State v. Overbey , 2010 S.D. LEXIS 118 ( 2010 )

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2010 S.D. 78IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
ROBERT P. OVERBEY, Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
MEADE COUNTY, SOUTH DAKOTA
* * * *
HONORABLE JEROME A. ECKRICH, III
Judge
* * * *
MARTY J. JACKLEY
Attorney General
ANDREW J. KNECHT
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
DAVID L. CLAGGETT
Spearfish, South Dakota Attorney for defendant
and appellant.
* * * *
CONSIDERED ON BRIEFS
ON AUGUST 24, 2010
OPINION FILED 10/06/10
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GILBERTSON, Chief Justice
[¶1.] Defendant appeals his convictions for Possession of a Controlled
Substance with Intent to Distribute, Possession of a Controlled Substance, and
Possession of Marijuana under claims of violation of the Fourth Amendment. He
also appeals the sufficiency of the evidence for the convictions. In addition,
Defendant challenges his conviction on the Failure to Appear charge based on his
contention that his underlying criminal convictions should be reversed. Finally,
Defendant alleges that his sentences were grossly disproportionate given his
character and the factual basis of the convictions, and that the trial court failed to
take into consideration mitigation evidence. We affirm.
FACTS
[¶2.] On August 5, 2007, at approximately 5:35 p.m., South Dakota
Highway Patrol Officer Larry Langenfeld conducted a traffic stop of a four-door,
diesel pickup pulling a fifth-wheel camper. The pickup displayed a Colorado
dealer’s plate on the back of the pickup, but failed to have a license plate on the
front, which Officer Langenfeld knew was required by Colorado statute. Officer
Langenfeld identified the driver as Jason Overbey (Jason) and the passenger as
Katherine Gaskins. Officer Langenfeld also noticed a strong odor of perfume or
cologne emanating from the interior of the pickup. After initiating the traffic stop,
Officer Langenfeld asked Jason to accompany him to his Highway Patrol cruiser.
[¶3.] Because Officer Langenfeld knew that perfume or cologne is sometimes
used to mask the odor of drugs and because Jason was overly nervous, fidgety, and
hesitated to make eye contact, Officer Langenfeld initiated a call for a K-9 unit.
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Officer Langenfeld told Jason he would issue a warning ticket but that Jason was
not yet free to leave until after the K-9 sniff was conducted. Thirteen minutes after
the stop was initiated, and eight minutes after Jason was placed in the cruiser,
Trooper Shane Severn arrived with his drug dog, Cas. Although not visible on the
arrest compact disc, Cas alerted to the presence of illegal drugs on the pickup’s
passenger side. Within three minutes the drug sniff was completed.
[¶4.] When the officers put their heads into the pickup to begin the search,
both smelled the odor of raw marijuana. The search of the pickup generated three
baggies of marijuana and a pipe. Jason told the officers that the marijuana
belonged to his brother. The officers then entered the fifth-wheel camper to conduct
a search. They discovered two individuals, Michelle Prytla and Robert P. Overbey
(Defendant), hiding under a bed in the trailer. Defendant appeared to be under the
influence of alcohol or another substance.
[¶5.] The officers conducted a warrantless search of the fifth-wheel camper
and told the occupants they did not need a warrant given what the officers had
discovered in the pickup. The search of the camper revealed a glass pipe inside a
jewelry box that was contained within a closed drawer. A digital scale was
discovered in a closed drawer beneath the one in which the pipe was found. In the
area where a bed was located, officers also found a piece of aluminum foil and a
baggie containing a powdery substance. Subsequent laboratory tests indicated that
methamphetamine residue was present on the pipe, scale, and aluminum foil, and
that the powdery substance in the baggie was methamphetamine (meth). Officers
removed a black metal lockbox from the wall of the trailer, which they opened with
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a crowbar after the key failed to work. Inside the lockbox officers found a bag
containing approximately one ounce of crystal methamphetamine. Subsequent
testing revealed a total of eleven grams of marijuana in the pickup and 45.77 grams
of meth in the camper.
[¶6.] The officers confronted the four individuals about the drugs. Each
denied knowledge of the meth. All four were arrested. The pickup was owned and
registered to Jason Overbey. Jason and Defendant jointly owned the camper.
