Steichen v. Weber

SABERS, Retired Justice
(concurring specially).

[¶ 35.] Steichen has failed to show a valid constitutional violation of due process in regard to the other act evidence admitted in his trial. Furthermore, the United States Supreme Court has not explicitly addressed whether other act testimony violates a defendant’s constitutional rights. Estelle, 502 U.S. at 75, n. 5, 112 S.Ct. at 484 n. 5, 116 L.Ed.2d 385. However, a defendant should be tried only for the acts for which he is currently charged, and not for his other acts because it prejudices the trial. Therefore, I continue to stand on my dissent in Steichen’s direct appeal of this case. See Steichen, 1998 SD 126, *395¶¶ 43-49, 588 N.W.2d at 878-79 (Sabers, J., dissenting).

[¶86.] In this habeas action, Steichen has failed to prove ineffective assistance of counsel. The record indicates that Stei-chen’s trial counsel adequately represented him and properly argued against admittance of the other act evidence. Under these facts, the trial court’s admission of this evidence does not provide grounds for reversal on a habeas claim. For these reasons, I concur specially.

#24844-a-JKM

2009 SD 4

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

ROBERT STEICHEN, Petitioner and Appellant,

v.

DOUGLAS WEBER, Warden of
the South Dakota State Penitentiary, Respondent and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
AURORA COUNTY, SOUTH DAKOTA

* * * *

HONORABLE BRUCE V. ANDERSON
Judge

* * * *

STEVEN R. BINGER Attorney for petitioner
Sioux Falls, South Dakota and appellant.

LAWRENCE E. LONG
Attorney General

CRAIG M. EICHSTADT
Assistant Attorney General Attorneys for respondent
Pierre, South Dakota and appellee.

* * * *
CONSIDERED ON BRIEFS
NOVEMBER 3, 2008

OPINION FILED 01/21/09
#24844

MEIERHENRY, Justice

[¶1.] Robert Steichen appeals the denial of his petition for habeas corpus

relief. Specifically, Steichen argues that the admission of SDCL 19-12-5 (Rule

404(b)) evidence of other acts violated his due process rights; that he had ineffective

assistance of counsel at trial; and that his sentences were grossly disproportionate.

We affirm.

FACTS AND PROCEDURAL BACKGROUND

[¶2.] Steichen was convicted in 1997 of three counts of First-Degree Rape,

seven counts of Third-Degree Rape, and one count of Sexual Contact with a Child

under the Age of sixteen. The incidents allegedly occurred in Aurora and Jerauld

Counties, South Dakota, between July 1996 and February 1997. The counts

involved sexual conduct towards H.F., Steichen’s six-year old step-daughter and

towards K.C., a babysitter. At trial, the children testified to repeated molestations

by Steichen. On the three counts of First-Degree Rape, the circuit court imposed

consecutive sentences of thirty years, seventy-five years, and life imprisonment

without parole. On the other charges, the trial court imposed consecutive sentences

of eight years for one count of Third-Degree Rape, and fifteen years for each of the

other seven charges, for a total of 113 years, to run concurrent with the First-

Degree Rape sentences.

[¶3.] Steichen’s convictions were affirmed by a majority of this Court in

State v. Steichen, 1998 SD 126, 588 NW2d 870. Steichen’s application for a writ of

habeas corpus from the United States District Court for the District of South

Dakota in 2000 was denied because he had not exhausted state court remedies. In

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2007, Steichen filed a writ of habeas corpus in state circuit court. The circuit court

denied Steichen’s writ on January 30, 2008. Steichen appeals the following issues:

ISSUES

1) Whether Steichen’s right to due process was violated by the
admission of other acts evidence.

2) Whether Steichen was denied his right to effective assistance of
trial counsel because an alibi witness was not called to testify.

3) Whether Steichen’s sentences were unconstitutionally cruel and
unusual.

STANDARD OF REVIEW

[¶4.] We consider habeas corpus proceedings under a limited standard of

review. Erickson v. Weber, 2008 SD 30, ¶17, 748 NW2d 739, 744 (citations

omitted). Habeas corpus review does not substitute for direct review. Id.

Habeas corpus can be used only to review (1) whether the court
has jurisdiction of the crime and the person of the defendant; (2)
whether the sentence was authorized by law; and (3) in certain
cases whether an incarcerated defendant has been deprived of
basic constitutional rights. Habeas corpus is not a remedy to
correct irregular procedures, rather, habeas corpus reaches only
jurisdictional error. For purposes of habeas corpus,
constitutional violations in a criminal case deprive the trial court
of jurisdiction. Further, we may not upset the habeas court’s
findings unless they are clearly erroneous.

Id. (citing Bradley v. Weber, 1999 SD 68, ¶12, 595 NW2d 615, 619 (quoting Flute v.

Class, 1997 SD 10, ¶8, 559 NW2d 554, 556)) (other citations omitted). The initial

burden is on the applicant to demonstrate by a preponderance of the evidence that

relief is required. Id. (citing New v. Weber, 1999 SD 125, ¶5, 600 NW2d 568, 572

(citing Lien v. Class, 1998 SD 7, ¶11, 574 NW2d at 607)).

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ANALYSIS

1. Whether Steichen’s right to due process was violated by the
admission of other acts evidence.

[¶5.] As part of its case-in-chief, the State presented the testimony of the

two children who were named victims of the charged offenses. Additionally, the

State offered testimony of four other children who claimed Steichen had sexually

molested them. The State also presented limited testimony of incidents of

Steichen’s violence towards his wife and other family members. The testimony of

the other children and the references to Steichen’s violence were allowed under

SDCL 19-12-5 (Rule 404(b)) as other acts evidence. SDCL 19-12-5 (Rule 404(b))

restricts the use of other acts evidence as follows:

Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.

SDCL 19-12-5. The trial court determined that the other acts evidence was

admissible to show motive, common scheme and plan, opportunity, lack of mistake

or accident, and continuing course of criminal conduct. The trial court further

determined that the other acts evidence was more probative than prejudicial.

[¶6.] On appeal, a majority of this Court found no error in admitting the

other acts evidence under SDCL 19-12-5 (Rule 404(b)) “to show motive, common

plan or scheme, opportunity and a continuing course of criminal conduct.” Steichen,

1998 SD 126, ¶¶16-34, 588 NW2d at 874-78. This Court determined, however, that

it was error for the trial court to admit the evidence to show lack of mistake or

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accident. Even so, the error was determined harmless “because Steichen’s case was

not prejudiced by the circuit court’s decision.” Id. ¶26, 588 NW2d at 876 (citation

omitted).

[¶7.] Steichen now seeks habeas corpus relief, claiming that the admission

of the other acts evidence deprived him of a fair trial and violated his due process

rights under the Fifth and Fourteenth Amendments to the United States

Constitution. See US Const amend V; US Const amend XIV. With such a

challenge, Steichen has the burden of “establish[ing] an error which demonstrates a

violation of due process. This burden is much greater than that required on direct

appeal and is even greater than the showing of plain error on direct appeal.” See

Loop v. Class, 1996 SD 107, ¶23, 554 NW2d 189, 193 (citations omitted). On habeas

review:

The inquiry is not ‘whether the circuit court erred in admitting
the particular testimony,’ but ‘whether the admissions resulted
in a trial so fundamentally unfair as to deny [Steichen] due
process of law. In making this determination we must review
the totality of the facts in the case and analyze the fairness of
the particular trial under consideration.’

