State v. Jucht ( 2012 )

#26074-r-GAS
2012 S.D. 66IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
KEVIN ROGER JUCHT, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
MCCOOK COUNTY, SOUTH DAKOTA
****
THE HONORABLE TIMOTHY W. BJORKMAN
Judge
****
MARTY J. JACKLEY
Attorney General
TIMOTHY J. BARNAUD
FRANK GEAGHAN
Assistant Attorneys General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
RONALD A. PARSONS, Jr., of
Johnson, Heidepriem &
Abdallah, LLP
Sioux Falls, South Dakota
and
DOUGLAS M. DAILEY of
Morgan Theeler, LLP
Mitchell, South Dakota Attorneys for defendant
and appellant.
****
ARGUED MARCH 20, 2012
OPINION FILED 09/19/12
#26074
SEVERSON, Justice
[¶1.] Following a jury trial, Kevin Roger Jucht was convicted of malicious
intimidation or harassment, first-degree burglary, disorderly conduct, and
commission of a felony while armed with a firearm. Jucht appeals, raising the
following issues: (1) whether the trial court abused its discretion in excluding
certain evidence from trial; (2) whether there was sufficient evidence to support
Jucht’s conviction for malicious intimidation or harassment; (3) whether there was
sufficient evidence to support Jucht’s conviction for first-degree burglary; and (4)
whether there was sufficient evidence to support Jucht’s conviction for commission
of a felony while armed with a firearm. We reverse and remand for further
proceedings.
BACKGROUND
[¶2.] Summer Neuman and her two daughters lived in a house in
Bridgewater, South Dakota. Neuman’s friend, Carrie Lape, and Carrie’s daughter
also lived in the house. Since Neuman moved into the house in June 2010, she has
had several visitors. Some of these visitors stayed with Neuman for extended
periods of time.
[¶3.] Robert Lee Anderson owns an office building across the street from
Neuman’s house. Anderson is a member of the Bridgewater City Council. Several
town residents complained to Anderson about men who were “marauding” around
the town. Anderson believed that the men the city residents were referring to
resided in Neuman’s house. According to Jucht, Anderson also suspected that the
-1-
#26074
individuals residing in Neuman’s house had stolen tires from Anderson and
committed other thefts in town.
[¶4.] On September 21, 2010, Anderson went to a local bar in Bridgewater
at around 8:30 or 9:00 p.m. After Anderson arrived at the bar, he began drinking
extensively. He spoke with several individuals about the complaints he received
from city residents.
[¶5.] Around 12:00 a.m., Jucht, an area farmer, arrived at the bar. Jucht
eventually sat down next to Anderson. Jucht and Anderson drank beer and
discussed the complaints Anderson received from city residents. Anderson soon
invited Jucht to his office building.
[¶6.] After the men arrived at the office building, Anderson, who was
extremely intoxicated, decided to go to Neuman’s house and confront the
individuals who were residing there. Because Anderson heard that the individuals
living in the house possessed firearms, Anderson retrieved a nine-millimeter pistol
from his gun cabinet and gave it to Jucht to hold for “protection.” Jucht put the
gun in the pocket of his bib overalls.
[¶7.] Around 1:45 a.m., Anderson and Jucht went across the street to
Neuman’s house. Anderson knocked on the screen door, pulled it open, and banged
on the inside door. After the inside door opened, Anderson walked about four feet
into the house. Jucht stepped one foot into the house briefly and then stepped back
outside the doorway.
[¶8.] At the time Anderson and Jucht entered the house, Neuman was
putting together a puzzle with one of her daughters in a room upstairs. Lape was
-2-
#26074
sleeping in the bedroom on the main floor. An acquaintance of Neuman’s, who she
knew only by the name “Dre,” was sleeping on the couch.
[¶9.] Neuman heard a loud pounding on the front door and ran downstairs.
Anderson then began yelling at Neuman, telling her that he “wanted her out of
town” because she was “scaring everybody.” Neuman then went to get Lape from
the bedroom. Neuman and Lape argued with Anderson and told the men to leave.
