author: SABERS, Justice AMUNDSON, Justice

text:
    2001 SD 96
    STATE of South Dakota, Plaintiff and Appellee, v. Kim PEROVICH, Defendant and Appellant.
    No. 21509.
    Supreme Court of South Dakota.
    Considered on Briefs on April 24, 2001.
    Decided July 25, 2001.

      Mark Barnett, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, for plaintiff and appellee.
    Paula D. Camp, Pennington County Public Defender’s Office, Rapid City, for defendant and appellant.
   SABERS, Justice

[¶ 1.] Kim Perovich was convicted and sentenced to ten terms of life imprisonment. We affirm five of the convictions, reverse five duplicate convictions and remand for resentencing.

FACTS

[¶ 2.] Perovich was engaged to marry Donna Robinson. Donna had two nieces; K.R., age nine and R.R., age six. Perovich had been a family friend during his childhood and was re-introduced to Donna through her sister Tammy Robinson, the mother of K.R. and R.R. Tammy and her two children, K.R. and R.R., began to reside with Donna after frozen pipes forced the family to move from their previous home. Perovich visited the home frequently and would stay overnight on occasion.

[¶ 3.] There was no indication of unusual behavior or characteristics of abuse demonstrated by the two girls. The children did not shy away from Perovich or avoid him and no one observed anything unusual. Then, in the early morning hours of August 22,1999, Donna, Perovich, and the girls went with Tammy to deliver copies of the Rapid City Journal to her vendors. Donna drove the van, Perovich, K.R., R.R. and Tammy were passengers. Tammy testified that toward the end of the route she saw Perovich move toward the back of the van with K.R. She testified that at first the two were horseplaying, then it became quiet for ten to fifteen minutes. When she looked back to see what was occurring, she saw K.R. and Perovich under a blanket. She observed an “up and down” motion around KR.’s midsection. Tammy then dropped a paper and asked K.R. to retrieve it. The group finished the route. Tammy, her husband David, K.R. and R.R. went to a local store to purchase breakfast and shopped for about twenty minutes. No one discussed the incident.

[¶ 4.] They went to Donna’s for breakfast. Tammy testified that she asked K.R. if someone touched her “down there.” K.R. answered “just [Perovich], mommy.” Tammy confronted Perovich and Donna. During this confrontation, R.R. also claimed Perovich had touched her. Tammy took K.R. and R.R. to the hospital at Donna’s request.

[¶5.] The girls were examined at the hospital by Dr. Daniel Hoffman. The doctor elected to only do an external examination, as he was under the mistaken impression the abuse had taken place three to five days earlier. The doctor found no signs of trauma to the genital area of either girl. Dr. Hoffman explained at trial that these findings were not surprising and with digital penetration “we would not typically find anything.” He agreed that the lack of such a finding could be consistent with the claims by the victims.

[¶ 6.] While at the Hospital K.R. and R.R. were visited by the sexual assault response team. Officer Kline of the Rapid City police department interviewed the two girls separately. These interviews were also attended by Nurse Shaye Krcil. During her interview, K.R. stated that Pe-rovich took her to the back of the van, pulled down her shorts and “touched me here” referencing her genital area. In addition, she stated “he stuck his fingers inside me and moved them up and down.” She also stated he pulled out his penis and made her touch it with her hands. K.R. relayed that this had happened a couple days earlier and had also happened to her sister R.R.

[¶ 7.] During R.R.’s interview she confirmed that Perovich touched K.R and recounted her own incidents with Perovich. She said Perovich had “sucked her tongue, licked her neck, sucked her privates, and stuck his fingers in her privates.” She stated it happened three or four different times.

[¶ 8.] The .two girls were later interviewed by Detective Sauvage of the Pennington County Sheriffs Office. ■ K.R. stated that she had been touched in her “bad part” in the van and that Perovich had done the same on prior occasions. R.R. told the Detective of instances where Pero-vich had touched her while she was in the living room, in the dining room and in the van on other occasions.

[¶ 9.] Perovich was indicted and convicted of two counts of rape and criminal pedophilia against K.R. and three counts of rape and criminal pedophilia against R.R. Perovich was sentenced as a habitual offender based on his prior felony conviction for writing checks with insufficient funds. The trial court sentenced Perovich to ten mandatory life sentences due to his status as a habitual offender. The trial court determined that the five first-degree rape sentences were to run consecutive, and all criminal pedophilia sentences were to run concurrently to the rape sentences. [¶ 10.] Perovich raises six issues on appeal:

1. Whether the trial court erred in allowing R.R. to testify by a writing and in receiving same as.evidence.
2. Whether the trial1 court erred by allowing repeated leading questions and by allowing the prosecutor to interpret for R.R.
3. Whether the trial court erred in denying Perovich’s motion for a mistrial based upon R.R’s demeanor in the presence of the jury.
4. Whether the trial court erred in finding that there was sufficient evidence for the convictions relating to R.R.
5. Whether the alleged cumulative errors regarding R.R.’s testimony compromised the verdict on all counts.
6. Whether the trial court erred in sentencing Perovich to five consecutive and five concurrent life terms.

STANDARD OF REVIEW

[¶ 11.] In determining the sufficiency of the evidence to constitute the crime, the question is “whether there is sufficient evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt.” State v. Larson, 1998 SD 80, ¶ 9, 582 N.W.2d 15, 17. Whether a new trial should be granted is left to the sound judicial discretion of the trial court, and this Court will not disturb the trial court’s decision absent a clear showing of abusé of discretion. Tunender v. Minnaert, 1997 SD 62, ¶ 9, 563 N.W.2d 849, 851 (citation omitted). Likewise, evidentiary rulings made by the trial court are presumed correct and are reviewed under an abuse of discretion standard. State v. Goodroad, 1997 SD 46, ¶ 9, 563 N.W.2d 126, 129. Under this standard, “not only must error be demonstrated, but it must also be shown to be prejudicial error.” State ex rel Dep’t of Transp. v. Spiry, 1996 SD 14, ¶ 11, 543 N.W.2d 260, 263 (quoting Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 258 (S.D.1976)). “The test is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion.” Goodroad, 1997 SD 46, ¶ 9, 563 N.W.2d at 129 (citing State v. Rufener, 392 N.W.2d 424, 426 (S.D.1986)). Questions of law are reviewed de novo with no deference given to the trial court. City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771.

[¶ 12.] 1. WHETHER THE TRIAL COURT ERRED IN ALLOWING R.R. TO TESTIFY BY A WRITING AND IN RECEIVING SAME AS EVIDENCE.

[¶ 13.] When R.R. was called to the stand to testify she brought with her a stuffed bear, cried during the testimony and would not respond to certain questions. R.R. did answer general questions, but when asked about Perovich’s contact with her, she would become unresponsive. After she repeatedly failed to respond, the prosecutor asked R.R. if she could write the answers. R.R. acceded and wrote out her answers the best she could. In response to the prosecutor’s questioning, R.R. wrote that Perovich touched her “privet” with his “fegen” and “tug.” The prosecutor attempted to have R.R. read the words she wrote to the jury but R.R. refused. The trial court admitted the written testimony and it was shown to the jury.

[¶ 14.] Perovich contends that allowing R.R. to testify in this manner violated his right to confront his accuser as guaranteed by the state and federal constitutions.

The Sixth Amendment of the United States Constitution provides, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. The South Dakota Constitution provides similar protections: “In- all criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation against him; to have a copy thereof; to meet the witnesses against him face to face....” S.D. Const, art. VI, § 7. The so-called Confrontation Clause provides two specific protections for criminal defendants. Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40, 53 (1987). The first is being the right to face his accusers and the second is the right to cross-examine those who testify against him. Id.

State v. Karlen, 1999 SD 12, ¶ 37, 589 N.W.2d 594, 602.

[¶ 15.] The Confrontation Clause does not guarantee effective cross-examination, but guarantees the opportunity to confront the witness. See id. Therefore, our inquiry is whether Perovich was denied an opportunity for effective cross-examination. A review of the record reveals he was given such an opportunity.

[¶ 16.] Perovich’s counsel was allowed to cross-examine R.R. on the contents of her testimony and handwritten notes. He inquired where she had learned the words she had written, and in actuality elicited more details concerning the allegation of touching than did the prosecutor. We acknowledge defense counsel’s statement that this examination was difficult and he had to be careful not to create a negative reaction with the jury. However, Pero-vich’s counsel was given the opportunity to examine R.R. on all her statements, including the handwritten responses. His choice of trial strategy does not effect the analysis; He had the opportunity and conducted a meaningful cross-examination.

[¶ 17.] In support of his position, Pero-vich cites Spears v. State, 253. Miss. 108, 175 So.2d 158 (1965). In that case, the Mississippi Supreme Court determined it was a violation of defendant’s right to confront his accuser when the witness refused to repeat the obscenity he muttered, but instead would only write it. Id. at 163. We find that case distinguishable. As noted by the Spears court, in a prosecution for obscenity the trial court’s decision to allow the witness to write the obscenity “impressed upon the jury ... the fact that the words were of a most vulgar and obscene nature, and their repetition would constitute an impropriety.” Id. at 164. This case stands in marked contrast to this situation, where the written words were private, finger, and touch or tongue, and mostly used to describe the body part touched or the action taken.

[¶ 18.] 2. WHETHER THE TRIAL COURT ERRED BY ALLOWING LEADING QUESTIONS AND ALLOWING THE PROSECUTOR TO INTERPRET FOR R.R.

[¶ 19.] Perovich claims that the trial court erred in allowing the prosecutor to ask leading questions and characterizes the direct examination as improper prose-cutorial testimony. This claim is not supported by the" record as' there was no attempt by Perovich to address this at trial. Therefore, we need not address this argument on appeal except to say “the trial court must bé given ah opportunity to correct any claimed error before we will review it on appeal.” State v. Heftel, 513 N.W.2d 397, 401 (S.D.1994) (citations omitted).

[¶ 20.] 3. WHETHER THE TRIAL COURT ERRED IN DENYING PE-ROVICH’S MOTION FOR A MISTRIAL BASED UPON R.R.’S DEMEANOR IN THE PRESENCE OF THE JURY.