Id. (quoting Rainer v. Dep’t of Corrections, 914 F2d 1067, 1072 (8thCir 1990)

(citations omitted), cert. denied, 498 US 1099, 111 SCt 993, 112 LEd2d 1077 (1991).

Our review of a constitutional question is de novo. Moeller v. Weber, 2004 SD 110,

¶42 n3, 689 NW2d 1, 15 n3 (citing State v. Dillon, 2001 SD 97, ¶12, 632 NW2d 37,

43).

[¶8.] As the Eighth Circuit Court of Appeals noted in Nebinger v. Ault,

“[r]ulings on the admission or exclusion of evidence in state trials rarely rise to the

level of a federal constitutional violation.” 208 F3d 695, 697 (8thCir 2000). “Only

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#24844

‘when an evidentiary ruling is so egregious that it results in a denial of fundamental

fairness,’ may it violate due process and warrant habeas relief.” Harris v.

Wolfenbarger, 2007 WL 2421545, 12 (ED Mich) (quoting Bugh v. Mitchell, 329 F3d

496, 512 (6thCir 2003)). Consequently for habeas relief, Steichen must show under

the totality of the circumstances, error “‘so “gross” . . . “conspicuously prejudicial” . .

. or otherwise of such magnitude that it fatally infected the trial and failed to afford

[Steichen] the fundamental fairness which is the essence of due process.’” See Loop,

1996 SD 107, ¶23, 554 NW2d at 193 (quoting Rainer, 914 F2d at 1072 (citations

omitted), cert. denied, 498 US 1099, 111 SCt 993). The habeas applicant must show

that “there is a reasonable probability that the error complained of affected the

outcome of the trial- i.e., that absent the alleged impropriety, the verdict probably

would have been different.” Harris v. Bowersox, 184 F3d 744, 752 (8thCir 1999)

(quoting Carter v. Armontrout, 929 F2d 1294, 1296 (8thCir 1991)); see Rodriquez v.

Weber, 2000 SD 128, ¶1, 617 NW2d 132, 136 (concluding “that there is no

reasonable probability that the outcome of the trial would have been different had

the errors not occurred”).

[¶9.] We already determined on appeal that most of the other acts evidence

did not adversely prejudice Steichen. Steichen’s renewed challenge to the other acts

evidence also fails to warrant relief. A review of the entire trial record shows that

the other acts evidence admitted in Steichen’s trial was not of “such magnitude that

it fatally infected the trial” or its outcome. See Loop, 1996 SD 107, ¶23, 554 NW2d

at 193 (citations omitted). The State presented sufficient evidence to convict

Steichen. Both victims testified that Steichen abused them sexually. K.C., the

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sixteen-year-old babysitter, testified in detail regarding Steichen’s repeated sexual

abuse. H.F., Steichen’s seven-year-old step-daughter was not as detailed in her

testimony because of her age. Other witnesses, however, corroborated H.F.’s

allegation of sexual abuse. The doctor who examined H.F. testified that H.F.’s

injuries were consistent with a child who had been sexually abused. In addition,

the social worker and psychotherapist who met with H.F. testified that H.F.’s

behavior was consistent with a child who had been sexually abused. The evidence

concerning Steichen’s violence to family members was only referenced in the context

that Steichen was the disciplinarian of the family. The family-violence testimony

was brief and not detailed. Thus, under the totality of the circumstances the

admission of the other acts evidence did not deprive Steichen of his due process

right to a fair trial.

[¶10.] Steichen also bases his due process claim on the trial court’s failure to

properly instruct the jury. Steichen claims that the jury should have been

instructed to consider the other acts evidence only if the jury first found by a

preponderance of the evidence that the acts had occurred. Steichen did not propose

such an instruction or otherwise object to the instruction given by the trial court.

At the time of Steichen’s trial, we had not had an opportunity to specifically address

the burden of proof of other acts evidence. Subsequently, in State v. Wright, we

determined that “[b]efore a jury may consider facts relating to other acts as proof of

an issue relevant to the present offense; the jury must conclude the defendant

committed the other acts by a preponderance of the evidence.” 1999 SD 50, ¶14,

593 NW2d 792, 799 (citing Huddleston v. United States, 485 US 681, 689, 108 SCt

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#24844

1496, 1501, 99 LEd2d 771 (1988)). Our pronouncement in State v. Wright,

conformed to Huddleston v. United States. Id.

[¶11.] In Huddleston v. United States, the United States Supreme Court

granted certiorari in order “to resolve a conflict among the Courts of Appeals as to

whether the trial court must make a preliminary finding before ‘similar act’ and

other Rule 404(b) evidence is submitted to the jury.” Huddleston, 485 US at 685,

108 SCt at 1499. The Court concluded that Federal Rule 404(b) evidence “should be

admitted if there is sufficient evidence to support a finding by the jury that the

defendant committed the similar act.” Id. “Evidence is admissible under Rule

404(b),” the Court said, “only if it is relevant. . . . In the Rule 404(b) context, similar

act evidence is relevant only if the jury can reasonably conclude that the act

occurred and that the defendant was the actor.” Id. at 689, 108 SCt at 1501.

Whether the admission of the 404(b) evidence violated constitutional due process

was not addressed in either Wright or Huddleston.

[¶12.] The United States Supreme Court did, however, address a similar due

process issue in Estelle v. McGuire. 502 US 62, 112 SCt 475, 116 LEd2d 385 (1991).

In Estelle, the defendant was convicted of second-degree murder in the death of his

6-month old daughter. Id. at 64, 112 SCt at 478. The child was brought to the

hospital after she turned blue and stopped breathing. Id. Unable to be revived, she

died shortly thereafter. Id. at 65, 112 SCt at 478. Her body showed severe bruising

on various parts of her body. Id. at 64-65, 112 SCt at 478. The defendant denied

harming the child and claimed that her injuries resulted from falling from a couch

or perhaps by intruders who entered the residence while he was out of the room. Id.

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at 65, 112 SCt at 478. Prosecutors introduced evidence that the child had prior

injuries including broken ribs and rectal tears to prove “battered child syndrome.”

Id.

[¶13.] The defendant, McGuire, sought habeas relief claiming that his due

process rights were violated because the evidence should not have been admitted

and because the jury instruction “allowed the jury to consider the prior injury

evidence for more than simply proof of the battered child syndrome.” Id. at 70, 112

SCt at 481. The Estelle Court found that admission of the prior injury evidence did

not violate the defendant’s federal constitutional rights because evidence of battered

child syndrome was relevant to show intent. Id. at 69, 112 SCt at 480. Likewise,

the Court found the jury instruction did not violate due process. Id. at 70, 112 SCt

at 481.

[¶14.] The Court applied the following due process standard of review for jury

instructions:

The only question for us is “‘whether the ailing instruction by
itself so infected the entire trial that the resulting conviction
violates due process.” It is well established that the instruction
“may not be judged in artificial isolation,” but must be
considered in the context of the instructions as a whole and the
trial record. In addition, in reviewing an ambiguous instruction,
. . . we inquire “whether there is a reasonable likelihood that the
jury has applied the challenged instruction in a way” that
violates the Constitution. And we also bear in mind our
previous admonition that we “have defined the category of
infractions that violate ‘fundamental fairness’ very narrowly.”
“Beyond the specific guarantees enumerated in the Bill of
Rights, the Due Process Clause has limited operation.”

