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State v. McMillen

Supreme Court of South Dakota

July 10, 2019

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
TERRY MICHAEL MCMILLEN, Defendant and Appellant.

          CONSIDERED ON BRIEFS ON MARCH 25, 2019

          APPEAL 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

          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 ...

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