[¶ 21.] Perovich asserts that R.R.’s conduct and demeanor irreparably damaged his right to a fair trial. When R.R. was called to testify, she entered the courtroom and refused to come forward, remaining in the back of the courtroom for five to six minutes crying. A brief recess was granted.. The trial resumed with R.R. on the stand, where she testified while crying and holding a stuffed bear.

[¶ 22.] Perovich moved for a mistrial. In response, the trial court stated that he did not believe, this was anything but a genuine display and was not an attempt to influence the jury and simply ordered a ten-minute recess. On appeal, Perovich asserts this was not enough and a mistrial was the only appropriate remedy.

[¶ 23.] In reviewing the grant or denial of a motion for mistrial, we have noted that:

Trial courts have considerable discretion not only in granting or denying a mistrial (State v. Closs, 366 N.W.2d 138, 143 (S.D.1985)) but also in determining the prejudicial effect of a witness’ statements. State v. Michalek, 407 N.W.2d 815, 818 (S.D.1987). Only when this discretion is clearly abused will this court overturn the trial court’s decision. Id.; State v. Farley, 290 N.W.2d 491, 494 (S.D.1980).

[¶ 24.] We are particularly hampered in our review of a motion for mistrial based on the demeanor of a witness. A cold record invariably lacks the emotion of the occurrence below. It is obvious that a trial of this type takes its toll on both witnesses and the parties. Whether or not these emotions amount to circumstances that create an unfair trial is best addressed within the discretion of the trial court. After reviewing the record, it has not been shown that the trial court abused its discretion in denying the motion.

[¶ 25.] 4. WHETHER THE TRIAL COURT ERRED IN FINDING SUFFICIENT EVIDENCE FOR THE CONVICTIONS RELATING TO R.R.

[¶ 26.] Perovieh moved for a judgment of acquittal at the close of the State’s evidence for all counts in which R.R. was the victim. The trial court denied that motion. Perovieh asserts that the evidence for these convictions was insufficient as a matter of law.

[¶27.] In determining the sufficiency of the evidence to constitute the .crime, the question is “whether there is sufficient evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt.” State v. Larson, 1998 SD 80, ¶ 9, 582 N.W.2d at 17. The record contains . evidence of statements made by R.R. implicating Perovieh in the acts of sexual abuse, those statements were confirmed by testimony from two investigating officers and a nurse at the hospital where R.R. was examined. Perovieh points to a lack of physical evidence and asserts that without such evidence this conviction cannot stand.

[¶ 28.] The testimony corroborated R.R.’s version of the events between her and Perovieh. In addition, the lack of physical evidence was explained by the treating physician as “unremarkable” as he was not aware of the time when the abuse occurred or that it had been digital penetration. The question of guilt was to be resolved by a jury based on the testimony. There is no showing that the evidence was insufficient as a matter of law.

[¶ 29.] 5. WHETHER THE ALLEGED CUMULATIVE ERRORS REGARDING R.R.’S TESTIMONY COMPROMISED THE VERDICT ON ALL COUNTS.

[¶ 30.] “We have previously held that the cumulative effect of errors by the trial court may support a finding by the reviewing court of a denial of the constitutional right to a fair trial.” State v. Davi, 504 N.W.2d 844, 857 (S.D.1993); McDowell v. Solem, 447 N.W.2d 646, 651 (S.D.1989). Perovieh asserts that the claimed errors below compromised the trial below and the verdict on all counts. This argument is without merit as there is no showing that any error compromised the trial.

[¶ 31.] 6. WHETHER THE TRIAL COURT ERRED IN SENTENCING PEROVICH TO FIVE CONSECUTIVE AND FIVE CONCURRENT LIFE TERMS.

[¶ 32.] The State alleged five separate offenses against Perovieh. The trial court sentenced Perovieh to ten life sentences in which the criminal pedophilia counts are to run concurrent with the corresponding first-degree rape counts. Additionally, the trial court ordered all counts of first-degree rape to run consecutive with each other. Therefore, Perovieh has ten life sentences, five running consecutively, and five running concurrently.

[¶ 33.] Perovieh claims that under SDCL 22-6-6.1, the trial court was required to sentence him to concurrent sentences for all crimes, prior to the date of the last offense. Yet, we have held “SDCL 22-6-6.1 is specific on its face and it allows for consecutive sentences regardless of when the offenses were committed or when the judgment or sentence was entered.” State v. Sieler, 1996 SD 114, ¶ 16, 554 N.W.2d 477, 481. SDCL 22-6-6.1 authorizes the trial court to impose these sentences consecutively!

[¶ 34.] Even though Perovieh raises no further issues, we cannot ignore the plain error present in his sentencing. See State v. Well, 2000 SD 156, ¶23, 620 N.W.2d 192; Wilcox v. Leapley, 488 N.W.2d 654, 657 (S.D.1992); State v. Johnston, 478 N.W.2d 281, 285 (S.D.1991). “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of a court.” SDCL 23A-44-15. As- Perovich’s sentencing violates the prohibition against double jeopardy, we reverse the five rape convictions and remand for resentencing as in Well.

[¶ 35.] “It is established law that a defendant cannot receive two convictions for one crime unless the legislature intended multiple punishments.” Well, 2000 SD 156, ¶ 23, 620 N.W.2d 192 (citations omitted). Without factual evidence of two separate offenses or statutory authority, a jury conviction for multiple crimes for a single act of sexual penetration cannot stand. Id. See also State v. Sprik, 520 N.W.2d 595, 598 (S.D.1994). Perovieh received two convictions for each act of sexual penetration, consequently these convictions violate the prohibition on double jeopardy.

[¶ 36.] The prosecutor, in neither the charging documents nor evidence to the jury, sought to distinguish the acts constituting criminal pedophilia and those constituting first-degree rape. In fact, these were the same acts. Perovieh was convicted of five counts of first-degree rape and five counts of criminal pedophilia. Though the trial court ran each first-degree rape charge concurrently with the corresponding criminal pedophilia charge, that is not enough to cure a double jeopardy violation. As the factual test for multiple punishments was not satisfied, our inquiry turns to whether the legislature intended multiple punishments for the same crime.

[¶ 37.] Whether a single act is punishable as two separate offenses is purely a question of legislative intent. See Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 2411, 85. L.Ed.2d 764 (1985). The double jeopardy provisions of the United States and South Dakota constitutions are not violated if the legislature has clearly expressed an intent for multiple punishments for the same conduct. Id. at 778-89, 105 S.Ct. at 2411-12.

[¶ 38.] ' For example, in Gore v. United States, the United States Supreme Court upheld three consecutive sentences based on a single illicit drug transaction that violated three different statutes for the sale of illegal drugs. 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). While courts cannot impose multiple punishments for the same conduct, the Legislature can. See Whalen v. United States, 445 U.S. 684, 695, 100 S.Ct. 1432, 1439, 63 L.Ed.2d 715 (1980). If the Legislature has not authorized multiple punishments for the same act the court exceeds its jurisdiction in imposing such a sentence. See State v. Groves, 473 N.W.2d 456, 458 (S.D.1991).

[¶ 39.] SDCL 22-22-1(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 ...

[¶ 40.] SDCL 22-22-30.1 provides:

Criminal pedophilia is any act of sexual penetration accomplished with a victim less than thirteen years of age by any person twenty-six years of age or older under any circumstances not constituting incest as defined in § 22-22-1(6).

It is clear that the plain meaning of these statutes do not demonstrate a legislative intent for cumulative punishments. In order to approve a cumulative punishment the Legislature must speak explicitly. See Missouri v. Hunter, 459 U.S. 359, 369, 103 5.Ct. 673, 679, 74 L.Ed.2d 535 (1983). Unless the expressed intent is clear, the trial court exceeds its jurisdiction by imposing multiple punishments. Id. For the applicable two-part test, see State v. Dillon, 2001 SD 97, 632 N.W.2d 37 (released simultaneously). Because first-degree, rape carries a lesser minimum sentence, e.g.,' ten years as opposed to twenty-five years under criminal pedophilia, the five rape convictions should be vacated and the matter remanded for resentencing on the five criminal pedophilia convictions. See Well, 2000 SD 156, ¶ 25, 620 N.W.2d at 197; Groves, 473 N.W.2d at 458.

[¶ 41.] Therefore, we affirm in part, reverse in part and remand for resentencing consistent with this opinion.

[¶ 42.] MILLER, Chief Justice, and KONENAMP, and GILBERTSON, Justices, concur.

[¶ 43.] AMUNDSON, Justice, concurs specially.

AMUNDSON, Justice

(concurring specially).

[¶ 44.] I concur on issues ,1, 2, 4, 5 and 6.

[¶ 45.] I concur in the result on issue 3 and state that a record should have been made of the jurors regarding the impact of the witness’ conduct on their ability to be fair and impartial. This would have made for more meaningful review of this issue. Also, it would have been better practice for the trial court to instruct the jury to disregard its observations of the witness’ pre-testimony conduct in its deliberations.

       This Court is presented with a similar issue in State v. Dillon, 2001 SD 97, 632 N.W.2d 37. To avoid any claims of undue prejudice resulting therefrom, in the future we encourage trial courts to provide alternative jury instructions.


source: Caselaw Access Project

author: LOYRIEN, Circuit Judge

license: Public Domain

text:
    2001 SD 100
    Christopher CROMWELL, Plaintiff and Appellee, v. RAPID CITY POLICE DEPARTMENT; City of Rapid City; and Michael W. Lang, in His Official Capacity as an Officer of the Rapid City Police Department, Defendants, Third-Party Plaintiffs and Appellants, v. Steven B. Purchase, Third-Party Defendant.
    No. 21582.
    Supreme Court of South Dakota.
    Argued Feb. 13, 2001.
    Decided July 25, 2001.

