State vs. Perovich
Annotate this CaseState of South Dakota
Plaintiff and Appellee
v.
Kim Perovich
Defendant and Appellant
[2001 SD 96]
South Dakota Supreme Court
Appeal from the Circuit Court of
The Seventh Judicial Circuit
Pennington County, South Dakota
Hon. Merton B. Tice, Judge
Mark Barnett
Attorney General
John M. Strohman
Assistant Attorney General
Pierre, South Dakota
Attorneys for plaintiff and appellee
Paula D. Camp
Pennington County Public Defender's Office
Rapid City, South Dakota
Attorneys for defendant and appellant
Considered on Briefs April 24, 2001
Opinion Filed 7/25/2001
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 K.R.’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 Perovich 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.
Pennington County Sheriff’s 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 Perovich 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 trial 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
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 NW2d 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 abuse of discretion. Tunender v. Minnaert, 1997 SD 62, ¶9, 563 NW2d 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 NW2d 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 NW2d 260, 263 (quoting Shaffer v. Honeywell, Inc., 249 NW2d 251, 258 (SD 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 NW2d at 129 (citing State v. Rufener, 392 NW2d 424, 426 (SD 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 NW2d 769, 771.
[¶12.] 1. WHETHER THE TRIAL COURT ERRED IN ALLOWING
R.R. TO TESTIFY BY A WRITING AND IN RECEIVING SAME AS EVIDENCE.
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.” US 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 . . . .” SD Const art VI, § 7. The so-called Confrontation Clause provides two specific protections for criminal defendants. Pennsylvania v. Ritchie, 480 US 39, 51, 107 SCt 989, 998, 94 LEd2d 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 NW2d 594, 602.
[¶29.] 5. WHETHER THE ALLEGED CUMULATIVE ERRORS
REGARDING R.R.’S TESTIMONY COMPROMISED THE
VERDICT ON ALL COUNTS.
[¶32.] The State alleged five separate offenses against Perovich. The trial
court sentenced Perovich 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, Perovich has ten life sentences, five running consecutively, and five running concurrently.
[¶33.] Perovich 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 NW2d 477, 481. SDCL 22-6-6.1 authorizes the trial court to impose these sentences consecutively.
[¶34.] Even though Perovich raises no further issues, we cannot ignore the plain error present in his sentencing. See State v. Well, 2000 SD 156, ¶23, 620 NW2d 192; Wilcox v. Leapley, 488 NW2d 654, 657 (SD 1992); State v. Johnston, 478 NW2d 281, 285 (SD 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 NW2d 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 NW2d 595, 598 (SD 1994). Perovich 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. Perovich 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.
purely a question of legislative intent. See Garrett v. United States, 471 US 773, 778, 105 SCt 2407, 2411, 85 LEd2d 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 SCt 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 US 386, 78 SCt 1280, 2 LE2d 1405 (1958). While courts cannot impose multiple punishments for the same conduct, the Legislature can. See Whalen v. United States, 445 US 684, 695, 100 SCt 1432, 1439, 63 LEd2d 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 NW2d 456, 458 (SD 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 US 359, 369, 103 SCt 673, 679, 74 LEd2d 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, __ NW2d ___ (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 ¶25, 620 NW2d at 197; Groves, 473 NW2d at 458.
[¶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, ___ NW2d ___. To avoid any claims of undue prejudice resulting therefrom, in the future we encourage trial courts to provide alternative jury instructions.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.