CONSIDERED ON BRIEFS ON MARCH 25, 2019
FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE BRADLEY G. ZELL
Judge THE HONORABLE LAWRENCE E. LONG Retired Judge
J. JACKLEY Attorney General
FLYNN Assistant Attorney General Pierre, South Dakota
Attorneys for plaintiff and appellee.
BLOUIN of Minnehaha County Public Defender's Office Sioux
Falls, South Dakota Attorneys for defendant and appellant.
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 Procedural History
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
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.
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.
Images of Facebook messages between McMillen and T.J.L., sent
months after the alleged rape, were introduced as evidence at
trial. 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.
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
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.
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
[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