[¶7.] Defendant was charged with the Unauthorized Possession of a
Controlled Substance with Intent to Distribute (meth) in violation of SDCL 22-42-2
and SDCL 32-12-52.3; Possession of a Controlled Substance (meth) in violation of
SDCL 22-42-5 and SDCL 32-12-52.3; and Possession of Marijuana – Less than Two
Ounces under SDCL 22-42-6. Defendant’s motion to suppress the evidence seized
from the pickup and the camper was denied by the trial court. Defendant was
found guilty by a jury.
[¶8.] On the date set for his sentencing hearing, Defendant claimed he
understood the hearing was in the afternoon rather than at 11:30 a.m. His son was
able to notify the trial court on his behalf and the trial court agreed to reschedule
the hearing for 2:30 in the afternoon in order for Defendant’s flight to arrive and
travel by car to the courthouse. However, after landing in Rapid City, Defendant
boarded a departing flight rather than appearing at the hearing that had been
rescheduled to accommodate his late arrival. Defendant was subsequently charged
with Failure to Appear under SDCL 23A-43-31(1). Defendant was a fugitive for
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over one year after failing to appear. Defendant eventually pleaded guilty to the
Failure to Appear charge.
[¶9.] Defendant was sentenced to ten years in the state penitentiary with
one year suspended on the Possession of a Controlled Substance with Intent to
Distribute conviction, a Class 4 felony with a maximum sentence of ten years in the
penitentiary. See SDCL 22-42-2; SDCL 22-6-1(7). Defendant received a sentence of
six years for the Possession of a Controlled Substance count, also a Class 4 felony
with a maximum sentence of ten years. See SDCL 22-6-1(7). Defendant was also
sentenced to two days in the Meade County jail on the Possession of Marijuana
conviction, a misdemeanor punishable by up to one year in county jail. SDCL 22-
42-6. Finally, Defendant was sentenced to two years in the penitentiary on the
Failure to Appear conviction, a Class 6 felony punishable by up to two years in the
penitentiary, to be served consecutively with the sentences on the drugs charges.
See SDCL 23A-43-31(1); SDCL 22-6-1(9).
[¶10.] Defendant appeals raising the following issues:
1. Whether the trial court erred when it denied Defendant’s motion to
suppress.
2. Whether there was sufficient evidence to support a conviction on
the Possession of a Controlled Substance and Possession of a
Controlled Substance with Intent to Distribute charges.
3. Whether Defendant’s Failure to Appear conviction should be
overturned.
4. Whether the sentence imposed constituted cruel and unusual
punishment.
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STANDARD OF REVIEW
[¶11.] “This Court reviews the denial of a motion to suppress alleging a
violation of a constitutionally protected right as a question of law by applying the de
novo standard.” State v. Ludemann, 2010 S.D. 9, ¶ 14, 778 N.W.2d 618, 622
(quoting State v. Madsen, 2009 S.D. 5, ¶ 11, 760 N.W.2d 370, 374). We review the
trial court’s findings of fact under the clearly erroneous standard and give no
deference to its conclusions of law. Id. (citing State v. Haar, 2009 S.D. 79, ¶ 12, 772
N.W.2d 157, 162). As this Court has often noted,
[t]his court’s function under the clearly erroneous standard is to
determine whether the decision of the lower court lacks the
support of substantial evidence, evolves from an erroneous view
of the applicable law or whether, considering the entire record,
we are left with a definite and firm conviction that a mistake
has been made. In making this determination, we review the
evidence in a light most favorable to the trial court’s decision.
In re H.L.S., 2009 S.D. 92, ¶ 11, 774 N.W.2d 803, 807-08 (quoting State v.
Baysinger, 470 N.W.2d 840, 843 (S.D. 1991) (internal citations omitted)).