Anderson yelled obscenities at the women, telling them that he was on the city
council, and that he was going to see that they were removed from the town.
[¶10.] At that point, Dre woke up and looked toward the door. Anderson
pointed to Dre and, using a racially derogatory slur, yelled that he wanted Neuman
and Lape to leave with Dre. While Anderson was arguing with Neuman and Lape,
he broke the glass out of the screen door.
[¶11.] Neuman’s brother and his friend then pulled up to the house in a
white van. When they arrived, Jucht retreated to the middle of the street. From
the street, Jucht fired three shots in rapid succession. Testimony at trial was
inconsistent as to whether Jucht fired the shots into the air or whether he was
aiming at the white van. After the shots were fired, Anderson walked to the street
where Jucht was standing and took his pistol back from Jucht. Anderson’s wife,
who had been listening to a police scanner, came to the scene and took the men
home.
[¶12.] The State charged Anderson with (1) malicious intimidation or
harassment; (2) first-degree burglary; (3) intentional damage to property; and (4)
disorderly conduct. Anderson reached a plea agreement with the State and
-3-
#26074
pleaded guilty to malicious intimidation or harassment. The State dismissed the
other charges against Anderson and he received a suspended imposition of
sentence and two years of probation, provided that Anderson serve 90 days in the
McCook County Jail.
[¶13.] The State charged Jucht with (1) malicious intimidation or
harassment; (2) first-degree burglary; (3) intentional damage to property; (4)
disorderly conduct; and (5) commission of a felony while armed with a firearm.
Jucht pleaded not guilty to each of the charges.
[¶14.] The State made an oral motion in limine to preclude Jucht from
introducing evidence regarding Anderson’s suspicion that the individuals staying
in Neuman’s house had stolen tires from Anderson and committed other thefts in
town. The State also sought to preclude Jucht from introducing evidence that
Anderson received complaints from town residents concerning the activities of the
individuals Anderson believed were staying in Neuman’s house. The trial court
granted the motion.
[¶15.] After the State completed its direct examination of Anderson, the trial
court revisited the State’s motion in limine. It held that Jucht could elicit
testimony from Anderson concerning complaints he received from town residents.
However, the court barred the introduction of any evidence regarding Anderson’s
suspicion that the men staying in Neuman’s house had stolen tires from him and
committed other thefts in town.
[¶16.] At the close of the evidence, Jucht moved for judgment of acquittal on
all counts, which the trial court denied. The jury acquitted Jucht on Count 3,
-4-
#26074
intentional damage to property, but convicted him of all the remaining charges.
The trial court sentenced Jucht to suspended terms of two years and five years for
malicious intimidation or harassment and first-degree burglary, respectively.
Further, the trial court ordered Jucht to pay a fine of $200 plus court costs for
disorderly conduct. Finally, the trial court sentenced Jucht to the mandatory
minimum term of five years in the State Penitentiary for the commission of a
felony while armed with a firearm.
DISCUSSION
[¶17.] 1. Whether the trial court erred in denying Jucht’s
motion for judgment of acquittal.
[¶18.] Our de novo standard of review on a challenge to the sufficiency of the
evidence is well established. State v. Morse, 2008 S.D. 66, ¶ 10, 753 N.W.2d 915,
918. “There must be substantial evidence to support the conviction.” Id. (quoting
State v. Tofani, 2006 S.D. 63, ¶ 37, 719 N.W.2d 391, 401). “The inquiry does not
require an appellate court to ask itself whether it believes that the evidence at the
trial established guilt beyond a reasonable doubt.” Id. (internal quotation marks
omitted). Rather, “[t]he relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Lawrence v.
Weber, 2011 S.D. 19, ¶ 8, 797 N.W.2d 783, 785 (quoting Morse, 2008 S.D. 66, ¶ 10,
753 N.W.2d at 918). “Moreover, the jury is . . . the exclusive judge of the credibility
of the witnesses and the weight of the evidence.” State v. Johnson, 2009 S.D. 67, ¶
10, 771 N.W.2d 360, 365 (quoting State v. Mulligan, 2007 S.D. 67, ¶ 7, 736 N.W.2d
-5-
#26074
808, 813). Accordingly, this Court will not resolve conflicting evidence, assess the
credibility of witnesses, or reevaluate the weight of the evidence. Id.Malicious intimidation or harassment.