      John S. Dorsey, Whiting, Hagg & Hagg, Rapid City, for plaintiff and appellee.
    James S. Nelson and David E. Lust, Gunderson, Palmer, Goodsell & Nelson, Rapid City, for defendants and appellants.
   LOYRIEN, Circuit Judge

[¶ 1.] The City of Rapid City and Officer Michael W. Lang appeal the trial court’s denial of their motion for summary judgment based upon claims of sovereign immunity under SDCL 21-32A 1. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On August 1, 1997, Christopher Cromwell, was injured when a car driven by Steven B. Purchase of Rapid City, broadsided his vehicle. Purchase was intoxicated at the time of the crash and was being pursued by Rapid City Police Officer, Michael W. Lang. Cromwell’s guardian served notice of claim upon City on or about January 12, 1998. Suit was commenced by City’s admission of service on September 25,1999.

[¶ 3.] At the time of the accident, City had in effect liability coverage with the South Dakota Public Assurance Alliance (SDPAA), a risk pool for claims. This coverage was claims paid coverage, meaning it only covered claims paid before termination of the policy.

[¶ 4.] In October 1998, City decided to terminate its coverage with SDPAA effective December 31, 1998 and purchase insurance coverage with St. Paul Insurance Company. The St. Paul policy became effective October 1, 1998, and was a claims made policy; the St. Paul policy did not cover any claims made before October 1, 1998.

[¶ 5.] The change from the risk pool to insurance created a coverage gap. By its actions, City gave up its coverage for claims that occurred before October 1, 1998 but had not been paid out by December 1, 1998. Approximately thirty claims against City, including Cromwell’s, fell within this gap and are pending or are in some stage of litigation. During the negotiations to purchase liability insurance, City discussed but decided not to purchase tail insurance that would have covered all pending claims. City brought a motion for summary judgment, seeking dismissal of Cromwell’s claim based on sovereign immunity.

[¶ 6.] The circuit court denied City’s motion and City filed an intermediate appeal. We permitted the appeal to proceed and now affirm.

STANDARD OF REVIEW

[¶ 7.] In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we have often stated:

[W]e must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to. the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.

Dakota Cheese, Inc. v. Ford, 1999 SD 147, ¶ 15, 603 N.W.2d 73, 76 (quoting Campion v. Parkview Apartments, 1999 SD 10, ¶ 22, 588 N.W.2d 897, 902 and Wildeboer v. South Dakota Junior Chamber of Comm., 1997 SD 33, ¶ 9, 561 N.W.2d 666, 668). Summary judgment will be affirmed “ ‘only when there are no genuine issues of material fact and the legal questions have been correctly decided.’ ” Casazza v. State, 2000 SD 120, ¶ 8, 616 N.W.2d 872, 874 (quoting Julson v. Federated Mut. Ins. Co., 1997 SD 43, ¶ 5, 562 N.W.2d 117, 119).

[¶ 8.] “Whether the defendants are protected by sovereign immunity is a question of law, reviewed de novo, with no deference given to the trial court’s legal conclusions.” Hansen v. South Dakota DOT, 1998 SD 109, ¶ 7, 584 N.W.2d 881, 883 (citing Wilson v. Hogan, 473 N.W.2d 492, 493 (S.D.1991)).

[¶ 9.] When the interpretation of a statute is in question, we have said:

Questions of law such as statutory interpretation are reviewed by the Court de novo.... The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the legislature said, rather than what the Court thinks it should have said, and the Court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed. Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject.

Lekanidis v. Bendetti, 2000 SD 86, ¶ 16, 613 N.W.2d 542, 545 (quoting Dahn v. Trownsell, 1998 SD 36, ¶ 14, 576 N.W.2d 535, 539).

ISSUES

[¶ 10.] Did City waive its sovereign immunity by participation in the SDPAA for claims that arose during the time of that participation?

[¶ 11.] If sovereign immunity was waived by participation in the SDPAA, can City reassert sovereign immunity as to claims that arose during the time of participation, by withdrawing from SDPAA?

ANALYSIS AND DECISION

Sovereign Immunity

[¶ 12.] Sovereign immunity is the right of public entities to be free from liability of tort claims unless waived by legislative enactments and is a time-honored doctrine, predating the United States Constitution. “When the Constitution was ratified, it was well established in English law that the Crown could not be sued without consent in its own courts.” Alden v. Maine, 527 U.S. 706, 715, 119 S.Ct. 2240, 2247, 144 L.Ed.2d 636 (1999) (citing Chisholm v. Georgia, 2 Dall. 419, 437-446, 1 L.Ed. 440 (1793) (Iredell, J., dissenting) (surveying English practice)). “Although the American people had rejected other aspects of English political theory, the doctrine that a sovereign could not be sued without its consent was universal in the States when the Constitution was drafted and ratified.” Id., 527 U.S. at 715-16, 119 S.Ct. at 2248, 144 L.Ed.2d 636.

[¶ 13.] The South. Dakota Constitution ratified the doctrine with the adoption of Article III, Section 27, which provides, “The Legislature shall direct by law in what manner and in what courts suits may be brought against the state.” Although there has been legislative ratification and expansions of the doctrine, this Court has found that the doctrine is “judge made law.” High-Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736, 738 (S.D.1980); Sioux Falls Constr. Co. v. City of Sioux Falls, 297 N.W.2d 454, 457 (S.D.1980). Limitations to this doctrine have been made by the courts and have been recognized by the states. The United States Supreme Court has recognized a number of limitations to the doctrine as it applies to the states. “The first of these limits is that sovereign immunity bars suits only in the absence of consent.” Alden, 527 U.S. at 754, 119 S.Ct. at 2267, 144 L.Ed.2d 636. See also In re Request for Opinion of the Supreme Court, 379 N.W.2d 822, 825 (S.D.1985). “The second important limit to the principle of sovereign immunity is that it bars suits against States but not lesser entities. The immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity which is not an arm of the State.” Alden, 527 U.S. at 754, 119 S.Ct. at 2267, 144 L.Ed.2d 636. See, e.g., Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977); Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890). By the adoption of SDCL 21-32A-3, the South Dakota Legislature has extended the reach of sovereign immunity to all public entities in this state, which includes" municipalities.

Consent to Suit or Waiver of Immunity

[¶ 14.] Courts have long held that the doctrine of sovereign immunity protects public entities not only from a final judgment but also from having to defend a claim in court. “[L]ike other forms of immunity, [sovereign immunity] protects] states not only from liability for money judgments; but, also, from being-required to "appear and defend itself against the claims of private parties.” Rhode Island v. United States, 115 F.Supp.2d 269, 279 (D.R.I.2000). See also Seminole Tribe of Florida v. Florida, 517 U.S. 44, 58, 116 S.Ct. 1114, 1124, 134 L.Ed.2d 252 (1996); State of Connecticut Dep’t. of Envtl. Protection v. OSHA, 138 F.Supp.2d 285, 288 (D.Conn.2001). Unless the state has given its consent or has abrogated or waived its immunity legislatively, public entities are free from the liability of tort claims. In re Request for Opinion, 379 N.W.2d at. 825.

[¶ 15.] The state legislature has defined the conditions for the waiver of sovereign immunity at SDCL 21-32A 1:

To the extent that any public entity, other than the state, participates in a risk sharing pool or purchases liability insurance and to the extent that coverage is afforded thereunder,- the public entity shall be deemed to have waived the common law doctrine of sovereign immunity and shall be deemed to have consented to suit in the same manner that any other party may be sued....

[¶ 16.] Cromwell argues that the words, “to the extent that coverage is afforded thereunder,” apply only to the purchase of insurance by a public entity and that participation by a public entity in a risk sharing pool, by itself, is sufficient to waive sovereign immunity. City argues that the “extent of coverage” language applies to both participation in a risk pool and purchase of insurance and sovereign immunity is waived by participation in a risk sharing pool only to the extent that coverage is afforded.

[¶ 17.] A judicial interpretation of a statute is proper only when the statute is ambiguous. In our view, SDCL 21-32A-1 is not ambiguous. For sovereign immunity to be waived, the legislature requires two things: (1) spreading the risk of loss over a larger group whether it be through a risk pool or insurance, (2) waiver of immunity to the extent of coverage. 'We cannot conclude that the legislature intended a public entity face unlimited liability simply by .virtue of participation in a risk pool. Rather we conclude that the legislature intended that a public entity, participating in risk pool, face liability only to the extent that coverage is afforded by the pool.

[¶ 18.] Based on this reading of SDCL 21-32A-1, City’s argument essentially is this: the purpose of sovereign1 immunity is to make sure that a public entity is not to be held liable for damages unless there are funds available for the satisfaction of the judgment. SDCL 21-32A-1 provides for the waiver of sovereign immunity to the extent that a public entity participates in a risk sharing pool and to the extent of coverage thereunder. Since SDPAA only provided claims paid coverage, . when City withdrew from SDPAA, the extent of coverage afforded Cromwell’s unresolved -claim was zero. In effect, since Cromwell’s claim was never paid, sovereign immunity was never waived. The trial court should have granted- summary judgment.

[¶ 19.] When, then, does the waiver of sovereign immunity under SDCL 21-32A-1 occur: when the cause of action occurs, when a claim is finally settled or reduced tó judgment, or somewhere in between? In our view, SDCL 21-32A-1 applies when all the requirements of SDCL 21-32A-1 have been met: (1) participation in a risk sharing pool or purchase of insurance, (2) waiver to the extent of coverage, (3) and by implication, a cause of action occurs which gives rise to a claim against the public entity. When all the statutory requirements have been met for the waiver of sovereign immunity, sovereign immunity is waived at that time. ■ ■

[¶ 20.] The accident, which is the basis of Cromwell’s claim, occurred August 1, 1997. City was participating in a risk pool and had coverage thereunder on that date. As to Cromwell’s claim, sovereign immunity was waived on August 1, 1997, to the extent of the coverage afforded.

[¶ 21.] City asserts the claim was zero because it had not been paid. The Intergovernmental Contract for the SDPAA defines the extent of coverage provided to participants in the' SDPAA. The term, “Scope of Coverage,” is defined in Article III of this contract as, “the coverage, limits and deductibles as outlined in the Appendix and subsequent amendments thereto.” This Appendix specifies coverage for general liability, automobile and automobile physical damage liability, public officials liability, police professional liability and property and inland marine with limits of coverage up to $2,000,000 per line of coverage. The SDPAA coverage declarations page for City created a $100,000 deductible per claim. These terms define the “extent of coverage afforded” on August 1, 1997 and it was to this extent that sovereign immunity was waived by City on that date.