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#24844

Id. at 72-73, 112 SCt at 482 (internal citations omitted). 1 McGuire claimed that

“despite the lack of any direct evidence linking him to those injuries, the instruction

directed the jury to find that he had committed them.” Id. at 73, 112 SCt at 483.

The Court rejected this argument because the instruction included the words, “if the

Defendant committed other offenses,” which left it to the jury to decide. Id. The

Court concluded from the record that “to the extent that the jury may have believed

McGuire committed the prior acts and used that as a factor in its deliberation, we

observe that there was sufficient evidence to sustain such a jury finding by a

preponderance of the evidence.” Id. at 73-74, 112 SCt at 483. McGuire also claimed

that the instruction amounted to a propensity instruction allowing the jury to

convict based on his prior actions. Id. at 74, 112 SCt at 483. The Court rejected his

argument because of the limiting instruction that told the jury that the prior

1. The challenged jury instruction in Estelle, in relevant part, was as follows:

Evidence has been introduced for the purpose of showing that the
Defendant committed acts similar to those constituting a crime other
than that for which he is on trial. Such evidence, if believed, was not
received, and may not be considered by you[,] to prove that he is a
person of bad character or that he has a disposition to commit crimes.
Such evidence was received and may be considered by you only for the
limited purpose of determining if it tends to show three things:
***
2. To establish the battered child syndrome, and
3. Also a clear connection between the other two offenses[s] and
the one of which the Defendant is accused, so that it may be
logically concluded that if the Defendant committed other
offenses, he also committed the crime charged in this case.
For the limited purpose for which you may consider such evidence, you
must weigh it in the same manner as you do all other evidence in the
case. You are not permitted to consider evidence for any other purpose.

Estelle v. McGuire, 502 US 62, 67 n1, 112 SCt 475, 479 n1 (1991).

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injuries could not be considered “to prove that [McGuire] is a person of bad

character or that he has a disposition to commit crimes.” Id. at 75, 112 SCt at 483.

[¶15.] In comparison, the instruction given in Steichen’s trial was as follows:

Evidence has been introduced that the defendant
committed offenses or acts other than that which is now
charged.
Although evidence of this nature is allowed, it may be
used only to show: motive, absence of mistake or accident,
common plan or scheme, opportunity, and continuing course of
criminal conduct. You may not consider it as tending to show in
any other respect the defendant’s guilt of the offense with which
he is charged in this trial.
You are not required to consider this evidence, and
whether you do is a matter within your exclusive province.

Additionally, the trial court instructed that the jury was the sole determiner of the

credibility of the witnesses and that guilt must be determined beyond a reasonable

doubt. Unlike the jury instruction in Estelle v. McGuire, the instruction here told

the jury that it could not use the other acts evidence to determine Steichen’s guilt.

The instruction, however, did not clearly indicate that the other acts could be

considered for the limited purposes only if the jury logically believed the defendant

committed them. Thus, the instructions left ambiguity as to whether the jury first

had to find that the other acts had been committed by Steichen. Consequently, we

need to review the instructions to determine “‘whether there is a reasonable

likelihood that the jury has applied the challenged instruction in a way’ that

violate[d] the Constitution.” Id. at 72, 112 SCt at 482 (quoting Boyde v. California,

494 US 370, 380, 110 SCt 1190, 1198, 108 LEd2d 316 (1990)).

[¶16.] Admittedly, the challenged jury instruction did not specifically tell the

jury to determine that Steichen committed the other acts before considering them

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for the limited purposes enumerated. Nevertheless, because of other jury

instructions, it was unlikely that the jury considered the other acts without first

believing that Steichen had committed them. See Id. at 74, 112 SCt at 483.

[¶17.] One of the other instructions in Steichen’s case told the members of the

jury that they were “the sole and exclusive judges of . . . the credibility of the

witnesses.” Steichen’s other acts of sexual molestation came from witnesses who

explicitly testified that Steichen had molested them. Members of the jury had to

judge the credibility of those witnesses. If the jury believed their version of the

facts, the jury would have concluded that Steichen had committed the other acts.

Conversely, if the jury did not believe the witnesses, the jury would not have

concluded that Steichen had molested the other children. The same can be said of

the brief testimony concerning Steichen’s violence toward his family. Additionally,

another instruction directed that the jury was “not required to consider [the other

acts] evidence, and whether [the jury did was] a matter within [its] exclusive

province.”

[¶18.] When a jury instruction is challenged based on a violation of due

process, we look at the challenged instruction “in the context of the instructions as a

whole and the trial record.” Id. at 72, 112 SCt at 482 (citing Cupp v. Naughten, 414

US 141, 147, 94 SCt 396, 400-01, 38 LEd 2d 368 (1973)). Having considered the

instruction in the context of the other instructions and the trial record, we find

there is not a “‘reasonable likelihood that the jury has applied the challenged

instruction in a way’ that violates the Constitution.” Id. (quoting Boyde, 494 US at

380, 110 SCt at 1198).

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[¶19.] Additionally, the trial court utilized other sources to protect Steichen

against unfair prejudice from the Rule 404(b) other acts evidence. The United

States Supreme Court in Huddleston recognized the prejudicial risk of admitting

Rule 404[b] evidence and discussed how the Federal Rules of Evidence provided

protections against unfair prejudice. 485 US at 691, 108 SCt at 1502. “[P]rotection

against such unfair prejudice,” the Court said, “emanates . . . from four . . . sources.”

Id. Those sources are as follows:

[F]irst, from the requirement of Rule 404(b) that the evidence be
offered for a proper purpose; second, from the relevancy
requirement of Rule 402-as enforced through Rule 104(b); third,
from the assessment the [circuit] court must make under Rule
403 to determine whether the probative value of the similar acts
evidence is substantially outweighed by its potential for unfair
prejudice; and fourth, from Federal Rule of Evidence 105, which
provides that the [circuit] court shall, upon request, instruct the
jury that the similar acts evidence is to be considered only for
the proper purpose for which it was admitted.

Id. at 691-92, 108 SCt at 1502 (internal citations omitted).

[¶20.] In Steichen’s direct appeal, we analyzed these sources of protection

against unfair prejudice and concluded that they had been applied and that

Steichen could show no prejudice. Steichen, 1998 SD 126, ¶31, 588 NW2d at 877.

After determining relevancy, the trial court determined that the probative value of

the other acts evidence outweighed the prejudicial effect. The trial court admitted

the evidence for a limited purpose and repeatedly cautioned the jury of its limited

admissibility. The trial court further instructed the jurors that they were not

required to consider the other acts evidence, and whether they did was “a matter

within [their] exclusive province.” The trial court advised the jury that the other

acts evidence could not be considered “as tending to show in any other respect the

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defendant’s guilt of the offense with which he is charged in this trial.” The jury was

also instructed on the elements of the charged crimes and that Steichen was

presumed innocent unless the jury “was satisfied from all the evidence beyond a

reasonable doubt that [Steichen] was guilty.”

