#27673-a-SLZ 2017 S.D. 58 IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA * * * * STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v. ROGER LEE KIHEGA, Defendant and Appellant.

* * * * APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN COUNTY, SOUTH DAKOTA * * * * THE HONORABLE RICHARD A. SOMMERS Judge * * * * MARTY J. JACKLEY Attorney General ANN C. MEYER Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

THOMAS J. COGLEY of Ronayne & Cogley, PC Aberdeen, South Dakota Attorneys for defendant and appellant. * * * * ARGUED OCTOBER 5, 2016 REASSIGNED APRIL 20, 2017 OPINION FILED 

### 09/20/17#27673, State v. Kihega

-1- ZINTER, Justice (on reassignment). [¶1.] Roger Kihega appeals his convictions of first-degree robbery and possession of a firearm by a convicted felon. He contends the State’s evidence was insufficient to corroborate accomplice testimony. He also challenges a number of the circuit court’s evidentiary rulin gs and its sentence. We affirm. Facts and Procedural History [¶2.] On January 19, 2015, three men robbed the Casino Korner in Aberdeen, South Dakota. The victims (the casino clerk and patrons) testified that between 8:30 p.m. and 9:00 p.m., two mask ed men armed with handguns entered the casino, discharged their weapons, and ordered everyone to get down on the floor. One of the masked men then ordered the co unter clerk to “get the money” while the other took a wallet and cellphone from one of the patrons lying on the floor. After taking approximately $4,600 in cash, the two fled in a getaway vehicle driven by a third man. [¶3.] Following an investigation, la w enforcement arrested Roger Kihega, Gregory Two Hearts, and Michael Washington. Washington pleaded guilty to robbery; Two Hearts was charged with aidi ng and abetting robbery; and Kihega was charged with robbery and posse ssion of a firearm by a conv icted felon. This appeal concerns Kihega. [¶4.] At Kihega’s trial, the State calle d Two Hearts to testify. Outside the presence of the jury, the circuit court qu estioned Two Hearts whether he intended to exercise his Fifth Amendment right to remain silent. Two Hearts would not respond. Although Two Hearts subsequent ly received immunity, he continued to#27673

-2- not respond to questions in chambers or in front of the jury, and the circuit court jailed Two Hearts for contempt. [¶5.] Washington had cooperated with law enforcement and he testified. He provided a detailed description of the three men’s individual acts inside the casino, in their escape, and in their disposition of the robbery proceeds. He indicated that he and Kihega, armed with .25 caliber and 9 millimeter handguns, entered the casino and discharged their guns into the ce iling. Washington stayed in the back of the casino where he took a patron’s walle t and cellphone while Kihega went to the front counter and took the cash from the cl erk. Washington testified that he and Kihega then left the scene in the geta way vehicle driven by Two Hearts. [¶6.] With respect to the escape, Wash ington indicated that he snapped the patron’s cellphone in half and threw it out of the car as the thre e fled to Hankinson, North Dakota. While in Hankinson, they spent a “couple hours” at a casino gambling before proceeding to the Mystic La ke Casino in Minnesota. There, they obtained a hotel room, split up the st olen money, and continued gambling. Washington testified that the three retu rned to Aberdeen a few days later. Washington also testified that after he began cooperating with law enforcement following his arrest, he received a “kite” 1 from Kihega while the two were in jail. Washington testified that in the kite, Kihega threatened Washington to “keep quiet.” Kihega also instructed Washington to tell people that he had fabricated his confession implicating Kihega.

1. A kite is a note inmates use to communicate.#27673

-3- [¶7.] The State introduced other evidence tending to connect Kihega with the robbery. That evidence included 24 audiotapes of jailhouse telephone conversations between Kihega and his wi fe. In those conversations, Kihega confirmed that he had sent the kite to Wa shington, telling him to keep quiet and to “shut his f—ing mouth.” The audiotapes also revealed that Kihega had gone much further to absolve himself of his participat ion in the robbery. Kihega requested his wife tell Washington that he needed to “f ix this” by concocting an excuse for his confession. Kihega suggested that Washington claim he felt threatened or that he heard the police would release him if he to ld them what they wanted to hear. Kihega emphasized that there would be “consequences” for Washington’s disclosure of Kihega’s participation in the robbery : Kihega said Washington was “f—ed” and that Kihega would “fire on his little ass” if Washington said Kihega’s name. Kihega also called Washington a “snitch” and said that, if he could, he would “knock [Washington’s] f—ing voice box out,” explaini ng that “silence is our f—ing weapon.” Kihega even acknowledged his low odds of escaping conviction for the robbery. He stated he was “probably gonna be gone a while this time.” [¶8.] Detective Jeff Neal, who investigat ed the robbery, also testified. He indicated he had confirmed that the cell ph one stolen in the robbery had “pinged” on a route that would have been used in the three men’s escape. Neal also obtained Kihega’s check-in receipt and player’s card 2 for the Mystic Lake Casino, which provided physical evidence of Kihega’s pres ence with the robbers in their escape and