[¶ 22.] The fact that more than a year later, when City withdrew from the SDPAA, Cromwell’s claim had not been paid does not mean that at the time of Cromwell’s injury the extent of, coverage afforded under SDPAA was zero. Rather, at the time of Cromwell’s injury, City, by participation in the SDPAA, waived sovereign immunity and consented to be sued in the same manner that any other party may be sued, to the extent of the policy limits afforded by the SDPAA coverage agreement.

[¶ 23.] This Court still “adhere[s] to the opinion that if there is to be a departure from the rule of governmental immunity it should result from legislative action.” High-Grade Oil Co., 295 N.W.2d at 738 (quoting Conway v. Humbert, 82 S.D. 317, 324-25, 145 N.W.2d 524, 529 (1966)). However, in deciding this ease we are not departing from the rule of governmental immunity; we are merely deciding when immunity, or the waiver thereof, occurs. Here, sovereign immunity was waived at the time of the accident, August 1, 1997.

Reclaiming Sovereign Immunity After Waiver

[¶ 24.] Article XI of the Intergovernmental Contract for the South Dakota Public Assurance Alliance allows members to withdraw from the SDPAA and to recover a percentage of the cumulative reserve fund contributions made to the SDPAA. Because City participated more than six years, it was entitled to withdraw 100% of these contributions.

[¶ 25.] More than a year after the date of the accident, City terminated its membership in the SDPAA and withdrew its cumulative reserve fund contributions. Under the terms of the SDPAA contract, all unpaid claims which existed at the time City withdrew as a member of SDPAA, including Cromwell’s claim, became the sole responsibility of City. Can City reclaim sovereign immunity by withdrawing from SDPAA thereby making Cromwell’s claim one for which City no longer has coverage? We conclude that once City waived sovereign immunity by operation of SDCL 21-32A-1, City could not reclaim it by voluntarily surrendering its coverage.

1. Cromwell did not consent to withdraw the waiver

[¶ 26.] The law regarding the reclaiming of waivers is well settled.

One who intentionally relinquishes a known right cannot, without consent of his adversary, reclaim it, for it is well settled that a waiver once made is irrevocable, even in the absence of consideration, or of any change in position of a party in whose favor the waiver operates. And once a right is waived the waiver cannot be withdrawn without the consent of the other party, even if subsequent events prove the right waived to have been more valuable than was anticipated.

Bared and Co., Inc. v. Specialty Maintenance and Constr., Inc., 610 So.2d 1, 3 (Fla.Dist.Ct.App.1992) (citing 28 AmJur2d Estoppel and Waiver § 156 (1966)); see Fox v. Comm’r of Internal Revenue, 874 F.2d 560, 565 (8thCir.1989); Lopez v. New Mexico Bd. of Medical Exam’rs, 107 N.M. 145, 754 P.2d 522, 526 (1988) (Stowers, J., dissenting); Engstrom v. Farmers & Bankers Life Ins. Co., 230 Minn. 308, 41 N.W.2d 422, 424 (1950). City voluntarily joined SDPAA and thereby waived sovereign immunity with regard to Cromwell’s claim. In doing this, City consented to Cromwell suing it as if it were any other party. Cromwell -acquired a right to sue City and this right cannot be set aside except by Cromwell’s consent. Since he has never consented, City cannot reassert sovereign immunity.

2. The open courts provision précludes withdrawing the waiver

[¶ 27.] When City voluntarily left SDPAA, it was aware of Cromwell’s claim. City had reason to believe the claim may result in damages. City was free to remain in SDPAA or to withdraw. City chose to withdraw and purchase insurance. City could have purchased tail insurance to fill the gap created in its coverage but decided not to do this. Rather, City voluntarily gave up the coverage that it had with respect to Cromwell’s claim, withdrew its money from the risk pool, deposited it in a city account and asserted sovereign immunity on the basis that it no.longer had coverage for Cromwell’s claim.

[¶ 28.] Most recently in Vilhauer v. Horsemen’s Sports, Inc., 1999 SD 93, 598 N.W.2d 525, we examined the open courts provision of the South Dakota Constitution, Article VI, Section 20. This provision provides that “All courts shall be open, and every man for an injury done him in his property, person or reputation, shall have remedy by due course of law, and right and justice, administered without denial or delay.”

[¶ 29.] This Court has concluded the proper scope of Article VI, Section 20 to be:

Given the above nature of the understanding of the drafters of the constitutional provisions and its contemporary judicial interpretations, it is clear that these provisions in South Dakota and surrounding states were meant to allow unhindered access to the courthouse by a person who had a valid, cause of action based on existing statute or the common law, timely and properly brought, who then would be allowed to present their case to a human fact finder. In other words under those conditions, a litigant was guaranteed its day in court.... In Green [v. Siegel, 1996 SD 146, 557 N.W.2d 396], we analyzed our case law from McClain [v. Williams, 10 S.D. 332, 73 N.W. 72] in 1897 up to Knowles [In re Certification, 1996 SD 10, 544 N.W.2d 183] in 1996 and found no basis for a claim that Art. VI, § 20 could by itself become a sword to create a cause of action or become a shield to prohibit statutorily recognized barriers to recovery such as a statute of limitations.

Vilhauer, 1999 SD 93, ¶ 17, 598 N.W.2d at 529 (quoting Wegleitner v. Sattler, 1998 SD 88, ¶ 33, 582 N.W.2d 688, 698).

[¶ 30.] It is clear that the open courts provision does not defeat valid statutorily recognized barriers to recovery, including claims of sovereign immunity. But we also note that once sovereign immunity has been waived, SDCL 21-32A-1 provides: “the public entity shall be deemed ... to have consented to suit in the same manner that any other party may be sued.”

[¶ 31.] Once this consent is given, and absent a valid statutorily recognized barrier to recovery, a public entity is in no better position than any other defendant to defeat a plaintiffs constitutional right to have his day in court. Does a statutorily recognized barrier to recovery exist here? City has not demonstrated any exist. Waiver of immunity and consent to be sued occurs by operation of statute. We find no similar statute which allows a pub-lie entity to reassert sovereign immunity for a claim once it has been waived by operation of law.

[¶ 32.] In summary, City waived its sovereign immunity by participation in the SDPAA to the extent of coverage afforded. Under the facts before us, City can not reassert sovereign immunity once it is waived. Kelly Cromwell, Christopher’s guardian, brought this case timely and properly and is entitled to have his day in court. There remain genuine issues of material fact including the question of whether Officer Lang’s actions were negligent. “It does not contemplate that the court shall decide such issue of fact, but shall determine only whether one exists.” Piner v. Jensen, 519 N.W.2d 337, 340 (S.D.1994) (quoting Wilson v. Great Northern Ry. Co., 83 S.D. 207, 211, 157 N.W.2d 19, 21 (1968)). The denial of summary judgment is affirmed.

[¶ 33.] MILLER, Chief Justice, and SABERS, AMUNDSON, and GILBERTSON, Justices, concur.

[¶ 34.] LOVRIEN, Circuit Judge, for KONENKAMP, Justice, disqualified.

       This statute provides:
      Except insofar as a public entity participates in a risk sharing pool or insurance ⅛ purchased pursuant to § 21-32A-1, any public entity is immune from liability for damages whether the function in which it is involved is governmental or proprietary. The immunity recognized herein may be raised by way of affirmative defense.


author: KONENKAMP, Justice SABERS, Justice AMUNDSON, Justice

text:
    2001 SD 99
    STATE of South Dakota, Plaintiff and Appellee, v. Kenneth CATES, Defendant and Appellant.
    No. 21450.
    Supreme Court of South Dakota.
    Argued Jan. 9, 2001.
    Decided July 25, 2001.

      Mark Barnett, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and ap-pellee.
    Kevin Lewis, Pennington County Public Defender’s Office, Rapid City, SD, Attorney for defendant and appellant.
   KONENKAMP, Justice

[¶ 1.] Can a sex abuse perpetrator be convictéd of both rape and criminal pedophilia for multiple acts of sexual penetration committed in the same period? The defendant contends that because the acts occurred in the course of one evening, multiple punishments for these acts constitute double jeopardy. We conclude that because there were at least two acts of sexual penetration, the two convictions were proper. In addition, the' defendant appeals on several other grounds, including (1) the admission of hearsay evidence under SDCL 19-16-38; (2) the denial of a motion for a psychiatric exam of the victim; (3) the denial of access to the victim’s counseling or psychiatric records; (4) the admission of expert testimony on the general characteristics of child sexual abuse; and (5) the insufficiency of the evidence to sustain the convictions. We affirm on all issues.

A.

[¶2.] On February 28, 1999, Debbie Dillon and her six-year-old daughter, P.B., went to Ken Cates’s Rapid City home to check on P.B.’s bicycle, which Cates had promised to fix. Cates was cooking bratwurst and burgers for dinner and invited P.B. to stay and eat. Debbie felt comfortable leaving P.B. with Cates, as he was a long-time family friend. P.B. and her family spent a great amount of time with him. She even referred to him as “Uncle Ken,” though he was not really her uncle. Before Debbie left,, she and Cates arranged that he would drive P.B. home after dinner. P.B., Cates, and two of his neighbors ate together. After dinner the neighbors left. P.B. and Cates were alone.

[¶ 3.] Cates asked her if she wanted to play strip poker. She said “No,” but then he became angry, so she changed her mind. He locked the doors, closed the shades, and dealt the cards. At the time, P.B. did not know what strip poker was, but on the first hand, “he like took off first.” In each successive hand, Cates lost and then P.B. lost, until neither had any clothes on. Cates then “got on top” of her and “touched” with his fingers and “licked” inside her “private.” When she got home that night, P.B. said nothing of the event to her mother. She was afraid to tell anyone. Cates had told her that if she did, her mother would “shoot a bullet through [Cates’s] head.” At the time, Cates was thirty-seven.

