State v. Fender ( 2001 )

MILLER, Chief Justice.

[¶ 1.] In this appeal, we affirm Michael Fender’s grand theft conviction, and hold that the evidence was sufficient to sustain the jury verdict, the State did not improperly withhold evidence and the giving of a flight instruction was not prejudicial error.

FACTS

[¶ 2.] On Monday, March 8, 1999, Fender was a manager of the Mount Rushmore Road Taco Bell in Rapid City, South Dakota. He testified that he arrived to open the store at 7:55 a.m. and began his morning routine of paperwork and readying the store for business. Part of the process involves accessing the safe to get money for the day’s operations. The safe, which consists of an inner and outer door, must be accessed by a precise procedure involving a ten-minute wait between the opening of the outer door and the opening of the inner door.

[¶ 3.] Fender later told law enforcement officers that he accessed the safe about 8:40 a.m. and found that the money deposits from the weekend were missing. He called Mary Parker, the manager who closed the night before, to inquire about the missing money. She had no knowledge and told him to call the security company. Before calling the security company, Fender called his district manager, Pam Hare, who was at a conference in Nashville, Tennessee. She also told Fender to call the security company, because they would know whose code was last used to enter and exit the building. Fender seemed surprised when he learned of these security precautions. Fender called the security company and then called the police. The police arrived and began investigating. Lisa Treadwell, the owner’s wife, and Parker also arrived to assist in the investigation.

[¶ 4.] The security company records indicate that Fender’s individual security code was used that morning to enter the store at 7:09 a.m. and to exit it at 7:22 a.m. Although this information was obtained the morning of the theft, Fender denied any involvement, continued working at that Taco Bell as a manager and was not initially the focus of the detective’s investigation. He even received a salary increase after the theft.

[¶ 5.] In April of 1999, the detective contacted Andrea Wessel, a former friend of Fender’s, who was on work release from the Pennington County Jail, to gain information about Fender. She had a conversation with Fender in which he told her he was planning to leave for North Carolina with his mother. He swore her to secrecy and indicated he was nervous because he believed the police were after him. She tape recorded the conversation and turned it over to the detective. Based on the tape, the detective obtained an arrest warrant for Fender. He was arrested in Custer, South Dakota while loading furniture to move to North Carolina.

[¶ 6.] The case was tried to a jury which returned a verdict finding Fender guilty of grand theft. He received a five year sentence with three years suspended on the condition he make restitution in the amount of $5,709.94.

DECISION

[¶ 7.] 1. The evidence supports the jury’s verdict.

[¶ 8.] When reviewing a challenge to the sufficiency of the evidence, the question this Court examines is “ ‘whether there is sufficient evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt....’” State v. Edelman, 1999 SD 52, ¶ 4, 593 N.W.2d 419, 421 (citations omitted). In this process, “ ‘we accept the evidence, and the most favorable inference fairly drawn therefrom, which will support the [jury’s] verdict.’ ” Id. To convict a defendant upon circumstantial evidence alone, the prosecution must show “ ‘such facts and circumstances as are consistent with each other and with [the] guilt of the party charged, and such as cannot by any reasonable theory be true and the party charged be innocent.’ ” State v. Esslinger, 357 N.W.2d 525, 530 (S.D.1984) (citations omitted). However, the evidence need not exclude all possible hypotheses of innocence, only reasonable hypotheses of innocence. State v. Robb, 303 N.W.2d 368, 371 (S.D.1981).

[¶ 9.] The jury heard evidence indicating that Fender’s individual security access code had been used to enter and leave the building early in the morning the day of the theft. They also heard evidence that although Fender alleged two others knew his access code, those individuals were not in town at the apparent time of the theft. Furthermore, the jury heard evidence of Fender’s strange behavior the morning of the incident and of his plan to leave town without notifying his employer. Sufficient evidence exists to support the jury’s verdict.