2. A card which earns rewards for playing certain types of slot machines and at some tables.#27673

-4- disposition of robbery proceeds. Neal also obtained an in-custody telephone recording made by Kihega to his wife on April 16, 2015, after Washington began cooperating with law enforcement. In th e recording, Kihega’s wife asked him whether he thought law enforcement posse ssed surveillance footage of him in the North Dakota casino visited by Washingt on and Two Hearts. He admitted: “I’m sure they do.” [¶9.] Kihega moved for a judgment of acquittal at the conclusion of the State’s evidence. He argued the State di d not corroborate Washington’s accomplice testimony. The circuit court denied the motion and submitted the corroboration question to the jury. The ju ry found Kihega guilty of both charges. Kihega appeals,
and we restate the issues 3 as follows: 1. Whether Washington’s accomplice testimony was sufficiently corroborated. 2. Whether the circuit court erred in admitting certain evidence. 3. Whether the circuit court violated Kihega’s right of confrontation by allowing Neal to testify that he had corroborated some of Washington’s story through an interview with Two Hearts. 4. Whether Kihega’s sentence violated the Eighth Amendment’s ban on cruel and unusual punishment. Decision
1. Corroboration of Accomplice Testimony

3. Kihega also raises a “cumulative error” issue. In light of our disposition, we do not address it.#27673

-5- [¶10.] Kihega observes that Washin gton was an accomplice and that a “conviction cannot be had upon the test imony of an accomplice unless it is corroborated by other evidence which te nds to connect the defendant with the commission of the offense.” SDCL 23A-22-8. Kihega argues Washington’s story was not corroborated with any other evidence “tending to connect” him with the robbery. See id. Therefore, he contends that the evid ence was insufficient as a matter of law and that the circuit court should have granted his motion for judgment of acquittal. 4 [¶11.] Corroborative evidence may not “merely show[] the commission of the offense, or the circumstances thereof” bu t must “tend[] to connect the defendant with the commission of the offense.” SDCL 23A-22-8. However, “[a]ccomplice testimony need not be corroborated by eviden ce sufficient to sustain a conviction. The mandate of SDCL 23A-22-8 is satisfie d where the corroborative evidence in some substantial degree tends to affirm th e truth of the testimony of the accomplice and establish the guilt of the accused.” State v. Smithers , 2003 S.D. 128, ¶ 30, 670 N.W.2d 896, 902. “In deciding this sufficiency question, circumstantial evidence may satisfy the corroboration requirement.” Id. ¶ 30, 670 N.W.2d at 903. Additionally, “[t]he accused himself can provide the necessary corroboration.” Id. ¶ 30, 670 N.W.2d at 902. “[ W]hether the corroboration is sufficient is a question of fact for the jury.” Id

. [¶12.] Here, the jury received both physical and testimonial evidence that clearly “tend[ed] to affirm the truth of” Washington’s story. See id. Although the

4. “We review the denial of a motion for acquittal de novo.” State v. Traversie , 2016 S.D. 19, ¶ 9, 877 N.W.2d 327, 330

.#27673

-6- victims could not identify Kihega because the robbers covered their faces, the victims confirmed Washington’s highly detailed description of each robber’s different acts inside the casino during the robbery. Additionally, Detective Neal testified that bullet holes found in the ceili ng of the casino matched the caliber of ammunition that Washington claimed he an d Kihega had used. Neal also testified that shell casings matching both calibers were discovered on the floor, and a slug from a .25 caliber bullet was found lodged und er a shingle on the roof. Neal further testified that a cellphone carrier confirmed that it had recorded a “pinging [from the patron’s stolen cellphone] a few miles north of Aberdeen,” a location on the escape route. These detailed facts unquestion ably tended to affirm the truth of Washington’s story because they could ha ve been known only by the robbers who were actually inside the casino and the getaway car. [¶13.] The State also introduced physical and testimonial evidence circumstantially “tend[ing] to connect” Kihega with the robbery. See SDCL 23A-22- 8; Smithers , 2003 S.D. 128, ¶ 30, 670 N.W.2d at 902. Detective Neal contacted the Mystic Lake Casino and obtained a receip t confirming Kihega had checked in on January 20, 2015, at 4:23 a.m. Neal also confirmed that Kihega’s Mystic Lake Casino player’s card was activated at 5: 29 a.m. on the same day. Moreover, Kihega’s own acts and statements tended to connect him to the robbery. Numerous telephone recordings reflected his consciou sness of guilt and his attempts to destroy the evidence disclosing his participat ion in the robbery. He admitted law enforcement probably had surveillance footag e of him in the North Dakota casino with Washington and Two Hearts during their escape; he repeatedly attempted to#27673