[¶ 4.] On March 4, 1999, Debbie took P.B. to the doctor after she complained that her “private” hurt when she urinated. During the examination, the doctor asked P.B. if anyone had touched her. She responded, “No.” After leaving the doctor’s office, however, P.B. asked her mother what strip poker was. When Debbie asked P.B. why she wanted to know, P.B. responded that Uncle Ken had showed her how to play. On arriving home, Debbie called the police and reported what she knew of the incident. While an officer was interviewing P.B. at her home, Cates showed up.

[¶ 5.] Cates was charged with one count of first degree rape and one count of criminal pedophilia. At trial, P.B. testified about the incident. It is undisputed that on several occasions she reported differing details on the specifics of this encounter. These discrepancies were explored on cross-examination. While being cross-examined, she added that Cates’s penis had gone inside her vagina. The State offered and the court allowed testimony by Officer Jerry Moore, Debra Dillon, and Steve Oberman. Each of these persons related statements P.B. had made about the incident. The court allowed these statements under the hearsay exception in SDCL 19-16-38. Additionally, the jury heard expert testimony offered by Lee Pfeiffer, a licensed psychologist. Pfeiffer explained the general characteristics of sexual abuse, the concept of “delayed reporting,” and the relevance of inconsistencies when a child reports sexual abuse. Finally, the medical doctor who examined P.B. and found no physical evidence of sexual abuse testified that an absence of physical indications alone does not constitute proof that abuse did not occur. The jury found Cates guilty on both counts. He was convicted as a habitual offender in a court trial and sentenced to mandatory life in prison on both counts, with the sentences to run concurrently. Cates appeals.

B.

Multiple Acts Constituting Rape and Pedophilia

[¶ 6.] Cates believes that rape under SDCL 22-22-1(1) and pedophilia under SDCL 22-22-30.1 are “essentially the same,” so he was punished twice for the same offense. When analyzing the double jeopardy provisions of the state and federal constitutions, we encounter a question of law, reviewable de novo. State v. Beck, 1996 SD 30, ¶ 6, 545 N.W.2d 811, 812 (citations omitted).

[¶ 7.] The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Article VI § 9 of the South Dakota Constitution prohibit three types of government action. Stated succinctly, the prohibition applies to defendants prosecuted for the same offense after acquittal, prosecuted for the same offense after conviction, or subjected to multiple punishments for the same offense. See State v. Augustine, 2000 SD 93, ¶11, 614 N.W.2d 796, 797 (citations omitted). The only aspect at issue under these facts is the prohibition against multiple punishments for a single offense.

[¶ 8.] Cates believes that his convictions for first degree rape and criminal pedophilia were improper “[bjecause identical facts were used to prove both offenses, and the victim was identical.” This argument ignores that the jury was presented with evidence that Cates accomplished more than one act of penetration on P.B. She testified that his fingers and tongue went inside her vagina. On cross-examination she answered “Yeah,” when asked, “Did his — did [Cates’s] penis go inside your private parts?”

[¶ 9.] The language in SDCL 22-22-1 (rape) and SDCL 22-22-2 (sexual penetration) evince a legislative intent “to punish separately each criminal sexual penetration.” State v. Sprik, 520 N.W.2d 595, 598 (S.D.1994) (citations omitted). In Sprik, we refused to recognize a doctrine that would permit an offender committing multiple acts of penetration to limit conviction to one offense by characterizing the sexual assaults as a “continuous act.” 520 N.W.2d at 598. Each act of sexual penetration constitutes a separate offense. Cates was not subject to double jeopardy.

C.

Hearsay From Child Victim

[¶ 10.] Cates challenges the trial court’s decision to allow P.B.’s out-of-court statements. When reviewing an evi-dentiary ruling, we apply the abuse of discretion standard. State v. Peterson, 1996 SD 140, ¶ 8, 557 N.W.2d 389, 391 (citations omitted). SDCL 19-16-38 allows hearsay statements made by a child victim of a sex crime if “[t]he court finds ... that the time, content, and circumstances of the statement provide sufficient indicia of reliability....” SDCL 19-16-38. See also State v. Floody, 481 N.W.2d 242, 251 (S.D.1992) (citations and internal quotations omitted). Additionally, the child must either testify at trial or be judicially declared unavailable. SDCL 19-16-38. But see M. Young and S. McDonald, The Aftermath of Coy v. Iowa: Are South Dakota’s Child Witness Statutes in Jeopardy? 34 SDLRev 627 (1989)(discussing the constitutionality of this statute). Cf. White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992). P.B..testified at trial. Therefore, the only question presented is whether her statements bore sufficient “indicia of reliability.” See Floody, 481 N.W.2d at 251.

[¶ 11.] As witnesses, children are neither inherently reliable nor inherently unreliable. Each child’s statement must be evaluated on its own merits. Several factors should be considered when assessing reliability. These include: (1) the child’s age and maturity; (2) the nature and duration of the abuse; (3) the relationship of the child to the offender; (4) the coherence of the statement, bearing in mind that young children may sometimes describe incidents in age appropriate language and in a disorganized manner; (5) the child’s capacity to observe, retain, and communicate information; (6) the nature and character of the statement itself, considering the child’s developmental limitations in understanding and describing sexual behavior; (7) any motivation of the child to make a false allegation or a false denial; (8) the child’s susceptibility to suggestion and the integrity of the situation under which the statement was obtained; and (9) all the circumstances under which the statement was made. See generally State v. Thompson, 379 N.W.2d 295, 297-98 (S.D.1985). See also John W. Larson, South Dakota Evidence § 807.1 (2001). No single consideration is dispositive. Trial courts must examine the totality of the circumstances surrounding the statement. Idaho v. Wright, 497 U.S. 805, 819, 110 S.Ct. 3139, 3148-19, 111 L.Ed.2d 638 (1990). A decision on reliability must be made before the admission of hearsay evidence. State v. Buller, 484 N.W.2d 883, 886 (S.D.1992) (citations omitted).

[¶ 12.] Before trial, the court took testimony to establish reliability under SDCL 19-16-38. The court also examined P.B. about the difference between truthfulness and untruthfulness. In its findings, the court concluded that the statements had “strong indicia of reliability.” It found that the statements were reasonably consistent, timely made, and spontaneously provided, with no suggestion of a “devious intention.” Additionally, in examining the child’s competence to testify, the court noted that P.B. was articulate, intelligent, and showed a complete awareness of the importance of telling the truth. From our review of the record, we cannot classify these findings as erroneous.

[¶ 13.] Cates alleges that because P.B.’s statements were made in response to questions and were not excited utterances, the statements were unreliable. He also asserts that each statement gave a somewhat different factual picture, so the statements were inherently unreliable. The first assertion is untenable. If the statements were excited utterances, then SDCL 19-16-38 could not have been invoked, as the statements would be admissible under SDCL 19-16-6. Those statements not made spontaneously were prompted by non-suggestive questions. As for the second assertion, the court found that the statements were reasonably consistent in such matters as the identity of the perpetrator, where the acts occurred, and how the incident began in a game of “strip poker.” Any inconsistency would be only one factor to consider. See Peterson, 1996 SD 140, ¶ 13, 557 N.W.2d at 392. Consequently, we find no abuse of discretion in the admission of the child’s statements.

D.

Psychiatric Exam of Victim

[¶ 14.] Cates moved for an order requiring P.B. to undergo a psychiatric exam. In denying the motion, the court found no “evidence that comes close to supporting the belief that there is any delusional behavior” to. justify an examination. The decision to grant or deny such a mental health evaluation lies in the discretion of the court. State v. Christopherson, 482 N.W.2d 298, 304 (S.D.1992)(citing State v. Blalack, 434 N.W.2d 55, 60 (S.D.1988)).

[¶ 15.] For an alleged sex abuse victim, the purpose of a psychological or psychiatric exam is to detect any mental delusions that would distort the victim’s perceptions, thus casting doubt on credibility. State v. Logue, 372 N.W.2d 151, 155-56 (S.D.1985). Cates bore the burden of showing a substantial justification before his request could be granted. See Blalack, 434 N.W.2d at 60. He asserts that P.B. told her story four times with different details each time. According to Cates, these inconsistencies when coupled with the absence of physical evidence constitute “grounds to question [P.B.’s] mental state.” Inconsistency in testimony alone will not establish a suggestion of mental delusion. Furthermore, the jury was presented with expert testimony explaining that it is common for young children to give different details when recounting incidents of sexual molestation. The circuit court did not abuse its discretion in denying the motion.

E.

Discovery of Child’s Mental Health Reports

[¶ 16.] _ Cates requested an order for “production of any counselor, psychologist, or psychiatric reports conducted on the alleged victim....” He sought this material based on the inconsistencies in P.B.’s statements. He argued that an inconsistent statement to a counselor would constitute impeachment evidence. At the time of this request, Cates was “unaware” if P.B. had obtained any counseling or if any reports existed. Anticipating an invocation of privilege, Cates argued that any privilege that existed between P.B. and a counselor or a psychiatrist was waived when P.B. spoke to her mother and law enforcement officers and testified at a preliminary hearing. In the alternative, Cates requested that the court conduct an in camera review of any reports.

[¶ 17.] The trial court denied the request, acting on the belief that such records were confidential. The judge acknowledged that this interpretation may be at odds with State v. Karlen. Nonetheless, the court went on to state that the solution to such a privilege dilemma would be an' in camera review of the material. However, no order for an in camera review was entered, and the final written order simply stated that the defendant’s motions were denied. Nothing in the record indicates that an in camera review occurred. An application for disclosure of a victim’s mental health reports is a matter entrusted to the discretion of the trial judge. See State v. Wade, 83 S.D. 337, 343, 159 N.W.2d 396, 400 (S.D.1968); State v. Wounded Head, 305 N.W.2d 677, 679 (S.D.1981)(juvenile records). Consequently, we review such decisions deferentially, applying an abuse of discretion standard. Id.

[¶ 18.] We are unable to conduct an adequate appellate review of this matter because it is unclear from the settled record whether the requested reports exist. At the motion hearing, the following exchange occurred:

The Court: And has any report been issued from that counselor to your knowledge?
Prosecutor: To my knowledge, I have not inquired. So I do not know if any report has issued or not.
The Court: And for the record so we have a record for counsel’s benefit, the name of the counselor if you know?
Prosecutor: I do not know, Your Honor.
The Court: But you could provide that? Prosecutor: I could provide that.