[¶19.] The jury convicted Jucht of malicious intimidation or harassment in
violation of SDCL 22-19B-1, which provides:
No person may maliciously and with the specific intent to
intimidate or harass any person or specific group of persons
because of that person’s or group of persons’ race, ethnicity,
religion, ancestry, or national origin:
...
(3) Damage or destroy any real or personal property of another
person . . . .
[¶20.] Jucht argues that his conviction of malicious intimidation or
harassment should be vacated because there was insufficient evidence at trial to
prove beyond a reasonable doubt that he damaged or destroyed personal property
with the “specific intent to intimidate or harass” the individuals in Neuman’s home
because of their “race, ethnicity, religion, ancestry, or national origin.” See SDCL
22-19B-1.
[¶21.] In response, the State notes that the trial court provided the jury with
an aiding and abetting instruction. The State argues that under SDCL 22-3-3,
South Dakota’s aiding and abetting statute, Jucht need not have possessed a
specific racist or discriminatory intent in order to be convicted of malicious
intimidation or harassment. Rather, the State argues that Jucht need only have
possessed knowledge of Anderson’s criminal intent for a jury to convict him as an
aider and abettor.
[¶22.] SDCL 22-3-3 provides: “Any person who, with the intent to promote or
facilitate the commission of a crime, aids, abets, or advises another person in
-6-
#26074
planning or committing the crime, is legally accountable, as a principal to the
crime.” “To be guilty of aiding and abetting, ‘the evidence must show the principal
offender committed all the elements of the underlying offense.’” Tofani, 2006 S.D.
63, ¶ 36, 719 N.W.2d at 400 (quoting State v. Shearer, 1996 S.D. 52, ¶ 29, 548
N.W.2d 792, 798). Jucht concedes that there was sufficient evidence for the jury to
find that Anderson, the principal, committed all the elements of malicious
intimidation or harassment. Nonetheless, Jucht argues that a person may not be
convicted under South Dakota’s aiding and abetting statute unless that person
possesses the mental state required for the commission of the underlying offense
committed by the principal. Jucht’s argument raises an issue of statutory
interpretation that this Court reviews under the de novo standard. State v.
Powers, 2008 S.D. 119, ¶ 7, 758 N.W.2d 918, 920 (quoting Rotenberger v.
Burghduff, 2007 S.D. 7, ¶ 8, 727 N.W.2d 291, 294).
[¶23.] SDCL 22-3-3 must be read in conjunction with SDCL 22-3-3.1, which
provides that the distinction between a principal and an aider and abettor has been
abrogated in felony cases:
The distinction between an accessory before the fact and a
principal, and between principals in the first and second degree,
in cases of felony, is abrogated. Any person connected with the
commission of a felony, whether that person directly commits
the act constituting the offense or aids and abets in its
commission, though not present, shall be prosecuted, tried, and
punished as a principal.
SDCL 22-3-3.1.
[¶24.] The abrogation of the distinction between a principal and an aider
and abettor is evident in other contexts as well. For example, “[i]t is settled law
-7-
#26074
that a conviction may be supported by proof that the defendant was either an aider
or abettor even though the charging instrument charged him as a principal.” State
v. Harris, 2010 S.D. 75, ¶ 22, 789 N.W.2d 303, 311 (quoting State v. Miller, 429
N.W.2d 26, 41 (S.D. 1988)). See SDCL 23A-6-6 (“No additional facts need be
alleged in an indictment or information against an accessory before the fact than
are required in an indictment against his principal.”). As we explained in State v.
Zemina, South Dakota statutes have
do[ne] away with the necessity, in the prosecution, of any
reference to a defendant as an accessory. A party who aids and
abets another in the commission of a criminal offense is himself
a principal in the commission of such offense and is to be tried
the same as though he were actually a principal . . . .
87 S.D. 291, 301, 206 N.W.2d 819, 824 (1973) (quoting State v. Bachelor, 67 S.D.
259, 266, 291 N.W. 738, 741 (1940)).
