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04/22/92 STATE SOUTH DAKOTA v. DAVID LEE LYKKEN

April 22, 1992

STATE OF SOUTH DAKOTA, PLAINTIFF AND APPELLEE,
v.
DAVID LEE LYKKEN, DEFENDANT AND APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT CLAY COUNTY, SOUTH DAKOTA. HONORABLE ERNEST W. HERTZ, Judge.

Wuest, Miller, Henderson, Amundson, Sabers

The opinion of the court was delivered by: Wuest

WUEST, Justice

Appellant (Lykken) was charged by indictment with first degree rape, kidnapping, first-degree burglary, and simple assault. Lykken was also charged with being an habitual offender. After a jury trial, Lykken was found guilty on all counts charged in the indictment. He admitted to being an habitual offender. After a lengthy sentencing hearing, the trial court sentenced Lykken to a total of 225 years imprisonment. The court filed its judgment of conviction and sentence. Lykken filed a motion for a new trial which was denied. Lykken appeals raising the following issues:

I. Whether the trial court erred in refusing to admit into evidence explicit photographs and a tape recording of prior sexual conduct between Lykken and Hahn.

II. Whether the trial court erred in denying Lykken's motion to dismiss (1) the kidnapping count because any movement or confinement during the rapes was merely incidental to the rapes and (2) the rape charge based upon a perceived lack of evidence to corroborate the victim's claims.

III. Whether the trial court erred in denying Lykken's motions for a mistrial based upon claimed misconduct by the State's Attorney.

IV. Whether Lykken's sentence violates the Eighth Amendment of the United States Constitution.

We affirm.

D.H., a sixteen-year resident of Vermillion, was a full-time student at the University of South Dakota and a part-time secretary for her church in early to mid-1990. She separated from her husband in May 1989 after a marriage of sixteen years. D.H. has two children. After the separation she was "lonely," "vulnerable" and "struggling." She met Lykken in a computer class in January 1990. At that time, D.H. was in counseling for her divorce. She found Lykken to be kind, comforting, and exceptionally attentive to her needs. Lykken and D.H. dated and enjoyed a close relationship for several months. This relationship included sexual intimacy.

D.H.'s primary concern became focused upon her divorce trial. Meanwhile, Lykken became very possessive and deeply involved in her divorce proceedings. D.H. found Lykken's interest quite "unusual." In fact, when she received her divorce decree, in June 1990, Lykken appeared more upset then she was. Indeed, Lykken became so upset he would cry and threaten suicide. At this point, because D.H. was becoming more concerned about the divorce and custody of her children and because of Lykken's bizarre behavior, D.H. began trying to terminate her relationship with Lykken. During the week she received her divorce decree, D.H. told Lykken she wished only to be his friend and no longer wished to be romantically involved with him. Nonetheless, D.H. was unsuccessful in her attempt to sever her relationship with Lykken as he continued to phone her and to stop by her apartment without warning. She would explain the relationship was over, and Lykken would indicate he understood. Nonetheless, he continued to return.

On June 11, when D.H. received her divorce papers, Lykken called her threatening suicide because of the decree. D.H. was frightened for him and told him to see a counselor. At a later meeting between the two, Lykken instructed her how to distribute his property after he died.

On June 15, D.H. again attempted to conclude their relationship by writing Lykken a letter telling him she desired only to be friends. Lykken ignored the letter. When they met again later, Lykken wept.

D.H.'s attempts to end the affair became more abrupt as she met with continued failure. At one point, when Lykken appeared uninvited at her apartment, she drew an imaginary line at the door and told him he was not to cross it. She eventually became "unfriendly," behavior that was unusual for her. Nonetheless, Lykken continued to invite himself to her apartment early in the morning or late at night throughout June and early July.

On one occasion, while D.H. was at her home outside of Vermillion, Lykken appeared at the residence and offered to mow the lawn at the residence which was quite large. D.H. initially refused his offer, but relented. Late that same evening, Lykken searched D.H. out at the home of a friend, J.I., to inform D.H. he had completed the mowing. D.H. was furious at Lykken's obsessive behavior.

On July 4, 1990, D.H. and J.I. visited the rural home so their children could enjoy fireworks. Again, Lykken appeared uninvited. D.H. permitted Lykken to remain, but the group departed early because of his presence.

