State v. Larson , 1994 S.D. LEXIS 29 ( 1994 )

AMUNDSON, Justice

(concurring specially)-

The objection made to marijuana purchase evidence at time of trial did not address its admission being violative of SDCL 19-12-5. Nor does the record indicate any balancing of probative value versus the prejudicial effect of such testimony. Why? The simple answer is that it was not specifically objected to as bad acts evidence or for any other reason.^*

It is elementary that before this court will rule on an alleged error in the admission of evidence by the trial court, the trial court must first be given the opportunity to rule. State v. Butter, 484 N.W.2d 883 (S.D.1992); State v. Handy, 450 N.W.2d 434 (S.D.1990); State v. Mouttet, 372 N.W.2d 121 (S.D.1985). Therefore, I would hold that the bad acts or relevance issue regarding testimony of an attempt to purchase pot was not properly preserved for appeal and would not address it in this opinion. State v. Olson, 408 N.W.2d 748 (S.D.1987). I do certainly agree that, if addressed, the logic for its admission, as argued by the prosecution, is not only “razor-thin” but is fraught with pure speculation and conjecture.

I concur with all the other issues.

* The record reflects the following occurred:

THE COURT: We're in chambers out of the hearing of the jury.

[DEFENSE COUNSEL]: If it please the Court, this morning when testimony was elicted (sic) from Tammy Garcia, a motion was made at the bench with reference to the exclusion of any information concerning a conversation had with Stacy Larson as to why they were in Sioux Falls. And all of us counsel agreed that rather than interrupt the Court proceedings at that time, that that objection to that evidence would be preserved and that a timely motion would been (sic) made concerning the same. Are we all in agreement with that?

[ASSISTANT ATTORNEY GENERAL]: Yes.

[STATE’S ATTORNEY]: That’s correct.

[DEFENSE COUNSEL]: Thank you.

THE COURT: Motion will be denied as it was at the bench.