[¶21.] We have recognized the need to specifically tell the jury to find the

defendant committed the other acts by a preponderance of the evidence before

considering the acts under SDCL 19-12-5 (Rule 404(b)). In this case, based on the

totality of the circumstances, failure to do so was not so gross or unduly prejudicial

that it tainted the trial. Thus, Steichen has failed to show that his trial was so

fundamentally unfair that he was deprived of due process.

2. Whether Steichen was denied his right to effective
assistance of trial counsel because an alibi witness was not
called to testify.

[¶22.] Steichen also argues that he was deprived of effective assistance of

counsel as guaranteed by the Sixth and Fourteenth Amendments. See US Const

amend VI; US Const amend XIV. Specifically, Steichen contends that trial counsel

erred by failing to call Marilyn Lubeck to testify and present Steichen’s employment

records with her trucking company as alibi evidence. The circuit court determined

that trial counsel’s assistance was not constitutionally deficient.

[¶23.] We have recently explained our standard of review as follows:

Whether a defendant has received ineffective assistance of
counsel is essentially a mixed question of law and fact. In the
absence of a clearly erroneous determination by the circuit
court, we must defer to its findings on such primary facts
regarding what defense counsel did or did not do in preparation
for trial and in his presentation of the defense at trial. This
Court, however, may substitute its own judgment for that of the

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circuit court as to whether defense counsel’s actions or inactions
constituted ineffective assistance of counsel.

Baldridge v. Weber, 2008 SD 14, ¶21, 746 NW2d 12, 17 (citations omitted).

[¶24.] The Sixth Amendment has long been held to mandate not simply the

right to counsel but the right to effective counsel. Strickland v. Washington, 466 US

668, 686, 104 SCt 2052, 2063, 80 LEd2d 674 (1984) (citing McMann v. Richardson,

397 US 759, 771, n14, 90 SCt 1441, 1449, n14, 25 LEd2d 763 (1970)) (emphasis

added). Writing for the Court, Justice O’Connor explained, “[t]he Sixth Amendment

recognizes the right to the assistance of counsel because it envisions counsel[ ]

playing a role that is critical to the ability of the adversarial system to produce just

results.” Id. at 685, 104 SCt at 2063. We consider the two-part inquiry from

Strickland v. Washington. 466 US at 687, 104 SCt at 2064. The defendant must

prove “(1) ineffective assistance of counsel and (2) prejudice.” Baldridge, 2008 SD

14, ¶31, 746 NW2d at 20 (citing Strickland, 466 US at 687, 104 SCt at 2064).

[¶25.] To establish the first prong of ineffective performance, the defendant

must rebut the strong presumption that the counsel’s performance was competent.

Boyles v. Weber, 2004 SD 31, ¶27, 677 NW2d 531, 540 (citations omitted). The

appropriate standard for judging a lawyer’s performance under the first prong is

that of “reasonably competent assistance.” Strickland, 466 US at 687, 104 SCt at

2064 (citation omitted). “‘There is a strong presumption that counsel’s performance

falls within the wide range of professional assistance and the reasonableness of

counsel’s performance is to be evaluated from counsel’s perspective at the time of

the alleged error and in light of all circumstances.’” Denoyer v. Weber, 2005 SD 43,

¶19, 694 NW2d 848, 855 (quoting Brakeall v. Weber, 2003 SD 90, ¶15, 668 NW2d

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79, 84 (quoting Bradley, 1999 SD 68, ¶19, 595 NW2d at 621)). The second prong of

the Strickland test requires a defendant to show that counsel’s deficient

performance caused actual prejudice to the defendant. Strickland, 466 US at 693,

104 SCt at 2067.

[¶26.] Here, Steichen did not demonstrate that trial counsel’s performance

was deficient under the Strickland test. K.C. testified that Steichen molested her

three to four times a week. Steichen argues that Lubeck’s testimony would have

refuted K.C.’s allegations because the records would have shown he was away from

home eighty to ninety percent of the time as a truck driver and could not have

molested K.C. three to four times a week. Lubeck’s testimony at the habeas hearing

did not necessarily support Steichen’s claim that he was away from home one to two

weeks at a time. Lubeck testified that some trips could have been as long as two

weeks, however, other trips might only have been overnight. Since the employment

records were no longer available at the time of the habeas hearing, Steichen could

not verify the exact dates of his trucking trips. However, Steichen’s trial counsel

testified that he did review the records when they were produced at trial. He

determined that the dates of Steichen’s trucking trips did not coincide with the

dates of the alleged abuse. Consequently, the records would not have provided an

alibi.

[¶27.] Trial counsel further testified that he made a strategic decision not to

utilize Lubeck or the records because he felt that the evidence would hurt the case.

Lubeck’s testimony and the trucking company records could have impeached

Steichen’s testimony that he was gone eighty to ninety percent of the time. Trial

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counsel testified that “the records did not relate to the period of time that we were

trying to overcome in front of the jury.”

[¶28.] Consequently, Steichen has not shown that failure to use Lubeck’s

testimony or the trucking records rendered counsel’s performance deficient.

Counsel’s explanation was reasonable under the circumstances and based on sound

trial strategy. Further, Steichen did not demonstrate prejudice because neither

Lubeck’s testimony nor the records provided an actual alibi for the dates of the

alleged sexual abuse. Consequently, Steichen was not deprived of his Sixth

Amendment guarantee of effective assistance of counsel.

3. Whether Steichen’s sentences were unconstitutionally cruel
and unusual.

[¶29.] Steichen argues that his sentences are the equivalent of life in prison

without parole and are grossly disproportionate to the crimes committed. He claims

that the sentences constitute cruel and unusual punishment in violation of the

Eighth Amendment to the United States Constitution and Article VI, section 23 of

the South Dakota Constitution. See US Const amend VIII; US Const amend XIV;

SD Const art VI §23. He asserts that a life sentence ruins the goal of rehabilitation.

Steichen intended to introduce statistics regarding sentences imposed for similar

offenses as part of the intra- and inter- jurisdictional analysis. Steichen argues on

appeal that the habeas court’s refusal to permit the introduction of statistics for

similar offenses was error.

[¶30.] “‘It is well-settled that we employ very limited principles in our

constitutional review of sentences. These principles include giving ‘substantial

deference[ ] to the legislature’s broad authority to determine the types and limits of

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punishment’ and the notion that ‘the Eighth Amendment does not mandate

adoption of any one penological theory.’” State v. Dubois, 2008 SD 15, ¶41, 746

NW2d 197, 210 (quoting State v. Garber, 2004 SD 2, ¶28, 674 NW2d 320, 327

(additional citations omitted)). For this reason, we seldom disturb sentences that

are within the statutory maximum. Id. To review the proportionality of a sentence

we consider the intra- and inter- jurisdictional analysis:

“[W]e first determine whether the sentence appears grossly
disproportionate. To accomplish this, we consider the conduct
involved, and any relevant past conduct, with utmost deference
to the Legislature and the sentencing court.” If the sentence
does not appear grossly disproportionate, no further review is
necessary. If the sentence does appear grossly disproportionate,
an intra- and inter-jurisdictional analysis shall be conducted.
We also consider “the gravity of the offense and the harshness of
the penalty;” and other relevant factors, such as the effect this
type of offense has on society.

Id. (quoting State v. Williams, 2006 SD 11, ¶12, 710 NW2d 427, 432 (citations

omitted)) (emphasis added).