-7- silence Washington and get him to retract his confession implicating Kihega in the robbery; and Kihega even acknowledged he would likely be found guilty of the robbery. [¶14.] Contrary to the dissent, the foregoing facts are “relevant” to the corroboration question. See dissent ¶ 54. “Evidence is re levant if . . . [i]t has any tendency to make a fact more or less probable than it would be without the evidence.” SDCL 19-19-401. The evid ence detailed above certainly makes Washington’s story and Kihega’s particip ation in the robbery “more . . . probable than [they] would be without the evidence

. ” Id. Kihega concedes this point himself, noting that his statements “on their face . . . incriminate [him].” This evidence was clearly relevant. [¶15.] We acknowledge the dissent’s po int that the evidence of Kihega’s participation in the escape and disposition of the robbery proceeds, though substantial, did not directly show his physic al presence inside the Aberdeen casino. But that point overlooks the fact that the contemporaneous escape and disposition of the robbery proceeds are the res gestae of the offense itself. The dissent’s point also fails to give meaning to the law that circumstantial and direct evidence have equal weight, State v. Riley , 2013 S.D. 95, ¶ 18, 841 N. W.2d 431, 437, and corroboration may be established by circumstantial evidence alone. State v. Nelson , 310 N.W.2d 777, 779 (S.D. 1981). [¶16.] Indeed, in Nelson , we affirmed a grand theft conviction for property stolen in Bismarck, North Dakota, even though the corroborating evidence only showed that the defendant was later near Estelline, South Dakota, in the company#27673

-8- of the accomplice and th e stolen property. Id. at 779. 5 That analogous
corroboration was sufficient because “a cl ose association between the defendant and an accomplice in the area where the cri me was committed . . . may sufficiently connect the defendant with the commission of the crime to furnish the necessary corroboration of an accomplice’s testimony.” Id. Kihega’s close association with Washington and Two Hearts after the ro bbery requires the same result here. [¶17.] Moreover, the dissent’s argument overlooks the audiotapes in which Kihega incriminated himself. In those tapes, Kihega repeatedly attempted to silence Washington and get him to retrac t his story implicating Kihega in the robbery. This was relevant evidence that certainly “tended to connect” Kihega with the robbery. See id. Ultimately, we cannot accept the dissent’s premise that evidence showing Kihega’s participation in the robbery escape, his disposition of the robbery proceeds, and his consciousness of guilt and attempt to cover up the crime have no “tend[ency] to connect” him wi th the robbery as a matter of law. See SDCL 23A-22-8. [¶18.] As previously noted, “whether co rroboration is sufficient is a question for the jury.” Smithers , 2003 S.D. 128, ¶ 30, 670 N.W.2d at 902. Here, after being correctly instructed on corroboration, the jury found that Washington’s testimony

5. The dissent’s analysis reflects its fa ilure to give meaning to these rules on circumstantial evidence. Although the di ssent correctly recites the rule that corroborative evidence need only “tend [] to connect” the defendant with the offense, its analysis wrongly requires more. In the dissent’s view, the evidence must directly connect Kihega to the robbery. See dissent ¶¶ 50, 53, 54. However, the law of circumstantia l evidence does not require a direct connection or link.#27673

-9- was sufficiently corroborated. Taken togeth er, the victims’ testimony, the ballistics evidence, the confirmation of the three men’s escape and disposition of robbery proceeds, and Kihega’s own words “tended to connect” him to the robbery. See SDCL 23A-22-8. The corroboration rule is not a codification of some new super burden of proof that is to be mechanically applied in cases involving accomplices. It is a rule intended to protect de fendants from convictions based solely on the testimony of accomplices who may have a moti ve to make up an unverifiable story. Kihega’s conviction does not present us wi th such a case. We affirm the circuit court’s denial of Kihega’s motion for a judgment of acquittal.
2. Admission of Evidence [¶19.] Kihega argues the circuit court erred in admitting into evidence: (a) 24 audiotapes of conversations between Kihe ga and his wife; (b) Neal’s rebuttal testimony regarding an April 16 call Kihega made to his wife; and (c) Neal’s testimony disclosing out-of-court witnes s statements regarding Kihega’s various residences. [¶20.] “[E]videntiary rulings are presumed correct[.]” State v. Berget , 2014 S.D. 61, ¶ 13, 853 N.W.2d 45, 51-52. We review thos e rulings for an abuse of discretion. State v. Engresser , 2003 S.D. 47, ¶ 15, 661 N.W. 2d 739, 746. An abuse of discretion is “a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable.” State v. Kvasnicka , 2013 S.D. 25, ¶ 17, 829 N.W.2d 123, 127-28. “If error is found, it must be prejudicial befo re this Court will overturn the trial court’s evidentiary ruling.” State v. Harris , 2010 S.D. 75, ¶ 8, 789 N.W.2d 303, 307.#27673

