State v. Lykken

AMUNDSON, Justice

(concurring in part and dissenting in part).

The undisputed facts in this case reveal that Lykken entered D.H.’s residence at nighttime for the purpose of raping D.H. The confinement and multiple rapes all occurred within the residence.

As stated in the majority opinion, this court has previously held that acts merely incidental to a forcible rape are not a sufficient basis upon which a separate conviction for kidnapping can be supported. State v. Reiman, 284 N.W.2d 860 (S.D.1979). This rationale is sound, since it is fairly common to have facts showing some seizure and removal of the victim in any rape prosecution.

In State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976), the court was confronted with a robbery and a kidnapping conviction that occurred outside and inside the business establishment of the victim. The court, in discussing the various decisions on dual convictions, cited to the comments of the American Law Institute and to the kidnapping section of the Model Penal Code which *882is listed as a source for SDCL 22-19-1. The comment referred to is as follows:

The learned draftsmen of the Model Code explain that ‘it is desirable to restrict the scope of kidnapping, as an alternative or cumulative treatment of behavior whose chief significance is robbery or rape, because the broad scope of this overlapping offense has given rise to serious injustice, as well as to distortion of criminal statistics. Examples of abusive prosecution for kidnapping are common. Among the worst is use of this means to secure a death sentence or life imprisonment for behavior that amounts in substance to robbery or rape, in a jurisdiction where these offenses are not subject to such penalties_ The criminologically non-significant circumstance that the victim was detained or moved incident to the crime determines whether the offender lives or dies.’ (Citations omitted.)

547 P.2d at 728. The court went on to hold in Buggs as follows:

[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.
For example: A standstill robbery on the street is not a kidnapping; the forced removal of the victim to a dark alley for robbery is. The removal of a rape victim from room to room within a dwelling solely for the convenience and comfort of the rapist is not kidnapping; the removal from a public place to a place of seclusion is. (Emphasis supplied.)

547 P.2d at 731.

The rapes in this case were vicious and brutal, but the question before this court is whether, in addition thereto, a kidnapping occurred. The movement and confinement in the residence has no significance independent of the rape. The movement and confinement in the residence did not make the rapes substantially easier to commit. This confinement in the residence is inherent in the commission of the rapes.

In Reiman, supra, the victim was raped repeatedly over a four-hour period inside the paint shop where she had been taken. During this time period, the victim was struck numerous times and managed to get away from her assailants to a bathroom in the shop. She was again returned to the mattress before her release. This court held that the movement of the victim inside this shop by the two defendants, who did not participate in the seizure and removal of the victim from the bar to the shop, was incidental to the commission of forcible rape and did not substantially add to the risk of harm which was present under the evidence submitted. These two defendants’ kidnapping convictions were reversed. In this case, the confinement and movement of the victim in her residence was clearly incidental to the rapes that took place over the four-plus hours while defendant remained in the residence and the confinement was solely for the purpose of Lykken’s perverted desire to make love to the victim one more time before his demise. In fact, the victim’s own testimony is that when returned to the bedroom she was not thrown forcibly onto the bed, but was put back on the bed so that Lykken could continue his sexual assaults. This evidence certainly does not depict a situation where State has proven an increase in risk of harm. Therefore, I would reverse the conviction for kidnapping in accordance with the settled law of Reiman.

There was no separate action from the rapes which would support a kidnapping conviction as found to exist by this court in State v. St. Cloud, 465 N.W.2d 177 (S.D.1991) (forced victim to drive to country location at knife point and then removal from automobile to structure where rape occurred); State v. Reed, 313 N.W.2d 788 (S.D.1981) (a seizure and removal of the victim from a Rapid City street to rural *883Pennington County while holding a knife to the back of the victim); State v. Curtis, 298 N.W.2d 807 (S.D.1980) (defendant attempted murder during a forced automobile ride in victim’s vehicle).

I do not perceive my rationale for reversing this kidnapping conviction as granting Lykken a free kidnapping in light of the fact that Lykken has received a sentence of one hundred years on his rape conviction and twenty-five years on his burglary conviction, with these sentences to be served consecutively. Thus, the remaining one hundred twenty-five year sentence, which this 37-year-old defendant would serve, still borders on an actual life sentence.

By affirming the kidnapping conviction, Lykken, obviously not a candidate for the man of the year award, has been given a sentence without any hope of life without bars. This sentence dispels any chance for the well-established goals of sentencing to trigger in, to-wit: successful correction, rehabilitation or reformation. This sentence accomplishes only one thing — RETRIBUTION. Allowing the prosecution to prevail on a separate conviction for what I perceive as acts merely incidental to the rape, is condoning abusive prosecution.

In conclusion, I would state that I concur with the majority’s holding on Issues I, III and IV insofar as the sentences on the burglary and rape convictions.