[¶31.] We first consider whether Steichen’s sentence appears grossly

disproportionate. In Steichen’s case, the circuit court considered Steichen’s conduct

and past conduct during sentencing. Steichen was convicted of multiple instances

of sexual abuse against minors. He threatened his victims with death if they told

anyone of the incidents of sexual abuse. Further, the habeas court determined that:

[Steichen’s] presentence investigation and psychosexual
evaluation did not show he was amenable to treatment or
rehabilitation. In fact, it showed the contrary. It showed that
the Petitioner lacked remorse for his actions and failed to accept
responsibility. The jury verdict showed that this was not an
isolated “first offense” since he was convicted of sexual offenses
against each of the victims on multiple counts.

-17-
#24844

Steichen’s sentences were all within the statutory maximums. Thus, giving “utmost

deference to the Legislature and sentencing court” and based on Steichen’s conduct

and history, we find that Steichen’s sentences were not grossly disproportionate to

his crimes. See Dubois, 2008 SD 15, ¶41, 746 NW2d at 210 (citations omitted). For

this reason, we do not reach the intra- and inter-jurisdictional analysis.

[¶32.] We affirm on all issues.

[¶33.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER,

Justices, concur.

[¶34.] SABERS, Retired Justice, concurs specially.

SABERS, Retired Justice (concurring specially).

[¶35.] Steichen has failed to show a valid constitutional violation of due

process in regard to the other act evidence admitted in his trial. Furthermore, the

United States Supreme Court has not explicitly addressed whether other act

testimony violates a defendant’s constitutional rights. Estelle, 502 US at 75 n5, 112

SCt at 484 n5, 116 LEd2d 385. However, a defendant should be tried only for the

acts for which he is currently charged, and not for his other acts because it

prejudices the trial. Therefore, I continue to stand on my dissent in Steichen’s

direct appeal of this case. See Steichen, 1998 SD 126, ¶¶43-49, 588 NW2d at 878-79

(Sabers, J., dissenting).

[¶36.] In this habeas action, Steichen has failed to prove ineffective

assistance of counsel. The record indicates that Steichen’s trial counsel adequately

represented him and properly argued against admittance of the other act evidence.

-18-
#24844

Under these facts, the trial court’s admission of this evidence does not provide

grounds for reversal on a habeas claim. For these reasons, I concur specially.

-19-

MEIERHENRY, Justice.
[¶ 1.] Robert Steichen appeals the denial of his petition for habeas corpus relief. Specifically, Steichen argues that the admission of SDCL 19-12-5 (Rule 404(b)) evidence of other acts violated his due process rights; that he had ineffective assistance of counsel, at trial; and that his sentences were grossly disproportionate. We affirm.

FACTS AND PROCEDURAL BACKGROUND

[¶ 2.] Steichen was convicted in 1997 of three counts of First-Degree Rape, seven counts of Third-Degree Rape, and one count of Sexual Contact with a Child under the Age of sixteen. The incidents alleged*386ly occurred in Aurora and Jerauld Counties, South Dakota, between July 1996 and February 1997. The counts involved sexual conduct towards H.F., Steichen’s six-year old step-daughter and towards K.C., a babysitter. At trial, the children testified to repeated molestations by Steichen. On the three counts of Firsb-Degree Rape, the circuit court imposed consecutive sentences of thirty years, seventy-five years, and life imprisonment without parole. On the other charges, the trial court imposed consecutive sentences of eight years for one count of Third-Degree Rape, and fifteen years for each of the other seven charges, for a total of 113 years, to run concurrent with the Firsb-Degree Rape sentences.

[¶ 3.] Steichen’s convictions were affirmed by a majority of this Court in State v. Steichen, 1998 SD 126, 588 N.W.2d 870. Steichen’s application for a writ of habeas corpus from the United States District Court for the District of South Dakota in 2000 was denied because he had not exhausted state court remedies. In 2007, Steichen filed a writ of habeas corpus in state circuit court. The circuit court denied Steichen’s writ on January 30, 2008. Steichen appeals the following issues:

ISSUES

1) Whether Steichen’s right to due process was violated by the admission of other acts evidence.

2) Whether Steichen was denied his right to effective assistance of trial counsel because an alibi witness was not called to testify.

3) Whether Steichen’s sentences were unconstitutionally cruel and unusual.

STANDARD OF REVIEW

[¶ 4.] We consider habeas corpus proceedings under a limited standard of review. Erickson v. Weber, 2008 SD 30, ¶ 17, 748 N.W.2d 739, 744 (citations omitted). Habeas corpus review does not substitute for direct review. Id.

Habeas corpus can be used only to review (1) whether the court has jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) in certain cases whether an incarcerated defendant has been deprived of basic constitutional rights. Habeas corpus is not a remedy to correct irregular procedures, rather, habeas corpus reaches only jurisdictional error. For purposes of habeas corpus, constitutional violations in a criminal case deprive the trial court of jurisdiction. Further, we may not upset the habeas court’s findings unless they are clearly erroneous.

Id. (citing Bradley v. Weber, 1999 SD 68, ¶ 12, 595 N.W.2d 615, 619 (quoting Flute v. Class, 1997 SD 10, ¶8, 559 N.W.2d 554, 556)) (other citations omitted). The initial burden is on the applicant to demonstrate by a preponderance of the evidence that relief is required. Id. (citing New v. Weber, 1999 SD 125, ¶ 5, 600 N.W.2d 568, 572 (citing Lien v. Class, 1998 SD 7, ¶ 11, 574 N.W.2d at 607)).

ANALYSIS

1. Whether Steichen’s right to due process was violated by the admission of other acts evidence.

[¶ 5.] As part of its case-in-chief, the State presented the testimony of the two children who were named victims of the charged offenses. Additionally, the State offered testimony of four other children who claimed Steichen had sexually molested them. The State also presented limited testimony of incidents of Steichen’s violence towards his wife and other family members. . The testimony of the other children and the references to Steichen’s *387violence were allowed under SDCL 19-12-5 (Rule 404(b)) as other acts evidence. SDCL 19-12-5 (Rule 404(b)) restricts the use of other acts evidence as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

SDCL 19-12-5. The trial court determined that the other acts evidence was admissible to show motive, common scheme and plan, opportunity, lack of mistake or accident, and continuing course of criminal conduct. The trial court further determined that the other acts evidence was more probative than prejudicial.

[¶ 6.] On appeal, a majority of this Court found no error in admitting the other acts evidence under SDCL 19-12-5 (Rule 404(b)) “to show motive, common plan or scheme, opportunity and a continuing course of criminal conduct.” Steichen, 1998 SD 126, ¶¶ 16-34, 588 N.W.2d at 874-78. This Court determined, however, that it was error for the trial court to admit the evidence to show lack of mistake or accident. Even so, the error was determined harmless “because Steichen’s case was not prejudiced by the circuit court’s decision.” Id. ¶ 26, 588 N.W.2d at 876 (citation omitted).

[¶ 7.] Steichen now seeks ha-beas corpus relief, claiming that the admission of the other acts evidence deprived him of a fair trial and violated his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. See U.S. Const, amend. V; U.S. Const, amend. XIV. With such a challenge, Steichen has the burden of “establish[ing] an error which demonstrates a violation of due process. This burden is much greater than that required on direct appeal and is even greater than the showing of plain error on direct appeal.” See Loop v. Class, 1996 SD 107, ¶23, 554 N.W.2d 189, 193 (citations omitted). On habeas review:

The inquiry is not ‘whether the circuit court erred in admitting the particular testimony,’ but ‘whether the admissions resulted in a trial so fundamentally unfair as to deny [Steichen] due process of law. In making this determination we must review the totality of the facts in the case and analyze the fairness of the particular trial under consideration.’