[¶25.] The abrogation of the distinction between a principal and an aider
and abettor in felony cases makes little practical sense unless the distinction
between the requisite mental states of an aider and abettor and a principal is also
abrogated. See Baruch Weiss, What Were They Thinking?: The Mental States of the
Aider and Abettor and the Causer Under Federal Law, 70 Fordham L. Rev. 1341,
1365 (2002). If the mental state required of the principal diverges from the mental
state required of the aider and abettor, then even when two defendants are
charged with the same offense, the State’s burden of proof would differ depending
on whether a defendant is treated as an aider and abettor or a principal. The jury
would first have to determine whether the defendant is an aider and abettor or a
principal before it could determine the applicable mental state. See id. Ultimately,
-8-
#26074
an aider and abettor could face criminal liability where a principal could not.
Grace E. Mueller, The Mens Rea of Accomplice Liability, 61 S. Cal. L. Rev. 2169,
2172-73 (1988) (stating that an aider and abettor “should possess the full mens rea
required of a perpetrator of the substantive offense” because “[i]f it were otherwise,
the judicial system would betray its dependence upon culpability by punishing
people who have neither mentally nor physically committed an offense to the same
extent as it punishes those who have”). See Sharma v. State, 56 P.3d 868, 872
(Nev. 2002) (“[I]n order for a person to be held accountable for the specific intent
crime of another under an aiding and abetting theory of principal liability, the
aider or abettor must have knowingly aided the other person with the intent that
the other person commit the charged crime.”); State v. Phillips, 46 P.3d 1048, 1056-
57 (Ariz. 2002) (holding that a defendant was not an accomplice to the crime of
premeditated murder because “the evidence did not show that he intended to
facilitate or aid in committing a murder”). Such a result would contradict the
express statutory requirement that an individual who aids and abets in the
commission of a crime “shall be prosecuted, tried, and punished as a principal.”
See SDCL 22-3-3.1.
[¶26.] We have stated that a statute “must be construed according to [its]
intent,” and the intent of a statute “must be determined from the statute as a
whole, as well as enactments relating to the same subject.” In re Estate of
Hamilton, 2012 S.D. 34, ¶ 7, 814 N.W.2d 141, 143 (quoting Martinmaas v.
Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d 600, 611). “Statutes are to be
construed to give effect to each statute and so as to have them exist in harmony.”
-9-
#26074
Rotenberger, 2007 S.D. 7, ¶ 8, 727 N.W.2d at 294 (quoting State v. $1,010 in Am.
Currency, 2006 S.D. 84, ¶ 8, 722 N.W.2d 92, 94). In order to give effect to SDCL
22-3-3.1, we hold that an aider and abettor must act with the mental culpability
required for the commission of the underlying crime committed by the principal.
[¶27.] The State notes that, in past cases, this Court has required the aider
and abettor to “knowingly” assist the principal in the commission of the crime. See
Tofani, 2006 S.D. 63, ¶ 46, 719 N.W.2d at 405 (holding there was sufficient
evidence to sustain a defendant’s conviction for aiding and abetting aggravated
assault and rape because “a rational trier of fact could reasonably infer that [the
defendant] knowingly assisted in the commission of these crimes”); State v. Brings
Plenty, 490 N.W.2d 261, 268 (S.D. 1992) (holding there was sufficient evidence to
sustain a defendant’s conviction for second-degree murder under South Dakota’s
aiding and abetting statute because the defendant “knowingly did something to
assist in the commission of [the] crime”). These cases typically involved general
intent crimes. See id. But to the extent there is any inconsistency in our prior
caselaw, 1 we now clarify that when the underlying criminal statute prescribes a
1. Some of our prior cases indicate that a defendant is criminally liable as an
aider and abettor for any offense that is a reasonably foreseeable
consequence of the defendant’s actions. See Graham v. State, 346 N.W.2d
433 (S.D. 1984) (upholding a defendant’s conviction for manslaughter in the
first degree under South Dakota’s aiding and abetting statute because the
defendant’s actions “set[ ] in motion a chain of events” that led to the death
of the victim, and the victim’s death “should have been within [the
defendant’s] contemplation when the motion was initiated”); Shearer, 1996
S.D. 52, 548 N.W.2d 792 (finding there was sufficient evidence to support the
defendant’s conviction for aiding and abetting the possession of
methamphetamine because the defendant introduced the principal to a drug
dealer so that the principal could purchase marijuana, and the defendant
(continued . . .)