[¶12.] We review the denial of a motion for judgment of acquittal as a
question of law under the de novo standard. State v. Packed, 2007 S.D. 75, ¶ 17,
736 N.W.2d 851, 856 (quoting State v. Disanto, 2004 S.D. 112, ¶ 14, 688 N.W.2d
201, 206). On appeal, the question before this Court is “whether the ‘evidence was
sufficient to sustain the convictions.’” State v. Adamson, 2007 S.D. 99, ¶ 17, 738
N.W.2d 919, 924 (quoting State v. Running Bird, 2002 S.D. 86, ¶ 19, 649 N.W.2d
609, 613). We consider the evidence in a light most favorable to the verdict and will
not set aside a guilty verdict on appeal “if the state’s evidence and all favorable
inferences that can be drawn therefrom support a rational theory of guilt. We do
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not resolve conflicts in the evidence, pass on the credibility of the witnesses,
determine the plausibility of an explanation, or weigh the evidence.” Id.[¶13.] We generally review a sentence within the statutory maximum under
the abuse of discretion standard of review. State v. Blair, 2006 S.D. 75, ¶ 20, 721
N.W.2d 55, 61-62 (citing State v. McKinney, 2005 S.D. 73, ¶ 10, 699 N.W.2d 471,
476). However, when a sentence is challenged on constitutional grounds as being
cruel and unusual, we apply the proportionality standard from State v. Bonner,
1998 S.D. 30, 577 N.W.2d 575. See State v. Piper, 2006 S.D. 1, ¶ 72, 709 N.W.2d
783, 810-11 (citing Bonner, 1998 S.D. 30, ¶17, 577 NW2d at 580).
ANALYSIS AND DECISION
[¶14.] 1. Whether the trial court erred when it denied Defendant’s
motion to suppress.
[¶15.] Defendant argues that the trial court erred when it denied his motion
to suppress evidence. He argues that under Arizona v. Gant, ___ U.S. ___, 129 S.Ct.
1710, 173 L.Ed.2d 485 (2009), the police violated the Fourth Amendment because
they searched the camper when it was not within Jason’s reach at the time of the
traffic stop. In the alternative, Defendant argues that the officer lacked probable
cause to believe the camper contained contraband because the drug dog did not
alert to the camper but only to the pickup. Defendant also argues that the initial
stop was illegal as it was no more than a curiosity stop. Finally, Defendant argues
that the search exceeded the scope of the stop. We first address Defendant’s
argument that the stop was a curiosity stop because this is the threshold issue.
[¶16.] The Fourth Amendment’s “prohibition against unreasonable searches
requires generally the issuance of a warrant by a neutral judicial officer based on
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probable cause prior to the execution of a search or seizure of a person.” In re
H.L.S., 2009 S.D. 92, ¶ 14, 774 N.W.2d at 808 (quoting State v. Mattson, 2005 S.D.
71, ¶ 29, 698 N.W.2d 538, 548). Exceptions to the warrant requirement include
investigative detentions where an officer has reasonable suspicion to believe
criminal activity “may be afoot.” State v. DeLaRosa, 2003 S.D. 18, ¶ 7, 657 N.W.2d
683, 686 (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889(1968)). With regard to a traffic stop, all that is required is that the officer have
“‘specific and articulable suspicion of a violation’ for a traffic stop to be permissible.”
Id. ¶ 8 (citing State v. Cuny, 534 N.W.2d 52, 53 (S.D. 1995)). The observation of a
minor violation is sufficient to justify stopping of a vehicle. Mattson, 2005 S.D. 71, ¶
30, 698 N.W.2d at 548 (quoting State v. Akuba, 2004 S.D. 94, ¶ 15, 686 N.W.2d 406,
413).
[¶17.] Officer Langenfeld pulled Jason over because his pickup did not have a
front license plate as required by Colorado Revised Statute Annotated 42-3-202(1).
This statute provides in part: “Number plates assigned to a self-propelled vehicle
other than a motorcycle or street rod vehicle shall be attached thereto, one in the
front and the other in the rear.” There is no dispute in the record that Officer
Langenfeld saw the missing front license plate and knew that Colorado statute
required its presence. Furthermore, SDCL 32-5-46 exempts out-of-state motorists
from displaying South Dakota issued license plates as required by SDCL 32-5-98, if
an out-of-state motorist has complied with the requirements of his or her home
state’s statutory scheme for motor vehicle license plates. In this case, Jason was
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not in compliance with the Colorado statute, and was thus not in compliance with
SDCL 32-5-98, which justified the traffic stop.