The State provided the name of P.B.’s counselor to the court and defense counsel. There is nothing to suggest whether this counselor had any reports to disclose. Nor is there any indication that defense counsel served the counselor with a subpoena to bring the reports to court for in an camera inspection. Thus, it is impossible for us, not knowing if the reports exist, to determine whether the trial court abused its discretion in denying defense counsel access to them. And if the reports do exist, we cannot know if they contain useful, discoverable material, and if denial of access was prejudicial. Cates, as the party claiming error, carried the responsibility of ensuring an adequate record. State v. Jones, 416 N.W.2d 875, 878 (S.D.1987)(citing State v. Olson, 408 N.W.2d 748, 752 (S.D.1987))(further citations omitted). When confronted with an incomplete record, we presume that the trial court acted properly. Id. Thus we affirm the circuit court’s order.

F.

Characteristics of Child Sex Abuse Victims

[¶ 19.] Expert testimony explaining the general characteristics of sexually abused children is admissible when relevant. See State v. Edelman, 1999 SD 52, ¶ 15, 593 N.W.2d 419, 422. See also State v. Spaans, 455 N.W.2d 596, 598-99 (S.D.1990). In fact, we have upheld expert testimony that went further than this case, allowing an expert to tie general characteristics to a particular victim. Floody, 481 N.W.2d at 249 (citations omitted). The testimony here was clearly within the bounds set in prior case law. Consequently, we cannot say that the court abused its discretion. See Spaans, 455 N.W.2d at 599.

G.

Sufficiency of the Evidence

[¶ 20.] Cates argues that the evidence was insufficient as a matter of law to convict him of first degree rape and criminal pedophilia. To prove first degree rape, there must be evidence showing that the transgressor accomplished an act of sexual penetration, however slight, against a victim less than ten years of age. See SDCL 22-22-1(1); SDCL 22-22-2. A conviction for criminal pedophilia requires proof of an act of sexual penetration by one who is twenty-six years or older, accomplished against a victim less than thirteen. See SDCL 22-22-30.1. At the time of the incident, Cates was thirty-seven, and P.B. was six. The only matter truly in issue was sexual penetration. Cates denied that any sexual contact occurred; therefore, the existence of sexual penetration was a question of credibility. It is the function of the jury to weigh the credibility of witnesses. Sprik, 520 N.W.2d at 601. We accord great deference to a jury’s conclusions. Id. (Citations omitted). On appeal, we will not reassess credibility. From our examination of the record, there was sufficient evidence if believed by the jury to find Cates guilty beyond a reasonable doubt. See Sprik, 520 N.W.2d at 601 (S.D.1994) (citations omitted).

[¶ 21.] Affirmed.

[¶ 22.] MILLER, Chief Justice, and GILBERTSON, Justice, concur.

[¶ 23.] SABERS, Justice, concurs specially.

[¶ 24.] AMUNDSON, Justice, concurs in part and concurs in result in part.

SABERS, Justice

(concurring specially).

[¶ 25.] I concur specially as there is evidence to support separate acts of penetration for both crimes.

AMUNDSON, Justice

(concurring in part and concurring in result in part).

[¶ 26.] I concur as to issues C, D, E, F, G, and concur in result as to issue B since it is obvious that Cates can only serve one life sentence without parole and there is sufficient evidence in the record to convict on either criminal pedophilia or first degree rape.

      . 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...
      SDCL 22-22-30.1 provides: "Criminal pedophilia is any act of sexual penetration accomplished with a victim less than thirteen years of age by any person twenty-six years of age or older under any circumstances not constituting incest as defined in § 22-22-l(6)[.]”

      . On cross-examination, P.B. agreed that she had told different "stories.” P.B.'s mother also testified that P.B. had confided that she did not tell police all the details because she did not want people to think she was a bad girl.

      .SDCL 22-22-2 defines sexual penetration as, "an act, however slight, of sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of the body or of any object into the genital or anal openings of another person’s body."

      . SDCL 19-16-38 also includes specific notice requirements. Proper notice is not an issue in this appeal.

      . There is no requirement under the Confrontation Clause that, before a court admits testimony under the spontaneous declaration and medical examination exceptions to the hearsay rule, the declarant must be produced at trial or the court must find the declarant unavailable. Id. at 352-58, 112 S.Ct. 736.

      . No corroboration of abuse is necessary in a case where the child testifies at trial. The corroboration requirement for testifying sex crime victims no longer exists. State v. Gonzalez, 2001 SD 47, ¶ 18, 624 N.W.2d 836, 840-41. Thus, in this respect, the contrary requirement set forth in State v. Spronk, 379 N.W.2d 312, 313-14 (S.D.1985), is no longer valid. By the terms of SDCL 19-16-38, however, to show indicia of reliability corroboration is still required if the child is ''unavailable.”

      . The statements were made March 4 and March 11, 1999, four days and eleven days, respectively, after the incident. Cates argues that this factor should weigh in his favor because the four and eleven day window gave P.B. time to fabricate. We have upheld the admission of statements made after much lengthier delays. See e.g. State v. Schoenwetter, 452 N.W.2d 549, 550-51 (S.D.1990).

      . Cates cites State v. Karlen, 1999 SD 12, 589 N.W.2d 594, for his argument. He contended before the trial court that Karlen should be interpreted to hold "that once the victim tells anybody else or gives a story or accusation and also tells a counselor, whether [the story] be same or different, confidentiality is waived.”

      . Cates also argues that SDCL 23A-13-4 automatically entitles a defendant to production of psychiatric records. Such an interpretation contradicts the plain language of the statute. The statute limits production to reports "material to the preparation of the defense or are intended for use by a prosecuting attorney as evidence in chief at trial.” SDCL 23A-13-4. Consequently, there must be proof of materiality before production is required. See SDCL 23A-13-4.


author: KONENKAMP, Justice.

text:
    2001 SD 97
    STATE of South Dakota, Plaintiff and Appellee, v. Farrell DILLON, Defendant and Appellant.
    No. 21308.
    Supreme Court of South Dakota.
    Considered on Briefs on Jan. 8, 2001.
    Decided July 25, 2001.

      Mark Barnett, Attorney General, Michele K. Bennett, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and appellee.
    Lelia L. Hood, Pierre, SD, Attorney for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] A jury found the defendant guilty on five counts of first degree rape and three counts of criminal pedophilia. In three instances, the same act of sexual penetration resulted in convictions for both pedophilia and rape. We conclude that a conviction on each offense for the same act violated the double jeopardy prohibitions in the United States and South Dakota Constitutions. We affirm in part, reverse in part, and remand for resentencing.

Background

[¶ 2.] Farrell Dillon, the defendant, stood trial on four counts of first degree rape and three counts of criminal pedophilia for conduct committed on July 10, 1998, and three counts of first degree rape and two counts of criminal pedophilia for conduct committed on September 11, 1998. He was charged with perpetrating these acts in his home against his daughter, K.D., and four of her friends, L.R., N.R., T.T., and S.R.B. '

[¶ 3.] The matter surfaced on October 4, 1998. L.R. and N.R’s mother asked seven-year-old N.R. if she would like to spend the night at KD.’s home. L.R. began to cry, saying she did not want to go. The mother thought this strange because L.R. had stayed with K.D. many times before. The next day, the mother asked her eight-year-old daughter, N.R., what was wrong with her sister. N.R. responded that on the night of the school party Dillon had “tried to put his thing in [N.R.] ” when she and her sister spent the night. N.R. also said that it happened to L.R. and to K.D. as well. The mother called the police.

[¶ 4.] Officer Cathy Coffield interviewed L.R. and N.R. separately. Coffield learned that the school party occurred on September 11, 1998.. L.R. told Coffield that after the party, L.R. and N.R. spent the night at KD.’s. She reported that KD.’s father “put his thing in mine.” L.R. explained that this happened in Dillon’s bedroom and that K.D. had taken L.R. and N.R. into his bedroom one at a time. L.R. told the officer that it also happened to her sister and K.D. Officer Coffield then spoke with N.R., who confirmed that these acts took place in Dillon’s bedroom. N.R. told the officer that both K.D. and her sister, L.R., were present. L.R., on the other hand, said she was in another room when it happened to N.R. N.R. confirmed that K.D. had brought her into Dillon’s bedroom and that “he did it.” N.R. would not elaborate on what she meant.

[¶ 5.] Detective Sue Fox along with' Deb Horan of the Department of Social Services first interviewed eight-year-old K.D. at her elementary school. Fox explained to K.D. that she wanted to talk about some things N.R. and L.R. had revealed. Horan later testified that K.D. “was very reluctant to talk to us.” She described KD.’s diffident response to questions about sexual contact: “When we would say those terms, she would almost go into the fetal position, covering up her entire face but one eye.” Horan contrasted the child’s earlier demeanor when she first entered the interview room: she was happy, upbeat, and friendly. K.D. would only discuss the time that L.R. and N.R. had stayed overnight and consistently said that L.R. went first, N.R. went second, and she went last.

[¶ 6.] Fox interviewed K.D. using pictures of a boy and a girl. By marking the pictures, KD. indicated that Dillon’s penis contacted L.R.’s genitalia and that he touched N.R. and K.D. in the same manner on the buttocks. In a later interview, KD. would only say that Dillon “did sex” with the three girls and would not speak further with Fox or Horarn As Horan took KD. back to her class, KD. explained that she had not lied and that Dillon had touched her, L.R. and N.R.

[¶ 7.] Fox interviewed L.R. on October 7, 1998. L.R. said that Dillon had tried to put'“his private in her private.” She also told Fox that “it hurt, felt gross, felt sickening.” L.R. remarked that this had occurred on another occasion when she spent the night on KD.’s birthday. On that night, Dillon had done the same thing to her and to K.D., N.R., T.T., and S.R.B. At the end of the interview, however, she said she had lied and that N.R. had not been at Dillon’s home on the night of KD.’s birthday party. Fox interviewed each of the girls, and all but T.T. stated, in their own words, that Dillon had put his penis in their vaginal area. T.T. consistently denied that this happened to her, although the other girls testified that Dillon had perpetrated the same type of contact on her.

