standard into our jurisprudence for resolution of this case, and we decline to do so.
Conclusion
[¶24.] The circuit court’s sentence did not violate Miles’s Eighth Amendment
rights nor did the circuit court abuse its discretion in sentencing Miles for
possession of child pornography.
[¶25.] JENSEN, Chief Justice, and SALTER and DEVANEY, Justices, and
GILBERTSON, Retired Chief Justice, concur.
[¶26.] MYREN, Justice, not having been a member of the Court at the time
this action was submitted to the Court, did not participate.
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