State v. Lafferty

#23772-a-JKM

2006 SD 50

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellant,

v.

JOSEPH A. LAFFERTY, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA

* * * *

HONORABLE JANINE M. KERN
Judge

* * * *

GLENN A. BRENNER
Pennington County State’s Attorney

JENNIFER B. UTTER
Deputy Pennington County
State’s Attorney Attorneys for plaintiff
Rapid City, South Dakota and appellant.

PAULA D. CAMP of
Pennington County Public
Defender’s Office Attorneys for defendant
Rapid City, South Dakota and appellee.

* * * *

ARGUED ON APRIL 26, 2006

OPINION FILED 06/14/06
#23772

MEIERHENRY, Justice

[¶1.] This case involves a claim of double jeopardy. After a jury acquitted

Joseph Lafferty (Lafferty) of second-degree rape, the State of South Dakota charged

him with third-degree rape. Both charges were based on the same alleged incident.

The trial court concluded that the third-degree rape charge violated double jeopardy

and dismissed the charge. The State appeals. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

[¶2.] The charges against Lafferty arose from allegations by T.T., a fifteen

year-old female, that Lafferty sexually penetrated her on March 15, 2004. On

March 16, 2004, the State filed a complaint charging Lafferty with one count of

second-degree rape in violation of SDCL 22-22-1(4) (victim unable to consent due to

intoxication), and in the alternative, one count of third-degree rape in violation of

SDCL 25-1-6 (incest). 1 Subsequently, the State presented the case to a grand jury.

The grand jury indicted Lafferty on the same charges, and the State dismissed the

initial complaint. A few days before trial, the incest charge was dismissed. On

December 21, 2004, a jury acquitted Lafferty of the remaining charge of second-

degree rape under SDCL 22-22-1(4) (victim unable to consent due to intoxication).

1. The trial court advised the State of the irregularities in the indictment
concerning the alternative count. SDCL 25-1-6 provides that incestuous
marriages are “null and void from the beginning.” It does not contain a
criminal provision. On the other hand, SDCL 22-22-1(6) defines rape as
sexual penetration of any persons “[i]f persons who are not legally married
and who are within degrees of consanguinity within which marriages are by
the laws of this state declared void pursuant to [SDCL] 25-1-6, which is also
defined as incest.” Incest constitutes rape in the third-degree. SDCL 22-22-
1. The irregularity in the indictment was never corrected.

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[¶3.] On December 30, 2004, the State again indicted Lafferty, this time for

third-degree rape under SDCL 22-22-1(5) (statutory rape). The indictment alleged

that on March 15, 2004, Lafferty sexually penetrated T.T., a person “being ten (10)

years of age, but less than sixteen (16) years of age, at the time of said act of

penetration.” Lafferty moved to dismiss the charge. He argued that the December

30, 2004, indictment violated the United States Constitution and the South Dakota

Constitution by putting his life in jeopardy twice for the same offense. The trial

court agreed with Lafferty and dismissed the indictment. The State appeals and

presents the following issue for our consideration:

ISSUE

Whether the trial court erred by dismissing a second charge against
Lafferty for violation of SDCL 22-22-1(5) (third-degree statutory rape)
brought subsequent to Lafferty’s acquittal on a charge for violation of
SDCL 22-22-1(4) (second-degree rape—intoxication of victim) arising
from the same alleged incident.

DECISION

[¶4.] The Fifth Amendment to the United States Constitution states that no

person shall “be subject for the same offence to be twice put in jeopardy of life or

limb.” Similarly, the South Dakota Constitution states that “[n]o person shall . . .

be twice put in jeopardy for the same offense.” SD Const Art VI, § 9. These

prohibitions against double jeopardy protect against multiple prosecutions for the

same offense after acquittal, multiple prosecutions for the same offense after

conviction, and multiple punishments for the same offense. State v. Weaver, 2002

SD 76, ¶11, 648 NW2d 355, 359. Violation of double jeopardy is a question of law.

State v. Cates, 2001 SD 99, ¶6, 632 NW2d 28, 33.

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[¶5.] This case presents us with an issue of a second prosecution after an

acquittal. The State admits that both prosecutions of Lafferty involve the same

conduct—the alleged sexual penetration of T.T. on March 15, 2004. The State

argues, however, that double jeopardy is not implicated in this case because SDCL

22-22-1(4) (rape of an intoxicated victim) is a different offense from statutory rape

under SDCL 22-22-1(5), and therefore constitutes a separate offense. If the two

offenses are deemed separate, Lafferty has not been subjected to double jeopardy.