[¶18.] Defendant also argues that Officer Langenfeld had a pretextual reason
for stopping Jason. However, as this Court has previously noted, “even if an officer
has subjective reasons for stopping someone, ‘those subjective reasons are not
relevant.’” State v. Lockstedt, 2005 S.D. 47, ¶ 20, 695 N.W.2d 718, 723 (quoting
State v. Chavez, 2003 S.D. 93, ¶ 20, 668 N.W.2d 89, 96). “An objectively reasonable
stop will not be invalidated even if the stop was pretextual.” Id. Any pretextual
reason Officer Langenfeld may have had for the stop was irrelevant given that he
witnessed a legitimate violation of the Colorado statute that required a front and
rear license plate to be displayed on a vehicle registered in Colorado.
[¶19.] Defendant next argues that under Arizona v. Gant, the officers
illegally searched the camper after placing Jason in a patrol car. Defendant
contends that Gant precluded officers from conducting a search of the camper and
limited their search to the pickup. Defendant contends that the search was limited
because only the pickup’s interior was within Jason’s reach or could have contained
offense-related evidence after the drug dog alerted to the cab of the pickup and not
to the camper.
[¶20.] Defendant’s reliance on Gant is misplaced. Gant involved a search
incident to an arrest. See ___ U.S. at ___, 129 S.Ct. at 1714. In Gant, the defendant
was arrested for driving on a suspended license. Id. After the defendant was
handcuffed and placed in a patrol car, the officers searched the passenger
compartment of the defendant’s car. Id. The United States Supreme Court held
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that the search was illegal because the officers could not expect to find offense-
related evidence in the passenger compartment of the defendant’s car given the
offense for which the defendant was arrested. Id.[¶21.] Here, Defendant was not arrested prior to the search and the State did
not argue that the officers based their search on the search incident to an arrest
exception to the warrant requirement. As such, the rule in Gant is inapplicable to
the facts of this case. Instead, the State based its argument on the motor vehicle
exception to the warrant requirement and contended that the search of the pickup,
the containers therein, and the camper were constitutionally permissible once Cas,
the drug dog, alerted to the odor of drugs in the pickup’s cab.
[¶22.] Defendant’s next argument regarding the stop is that the search of the
camper was illegal because Cas only alerted to the pickup’s cab. Once probable
cause exists for the search of a vehicle, it enables a search of the entire vehicle.
United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572(1982). A tractor-trailer, or a camper hitched to a pickup, is one unit. United States
v. Ortega-Ramos, 56 F.3d 65 (Table), 1995 WL 314889, *3 (6th Cir. 1995); United
States v. Torres, 2005 WL 3546677, *7-8 (S.D. Ohio) (citing United States v. Ervin,
907 F.2d 1534, 1537-38 (5th Cir. 1990); Aviles v. Burgos, 783 F.2d 270, 276 (1st Cir.
1986)). A drug dog’s alert to the tractor of a tractor-trailer and not to the trailer is a
reliable indication that illegal narcotics are present in the tractor or trailer. Torres,
2005 WL 3546677 at *7-8 (citing Ortega-Ramos, 1995 WL 314889 at *3); United
States v. Dennis, 113 F.3d 1247 (Table), 1997 WL 282870, *2 (10th Cir. 1997)).
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[¶23.] Defendant’s argument that the drug dog alert to the pickup did not
permit a constitutional search of the camper fails. The fifth-wheel camper was
being towed by the pickup in the same fashion in which a semi-tractor tows a
trailer. The camper was a part of the pickup and subject to search as long as the
motor vehicle exception was satisfied as to any part of the pickup or camper.
[¶24.] Defendant’s final argument is that the detention exceeded the scope of
the stop because it went beyond the time required to conduct a computer check,
verify documents, examine vehicle equipment, and issue a citation. Without
indicating what Officer Langenfeld should or should not have done during the stop,
it is difficult to ascertain the essence of Defendant’s argument. Defendant appears
to be arguing that Officer Langenfeld should not have called for the drug dog
because it impermissibly extended the time it took to conduct the necessary steps
for the traffic stop. However, the trial court found that when Officer Langenfeld
told Jason that only a warning ticket would be issued, Langenfeld also told Jason he
would not be free to leave until after the drug dog conducted a sniff of the vehicle’s
exterior. At that exact moment, Trooper Severyn and Cas arrived and the drug
sniff was conducted immediately. Within three minutes the drug sniff was
completed and the law enforcement officers called dispatch to report that they
would be conducting a vehicle search.