Id. (quoting Rainer v. Dep’t of Corrections, 914 F.2d 1067, 1072 (8th Cir.1990) (citations omitted), cert. denied, 498 U.S. 1099, 111 S.Ct. 993, 112 L.Ed.2d 1077 (1991)). Our review of a constitutional question is de novo. Moeller v. Weber, 2004 SD 110, ¶ 42 n. 3, 689 N.W.2d 1, 15 n. 3 (citing State v. Dillon, 2001 SD 97, ¶ 12, 632 N.W.2d 37, 43).

[¶ 8.] As the Eighth Circuit Court of Appeals noted in Nebinger v. Ault, “[r]ulings on the admission or exclusion of evidence in state trials rarely rise to the level of a federal constitutional violation.” 208 F.3d 695, 697 (8th Cir.2000). “Only ‘when an evidentiary ruling is so egregious that it results in a denial of fundamental fairness,’ may it violate due process and warrant habeas relief.” Harris v. Wolfenbarger, 2007 WL 2421545, * 12 (E.D.Mich.) (quoting Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir.2003)). Consequently for habeas relief, Steichen must show under the totality of the circumstances, error “ ‘so “gross” ... “conspicuously prejudicial” ... or otherwise of such magnitude that it fatally infected the trial and failed to afford [Steichen] the fundamental fairness which is the essence of due process.’” See Loop, 1996 SD 107, ¶23, *388554 N.W.2d at 193 (quoting Rainer, 914 F.2d at 1072 (citations omitted), cert. denied, 498 U.S. 1099, 111 S.Ct. 993, 112 L.Ed.2d 1077). The habeas applicant must show that “there is a reasonable probability that the error complained of affected the outcome of the trial-i.e., that absent the alleged impropriety, the verdict probably would have been different.” Harris v. Bowersox, 184 F.3d 744, 752 (8th Cir.1999) (quoting Carter v. Armontrout, 929 F.2d 1294, 1296 (8th Cir.1991)); see Rodriguez v. Weber, 2000 SD 128, ¶1, 617 N.W.2d 132, 136 (concluding “that there is no reasonable probability that the outcome of the trial would have been different had the errors not occurred”).

[¶ 9.] We already determined on appeal that most of the other acts evidence did not adversely prejudice Steichen. Steichen’s renewed challenge to the other acts evidence also fails to warrant relief. A review of the entire trial record shows that the other acts evidence admitted in Steichen’s trial was not of “such magnitude that it fatally infected the trial” or its outcome. See Loop, 1996 SD 107, ¶ 23, 554 N.W.2d at 193 (citations omitted). The State presented sufficient evidence to convict Steichen. Both victims testified that Steichen abused them sexually. K.C., the sixteen-year-old babysitter, testified in detail regarding Steichen’s repeated sexual abuse. H.F., Steichen’s seven-year-old step-daughter was not as detailed in her testimony because of her age. Other witnesses, however, corroborated H.F.’s allegation of sexual abuse. The doctor who examined H.F. testified that H.F.’s injuries were consistent with a child who had been sexually abused. In addition, the social worker and psychotherapist who met with H.F. testified that H.F.’s behavior was consistent with a child who had been sexually abused. The evidence concerning Steichen’s violence to family members was only referenced in the context that Steichen was the disciplinarian of the family. The family-violence testimony was brief and not detailed. Thus, under the totality of the circumstances the admission of the other acts evidence did not deprive Steichen of his due process right to a fair trial.

[¶ 10.] Steichen also bases his due process claim on the trial court’s failure to properly instruct the jury. Stei-chen claims that the jury should have been instructed to consider the other acts evidence only if the jury first found by a preponderance of the evidence that the acts had occurred. Steichen did not propose such an instruction or otherwise object to the instruction given by the trial court. At the time of Steichen’s trial, we had not had an opportunity to specifically address the burden of proof of other acts evidence. Subsequently, in State v. Wright, we determined that “[b]efore a jury may consider facts relating to other acts as proof of an issue relevant to the present offense; the jury must conclude the defendant committed the other acts by a preponderance of the evidence.” 1999 SD 50, ¶ 14, 593 N.W.2d 792, 799 (citing Huddleston v. United States, 485 U.S. 681, 689, 108 S.Ct. 1496, 1501, 99 L.Ed.2d 771 (1988)). Our pronouncement in State v. Wright, conformed to Huddleston v. United States. Id.

[¶ 11.] In Huddleston v. United States, the United States Supreme Court granted certiorari in order “to resolve a conflict among the Courts of Appeals as to whether the trial court must make a preliminary finding before ‘similar act’ and other Rule 404(b) evidence is submitted to the jury.” Huddleston, 485 U.S. at 685, 108 S.Ct. at 1499. The Court concluded that Federal Rule 404(b) evidence “should be admitted if there is sufficient evidence to support a finding by the jury that the defendant *389committed the similar act.” Id. “Evidence is admissible under Rule 404(b),” the Court said, “only if it is relevant.... In the Rule 404(b) context, similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor.” Id. at 689, 108 S.Ct. at 1501. Whether the admission of the 404(b) evidence violated constitutional due process was not addressed in either Wright or Huddleston.

[¶ 12.] The United States Supreme Court did, however, address a similar due process issue in Estelle v. McGuire. 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). In Estelle, the defendant was convicted of second-degree murder in the death of his 6-month old daughter. Id. at 64, 112 S.Ct. at 478. The child was brought to the hospital after she turned blue and stopped breathing. Id. Unable to be revived, she died shortly thereafter. Id. at 65, 112 S.Ct. at 478. Her body showed severe bruising on various parts of her body. Id. at 64-65, 112 S.Ct. at 478. The defendant denied harming the child and claimed that her injuries resulted from falling from a couch or perhaps by intruders who entered the residence while he was out of the room. Id. at 65, 112 S.Ct. at 478. Prosecutors introduced evidence that the child had prior injuries including broken ribs and rectal tears to prove “battered child syndrome.” Id.

[¶ 13.] The defendant, McGuire, sought habeas relief claiming that his due process rights were violated because the evidence should not have been admitted and because the jury instruction “allowed the jury to consider the prior injury evidence for more than simply proof of the battered child syndrome.” Id. at 70, 112 S.Ct. at 481. The Estelle Court found that admission of the prior injury evidence did not violate the defendant’s federal constitutional rights because evidence of battered child syndrome was relevant to show intent. Id. at 69, 112 S.Ct. at 480. Likewise, the Court found the jury instruction did not violate due process. Id. at 70, 112 S.Ct. at 481.

[¶ 14.] The Court applied the following due process standard of review for jury instructions:

The only question for us is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” It is well established that the instruction, “may not be judged in artificial isolation,” but must be considered in the context of the instructions as a whole and the trial record. In addition, in reviewing an ambiguous instruction, ... we inquire “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution. And we also bear in mind our previous admonition that we “have defined the category of infractions that violate ‘fundamental fairness’ very narrowly.” “Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation.”