[¶ 10.] 2. Fender did not suffer a violation of due process.

[¶ 11.] The prosecution never disclosed the tape recorded statements Fender made to Wessel and the prosecutor never disclosed the alleged taped conversations Fender had on Taco Bell work phones. Fender argues that the prosecutor’s failure to disclose these tape-recorded statements constitutes a violation of his due process rights. He correctly points out that the Brady rule applies to situations where the prosecution suppresses exculpatory evidence to the detriment of the defendant. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963). We have noted on numerous occasions that the Brady rule only applies to situations where the defendant discovers after trial that the prosecutor had material evidence that was not disclosed during the trial. State v. Knecht, 1997 SD 53, ¶ 18, 563 N.W.2d 413, 420 (citing State v. Fox, 313 N.W.2d 38, 40 (S.D.1981); State v. Moves Camp, 286 N.W.2d 333, 339 (S.D.1979); State v. Sahlie, 277 N.W.2d 591, 596 (S.D.1979)).

[¶ 12.] Fender does not contend he learned of the alleged suppressed evidence after trial. In fact, he notes that he became aware of his tape-recorded statements during the trial. Accordingly, we need not reach the four-part test for determining if a due process violation occurred. See id. ¶¶ 17-18; Ashker v. Solem, 457 N.W.2d 473, 477-78 (S.D.1990).

[¶ IS.] SDCL 23A-13-15 specifically addresses the situation Fender describes. It provides:

ly prior to or during trial, a party discovers additional evidence or material previously requested or ordered, which is subject to discovery or inspection under §§ 23A-13-1 to 23A-13-14, inclusive, he shall promptly notify the other party or his attorney or the court of the existence of the additional evidence or material.

SDCL 23A-13-15 (emphasis added). This statute initially obligated the State’s Attorney to disclose the previously requested discovery materials. Additionally, during the trial, it obligated Fender to notify the trial court when he became aware of his tape-recorded statements, which had not been previously disclosed. The trial court then could have taken action pursuant to SDCL 23A-13-17, which provides:

If, at any time during the course of a proceeding, it is brought to the attention of a court that a party has failed to comply with an applicable discovery provision, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. The court may specify the time, place and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.

Since Fender did not take the appropriate action at the trial level, he did not preserve it for our consideration.

[¶ 14.] 3. Giving of flight instruction was not reversible error.

[¶ 15.] Fender contends that the trial court erred in giving a flight instruction in his case.¹ We have warned trial courts that the flight instruction “should be used sparingly and only when the special circumstances and evidence require.” State v. Menard, 424 N.W.2d 382, 384 (S.D.1988). A challenging party, however, must show prejudicial error to win a reversal on appeal. State v. Fast Horse, 490 N.W.2d 496, 500 (S.D.1992) (citation omitted). “The inquiry in this regard is whether, absent the alleged error, it is clear beyond a reasonable doubt the jury would have returned a guilty verdict.” Id.

[¶ 16.] The evidence disclosed that Fender told Wessel that he was worried the police were coming after him for the theft, that he would be moving to North Carolina soon and that she should not tell anyone he was leaving. Additionally, the detective testified to the conversation he had with Fender while transporting him to jail after his arrest. Fender admitted to the detective that he was leaving town for North Carolina and had not planned to inform his employer.

[¶ 17.] Based on this evidence, the giving of the flight instruction was not error.

[¶ 18.] Affirmed.

[¶ 19.] KONENKAMP and GILBERTSON, Justices, concur. [¶ 20.] SABERS and AMUNDSON, Justices, dissent.

1 . The flight instruction stated:

Flight by the defendant, after the events charged in the Information occurred, does not create a presumption of guilt. You may consider evidence of flight, however, as tending to prove the defendant’s consciousness of guilt. You are not required to do so. You should consider and weigh evidence of flight by the defendant in connection with all the other evidence ih the case and give it such weight as in your judgment it is fairly entitled to receive.