-10- a. Audiotapes. [¶21.] Kihega first argues the audiotapes of his jailhouse conversations with his wife were not relevant. He contends his “statements contained no evidence pertinent to whether or not Kihega co mmitted” any crime. But as previously discussed, Kihega’s statements showed hi s consciousness of guilt, his attempts to cover up his participation in the robbery , and his attempts to get Washington to retract his confession implicating Kihega. This was circumstant ial evidence of his participation in the crime. Nelson , 310 N.W.2d at 779. [¶22.] Kihega also argues the audiotapes were unduly prejudicial. A “court

may exclude relevant evidence if its probativ e value is substantially outweighed” by the danger of “unfair prejudice[.]” SD CL 19-19-403 (Rule 403). “The law favors admitting relevant evidence no matter how slight its probative value.” State v. Bunger , 2001 S.D. 116, ¶ 11, 633 N.W.2d 606, 609. The “admission of . . . evidence is favored under [Rule 403], and the judicial power to exclude such evidence should be used sparingly.” Supreme Pork, Inc. v. Master Blaster, Inc. , 2009 S.D. 20, ¶ 30, 764 N.W.2d 474, 484

. [¶23.] Kihega contends the audiotapes were unfairly prejudicial because the State “intended to portray [him] in a nega tive light.” He points out the tapes “contained multiple curse words and displayed Kihega in various states of anger.” But the rule does not exclude this kind of evidence. “[V]irtually all relevant evidence presented at trial is harmful to the other party[.]” Id. ¶ 30, 764 N.W.2d at 484. To cause “unfair prejudice, the ev idence must persuade the jury in an unfair and illegitimate way .” Id. ; see also Old Chief v. U.S. , 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997). Here , the tapes did not risk pe rsuading the jury in an#27673

-11- unfair or illegitimate way. They were used to connect Kihega with the crime. The tapes were relevant, and the circuit court did not abuse its discretion in determining that any prejudice engendered by Kihega’s use of coarse language and apparent frustration with Washington did not substantially outweigh the tapes’ probative value. [¶24.] Kihega next argues the conversations with his wife were confidential communications protected by spousal privilege . “A communication is confidential if it is made privately by any person to his or her spouse during their marriage and is not intended for disclosure to any othe r person.” SDCL 19-19-504(a). Kihega acknowledges his conversations were electron ically monitored by jailers. Therefore, he attempts to distinguish his case from State v. McKercher , 332 N.W.2d 286, 287- 88 (S.D. 1983), where this Court held that th e presence of a jailer in the same room rendered the privilege unavailable. Kihega contends that McKercher does not apply because it did not involve electron ic monitoring of conversations. [¶25.] Kihega’s focus on the method of monitoring overlooks the relevant question: whether he had an expectatio n of privacy in the communications. McKercher emphasized the expectation of privacy requirement, noting that “anything said [in front of a jailer] could not legitimately be intended as private.” Id. at 288

. This Court explained that spousal privilege did not protect such statements because “[that defendant] was a prison detainee who, under the circumstances, knew or should have expected his conversation would be overheard or monitored and would not be private.” Id. (emphasis added). Kihega also had no expectation of privacy in these conversati ons. Before he placed the calls, he#27673

-12- received notice that his telephone conver sations would be monitored and recorded. The circuit court did not abuse its dis cretion in admitting the audiotapes. b. Neal’s rebuttal testimony concerning Kihega’s April 16 call to his wife. [¶26.] During the State’s rebuttal on the final day of trial, the State asked Detective Neal to testify about the content of an April 16 recorded telephone
conversation between Kihega and his wife. 6 Neal testified that Kihega’s wife had asked whether Kihega thought law enforcement possessed a video recording of the three men at the casino in North Dakota. Kihega responded, “I’m sure they do.” The State offered the testimony to rebut Kihega’s alibi claim that he was last seen at a friend’s residence in Cokato, Minnesota, at a time that may not have permitted his presence during the robbery in South Da kota. Kihega objected on the ground of hearsay. The State contended the exch ange was admissible under the hearsay exception for adoptive admissions. See SDCL 19-19-801(d)(2)(B). The circuit court admitted the evidence. [¶27.] On appeal, Kihega challenges th e court’s admission of both his wife’s question and his answer. He contends th e exchange should have been excluded because his wife’s statement was in the form of a question, which was not an “assertion” that could have been adopted by Kihega. See SDCL 19-19-801(d)(2)(B) (an adoptive admission is not hearsay if it is a “statement” and “one the party manifested that it adopted or believed to be true”); SDCL 19-19-801(a) (a statement

6. Although the State possessed the audio recording, it appears that the State asked Neal to testify to relevant portions of the exchange in order to avoid confrontation issues regarding Two Hearts.#27673

