State v. McMillen

931 N.W.2d 725

STATE of South Dakota, Plaintiff and Appellee,

v.Terry Michael MCMILLEN, Defendant and Appellant.

28734

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS ON MARCH 25, 2019

OPINION FILED July 10, 2019

MARTY J. JACKLEY, Attorney General, GRANT FLYNN, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

BEAU BLOUIN of Minnehaha County Public Defender’s Office, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

JENSEN, Justice

[¶1.] Terry Michael McMillen was convicted of four counts of rape in the fourth degree, one count of sexual exploitation of a minor, one count of solicitation of a minor, and a misdemeanor count of enticing a child away. McMillen claims, for the first time on appeal, that his sentences for sexual exploitation of a minor and solicitation of a minor violated the Double Jeopardy Clause of the Fifth Amendment because his convictions arose from the same conduct as the rape convictions. McMillen also requests a new trial, arguing—again for the first time on appeal—that the State engaged in prosecutorial misconduct by asking about similarities between his step-daughter and the victim during his cross-examination. We review both issues for plain error and affirm.

Facts and Procedural History

[¶2.] In the summer of 2012, McMillen met T.J.L. at a birthday party. At the time, McMillen was thirty-seven years old and T.J.L. was fifteen years old. After the birthday party, McMillen, T.J.L., and others went to another home where McMillen and T.J.L. engaged in casual conversation. The next day, McMillen sent T.J.L. a private message over Facebook, and the two began periodically messaging each other. Later, they exchanged cell phone numbers and began occasionally text messaging each other and conversing by phone from time to time.

[¶3.] In the early fall of 2012, McMillen twice sent text messages to T.J.L. during the school day, asking if she wanted to skip school to "hang out." The first time, T.J.L. agreed and met McMillen at a pre-arranged location, a couple of blocks from the school. McMillen then drove T.J.L. to his apartment where the two talked before McMillen drove her back to school. On the second occasion, McMillen picked up T.J.L. during the school day and drove her to his apartment. T.J.L. claimed McMillen took off her coat and started to kiss her after entering his apartment. McMillen and T.J.L. then went to his bedroom and they began undressing one another. While in the bedroom, T.J.L. testified McMillen initially penetrated her vagina with his fingers before he penetrated her vagina with a rubber sex toy. She also testified that McMillen then performed oral sex on her and she subsequently performed oral sex on McMillen. The sexual activity ended when T.J.L. told McMillen she no longer wanted to continue. T.J.L. testified that after the sexual activity, McMillen showed her how to clean off the sex toy so his girlfriend would not know it had been used.¹

[¶4.] At trial, McMillen admitted he had messaged T.J.L. via Facebook and text. McMillen also admitted that he and T.J.L. spoke occasionally by phone. He claimed there was nothing sexual in their communications and denied any physical relationship with T.J.L. McMillen also denied T.J.L. had been to his apartment and claimed that she was only able to describe his apartment and his truck due to publicly shared images on his Facebook page. These images were introduced as evidence at trial.

[¶5.] Images of Facebook messages between McMillen and T.J.L., sent months after the alleged rape, were introduced as evidence at trial.² None of these messages contained any discussion or suggestion of a sexual relationship. T.J.L. testified that she asked McMillen if the communications between the two of them were "weird." She also testified that she apologized to McMillen for "intruding" after McMillen expressed that he did not want his girlfriend to discover their communications.

[¶6.] In January 2014, T.J.L. confided to a friend about the sexual encounter with McMillen. T.J.L. testified that her friend then messaged McMillen through T.J.L.’s Facebook account accusing him of "messing around with a 15 year old[.]" An image of this message was introduced into evidence. McMillen admitted to receiving the message but did not reply to it. T.J.L. testified that she was convinced by her friend to tell her parents about the sexual encounter with McMillen, and her parents then reported the incident to law enforcement.

[¶7.] At trial, the two investigating officers testified that T.J.L. gave both officers separate detailed statements about her encounter with McMillen and a description of his apartment and the truck he drove. T.J.L.’s statements to both officers were consistent. One of the officers indicated T.J.L. was hesitant to report the alleged incident. McMillen’s counsel suggested during cross-examination that the officer had compelled T.J.L. to report the crime against her will.

[¶8.] McMillen testified in his defense and denied all the charges against him. During the State’s cross-examination of McMillen, the following exchange took place:

[Prosecutor]: Okay. You have a step-daughter; right?

[McMillen]: I do.

[Prosecutor]: How old?