[¶25.] As this Court has held before, “[w]e cannot accept the premise that
while the State’s interest in drug interdiction is compelling, a few seconds delay for
non-entry sniffing the exterior of a vehicle by a dog already on the scene is
constitutionally unreasonable.” DeLaRosa, 2003 S.D. 18, ¶ 11, 657 N.W.2d at 687.
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It was not unreasonable for Jason to wait less than three minutes while the drug
dog was walked around the vehicle after Jason was advised that he would not be
free to leave until after the drug dog sniff was conducted. The drug dog was at the
scene as the ticket was being issued, and Jason did not have to wait for a prolonged
period of time for the drug dog to arrive before the search was commenced. There
was no perceptible difference between the drug dog being on site while the ticket
was being written and then conducting the drug sniff, in comparison to the drug dog
arriving at the scene while Officer Langenfeld was finishing writing the ticket and
conducting the sniff immediately thereafter.
[¶26.] 2. Whether there was sufficient evidence to support a
conviction on the Possession of a Controlled Substance
and Possession of a Controlled Substance with Intent to
Distribute charges.
[¶27.] Defendant argues that the trial court erred when it denied his motion
for acquittal. His first argument is that the trial court erroneously denied two jury
instructions Defendant sought that collectively requested the trial court to instruct
the jury that ingestion of a controlled substance can be a lesser included offense of
the charge of Possession of a Controlled Substance and Possession of a Controlled
Substance with Intent to Distribute. Defendant also argues that there was
insufficient evidence or circumstantial evidence of the intent to sell element.
[¶28.] “The fact that the methamphetamine was not on defendant’s person
when found by the police does not negate a finding of possession.” State v. Deneui,
2009 S.D. 99, ¶ 69, 775 N.W.2d 221 (citing State v. Goodroad, 442 N.W.2d 246, 251
(S.D. 1989)). It is sufficient for a conviction of knowing possession for the defendant
to have control over the premises where the narcotics were found. Id. (citing
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Goodroad, 442 N.W.2d at 251). Possession, whether constructive or actual, need not
be exclusive to support a conviction for knowing possession. State v. Barry, 2004
S.D. 67, ¶ 9, 681 N.W.2d 89, 92-93 (citing Goodroad, 442 N.W.2d at 251).
[¶29.] In this case, among the evidence seized during the initial search of the
camper was a digital scale with a white powdery residue on it. That substance was
eventually determined to be methamphetamine. Defendant admitted to Officer
Langenfeld that the scale belonged to Defendant and that he had received it as a
gift from a friend. Officer Langenfeld also testified at trial that digital scales are
used to weigh illegal drugs for sale and not for personal use of drugs. In addition to
the scale, Officer Langenfeld found several bags of meth inside the camper.
According to his testimony, Officer Langenfeld made the arrest for possession with
intent to distribute (meth) based on the quantity of meth found during the search,
forty-eight to fifty-two grams; the digital scale; and the approximate street value of
meth of $100 to $120 per gram, which resulted in a total value between $4,800 and
$6,350 for the amount discovered in the camper. Based on this evidence, it was
reasonable for the jury to find that Defendant intended to distribute the meth
rather than use it for personal consumption.
[¶30.] 3. Whether Defendant’s Failure to Appear conviction
should be overturned.
[¶31.] Defendant argues that his conviction for the failure to appear charge
must be overturned in the event the underlying convictions are reversed. Because
we find that the convictions for Possession of a Controlled Substance and Possession
of a Controlled Substance with Intent to Distribute are not constitutionally
deficient, Defendant’s argument fails on this issue.
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[¶32.] 4. Whether the sentence imposed constituted cruel and
unusual punishment.