[¶ 8.] At trial, N.R. testified that on September 11, 1998, Dillon “put his penis into my crotch.” She explained that this happened in his bedroom and that L.R. and KD. were also there. S.R.B. told the jury that Dillon had “touched [her] between her legs,” and on cross-examination she affirmed that Dillon’s penis had gone inside her and that it had hurt. T.T. testified by using pictures, indicating that Dillon had touched L.R. and K.D. with his penis. She called this “bunning.” K.D. also testified with the assistance of diagrams. She explained that “Farrell” had touched her with his penis where she went to the bathroom. She also said that she saw this happen to L.R. and N.R.

[¶ 9.] Dillon took the stand and denied all allegations. He testified that the girls’ stories were inventions, molded with the aid of law enforcement, social workers, psychologists, and doctors. He also said that his daughter, K.D., is “slow” and easily susceptible to the influence of her friends. Dillon’s grandmother, who fives in the same house, confirmed that no impropriety occurred on the nights the girls stayed over. Dillon’s experts testified that it would be unusual for a molester to perpetrate sexual abuse in front of other children or to have other children participate. Using the term “confabulation,” one expert explained that children might give interviewers “the information they want as subsequent to the questions that are directed to them.”

[¶ 10.] The jury convicted Dillon of the following charges. For the July 10, 1998 incident he was convicted of first degree rape involving KD. and S.R.B.; he was also convicted of criminal pedophilia for his contact with S.R.B. On the September 11, 1998, allegations, he was convicted of first degree rape involving K.D., L.R., and N.R.; he was also convicted of criminal pedophilia for his contact with L.R. and N.R. The jury found him not guilty of charges relating to sexual contact with T.T. He was also acquitted of crimes against L.R. on July 10, 1998. He was sentenced to a total of 175 years, twenty years for each first degree rape conviction and twenty-five years for each criminal pedophilia conviction. All sentences were to run consecutively. Dillon appeals.

1. Double Jeopardy

[¶ 11.] Dillon contends that with a single act of sexual penetration, his convictions for both criminal pedophilia and first degree rape constitute multiple punishments violating the prohibition on double jeopardy. See State v. Augustine, 2000 SD 93, ¶ 11, 614 N.W.2d 796, 797 (citations omitted). The State responds that Dillon waived any double jeopardy challenge by failing to raise it below. Even a fundamental right may be deemed waived if it is raised for the first time on appeal. State v. Henjum, 1996 SD 7, ¶ 13, 542 N.W.2d 760, 763.

[¶ 12.] Nonetheless, because of the length of the sentences and the likelihood the question will arise again, we address this issue under the plain error rule and the doctrine allowing courts to rectify constitutional error. See SDCL 23A-44-15 (plain error rule). See State v. Morato, 2000 SD 149, ¶ 27, 619 N.W.2d 655, 663 (citing State v. Nelson, 1998 SD 124, ¶ 7, 587 N.W.2d 439, 443). A finding of plain error requires (1) error, (2) that is plain, (3) affecting substantial rights; and only then may we exercise our discretion to notice the error if (4) it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” State v. Robinson, 1999 SD 141, ¶ 17, 602 N.W.2d 730, 735 (quotations in original). When an asserted error implicates an infringement of a constitutional right, we employ a de novo standard of review. State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488.

[¶ 13.] The Double Jeopardy Clause of the Fifth Amendment declares that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” South Dakota’s Constitution provides that “No person shall ... be twice put in jeopardy for the same offense.” SD Const. Art. VI, § 9. These provisions shield criminal defendants from both multiple prosecutions and multiple punishments for the same criminal offense if the Legislature did not intend to authorize multiple punishments in the same prosecution. United States v. Dixon, 509 U.S. 688, 735, 113 S.Ct. 2849, 2876, 125 L.Ed.2d 556 (1993); Augustine, 2000 SD 93, ¶11, 614 N.W.2d at 797.

[¶ 14.] Ultimately, when the same act violates two statutory provisions, whether one act is punishable as separate offenses raises a question of legislative intent. See Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 2411, 85 L.Ed.2d 764 (1985). Established double jeopardy jurisprudence confirms that the Legislature may impose multiple punishments for the same conduct without violating the Double Jeopardy Clause if it clearly expresses its intent to do so. See id. at 778-79, 105 S.Ct. at 2411-12, 85 L.Ed.2d 764. For example, in Gore v. United States, the Supreme Court upheld three consecutive sentences based on a single illicit drug sale that violated three statutes prohibiting different ways of selling illegal drugs. See 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the Supreme Court held that “where the same act or transaction constitutes a violation of two distinct 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.” See also Dixon, 509 U.S. at 696, 113 S.Ct. at 2856, 125 L.Ed.2d 556. Still, the Blockburger test is “a rule of statutory construction to help determine legislative intent” and “is not controlling when the legislative intent is clear from the face of the statute or the legislative history.” Garrett, 471 U.S. at 778-79, 105 S.Ct. at 2411, 85 L.Ed.2d 764 (citations omitted). Thus, multiple charges and punishments in a single prosecution will not violate double jeopardy if the Legislature plainly intended to impose cumulative punishments. Hunter, 459 U.S. at 368-69, 103 S.Ct. at 679, 74 L.Ed.2d 535.

[¶ 15.] Dillon was convicted of criminal pedophilia and first degree rape of S.R.B. for conduct on July 10,1998. He was also convicted of both offenses for conduct perpetrated against L.R. and N.R. on September 11, 1998. See SDCL 22-22-30.1 (criminal pedophilia), SDCL 22-22-1 (rape), and SDCL 22-22-2 (defining penetration). Both first degree rape and criminal pedophilia are class one felonies, punishable by a maximum penalty of life in prison. The State does not dispute that Dillon was convicted of both pedophilia and rape when only one act of penetration occurred with each victim. To find if these dual convictions constitute double jeopardy, we must decide if the Legislature intended to impose multiple punishments for a single act of sexual penetration. When legislative intent to impose multiple punishments is clear, double jeopardy is not violated and further inquiry into the statutory elements is unnecessary. Hunter, 459 U.S. at 368-369, 103 S.Ct. at 679, 74 L.Ed.2d 535.

[¶ 16.] The statute making criminal pedophilia an offense was enacted five years ago. SL 1996, ch. 150. With this measure, the Legislature obviously meant to increase the minimum penalty for matured sex offenders; that is, child molesters whose deviant proclivities have become established, fixed, or hardened with age. Hence the age demarcation of twenty-six or older. The minimum penalty for criminal pedophilia was set at twenty-five years. SDCL 22-22-30.1. The Legislature knew that the crime of first degree rape had been on the books for decades and punished essentially the same conduct. In 1992, the minimum prison term for first degree rape was set at ten years. SDCL 22-22-1.2. The Legislature evidently concluded that sexual penetration committed by persons younger than age twenty-six would not necessarily mean that they were habituated sex offenders, deserving longer minimum prison terms for the protection of children. However, simply because the Legislature intended to increase the minimum penalty for older sex offenders committing sexual penetration, it does not mean that the Legislature intended to multiply punishments for a single act of sexual penetration.

[¶ 17.] No words in our rape and pedophilia statutes make it clear that cumulative punishments are explicitly intended. In Hunter, 459 U.S. at 368-69, 103 S.Ct. at 679, 74 L.Ed.2d 535, the intent was “crystal clear” because a Missouri statute specifically stated that punishment for armed criminal action was “in addition to” punishment for the accompanying felony. Likewise, in State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (W.Va.1992), such intent was evident in a statute providing that “[i]n addition to any other offenses set forth in this code, the Legislature hereby declares a separate and distinct offense under this subsection....” Id. at 255. In our case, in the absence of similarly explicit language, we cannot say that the Legislature expressly provided for cumulative punishments.

[¶ 18.] A second inquiry follows when legislative intent to impose multiple punishments is uncertain. In those instances, if doubt persists as it does here, we employ the Blockburger analysis. Like all rules of statutory interpretation, the Blockburger test is imperfect and cannot elucidate legislative intent in every instance. See generally George C. Thomas, Double Jeopardy, The History, the Law 170 (1998). Nonetheless, the “rule is that, where the same act or transaction constitutes a violation of two distinct 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.” Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309; see also Augustine, 2000 SD 93, ¶ 13, 614 N.W.2d at 798 (citations omitted). Whether conduct constitutes more than one offense is to be found by examining only the statutory elements comprising the offenses without regard to how the offenses were charged, how the jury was instructed, or how the underlying proof for the necessary elements was established. See Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. 306; Roberts v. State, 712 N.E.2d 23, 30 (Ind.Ct.App.1999).

[¶ 19.] The two statutes at issue here provide:

SDCL 22-22-1(1): 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....
SDCL 22-22-30.1: Criminal pedophilia is any act of sexual penetration accomplished with a victim less than thirteen years of age by any person twenty-six years of age or older under any circumstances not constituting incest as defined in § 22-22-1(6).

First degree rape requires proof of sexual penetration by any person against a victim under age ten. Criminal pedophilia requires proof of sexual penetration of a victim under age thirteen, and the perpetrator must be at least twenty-six. Criminal pedophilia has an element not present in first degree rape: the requirement that the perpetrator be age twenty-six or older. On the other hand, both criminal pedophilia and first degree rape have a victim age element, but the age limit is different: age ten for rape and age thirteen for pedophilia. Is the difference in age limits sufficiently distinct to declare that the first degree rape statute possesses an element not present in the criminal pedophilia statute? If only one statute has a different element, then the other statute becomes an included offense under double jeopardy analysis. See Thomas, supra at 170.