-13- is “a person’s oral assertion, written asse rtion, or nonverbal conduct, if the person intended it as an assertion”). [¶28.] We agree with Kihega’s point that, generally, questions cannot be the basis for adoptive admissions because questi ons are usually not assertions. As the Seventh Circuit observed, unlike an assertio n, a question is “designed to elicit information and a response[.]” United States v. Love , 706 F.3d 832, 840 (7th Cir. 2013). Here, rather than making an asse rtion, Kihega’s wife appears to have genuinely wondered whether law enforcem ent possessed surveillance footage of him with the other robbers at the North Dakota casino. Therefore, her question could not have been the predicate for an adoptive admission by Kihega. See United States v. Williams , 445 F.3d 724, 735 (4th Cir. 2006) (distinguishing for purposes of adoptive admission analysis between qu estions accusing a defendant “of killing someone and ask[ing] him to explain it,” which includes an implicit accusatory statement, and questions only inquiring if a defendant “had killed someone”); State v. Thompson , 283 A.2d 513, 520 (N.J. 1971); but see United States v. Jinadu , 98 F.3d 239, 244 (6th Cir. 1996). [¶29.] Nevertheless, the circuit court di d not err in admitting the exchange. Because the inquiry by Kihega’s wife wa s not an assertion, her portion of the exchange was not within the hearsay prohibit ion. “An inquiry is not an ‘assertion,’ and accordingly is not and cannot be a hearsay statement.” United States v. Oguns , 921 F.2d 442, 449 (2d Cir. 1990). That is be cause such questions are not “offered for the truth” of the subject re ferenced in the question. United States v. Thomas , 451 F.3d 543, 548 (8th Cir. 2006). Further, the question was not offered to prove#27673

-14- Kihega’s presence in the North Dakota casi no; rather, it was offered to give context for Kihega’s answer. “Statements providin g context for other admissible statements are not hearsay because they are [als o] not offered for their truth.” United States v. Tolliver , 454 F.3d 660, 666 (7th Cir. 2006); accord Williams , 445 F.3d at 736. [¶30.] The remaining question concerns the admissibility of Kihega’s answer. Kihega argues his response constituted im proper rebuttal evidence. Kihega notes that he did not introduce evidence in his case disputing he was with Washington and Two Hearts in the North Dakota casino . Kihega contends his presence there after the robbery was not relevant to rebu t his alibi that he was in Minnesota before the robbery. [¶31.] We agree with the circuit court’ s determination that this evidence was relevant to rebut Kihega’s alibi. Kihe ga’s conceded association with the other robbers during their escape did relate to events after the robbery, but it was relevant because the escape was part of the res gestae of the offense. Additionally, as we stated in Nelson , an association with accomplices in the possession of stolen property after the crime circumstantially connects the defendant with the commission of the crime. 310 N.W.2d at 779. Thus, Kihega’s answer was relevant to circumstantially rebut his alibi, and the circuit court did not abuse its discretion in admitting the evidence.

c. Neal’s testimony disclosing ou t-of-court witness statements regarding Kihega’s various residences. [¶32.] During rebuttal regarding Kihega’s Minnesota alibi, the State asked Detective Neal whether Kihega had “consi stent residences” and whether he stayed#27673

-15- in different places in Minnesota and South Dakota. The following exchange occurred: Q. During your investigation in this case have you became [sic] familiar with the Defe ndant’s living arrangements? A. I have somewhat, yes. Q. Did he have consistent residences? A. No. Q. Can you explain to the jury what you mean by that, please? A. From what I’ve heard, talking to different people, it sounds like— At this point Kihega made a hearsay object ion, but the circuit court allowed Neal to finish his answer. Neal continued: “[it ] sounds like [Kihega] moves from place to place, [and] has different places that he stays.” Kihega argues Neal’s answer introduced inadmissible hearsay. [¶33.] We do not reach the hearsay ques tion because even if Neal’s answer was improper, its admission was harmless error. In State v. Davi , 504 N.W.2d 844, 855 (S.D. 1993), we held “that although it was error for the tr ial court to admit hearsay statements . . . the error was harm less as the evidence was cumulative of other evidence presented independently at trial.” The alleged error is also harmless here. Kihega did not object to Neal’s first answer that Kihega did not have consistent living arrangements and reside nces, and Neal’s subsequent answer did not add much more than the source of Neal’s information—“different people.” Moreover, Kihega’s own alibi witness was a different person who confirmed that Kihega had inconsistent living arrangemen ts. The alibi witness testified that Kihega “leaves when he wants to” and that “[n]obody really knows [Kihega’s] plans#27673

