State v. McKinney

2005 SD 73, 699 N.W.2d 471, 2005 S.D. LEXIS 74
CourtSouth Dakota Supreme Court
DecidedJune 15, 2005
DocketNone
StatusPublished
Cited by35 cases

This text of 2005 SD 73 (State v. McKinney) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McKinney, 2005 SD 73, 699 N.W.2d 471, 2005 S.D. LEXIS 74 (S.D. 2005).

Opinion

ZINTER, Justice.

[¶ 1.] A jury convicted Patrick Ryan McKinney of first-degree rape, sexual contact with a child under sixteen years of age, and sexual exploitation of a minor. McKinney appeals raising issues concerning his sentence, his right of confrontation, the sufficiency of the evidence, and a child abuse expert’s opinion evidence. We affirm.

Facts and Procedural History

[¶ 2.] McKinney and Colleen O’Bleness met in early 2001. After O’Bleness’ husband died in May 2001, she began dating McKinney. In August 2001, McKinney moved into O’Bleness’ home, where she lived with her two daughters; K.H., who was fourteen years old at the time of trial and J.H., who was nine years old at trial. McKinney and O’Bleness were married on February 16, 2002.

[¶ 3.] In January 2003, O’Bleness and McKinney began having marital problems because McKinney was not contributing financially to the household. After confiding in her pastor about her marital troubles, after seeing adult pornography on the computer in their bedroom, and after noticing that McKinney had changed his password without telling her, O’Bleness decided to find out if he was spending money on pornography. O’Bleness had a program installed on the computer that identified a variety of photographs and files that could be pornographic, including twenty to thirty pornographic pictures of young children. After finding the pictures, O’Bleness turned the computer over to the police and had McKinney removed from the home.

[¶4.] O’Bleness subsequently told her daughters that she was going to talk to the police about some inappropriate and illegal things that she had found on the computer. J.H. responded that she could prove McKinney had pictures on the computer because she had seen a picture of a “naked girl.” J.H. also testified that, one time when she was playing on the computer, McKinney told her that he wanted to show her something. J.H. indicated that McKinney then showed her “a little movie type thing” in which a man was licking a little girl “on her private[s].” On another occasion, when O’Bleness and her other daughter were not at home, J.H. was shown a movie on a DVD. J.H. testified that this movie involved adults who were not wearing any clothes. Although she tried to leave while the movie was playing, McKinney prevented her from leaving the room. 1

[¶ 5.] At some point during this same period, J.H. developed an infection that required application of a vaginal medication. O’Bleness usually applied the medication after J.H. took her evening bath. One night, J.H. was home alone with McKinney. After taking her evening bath and getting ready for bed, McKinney reminded her that she had not yet applied *475 her medication. McKinney offered to apply the medication even though J.H. told him that she did not want him to because her mother was not there. J.H. later agreed to let McKinney insert the medication but, when he attempted to do so, she told him to stop because she was uncomfortable. McKinney then told J.H. that he could apply the medicine with his finger and she told him to stop after he had used his finger. McKinney then licked her in her vaginal area and told her that his licking her would help her infection. Although J.H. told him to stop, he kept licking until he heard a car door slam. McKinney told J.H. not to tell anyone about the incident.

[¶ 6.] J.H. testified that on another occasion McKinney had shown her a vibrator when her mother and sister were not at home. J.H. stated that McKinney had also turned; the vibrator on and put it directly on her “private parts.”

[¶ 7.] After this abuse came to light, J.H. met with Colleen Brazil, a forensic interviewer from Child’s Voice, a medical evaluation center where children are evaluated for possible physical and sexual abuse. During this interview, J.H. made several statements to Brazil about McKinney’s sexual abuse. The interview was videotaped and played for the jury.

[¶ 8.] The jury convicted McKinney of all three charges. McKinney was sentenced to fifty .years for rape, fifteen years for sexual contact with a child less than sixteen years of age, and two years for sexual exploitation of a minor, all to be served consecutively. .McKinney’s motion for a new trial was denied. McKinney now appeals raising the following issues:

(1) Whether the trial court’s consecutive sentence of 67 years for three offenses was cruel and unusual punishment under the Eighth Amendment;
(2) Whether the use of J.H.’s hearsay statements to the forensic interviewer denied McKinney the right to confront and cross-examine the witnesses against him;'
(3) Whether the evidence was sufficient to find McKinney guilty beyond a reasonable doubt;
(4) Whether the trial court abused its discretion by allowing a child abuse expert to testify.

(1) Constitutionality of Sentence

[¶ 9.] McKinney was sentenced to a total of sixty-seven years for the three convictions; first-degree rape, sexual contact with a child under age sixteen, and sexual exploitation of a minor. The three convictions arose from three separate incidents. Additionally, in a related criminal action, he was sentenced to one hundred years for twenty felony convictions for possessing child pornography. 2 However, McKinney contends that the sixty-seven year sentence was “extremely severe and is, in reality, a life sentence.” 3 Prior to all of these incidents, he had no criminal record. Therefore, McKinney argues that the sentence is “grossly disproportionate to the offensefe] committed” in violation of the Eighth Amendment.

[¶ 10.] Our standard of review on this issue is well settled.

“[To] assess a challenge to proportionality we first determine whether the sentence appears grossly disproportionate. To accomplish this, we consider the con *476 duct involved, and any relevant past conduct, with utmost deference to the Legislature and the sentencing court.” If the sentence does not appear grossly disproportionate, no further review is necessary. If the sentence does appear grossly disproportionate, an intra- and inter-jurisdictional analysis shall be conducted. We also consider “the gravity of the offense and the harshness of the penalty;” and other relevant factors, such as the effect this type of offense has on society. 4

Guthmiller, 2003 SD 83, ¶ 43, 667 N.W.2d at 309 (internal citations omitted). However, “limited principles [are used] in our constitutional review of sentences.” State v. Garber, 2004 SD 2, ¶ 28, 674 N.W.2d 320, 327 (citing State v. Milk, 2000 SD 28, ¶ 14, 607 N.W.2d 14, 18). These limiting principles require ‘“substantial deference to the legislature’s broad authority to determine the types and limits of punishment’ and [adherence to] the notion that ‘the Eighth Amendment does not mandate adoption of any one penological theory.’” State v. Pasek, 2004 SD 132, ¶ 33, 691 N.W.2d 301, 311 (citations omitted).

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Bluebook (online)
2005 SD 73, 699 N.W.2d 471, 2005 S.D. LEXIS 74, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mckinney-sd-2005.