Id. at 72-73, 112 S.Ct. at 482 (internal citations omitted).1 McGuire claimed that *390“despite the lack of any direct evidence linking him to those injuries, the instruction directed the jury to find that he had committed them.” Id. at 73, 112 S.Ct. at 483. The Court rejected this argument because the instruction included the words, “if the Defendant committed other offenses,” which left it to the jury to decide. Id. The Court concluded from the record that “to the extent that the jury may have believed McGuire committed the prior acts and used that as a factor in its deliberation, we observe that there was sufficient evidence to sustain such a jury finding by a preponderance of the evidence.” Id. at 73-74, 112 S.Ct. at 483. McGuire also claimed that the instruction amounted to a propensity instruction allowing the jury to convict based on his prior actions. Id. at 74, 112 S.Ct. at 483. The Court rejected his argument because of the limiting instruction that told the jury that the prior injuries could not be considered “to prove that [McGuire] is a person of bad character or that he has a disposition to commit crimes.” Id. at 75,112 S.Ct. at 483.

[¶ 15.] In comparison, the instruction given in Steichen’s trial was as follows:

Evidence has been introduced that the defendant committed offenses or acts other than that which is now charged.

Although evidence of this nature is allowed, it may be used only to show: motive, absence of mistake or accident, common plan or scheme, opportunity, and continuing course of criminal conduct. You may not consider it as tending to show in any other respect the defendant’s guilt of the offense with which he is charged in this trial.

You are not required to consider this evidence, and whether you do is a matter within your exclusive province.

Additionally, the trial court instructed that the jury was the sole determiner of the credibility of the witnesses and that guilt must be determined beyond a reasonable doubt. Unlike the jury instruction in Estelle v. McGuire, the instruction here told the jury that it could not use the other acts evidence to determine Steichen’s guilt. The instruction, however, did not clearly indicate that the other acts could be considered for the limited purposes only if the jury logically believed the defendant committed them. Thus, the instructions left ambiguity as to whether the jury first had to find that the other acts had been committed by Steichen. Consequently, we need to review the instructions to determine “ ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violate[d] the Constitution.” Id. at 72, 112 S.Ct. at 482 (quoting Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990)).

[¶ 16.] Admittedly, the challenged jury instruction did not specifically tell the jury to determine that Steichen committed the other acts before considering them for the limited purposes enumerated. Nevertheless, because of other jury instructions, it was unlikely that the jury considered the other acts without first believing that Stei-*391chen had committed them. See Id. at 74, 112 S.Ct. at 483.

[¶ 17.] One of the other instructions in Steichen’s case told the members of the jury that they were “the sole and exclusive judges of ... the credibility of the witnesses.” Steichen’s other acts of sexual molestation came from witnesses who explicitly testified that Steichen had molested them. Members of the jury had to judge the credibility of those witnesses. If the jury believed their version of the facts, the jury would have concluded that Stei-chen had committed the other acts. Conversely, if the jury did not believe the witnesses, the jury would not have concluded that Steichen had molested the other children. The same can be said of the brief testimony concerning Steichen’s violence toward his family. Additionally, another instruction directed that the jury was “not required to consider [the other acts] evidence, and whether [the jury did was] a matter within [its] exclusive province.”

[¶ 18.] When a jury instruction is challenged based on a violation of due process, we look at the challenged instruction “in the context of the instructions as a whole and the trial record.” Id. at 72, 112 S.Ct. at 482 (citing Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973)). Having considered the instruction in the context of the other instructions and the trial record, we find there is not a “ ‘reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” Id. (quoting Boyde, 494 U.S. at 380,110 S.Ct. at 1198).

[¶ 19.] Additionally, the trial court utilized other sources to protect Steichen against unfair prejudice from the Rule 404(b) other acts evidence. The United States Supreme Court in Huddleston recognized the prejudicial risk of admitting Rule 404[b] evidence and discussed how the Federal Rules of Evidence provided protections against unfair prejudice. 485 U.S. at 691, 108 S.Ct. at 1502. “[Pjrotection against such unfair prejudice,” the Court said, “emanates ... from four ... sources.” Id. Those sources are as follows:

[F]irst, from the requirement of Rule 404(b) that the evidence be offered for a proper purpose; second, from the relevancy requirement of Rule 402-as enforced through Rule 104(b); third, from the assessment the [circuit] court must make under Rule 403 to determine whether the probative value of the similar acts evidence is substantially outweighed by its potential for unfair prejudice; and fourth, from Federal Rule of Evidence 105, which provides that the [circuit] court shall, upon request, instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted.

Id. at 691-92, 108 S.Ct. at 1502 (internal citations omitted).

[¶20.] In Steichen’s direct appeal, we analyzed these sources of protection against unfair prejudice and concluded that they had been applied and that Steichen could show no prejudice. Steichen, 1998 SD 126, ¶ 31, 588 N.W.2d at 877. After determining relevancy, the trial court determined that the probative value of the other acts evidence outweighed the prejudicial effect. The trial court admitted the evidence for a limited purpose and repeatedly cautioned the jury of its limited admissibility. The trial court further instructed the jurors that they were not required to consider the other acts evidence, and whether they did was “a matter within [their] exclusive province.” The trial court advised the jury that the other acts evidence could not be considered “as *392tending to show in any other respect the defendant’s guilt of the offense with which he is charged in this trial.” The jury was also instructed on the elements of the charged crimes and that Steichen was presumed innocent unless the jury “was satisfied from all the evidence beyond a reasonable doubt that [Steichen] was guilty.”

[¶ 21.] We have recognized the need to specifically tell the jury to find the defendant committed the other acts by a preponderance of the evidence before considering the acts under SDCL 19-12-5 (Rule 404(b)). In this case, based on the totality of the circumstances, failure to do so was not so gross or unduly prejudicial that it tainted the trial. Thus, Steichen has failed to show that his trial was so fundamentally unfair that he was deprived of due process.

2. Whether Steichen was denied his right to effective assistance of trial counsel because an alibi witness was not called to testify.

[¶ 22.] Steichen also argues that he was deprived of effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments. See U.S. Const, amend. VI; U.S. Const, amend. XIV. Specifically, Steichen contends that trial counsel erred by failing to call Marilyn Lubeck to testify and present Steichen’s employment records with her trucking company as alibi evidence. The circuit court determined that trial counsel’s assistance was not constitutionally deficient.

[¶ 23.] We have recently explained our standard of review as follows:

Whether a defendant has received ineffective assistance of counsel is essentially a mixed question of law and fact. In the absence of a clearly erroneous determination by the circuit court, we must defer to its findings on such primary facts regarding what defense counsel did or did not do in preparation for trial and in his presentation of the defense at trial. This Court, however, may substitute its own judgment for that of the circuit court as to whether defense counsel’s actions or inactions constituted ineffective assistance of counsel.

Baldridge v. Weber, 2008 SD, 14, ¶ 21, 746 N.W.2d 12, 17 (citations omitted).