-16- but him.” We find the alleged error “was harmless and did not contribute to the verdict obtained.” See State v. Zakaria , 2007 S.D. 27, ¶ 21, 730 N.W.2d 140, 146.
3. Kihega’s Right of Confrontation [¶34.] During his case, Kihega attempted to impeach Detective Neal’s testimony by asking him about a number of things he failed to do to corroborate Washington’s confession. For example, Kihega suggested that Neal had not substantiated or corroborated Washington’s version of events with “anyone . . . who can recall seeing [Kihega] . . . in the days subsequent to January 19 in Aberdeen[.]” Although Neal had interviewed Two Hearts after January 19, both parties knew that Two Hearts was in jail for contempt and unavailable as a witness at that point in the trial. Therefore, the State attempted to rehabilitate Neal by having him disclose that he had interviewed someone: Two Hearts. The circuit court allowed only this limited rehabilitation, prohibitin g the State from going “into the specifics of what Mr. Two Hearts said.” The State then asked Neal whether he had corroborated “some of [Washington’s] admissions about the robbery with Greg Two Hearts,” and Neal confirmed that he had. Kihega now argues this answer violated his Sixth Amendment right to confront and cross-examine Two Hearts. See Crawford v. Washington , 541 U.S. 36, 52, 124 S. Ct. 1 354, 1365, 158 L. Ed. 2d 177; State v. Carothers , 2006 S.D. 100, ¶ 16, 724 N.W.2d 610. 7 [¶35.] Kihega concedes “no actual [h earsay] statement [of] Two Hearts was introduced.” However, he contends hi s inability “to cross-examine Two Hearts

7. We review such questions concerni ng constitutional rights de novo. State v. Spaniol , 2017 S.D. 20, ¶ 23, 895 N.W.2d 329, 338.#27673

-17- about any alleged corroborating statements” effectively “allowed the State an even greater windfall than if Two Hearts had actu ally testified.” The State responds that Kihega opened the door to such an inquir y when he repeatedly accused Neal of not having substantiated or corroborated Washin gton’s version of events with anyone. At trial, the State pointed out that Kihega had pursued this line of impeachment knowing that the State had corroboration fr om Two Hearts but could not respond. Thus, as the State puts it: “the State was si mply following up on the fact that Neal had taken steps to corroborate Wash ington’s story with Two Hearts[.]” [¶36.] We conclude that in this co ntext, Neal’s limited answer was not prohibited by the Sixth Amendment. We first note that Neal’s answer was not hearsay. Two Hearts’s out-of -court statements were not repeated by Neal in court, and Neal’s testimony was not offered to prov e the truth of Two Hearts’s out-of-court statements. Rather, Neal’s testimony re butted the defense’s inference that Neal had failed to corroborate Washington’s story with anyone. As the Seventh Circuit noted in a similar legal context, “[T]he Sixth Amendment does not bar out-of-court statements when the statement is not of fered to prove the truth of the matter asserted; thus, the Sixth Am endment poses no bar to the admission of non-hearsay statements.” United States v. James , 487 F.3d 518, 525 (7th Cir. 2007). See also United States v. Cruz , 993 F.2d 164, 169 (8th Cir. 1993). We have also noted that when this kind of out-of-court statement is not offered to prove the truth of the matter asserted, “the Confrontation Clause is satisfied if the defendant had the opportunity to cross-examine the person repeating the out-of-court statement.” State v. Johnson , 2009 S.D. 67, ¶ 23, 771 N. W.2d 360, 369 (citing Tennessee v.#27673

-18- Street , 471 U.S. 409, 414, 105 S. Ct. 2078, 2081-82, 85 L. Ed. 2d 425 (1985)); accord Glen Weissenberger & James J. Duane, Weissenberger’s Federal Evidence § 801.2, at 521-22 (Matthew Bender, 7th ed.) (“Test imonial hearsay is barred by the Sixth Amendment only if the statement is offere d as evidence of the truth of what was said by that witness, and only if that wi tness does not testify about the statement at trial.”). Here, Neal’s answer was not us ed to prove something Two Hearts stated, and Neal was subject to cross-examination regarding his answer. Kihega’s right of confrontation was not violated. [¶37.] Kihega contends Neal’s answer al so had the practical effect of allowing one accomplice (Two Hearts) to corrobora te another accomplice (Washington). Kihega observes that “South Dakota case law does not allow for one accomplice to corroborate the testimony of another accomplice.” See State v. Dominiack , 334 N.W.2d 51, 54 (S.D. 1983). Kihega notes that he “req uested and was refused the opportunity to have a jury instruction included which informed the jury on the issue.” However, Neal’s answer was not offered to prove that Washington’s story was corroborated by Two Hearts, and the State did not argue to the jury that it was. Further, the jury was correctly instructed on the law of acco mplice corroboration. We conclude that Kihega was not conv icted solely on the testimony of one accomplice corroborating another.
4. Cruel and Unusual Punishment [¶38.] Kihega was sentenced to fifty years in the penitentiary, with twelve years suspended and 224 days credited for ti me served on the robbery conviction. On the firearms conviction, he received a concurrent five-year sentence. On appeal, Kihega argues his sentence constitutes cruel and unusual punishment within the#27673