D.H. received her divorce decree on July 9, 1990. That evening Lykken phoned D.H., and D.H. told him she did not feel up to dealing with him that evening. Lykken told her he was "really depressed" and needed someone to talk to desperately. Having observed this type of behavior in the past, D.H. chose not to respond to Lykken. Lykken shouted, "Well, excuse me!" and hung up. He phoned again at midnight, asking D.H. to pray with him. D.H. was tired and just listened to him. Lykken had a "message from God" for her. When the phone call terminated, D.H. went to sleep.

J.I. was present at the Fourth of July episode, and also remembered the mowing incident. She also recalled that Lykken kept attempting to get D.H.'s attention and would come to J.I.'s residence looking for D.H. After Lykken completed his call to D.H., he called J.I. Lykken was agitated about D.H.'s child custody order and began crying. J.I. was frightened during this call.

At approximately 1:15 A.M. on July 10, 1990, D.H. awoke to find someone sitting at the edge of her bed. Although it was quite dark in the bedroom, she recognized Lykken's voice as he said, "Dottie, why can't you love me?" D.H. told Lykken to leave, but he turned on the bedroom light and said he wanted to make love to her one more time before he died.

Lykken's advances became physical and D.H. pushed him away twice. Twice he slammed her hard onto the bed. Lykken had never treated D.H. that way before. As their struggles continued, Lykken tried to pull D.H.'s underwear off. She told him that he did not really want to do this, but he continued anyway. She put her legs together and crossed her ankles, but Lykken pinned her and was able to remove her panties.

D.H. noticed her bedroom door was closed and locked. Lykken told her to remove her nightshirt, but she refused. Lykken then growled, "Take it off!" At one point, as Lykken was attempting to remove D.H.'s shirt, he held her throat so that she could not breath.

D.H.'s children were in the apartment when this occurred. She was concerned about her children hearing the struggle and being frightened. D.H. choked Lykken back until he released his grip on her throat. Lykken ordered, in a tone different than his normal voice, "Don't piss me off!" which frightened D.H. even more. Finally, she removed her nightshirt out of fear. At that point, Lykken climbed on top of D.H., pinning her legs. He then fondled her breasts and penetrated her vagina. While this was occurring, D.H. attempted to think about other things and tried to look away from Lykken. However, Lykken forced her to continue looking at him.

At one point, Lykken lost his erection and lamented to D.H. that he could not do anything right, not "even leave a sperm sample for the police." He forced her to hold his testicles while he masturbated until his erection returned.

At least four rapes took place, most episodes lasting fifteen to twenty-five minutes. Throughout the ordeal, Lykken would chat with D.H. when he was not raping her. He told D.H. that, before he killed himself, he should kill her ex-husband and then asked D.H. for a few minutes to escape so that he could kill himself before she called the police.

At about 4:15 A.M., the rapes terminated. Because he had ejaculated on her back, Lykken wiped D.H. off with tissues which he then threw in the trash. He then asked D.H. whether she wanted to call the police. D.H. lay quietly, in fear for her life, remembering that he had looked "like an animal." She begged Lykken to leave before her children awoke. Lykken left at approximately 4:45 A.M.

After D.H. heard Lykken leave, she threw her underwear away and inspected her home. The front door was still locked, and the inside chain-lock was still attached. Earlier she had left the patio storm door open, but had locked the inside screen door. She re-locked that door and returned to bed. D.H. remained in bed until 9:00 A.M. refusing to answer the phone. She remained in the bedroom even after the children were awake, explaining that she was sick. At 9:00 A.M., D.H. informed J.I. of the incident. They determined D.H. should get her children to safety, talk to her minister, and then call the police.

As D.H. proceeded to depart from Vermillion to bring her children to her grandmother's residence, Lykken intercepted her and attempted to block her with his pickup as she drove down a Vermillion street. D.H. was able to swerve onto a lawn and outmaneuver Lykken. When she returned to Vermillion, D.H. went to the house of her minister. While she was at the minister's home, Lykken drove by.

At about noon, the minister, D.H., and others went to the police station in Vermillion where they met with Detective Ray Hoffman. At D.H.'s apartment, Hoffman secured the bed sheets, D.H.'s underwear and the discarded tissues. Lykken was subsequently arrested. Lykken claimed he and D.H. talked all night, and that he left in the morning. Detective Hoffman later obtained samples of D.H.'s blood and samples of Lykken's blood and hair. The evidence was sent to the Division of Criminal Investigation. The State Forensics Laboratory examined the underwear and the tissues for semen. In addition, D.N.A. testing was conducted. Detective Hoffman observed bruises on D.H.'s arm and a fingernail mark on her throat. He linked the "moon-shaped" gouge on D.H.'s neck to Lykken's having choked her. He linked the bruises on D.H.'s arm to his forced removal of her underwear.