[¶33.] Defendant’s final issue on appeal is whether the sentences, as imposed
by the trial court, constitute cruel and unusual punishment in violation of the
Eighth Amendment. Defendant argues that the sentence he received was “excessive
and clearly disproportionate to the severity of the crime in light of the evidence used
at trial to obtain a conviction.” He further argues that his sentence exceeded the
minimum amount of incarceration needed to protect the public and provide for
rehabilitation, was not proportionate to the crimes for which he was convicted, and
that the trial court ignored mitigating factors. Mitigating factors, according to
Defendant, were the lack of evidence to show he had profited from the sale of drugs
in the past, his criminal record was “relatively clean,” he had a successful business,
he was generous, and he was supported by his family and friends.
[¶34.] The Bonner proportionality review requires this Court to: “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 these circumstances fail to
suggest gross disproportionality, our review ends.” Blair, 2006 S.D. 75, ¶ 21, 721
N.W.2d at 61 (quoting Piper, 2006 S.D. 1, ¶ 72, 709 N.W.2d at 810-11). “We also
compare ‘the sentence with the criminal acts defendant committed and the
consequences of those acts upon the victims and society.’” Id. (quoting Bonner, 1998
S.D. 30, ¶ 22, 577 N.W.2d at 581) (additional citations omitted). An intra and inter-
jurisdictional analysis is warranted only when the sentence appears grossly
disproportionate. Id. (citing Bonner, 1998 S.D. 30, ¶ 17, 577 N.W.2d at 580).
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[¶35.] It is also settled that a trial court’s sentencing discretion requires
understanding that “the Legislature in establishing a punishment range of zero to
[ten] years for [Possession of a Controlled Substance with Intent to Distribute]
intended the more serious commissions of this crime to deserve sentences at the
harsher end of the spectrum.” See id. ¶ 26, 721 N.W.2d at 63. The more severe
sentences are reserved for the most serious combinations of the crime and the
defendant’s background. Id. (quoting Bonner, 1998 S.D. 30, ¶ 25, 577 N.W.2d at
582).
[¶36.] The imposition of a proportionate sentence requires the trial court to
“acquire a thorough acquaintance with the character and history of the [defendant]
before it.” Id. ¶ 27 (quoting Bonner, 1998 S.D. 30, ¶ 19, 577 N.W.2d at 580). The
trial court has discretion to consider the following factors: “general moral character,
mentality, habits, social environment, tendencies, age, aversion or inclination to
commit crime, life, family, occupation, and previous criminal record[,]” as well as
the rehabilitative prospects of the defendant. Id. (quoting Bonner, 1998 S.D. 30, ¶
19, 577 N.W.2d at 580). The effect of the crime on the victims may also be
considered. Id. (citing State v. Rhines, 1996 S.D. 55, ¶¶ 130-134, 548 N.W.2d 415,
445-46) (additional citations omitted).
[¶37.] The trial court had before it the evidence admitted at trial as well as a
presentence investigation report. The trial court also had before it the evidence
concerning Defendant’s conviction for Failure to Appear and the factual basis for
that conviction. In imposing its sentence, the trial court focused on Defendant’s
failure to take responsibility for his actions for the drug charges during trial and his
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failed attempt to focus the blame on co-defendants, a strategy the jury did not
embrace. The trial court focused on Defendant’s failure to appear as ordered and
his subsequent attempts at the sentencing hearing to shift the blame onto others
involved in the case including his former attorney and the prosecutor. Based on
what the trial court perceived to be Defendant’s unwillingness to accept personal
responsibility for his crimes and the facts as found by the jury, it imposed nearly the
maximum sentence for the Possession of a Controlled Substance with Intent to
Distribute. The trial court imposed the maximum for the Failure to Appear
convictions. Based on this record, we do not find either sentence grossly
disproportionate given that Defendant was unwilling to accept personal
responsibility for his actions, which reduced his rehabilitative prospects.
[¶38.] The trial court did not err in admitting the evidence seized from the
camper, in denying Defendant’s motion for judgment of acquittal, in accepting
Defendant’s guilty plea to the Failure to Appear charge, or in imposing the
sentence. We affirm.
[¶39.] KONENKAMP, ZINTER, MEIERHENRY and SEVERSON, Justices,
concur.
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