-19- meaning of the Eighth Amendment. This Co urt “generally reviews a circuit court’s decision regarding sentencing for abuse of discretion.” State v. Chipps , 2016 S.D. 8, ¶ 31, 874 N.W.2d 475, 486. “However, when the question presented is whether a challenged sentence is cruel and unusual in violation of the Eighth Amendment, we conduct a de novo review.” Id. We first determine “whether the sentence[] imposed . . . [is] grossly disproportio nate to [the] offense[].” Id. [¶39.] A review for gross disproportionately requires us to “first compare the gravity of the offense—i.e., ‘the offense’s relative position on the spectrum of all criminality’—to the harshness of the penalty—i. e., ‘the penalty’s relative position on the spectrum of all permitted punishments.’” State v. Rice , 2016 S.D. 18, ¶ 13, 877 N.W.2d 75, 80 (quoting Chipps , 2016 S.D. 8, ¶¶ 35-38, 874 N.W.2d at 489). “If the penalty imposed appears to be grossly disproportionate to the gravity of the offense, then we will compare the sentence to those ‘imposed on other criminals in the same jurisdiction’ as well as those ‘imp osed for commission of the same crime in other jurisdictions.’” Chipps , 2016 S.D. 8, ¶ 38, 874 N.W.2d at 489 (quoting Solem v. Helm , 463 U.S. 277, 291, 103 S. Ct. 3001, 3010, 77 L. Ed. 2d 637 (1983)). [¶40.] Kihega committed robbery, which involves “the intentional taking of personal property . . . in [the] possessio n of another from the other’s person or immediate presence, and against the other’s will, accomplished by means of force or fear of force[.]” SDCL 22-30-1. “[T]he force used in a ro bbery ‘makes the violation of the person more atrocious than private stealing.’” State v. Robertson , 740 A.2d 330, 334 (R.I. 1999) (quoting 4 William Blackstone, Commentaries *242). Indeed, “[a]rmed robbery is one of the most serious offenses in a civilized society. It is#27673

-20- fraught with danger of serious physical harm, even death—not only to the victim but also to any person at the scene.” State v. Fisher , 321 So. 2d. 519, 520 (La. 1975). And because Kihega used a gun, the level of the offense was enhanced to robbery in the first degree. SDCL 22-30-6. [¶41.] “In conducting the threshold comparison between the crime and the sentence, we also consider other conduct relevant to the crime.” Chipps , 2016 S.D. 8, ¶ 40, 874 N.W.2d at 490. In this case, Kihega not only brandished a firearm, but discharged it inside the casino, demanding that everyone get down on the ground. Kihega also held the counter clerk at gunpoi nt as he ordered her to fill the bag with money. A crime like this is clearly on th e graver end of the spectrum of criminality. [¶42.] We next examine the harshness of the penalty. Because the court imposed a term of years, Kihega is elig ible for parole under SDCL 24-15-4, which this Court takes into consideration. See State v. McCahren , 2016 S.D. 34, ¶ 36, 878 N.W.2d 586, 601. Given the gravity of Kihega’s offense, the penalty imposed does not appear to be grossly disproportionate. [¶43.] Kihega also contends the ci rcuit court abused its discretion in imposing the sentence. “Within constitutional and statutory limits, the trial courts of this state exercise broa d discretion when deciding the extent and kind of punishment to be imposed.” Rice , 2016 S.D. 18, ¶ 23, 877 N.W.2d at 83. “[A] sentence within the statutory maximum generally will not be disturbed on appeal.” Id. [¶44.] Kihega’s sentence was under th e statutory maximum. However, he claims his sentence greatly exceeded ot hers imposed in Brown County since 2010.#27673

-21- Kihega also notes that Washington receiv ed a fifteen-year sentence with ten years suspended and that the average sentence fo r others during that period had been sixteen years. Kihega argues that similarly situated defendants should not “receive diametrically opposite punishments.” State v. Bonner , 1998 S.D. 30, ¶ 18, 577 N.W.2d 575, 580. “This principle naturally flows from the noti on that ‘when . . . statutory ranges are establis hed, the legislative intent is that “the more serious commissions of the crime deserve sentences at the harsher end of the spectrum.”’” Rice , 2016 S.D. 18, ¶ 24, 877 N.W.2d at 83 (quoting State v. Bruce , 2011 S.D. 14, ¶ 32, 796 N.W.2d 397, 407). Bu t “[e]ven so, the fact that [defendants] plead[] guilty to the same offense does not mean they sh are the same level of culpability for that offense.” Id. We look at “past records, demeanor, degree of criminal involvement, etc.,” when evaluating the justness of such a disparity. Id. [¶45.] Here, the circuit court observed that Kihega had a violent background, which included convictions of serious crimes. On the other hand, Kihega acknowledges Washington’s criminal history was less severe. Thus, this difference in sentencing does not refl ect an abuse of discretion. [¶46.] Kihega further argues the circuit court failed to consider testimony highlighting his chances for rehabilitatio n. We disagree. The circuit court expressly noted that any “significant sent ence” would keep Kihega, at thirty-four years of age, “in the penitentiary for a longtime.” The court also noted that thirtyeight years was “a long time” and that Kihega “had a difficult background.” Nevertheless, the court reiterated its overriding concern with Kihega’s proven record of criminal violence. Here, the court imposed a sentence below the#27673