At trial, the State's expert testified that only two percent of the male population would have a blood genetic picture of that identified in the semen evidence. Lykken was a genetic match. Similar testing was done to the sheet from D.H.'s bed. Only nine percent of the population could provide a match, which Lykken did.

Lykken defended the rape charge by claiming that D.H. consented. *fn1 D.H. maintained at trial that at no time did she consent to Lykken's acts. Further facts will be discussed in connection with each issue to which they are relevant.

I. EVIDENCE OF VICTIM'S PRIOR SEXUAL CONDUCT.

Prior to trial, Lykken filed a motion to introduce evidence of prior sexual conduct between D.H. and himself. The State filed a motion in limine to limit evidence of prior sexual experiences between Lykken and D.H. The trial court allowed general testimony regarding prior sexual conduct between Lykken and D.H. The court concluded such evidence was relevant to the issue of consent. However, the trial court refused to admit explicit photographs of D.H. and Lykken, an explicit tape recording made by D.H. and explicit testimonial details of various sexual activities. The court reasoned the probative value of such evidence was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and its capacity to mislead the jury, relying on SDCL 19-12-3 (1987). *fn2

At trial, D.H. testified she and Lykken previously had an ongoing sexual relationship which she terminated prior to the rapes. Lykken's attorney cross-examined D.H. extensively about specific instances, including times, places and some details. Nonetheless, Lykken argues the trial court erred in ruling inadmissible the explicit photographs, the tape recording and the details of the actual sexual activities. We disagree.

SDCL 23A-22-15 (1988) provides:

In prosecutions for rape, evidence of specific instances of a victim's prior sexual conduct shall not be admitted nor reference made thereto before the jury or jury panel, except as provided in this section. Whenever a party proposes to offer evidence concerning a victim's prior sexual conduct, the court shall first conduct a hearing in the absence of the jury and the public to consider and rule upon the relevancy and materiality of the evidence.

In State v. Woodfork, 454 N.W.2d 332 (S.D. 1990) *fn3 we stated:

As a general rule, the admission of evidence concerning a rape victim's prior sexual conduct is precluded by SDCL 23A-22-15. This statute, like rape shield laws in other jurisdictions, represents a legislative determination that in most instances, such evidence is not relevant and highly prejudicial to the victim. Evidence of a rape victim's prior sexual encounters may be admitted if the trial court finds that it is relevant and material to a fact at issue in the case. This determination is entrusted to the sound discretion of the trial court. We will not interfere with the trial court's determination unless an abuse of discretion is clearly demonstrated.

Id. at 336-37 (citations omitted). Accord State v. Blalack, 434 N.W.2d 55, 57 (S.D. 1988). We also noted "an abuse of discretion 'refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.'" Woodfork, 454 N.W.2d at 335 (quoting State v. Bartlett, 411 N.W.2d 411, 414 (S.D. 1987)).

A case which is directly on point, People v. Zysk, 149 Mich.App. 452, 386 N.W.2d 213, appeal denied, 389 N.W.2d 695 (1986), was cited by this court in Blalack, 434 N.W.2d at 57. In Zysk, the defendant admitted he had intercourse with the victim but claimed the victim consented. In support of his defense, Zysk sought to introduce evidence of his past sexual relationship with the victim, who had admitted in separate proceedings to previous "oral sex and bondage episodes." The trial court ruled Zysk could question the victim about previous oral and vaginal sex episodes but refused to admit evidence of the other sexual episodes on the grounds that it was not relevant. Id. at 216.

The Michigan Court of Appeals affirmed. Id. at 217. The Zysk court found the other acts were distinct and unrelated to the brutal acts involved in the charged offense.

The excluded evidence of unrelated sexual acts had no relevance to the issue of consent and was highly prejudicial. Moreover, the court admitted evidence of previous sexual conduct which involved the same acts as occurred during the rape. Since there was no other basis to justify the admission, we hold that the trial court did not abuse its discretion in limiting the evidence of prior sexual conduct between the parties.

Id. at 217.

Like the trial court in Zysk, the trial court here did not prohibit Lykken from presenting evidence that D.H. had engaged in sexual intercourse with Lykken on previous occasions. Sexual episodes between the defendant and complainant will often be relevant to the issue of consent. Here, the complainant testified she and Lykken had a previous sexual relationship. Further, none of the photographs portrayed Lykken and D.H. in any activity similar to what occurred during the rapes. Thus, the probative value of the photographs, the recording and the "details" of the sexual encounters was minimal.