[McMillen]: 14, I believe.

[Prosecutor]: What does she look like?

[McMillen]: She’s about the same height of her mother, about the same size as her mother, and she wears glasses.

[Prosecutor]: Dark hair?

[McMillen]: Dark hair.

[Prosecutor]: Darker complected[sic]?

[McMillen]: Darker complected[sic].

[Prosecutor]: 13, 14 years old?

[McMillen]: 13, 14 years old.

[Prosecutor]: A lot like [T.J.L.]?

[McMillen]: What do you mean a lot like [T.J.L.]?

[Prosecutor]: [T.J.L.]’s got dark hair, dark complexion, 13 or 14 years old when you met her? Does your step-daughter look similar?

[McMillen]: She’s taller than my step-daughter.

McMillen’s counsel did not object or take any other action with respect to these questions.

[¶9.] During closing arguments, the State explained the elements of sexual exploitation of a minor and the State’s burden "to prove [the elements] beyond a reasonable doubt." The State then asked the jury to consider McMillen’s conduct in the bedroom as proof of sexual exploitation. In discussing the solicitation charge, the State told the jury to consider "the same evidence we looked at [for rape in the fourth degree] before" and "the communications they had."

[¶10.] The jury found McMillen guilty on all counts. McMillen was sentenced to fifteen years with five years suspended on the fourth-degree rape conviction in count one. The court imposed three fifteen-year, suspended sentences on the other fourth-degree rape convictions, ordering each to be served concurrently. The court imposed a two-year, suspended sentence on the sexual exploitation of a minor conviction and a ten-year, suspended sentence on the solicitation of a minor conviction. Both sentences were imposed consecutively. McMillen did not raise a double jeopardy challenge to the convictions or sentences for sexual exploitation of a minor or solicitation of a minor before the circuit court.

[¶11.] McMillen did not appeal his convictions, but later petitioned for a writ of habeas corpus arguing ineffective assistance of counsel. The habeas court partially granted the petition finding that McMillen had not been properly advised of his appeal rights. The habeas court remedied this error by re-imposing the prior sentences and entering a new judgment on each conviction.³ The habeas court did not address McMillen’s other ineffective assistance of counsel claims. McMillen then filed this direct appeal following the entry of the new judgment of conviction.⁴

[¶12.] McMillen raises two issues on appeal that we address as follows:

1. Whether, on plain error review, McMillen’s sentences for sexual exploitation of a minor and solicitation of a minor violated his Fifth Amendment right against double punishment.

2. Whether, on plain error review, the State engaged in prosecutorial misconduct, warranting a new trial.

Standard of Review

[¶13.] Because McMillen failed to preserve error on either of the issues he raises on appeal, we review both for plain error. State v. Schrempp , 2016 S.D. 79, ¶ 13, 887 N.W.2d 744, 748 ; see also SDCL 23A-44-15 (Rule 52(b)). "We invoke our discretion under the plain error rule cautiously and only in ‘exceptional circumstances. ’ " State v. Bariteau , 2016 S.D. 57, ¶ 23, 884 N.W.2d 169, 173 (emphasis added) (quoting State v. Fischer , 2016 S.D. 1, ¶ 15, 873 N.W.2d 681, 687 ). "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 affects the fairness, integrity, or public reputation of judicial proceedings.’ " State v. Bausch , 2017 S.D. 1, ¶ 27, 889 N.W.2d 404, 412 (quoting State v. Buchhold , 2007 S.D. 15, ¶ 22, 727 N.W.2d 816, 822 ). "Additionally, ‘with plain error analysis, the defendant bears the burden of showing the error was prejudicial.’ " Id. (quoting State v. Beck , 2010 S.D. 52, ¶ 10, 785 N.W.2d 288, 293 ).

Analysis & Decision

1. Whether, on plain error review, McMillen’s sentences for sexual exploitation of a minor and solicitation of a minor violated his Fifth Amendment right against double punishment.

[¶14.] Our jurisprudence and analytical method for double jeopardy is well established:

[t]he double jeopardy prohibition in the Fifth Amendment to the United States Constitution, and Article VI, Section 9, of the South Dakota Constitution, "protects against three types of governmental abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense ."

State v. Garza , 2014 S.D. 67, ¶ 10, 854 N.W.2d 833, 837 (emphasis added) (quoting State v. Johnson , 2007 S.D. 86, ¶ 12, 739 N.W.2d 1, 6 ).

[¶15.] McMillen argues his sentences for sexual...