-22- maximum, and Kihega is eligible for parole. We have previously stated that the possibility of parole aids in striki ng “a balance between retribution, rehabilitation , and deterrence.” See id. ¶ 28, 877 N.W.2d at 85 (emphasis added). Given the wide latitude sentencing courts possess, we do not believe the court abused its discretion. [¶47.] Affirmed. [¶48.] GILBERTSON, Chief Justice, and KERN, Justice, concur. [¶49.] SEVERSON, Justice, and WILBUR, Retired Justice, dissent.

SEVERSON, Justice (dissenting). [¶50.] I respectfully dissent. The evidence introduced in this case merely shows the commission of the offense and th e circumstances thereof. It does not connect Kihega to the commission of the robbery. [¶51.] “The standard of review for a mo tion for acquittal is ‘whether the State set forth sufficient evidence from whic h the jury could reasonably find the defendant guilty of the crime charged.’” State v. Talarico , 2003 S.D. 41, ¶ 38, 661 N.W.2d 11, 24 (quoting State v. Larson , 1998 S.D. 80, ¶ 9, 582 N.W.2d 15, 17). SDCL 23A-22-8 provides: “A conviction ca nnot be had upon the testimony of an accomplice unless it is corroborated by ot her evidence which tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the of fense, or the circumstances thereof.” “Corroborating evidence need not be suff icient alone to sustain a conviction.” Talarico , 2003 S.D. 41, ¶ 38, 661 N.W.2d at 24. “Evidence is sufficient to corroborate the testimony of an accomplice if it tends to ‘affi rm the truth of the#27673

-23- testimony of the accomplice and estab lish the guilt of the accused.’” Id . (quoting State v. Phyle , 444 N.W.2d 380, 382 (S.D. 1989)). [¶52.] “There is no requirement that every material fact testified to by the accomplice be corroborated.” State v. Graham , 2012 S.D. 42, ¶ 39, 815 N.W.2d 293, 307. “[C]ircumstantial evidence can sati sfy requirements of corroboration.” State v. Nelson , 310 N.W.2d 777, 779 (S.D. 1981). Thus, “a close association between the defendant and an accomplice in the ar ea where the crime was committed may sufficiently connect the defendant with the commission of the crime to furnish the necessary corroboration of an accomplice’s testimony.” Id. ; accord State v. Schafer , 297 N.W.2d 473, 475 (S.D. 1980); State v. McDowell , 391 N.W.2d 661, 667 (S.D. 1986). “Corroboration may [also] be found from the defendant’s opportunity and motive to commit the crime and his prox imity to the place where the crime was committed.” Graham , 2012 S.D. 42, ¶ 34, 815 N.W.2d at 306. [¶53.] Washington’s testimony regarding the details of the robbery was largely corroborated by other witnesses at trial. Those witnesses confirmed that a robbery occurred, there were two male robb ers, shots were fired, and property was stolen. Law enforcement also confirmed th at Washington testified truthfully about the type of weapons involved. But, cruci ally, such evidence does not “tend[] to connect the defendant with the commission of the offense.” See SDCL 23A-22-8. No witness testified that he or she saw Kihega in or around Aberdeen on the day of the offense or with Washington. Kihega’s only established association with Washington was at a casino in a different town and di fferent state, hours after the offense. Detective Neal testified that no weapons, ammunition, clothing, bandanas, gloves,#27673

-24- cell phones, money, or money bands were found after the robbery. No evidence indicated Kihega owned, poss essed, or had access to the weapons involved. Nothing in Kihega’s conversations with his wife co nnected Kihega to the robbery. No motive or opportunity evidence was introduced. [¶54.] Therefore, in this case, the co rroborating evidence “merely shows the commission of the offense, [and ] the circumstances thereof.” See id . The State’s argument that the bigger picture of the robbery is corroborated is unavailing in light of the fact that these details are not relevant to Kihega’s involvement in the offense. They certainly corroborate Washington’s testimony as to the circumstances of the offense. But no corroborating ev idence linking Kihega to the robbery was introduced. “The jury exclusively judges witness credibility and weighs evidence.” Graham , 2012 S.D. 42, ¶ 29, 815 N. W.2d at 305. However, there must be sufficient corroborating evidence from which the jury could determine that Kihega was connected to the crime. Our statute is clea r, “[t]he corroboration is not sufficient if it merely shows the commission of the offens e, or the circumstances thereof.” SDCL 23A-22-8. Finding no evidence that sufficiently corroborates Washington’s testimony, Kihega’s conviction should be reversed, and the Court need not reach the remaining three issues presented. [¶55.] WILBUR, Retired Justice, joins this dissent.