The evidence did present substantial danger of unfair prejudice, confusion of issues or needless presentation of cumulative evidence. "Danger of unfair prejudice" means the evidence has the capacity to influence the jury to decide the case on improper grounds. Amdahl v. Sarges, 405 N.W.2d 638, 639 (S.D. 1987). In other words, it has the capacity to persuade by illegitimate means. State v. Lodermeier, No. 17482, slip op. at 21 (S.D. Feb. 26, 1992); State v. Goodroad, 442 N.W.2d 246, 250 (S.D. 1989). Since D.H. admitted her sexual involvement with Lykken; the photographs, tape recording and details could only have served to inflame the jury so that, feeling no empathy for D.H., they may not have cared whether she was raped. We concluded the trial court did not abuse its discretion in excluding this evidence.

II. MOTIONS TO DISMISS.

A motion to dismiss is brought pursuant to SDCL 23A-23-1 (1988). State v. Bult, 351 N.W.2d 731, 734 (S.D. 1984).

In reviewing a motion for judgment of acquittal, the trial court must view the evidence in a light most favorable to the nonmovant. State v. Caylor, 434 N.W.2d 582 (S.D. 1989); State v. Ashker, 412 N.W.2d 97 (S.D. 1987). A motion for judgment of acquittal is properly denied if the State has introduced evidence upon which, if believed by the jury, they may reasonably find the defendant guilty of the crime charged. State v. Olson, 408 N.W.2d 748 (S.D. 1987).

State v. Corder, 460 N.W.2d 733, 738 (S.D. 1990). Accord Bult, 351 N.W.2d at 734.

A. Kidnapping Count.

Lykken was charged with kidnapping because he seized or confined D.H. to facilitate the perpetration of a felony (rape) in violation of SDCL 22-19-1(2). *fn4 After the State presented its case-in-chief, Lykken moved to dismiss the kidnapping count claiming the only act of confinement was incidental to the crime of rape and that no asportation of the victim occurred at any time. The court denied the motion.

The case upon which Lykken primarily relies is State v. Reiman, 284 N.W.2d 860 (S.D. 1979). In Reiman, four defendants were charged with rape and kidnapping. Two of the defendants abducted the victim from a bar and took her to a paint shop. Two of the defendants, Elliott and Onstott, participated in the rapes which occurred at the paint shop. However, their acts, which were alleged by the State to be kidnapping, consisted only of holding the victim down on a mattress to facilitate the act of rape and at one point helping another abductor as the victim fought. The facts are not well developed in the opinion as to what acts of confinement or movement Elliott or Onstott participated in. The Reiman court reversed Elliott's and Onstott's convictions for kidnapping reasoning any movement of the victim compelled by the two was merely incidental to the rape and did not substantially increase the risk of harm otherwise present. Id. at 873-74. *fn5

Later, in State v. Curtis, 298 N.W.2d 807, 810 (S.D. 1980), we held Curtis was guilty of kidnapping where he attempted to murder his victim during a forced automobile ride. The Curtis court concluded the kidnapping was not incidental to the crime of attempted murder. Id. at 810-11. The test set out by these two cases became known as the Curtis/Reiman test. The Curtis opinion did not discuss the increased risk prong of the Reiman test as it applied the test to the facts before it.

We most recently discussed this issue in State v. St. Cloud, 465 N.W.2d 177 (S.D. 1991). In St. Cloud, the defendant forced his alcohol counselor at knifepoint to drive him to a country home where he raped her. We noted that Reiman

effectively "narrows the applicability of the South Dakota kidnapping statute to those cases in which 1) the kidnapping is not an essential element of some other clearly identified crime and 2) the victim is exposed to an increased risk of harm because of the kidnapping."

St. Cloud, 465 N.W.2d at 181 (quoting Curtis, 298 N.W.2d at 810). We then explained that Curtis itself narrowed the application of Reiman. Id. The St. Cloud court then concluded:

Neither movement nor prolonged confinement of the victim is an essential element of first-degree rape under SDCL 22-22-1(1). Moreover, most movement of rape victims by their attackers is designed to seclude the victim from possible assistance and to prevent escape - which inevitably increases the risk of harm to the victim.

We read Reiman and its progeny merely to say that a kidnapping may be incidental to another crime when the kidnapping consists either of confinement of minimal duration or of minimal movement within the same premises. . . . Where, however, the kidnapping consists of prolonged confinement or movement from one premises to another - even if only from a parked car to an abandoned house - then one and probably both prongs ...


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