[¶6.] In order to determine whether the offenses are separate offenses, we

first look to legislative intent. The United States Supreme Court has stated that

“[w]here the same conduct violates two statutory provisions, the first step in the

double jeopardy analysis is to determine whether the legislature . . . intended that

each violation be a separate offense.” Garrett v. United States, 471 US 773, 779, 105

SCt 2407, 2411, 85 LEd2d 764 (1985) (emphasis added), quoted in Weaver, 2002 SD

76, ¶14, 648 NW2d at 361. Thus, “when the same act violates two statutory

provisions, whether one act is punishable as separate offenses raises a question of

legislative intent.” State v. Dillon, 2001 SD 97, ¶14, 632 NW2d 37, 43. The true

intent of the Legislature is ascertained primarily from the language of the statute.

State v. Bordeaux, 2006 SD 12, ¶8, 710 NW2d 169, 172. Therefore, we turn to the

language of the rape statute, SDCL 22-22-1.

[¶7.] In its entirety, SDCL 22-22-1 provides:

Rape is an act of sexual penetration accomplished with any
person under any of the following circumstances:
(1) If the victim is less than ten years of age; or
(2) Through the use of force, coercion, or threats of
immediate and great bodily harm against the victim

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or other persons within the victim’s presence,
accompanied by apparent power of execution; or
(3) If the victim is incapable, because of physical or
mental incapacity, of giving consent to such act; or
(4) If the victim is incapable of giving consent because of
any intoxicating, narcotic, or anesthetic agent or
hypnosis; or
(5) If the victim is ten years of age, but less than sixteen
years of age, and the perpetrator is at least three
years older than the victim; or
(6) If persons who are not legally married and who are
within degrees of consanguinity within which
marriages are by the laws of this state declared void
pursuant to [SDCL] 25-1-6, which is also defined as
incest; or
(7) If the victim is ten years of age but less than eighteen
years of age and is the child of a spouse or former
spouse of the perpetrator.
A violation of subdivision (1) of this section is rape in the first
degree, which is a Class 1 felony. A violation of subdivision (2),
(3), or (4) of this section is rape in the second degree, which is a
Class 2 felony. A violation of subdivision (5), (6), or (7) of this
section is rape in the third degree, which is a Class 3 felony.
Notwithstanding [SDCL] 23A-42-2 a charge brought pursuant to
this section may be commenced at any time prior to the time the
victim becomes age twenty-five or within seven years of the
commission of the crime, whichever is longer.

The language of the statute defines the crime of rape in seven different subsections.

Each subsection is listed in the disjunctive; that is, each subsection is separated by

the disjunctive word “or.” The Legislature’s use of the disjunctive indicates that

rape is one offense which may be accomplished by seven different ways.

[¶8.] We have acknowledged the significance of the legislative use of the

disjunctive in defining conduct which constitutes aggravated assault in SDCL 22-

18-1.1. We considered that statute in State v. Baker, wherein a defendant was

charged, convicted, and sentenced for two counts of aggravated assault, one for

“[a]ttempt[ing] to cause, or knowingly caus[ing], bodily injury to another with a

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dangerous weapon” under SDCL 28-18.1.1(2) and a second for “[a]ssault[ing]

another with intent to commit bodily injury which results in serious bodily injury”

under SDCL 22-18-1.1(4). 440 NW2d 284, 285 (SD 1989). When considering a

double jeopardy challenge under that statute, we determined “that SDCL 22-18-1.1

does not contain four separate offenses, but rather describes one violation that may

be established in four different ways.” Id. at 293. We confirmed that conclusion in

State v. Morato when we noted that Baker “holds that SDCL 22-18-1.1 describes one

offense that may be established four different ways.” 2000 SD 149, ¶27, 619 NW2d

655, 663. Even more recently, in State v. Chavez, we noted

“SDCL 22-18-1.1 does not contain four separate offenses, but
rather describes one violation that may be established in four
different ways . . . . Each of the counts describes a different
method of accomplishing the offense, but there was only one
offense committed . . . .”

2002 SD 84, ¶16, 649 NW2d 586, 593 (quoting Baker, 440 NW2d at 293)).

[¶9.] We reach the same conclusion here. The plain, unambiguous language

of SDCL 22-22-1 defines rape as one of seven possible circumstances. The statute is

devoid of language indicating a clear intent to define separate offenses.