[¶ 24.] The Sixth Amendment has long been held to mandate not simply the right to counsel but the right to effective counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984) (citing McMann v. Richardson, 397 U.S. 759, 771, n. 14, 90 S.Ct. 1441, 1449, n. 14, 25 L.Ed.2d 763 (1970)) (emphasis added). Writing for the Court, Justice O’Connor explained, “[t]he Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel[ ] playing a role that is critical to the ability of the adversarial system to produce just results.” Id. at 685, 104 S.Ct. at 2063. We consider the two-part inquiry from Strickland v. Washington. 466 U.S. at 687, 104 S.Ct. at 2064. The defendant must prove “(1) ineffective assistance of counsel and (2) prejudice.” Baldridge, 2008 SD 14, ¶ 31, 746 N.W.2d at 20 (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064).

[¶25.] To establish the first prong of ineffective performance, the defendant must rebut the strong presumption that the counsel’s performance was competent. Boyles v. Weber, 2004 SD 31, ¶27, 677 N.W.2d 531, 540 (citations omitted). The appropriate standard for judging a lawyer’s performance under the first prong is that of “reasonably competent assistance.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064 (citation omitted). “ ‘There is a strong presumption that counsel’s performance falls within the wide range of professional assistance and the *393reasonableness of counsel’s performance is to be evaluated from counsel’s perspective at the time of the alleged error and in light of all circumstances.’ ” Denoyer v. Weber, 2005 SD 43, ¶ 19, 694 N.W.2d 848, 855 (quoting Brakeall v. Weber, 2003 SD 90, ¶ 15, 668 N.W.2d 79, 84 (quoting Bradley, 1999 SD 68, ¶ 19, 595 N.W.2d at 621)). The second prong of the Strickland test requires a defendant to show that counsel’s deficient performance caused actual prejudice to the defendant. Strickland, 466 U.S. at 693,104 S.Ct. at 2067.

[¶ 26.] Here, Steichen did not demonstrate that trial counsel’s performance was deficient under the Strickland test. K.C. testified that Steichen molested her three to four times a week. Steichen argues that Lubeck’s testimony would have refuted KC.’s allegations because the records would have shown he was away from home eighty to ninety percent of the time as a truck driver and could not have molested K.C. three to four times a week. Lubeek’s testimony at the habeas hearing did not necessarily support Steichen’s claim that he was away from home one to two weeks at a time. Lubeck testified that some trips could have been as long as two weeks, however, other trips might only have been overnight. Since the employment records were no longer available at the time of the habeas hearing, Steichen could not verify the exact dates of his trucking trips. However, Steichen’s trial counsel testified that he did review the records when they were produced at trial. He determined that the dates of Steichen’s trucking trips did not coincide with the dates of the alleged abuse. Consequently, the records would not have provided an alibi.

[¶27.] Trial counsel further testified that he made a strategic decision not to utilize Lubeck or the records because he felt that the evidence would hurt the case. Lubeck’s testimony and the trucking company records could have impeached Stei-chen’s testimony that he was gone eighty to ninety percent of the time. Trial counsel testified that “the records did not relate to the period of time that we were trying to overcome in front of the jury.”

[¶ 28.] Consequently, Steichen has not shown that failure to use Lubeck’s testimony or the trucking records rendered counsel’s performance deficient. Counsel’s explanation was reasonable under the circumstances and based on sound trial strategy. Further, Steichen did not demonstrate prejudice because neither Lubeck’s testimony nor the records provided an actual alibi for the dates of the alleged sexual abuse. Consequently, Steichen was not deprived, of his Sixth Amendment guarantee of effective assistance of counsel.

3. Whether Steichen’s sentences were unconstitutionally cruel and unusual.

[¶ 29.] Steichen argues that his sentences are the equivalent of life in prison without parole and are grossly disproportionate to the crimes committed. He claims that the sentences constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and Article VI, section 23 of the South Dakota Constitution. See U.S. Const, amend. VIII; U.S. Const, amend. XIV; S.D. Const, art. VI § 23. He asserts that a life sentence ruins the goal of rehabilitation. Steichen intended to introduce statistics regarding sentences imposed for similar offenses as part of the intra- and inter-jurisdictional analysis. Steichen argues on appeal that the habeas court’s refusal to permit the introduction of statistics for similar offenses was error.

.[¶ 30.] “It is well-settled that we employ very limited principles in our *394constitutional review of sentences. These principles include giving ‘substantial deference[ ] to the legislature’s broad authority to determine the types and limits of punishment’ and the notion that ‘the Eighth Amendment does not mandate adoption of any one penological theory.’ ” State v. Dubois, 2008 SD 15, ¶ 41, 746 N.W.2d 197, 210 (quoting State v. Garber, 2004 SD 2, ¶ 28, 674 N.W.2d 320, 327 (additional citations omitted)). For this reason, we seldom disturb sentences that are within the statutory maximum. Id. To review the proportionality of a sentence we consider the intra- and inter-jurisdictional analysis:

“[W]e first determine whether the sentence appears grossly disproportionate. To accomplish this, we consider the conduct involved, and any relevant past conduct, with utmost deference to the Legislature and the sentencing court.” If the sentence does not appear grossly disproportionate, no further review is necessary. If the sentence does appear grossly disproportionate, an intra- and inter-jurisdictional analysis shall be conducted. We also consider “the gravity of the offense and the harshness of the penalty;” and other relevant factors, such as the effect this type of offense has on society.

Id. (quoting State v. Williams, 2006 SD 11, ¶ 12, 710 N.W.2d 427, 432 (citations omitted)) (emphasis added).

[¶ 31.] We first consider whether Steichen’s sentence appears grossly disproportionate. In Steichen’s case, the circuit court considered Steichen’s conduct and past conduct during sentencing. Stei-chen was convicted of multiple instances of sexual abuse against minors. He threatened his victims with death if they told anyone of the incidents of sexual abuse. Further, the habeas court determined that:

[Steichen’s] presentence investigation and psychosexual evaluation did not show he was amenable to treatment or rehabilitation. In fact, it showed the contrary. It showed that the Petitioner lacked remorse for his actions and failed to accept responsibility. The jury verdict showed that this was not an isolated “first offense” since he was convicted of sexual offenses against each of the victims on multiple counts.

Steichen’s sentences were all within the statutory máximums. Thus, giving “utmost deference to the Legislature and sentencing court” and based on Steichen’s conduct and history, we find that Stei-chen’s sentences were not grossly disproportionate to his crimes. See Dubois, 2008 SD 15, ¶ 41, 746 N.W.2d at 210 (citations omitted). For this reason, we do not reach the intra- and inter-jurisdictional analysis.

[¶ 32.] We affirm on all issues.

[¶ 33.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER, Justices, concur.
[¶ 34.] SABERS, Retired Justice, concurs specially.

. The challenged jury instruction in Estelle, in relevant part, was as follows:

Evidence has been introduced for the purpose of showing that the Defendant committed acts similar to those constituting a crime other than that for which he is on trial. Such evidence, if believed, was not received, and may not be considered by you[,] to prove that he is a person of bad character or that he has a disposition to commit crimes. Such evidence was received and may be considered by you only for the limited purpose of determining if it tends to show three things:

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*3902. To establish the battered child syndrome, and

3. Also a clear connection between the other two offenses[s] and the one of which the Defendant is accused, so that it may be logically concluded that if the Defendant committed other offenses, he also committed the crime charged in this case.

For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider evidence for any other purpose.

Estelle v. McGuire, 502 U.S. 62, 67 n. 1, 112 S.Ct. 475, 479 n. 1, 116 L.Ed.2d 385 (1991).