[¶ 20.] Courts have upheld against double jeopardy attack dual sex offense convictions for the same criminal act. In Roberts v. State, 712 N.E.2d 23 (Ind.App.1999), for instance, the court ruled that under the federal double jeopardy prohibition, convictions for both rape and child molestation for the same single act were permissible. Rape required proof of threats or force, and child molestation required proof of age. Id at 30. The Roberts court went on to rule that under Indiana’s more stringent double jeopardy provision, both convictions could not be upheld, but wrote with respect to the dual convictions under the federal constitution that the defendant “cannot establish a double jeopardy violation under the Blockburger test....” Id Again in Spurlock v. State, 718 N.E.2d 773 (Ind.App.1999), the court found that under the federal double jeopardy prohibition, convictions for child molestation and incest were allowable. Child molestation required proof that the victim was at least twelve years old but not more than sixteen, while incest required proof that the perpetrator engaged in the prohibited conduct with the knowledge that the victim was a “sibling.” Id at 779. See also State v. Jones, 71 Wash.App. 798, 863 P.2d 85, 101 (1993) (upholding convictions for first degree rape and child molestation). In these cases, the Blockburger statutory “double distinction” is indisputable. See Thomas, supra at 170.

[¶ 21.] Here, it cannot be declared with certitude that each offense requires proof of an element the other does not. See Hunter, 459 U.S. at 366, 103 S.Ct. at 678, 74 L.Ed.2d 535. The victim age element in first degree rape is hardly so distinct from the victim age element in criminal pedophilia as to demonstrate manifest legislative intent to authorize multiple punishments. Although the age limit for a child victim of rape is different from the age. limit for criminal pedophilia, the age element in first degree rape is subsumed in the older victim age element in criminal pedophilia. Anyone age twenty-six or older committing first degree rape in violation of SDCL 22-22-1(1) automatically commits criminal pedophilia as well. With no explicit indication of legislative intent to create cumulative punishments and a rule of statutory construction that fails to clarify intent any further, we invoke the rule of lenity and presume that a single act constitutes a single offense. Staples v. United States, 511 U.S. 600, 619, 114 S.Ct. 1793, 1804, 128 L.Ed.2d 608 (1994) (rule of lenity allows ambiguous criminal statutes to be construed in favor of accused); see also Thomas, supra at 199.

[¶ 22.] We conclude that the South Dakota Legislature has not authorized cumulative punishments for first degree rape under SDCL 22-22-1(1) and criminal pedophilia under SDCL 22-22-30.1. The Legislature apparently intended to increase the penalty for sexual penetration of a child by an older sex offender, not to multiply the number of offenses on which one could be convicted for a single act of sexual penetration. When a defendant is illegally convicted and punished twice for the same act, the court exceeds its legislatively authorized sanction, and the remedy is to vacate both the conviction and sentence on the lesser offense, leaving the conviction on the greater offense intact. State v. Well, 2000 SD 156, ¶ 25, 620 N.W.2d 192, 197; State v. Groves, 473 N.W.2d 456, 458 (S.D.1991) (citing Ball v. United States, 470 U.S. 856, 864, 105 S.Ct. 1668, 1673, 84 L.Ed.2d 740 (1985)); United States v. Devine, 934 F.2d 1325, 1343 (5thCir.1991), cert. denied, 502 U.S. 1065, 112 S.Ct. 954, 117 L.Ed.2d 121 (1992); United States v. Buckley, 586 F.2d 498, 505 (5thCir.1978), cert. denied, 440 U.S. 982, 99 S.Ct. 1792, 60 L.Ed.2d 242 (1979). First degree rape is a lesser offense only-in the sense that it has a lower minimum penalty. Therefore, we vacate the three first degree rape convictions duplicated in the three criminal pedophilia convictions and remand for resentencing.

2. Prior Unproven Allegation by Victims

[¶ 23.] Before trial, the State moved in limine to prohibit the defense from disclosing to the jury a prior allegation of sexual contact made by L.R. and N.R. against their grandfather in 1994. The defense resisted, claiming that such evidence was highly relevant to show “the predisposed nature of the victims to offer inaccurate accounts of what supposedly occurred.” Additionally, Dillon argued that if the trial court granted the State’s motion, he would be “prohibited from impeaching the credibility of the witnesses.” The court forbade any reference at trial to the prior allegation.

[¶ 24.] We review evidentiary decisions deferentially, reversing only when the court has abused its discretion. State v. Sieler, 397 N.W.2d 89, 91 (S.D.1986)(string citation omitted); see also State v. Peterson, 1996 SD 140, ¶ 8, 557 N.W.2d 389, 391. It does not matter if we would have made a similar ruling; rather, we inquire whether “a judicial mind, in view of the law and the circumstances, could reasonably have reached that conclusion.” Sieler, 397 N.W.2d at 91 (citations omitted).

[¶ 25.] In his brief, Dillon offers numerous reasons this evidence should have been admitted. Nearly all of his proposed uses challenge the credibility of the five child victims. For example, he claims that evidence of the 1994 allegation by N.R. and L.R. may show the presence of “psychological transference,” may present alternative explanations for behavioral manifestations, or may offer alternative reasons for the children’s sexual vocabulary. His position is primarily that the evidence should have been admitted “to let the jury decide whether or not the children [were] fabricating.”

[¶ 26.] To use a prior allegation to challenge a victim’s credibility, the allegation must be demonstrably false. Sieler, 397 N.W.2d at 92. A mere denial by the alleged perpetrator will not meet this standard. Id. (citing State v. Kringstad, 353 N.W.2d 302, 311 (N.D.1984)). Nor is it enough that the accusation was arguably false. Id. The 1994 allegations were investigated. Both L.R. and N.R. were interviewed, and both were seen by medical professionals and a mental health counselor. The allegations were not prosecuted, however, because in the counselor’s opinion, L.R. and N.R. would not have been capable of testifying at trial. Nonetheless, this same counselor opined that the allegations were true. The State’s decision to decline to prosecute the allegations does not require an inference that the charges were demonstrably false. Accord Sieler, 397 N.W.2d at 92 (“In some instances even a not guilty verdict on an asserted false charge may not be enough to make the prior accusations relevant.”) (citations omitted). After our review of the record, we cannot say that the trial court abused its discretion in disallowing the evidence.

3. Ineffective Assistance of Counsel

[¶ 27.] Dillon argues that he received ineffective assistance of trial counsel in that his attorney: (1) was unprepared for pretrial hearings and failed to cite authority in his pretrial motions; (2) stipulated to the admission of hearsay statements by the child victims, and then failed to play the videotapes of questioning; (3) failed to properly cross examine the doctor who examined the child victims; (4) failed to raise the double jeopardy claim in the circuit court; (5) made insufficient offers of proof regarding his own experts; (6) admitted in voir dire that he was inexperienced; (7) elicited damaging testimony on cross-examination and inappropriately accused the circuit court of misconduct in his motion for a new trial.

[¶ 28.] Absent exceptional circumstances, we will not address an ineffective assistance claim on direct appeal. State v. Hays, 1999 SD 89, ¶ 14, 598 N.W.2d 200, 203 (citations omitted). We depart from this principle only when trial counsel was “so ineffective and counsel’s representation 'so casual’ as to represent a ‘manifest usurpation’ of [the defendant’s] constitutional rights.” Hays, 1999 SD 89, ¶ 14, 598 N.W.2d at 203 (citations omitted). The preferred arena for an ineffective assistance claim is a habeas corpus proceeding. State v. Petersen, 515 N.W.2d 687, 688 (S.D.1994) (citations omitted). While there are many reasons for this rule, Dillon’s claims illustrate its main purpose: in habeas proceedings, attorneys charged with ineffectiveness can explain or defend their actions and strategies, and thus a more complete picture of what occurred is available for review. Id. Consequently, we decline to address Dillon’s ineffective assistance claims at this time.

4. Cruel and Unusual Punishment

[¶ 29.] Because we remand for resen-tencing, we will not address Dillon’s cruel and unusual punishment argument.

[¶ 30.] Affirmed in part, reversed in part, and remanded.

[¶ 31.] MILLER, Chief Justice, and SABERS, AMUNDSON, and GILBERTSON, Justices, concur.

      . In the original complaint, Dillon was also charged with two counts of third degree rape of his daughter, K.D. These charges were dropped before trial.

      . N.R. and L.R.'s mother, along with Officer Cathy Coffield, Deb Horan of DSS, and Officer Sue Fox, testified to several statements the girls made. This testimony was allowed under SDCL 19-16-38, the tender years exception. The admission of this testimony is not challenged on appeal.

      . L.R. was later declared unavailable for trial, as she suffered from post-traumatic stress disorder. She was the only girl of the five who did not testify at trial.

      .It is important to keep in mind that the Blockburger test is not conclusive in analyzing multiple prosecutions in the same proceeding. As the Supreme Court explained in Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983): ''[S]imply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes.” Id. at 359, 103 S.Ct. 673. Courts cannot impose multiple punishments for different offenses arising out of the same conduct but the Legislature can. See Whalen v. United States, 445 U.S. 684, 695, 100 S.Ct. 1432, 1439, 63 L.Ed.2d 715 (1980).

      . In Whalen the United States Supreme Court qualified the Blockburger test:
      The assumption underlying the rule is that Congress ordinarily does not intend to punish the same offense under two different statutes. Accordingly/where two statutory provisions proscribe the "same offense,” they are construed not to authorize cumulative punishment in the absence of a clear indication of contrary legislative intent. Whalen, 445 U.S. at 691-92, 100 S.Ct. at
      1437-38.

      . SDCL 22-22-2 defines sexual penetration as "an act, however slight, of sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of the body or any object into the genital or anal openings of another person's body.”

      . It may be of more than passing interest that this Court adopted the same test a century ago in interpreting the double jeopardy provision of the South Dakota Constitution. SD Const. Art. VI § 9. In discussing successive prosecutions, this Court quoted a Massachusetts decision: "A single act may be an offense against two statutes, and, if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the' defendant from prosecution and punishment under the other.” State v. Caddy, 15 S.D. 167, 169, 87 N.W. 927, 928 (1901) (citations omitted).

      . These three first degree rape convictions are designated as counts 4, 6, and 7 in the judgments.

      . Defendant claims that L.R. and N.R. may have confused the 1994 allegations and transferred the perpetrated acts from their grandfather to Dillon.

      . Appellate counsel was not trial counsel.