Consequently, the statutory language does not suggest that the Legislature

intended to define seven separate and distinct offenses. Indeed, the language of the

statute leads to the opposite conclusion. SDCL 22-22-1 defines one offense which

may be accomplished in seven different ways.

[¶10.] The State urges us to rely solely on the test set forth in Blockburger v.

United States, 284 US 299, 52 SCt 180, 76 LEd 306 (1932). The Blockburger test

states that “‘where the same act or transaction constitutes a violation of two distinct

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statutory provisions, the test to be applied to determine whether there are two

offenses or only one is whether each provision requires proof of an additional fact

which the other does not.’” Dillon, 2001 SD 97, ¶14, 632 NW2d at 43 (quoting

Blockburger, 284 US at 304, 52 SCt at 182, 76 LEd 306). Because the charge of

statutory rape requires proof of an additional fact from the charge of rape of an

intoxicated victim, the State claims Lafferty was charged with two different

offenses.

[¶11.] In this case, however, the Blockburger test is not dispositive. We have

clearly stated that the Blockburger test is merely “‘a rule of statutory construction

to help determine legislative intent.’” Dillon, 2001 SD 97, ¶14, 632 NW2d at 43

(quoting Garrett, 471 US at 778-79, 105 SCt at 2411, 85 LEd2d 764); see also

Weaver, 2002 SD 76, ¶14, 648 NW2d at 361. The Blockburger test “‘is not

controlling when the legislative intent is clear from the face of the statute or the

legislative history.’” Id. (quoting Garrett, 471 US at 779, 105 SCt at 2411, 85 LEd2d

764) (emphasis added); see also Weaver, 2002 SD 76, ¶14, 648 NW2d at 361.

Further, even if “the Blockburger analysis arrives at a result contrary to the

‘language, structure, and legislative history’ of the statute, the ‘Blockburger

presumption must of course yield to a plainly expressed contrary view on the part of

the legislature.’” Weaver, 2002 SD 76, ¶14, 648 NW2d at 361 (citation omitted)

(emphasis added).

[¶12.] In this case, the plain language of SDCL 22-22-1 evidences the

legislative intent to define one offense. Cf. Morato, 2000 SD 149, ¶27, 619 NW2d at

663; Baker, 440 NW2d at 293. Further inquiry into the elements of a criminal

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statute is unnecessary where the Legislature’s intent is clear. Thus, we need not

employ Blockburger because the language of the statute is controlling. Garrett, 471

US at 778-79, 105 SCt at 2411, 85 LEd2d 764; Weaver, 2002 SD 76, ¶14, 648 NW2d

at 361; Dillon, 2001 SD 97, ¶14, 632 NW2d at 43-44.

[¶13.] Lafferty was put in jeopardy twice for the same offense. After being

acquitted of rape by a jury, he faced a second prosecution for the same alleged rape.

Both the United States Constitution and the South Dakota Constitution protect him

from such relitigation. The protection against double jeopardy “‘serves a

constitutional policy of finality for the defendant’s benefit. That policy protects the

accused from attempts to relitigate the facts underlying a prior acquittal . . . .’”

Weaver, 2002 SD 76, ¶12, 648 NW2d at 360 (quoting Brown v. Ohio, 432 US 161,

165-66, 97 SCt 2221, 2225, 53 LE2d 187 (1977)) (quotation marks omitted)). Not

only does the protection of double jeopardy finalize judgments, but it also “protect[s]

the defendant from prosecutorial overreaching.” Garrett, 471 US at 795, 105 SCt at

2420, 85 LEd2d 754 (O’Connor, J., concurring). As noted by Justice O’Connor,

“The underlying idea, one that is deeply ingrained in at least the
Anglo-American system of jurisprudence, is that the State with
all its resources and power should not be allowed to make
repeated attempts to convict an individual for an alleged offense,
thereby subjecting him to embarrassment, expense and ordeal
and compelling him to live in a continuing state of anxiety and
insecurity, as well as enhancing the possibility that even though
innocent he may be found guilty.”

Id. (O’Connor, J., concurring) (quoting Green v. United States, 355 US 184, 187-88,

78 SCt 221, 223, 2 LEd2d 199 (1957)). SDCL 22-22-1 defines but one offense, and

double jeopardy prevents prosecution of Lafferty under SDCL 22-22-1(5) after his

acquittal under SDCL 22-22-1(4).

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[¶14.] Affirmed.

[¶15.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and

ZINTER, Justices, concur.

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