- 10 -
#26074
particular mental state for the principal, a jury must find that a defendant
possessed the underlying mental state required of the principal in order to be
convicted under South Dakota’s aider and abettor statute. 2 This holding is
_______________________________
(. . . continued)
“reasonably should have contemplated that purchases of other drugs could
result”). This approach effectively holds a defendant who is charged as an
aider and abettor criminally liable as a principal, regardless of whether the
defendant shared the principal’s mental culpability, or whether the
defendant even had knowledge of the principal’s criminal intent. Because
this approach is in direct conflict with SDCL 22-3-3.1, we reject the
reasoning of these prior cases and hold that an aider and abettor must act
with the mental culpability required for the commission of the underlying
crime.
2. This Court has previously recognized that an aider and abettor must share
the intent of the principal in order to be criminally liable for premeditated
murder. For example, in Woods v. Solem, 405 N.W.2d 59 (S.D. 1987), we
considered whether a 14-year-old boy, Garcia, could be convicted of
premeditated murder as an aider and abettor under SDCL 22-3-3 and SDCL
22-3-3.1. We stated:
Under the settled law of this state, can this Court hold that
Garcia is liable to a prosecution for the identical offense charged
against the defendant on trial, namely, premeditated murder?
We think not. . . . We do not believe that Garcia knowingly,
voluntarily, and with a common intent—with the principal
offender—united in the commission of the crime of premeditated
murder.
Woods, 405 N.W.2d at 63. Similarly, in State v. Bradley, 431 N.W.2d 317(S.D. 1988), this Court upheld the trial court’s rejection of the defendant’s
proposed jury instruction on accomplice testimony. We explained that the
evidence did not support the defendant’s allegation that the testifying
witness was an accomplice to the defendant’s crime of premeditated murder:
As in Woods, the evidence does not indicate that [the witness]
“knowingly, voluntarily, and with a common intent—with the
principal offender—united in the commission of the crime of
premeditated murder.” No evidence suggests that he promoted,
facilitated, planned or participated in premeditated murder.
Nor is there evidence that he aided, abetted, or advised [the
defendant] in committing premeditated murder.
(continued . . .)
- 11 -
#26074
consistent with the holdings of the majority of jurisdictions that have addressed
this issue:
If the prosecution is relying on an aiding and abetting theory to
establish a defendant’s liability, a majority of jurisdictions have
concluded that the accomplice must share the criminal intent of
the principal. . . . Every federal Court of Appeals has adopted
the requirement that an accomplice be shown to have intended
that the principal succeed in committing the charged offense,
and the federal appellate courts have thus rejected, explicitly or
implicitly, a standard that would permit the conviction of an
accomplice without the requisite showing of intent. A majority
of state courts have also adopted this approach.
1 Wharton’s Criminal Evidence § 3:17 (15th ed. 2011) (citations omitted). See
Audrey Rogers, Accomplice Liability for Unintentional Crimes: Remaining Within
the Constraints of Intent, 31 Loy. L.A. L. Rev. 1351, 1356-57 (1998) (noting that, in
order for a jury to convict a defendant as an aider and abettor to an offense, “first,
the [aider and abettor] must have the intent to aid the principal in the commission
of the offense; and second, the [aider and abettor] must have the mens rea required
by the underlying offense”); Wayne R. LaFave, Accomplice Liability–Acts and
Mental State, 2 Subst. Crim. L. § 13.2(c) (2d ed. 2011) (“Although one might
conclude . . . that what the law does require is that the accomplice intend to aid or
encourage what he knows is criminal conduct by another, this is an overstatement.
The prevailing view is that the accomplice must also have the mental state
required for the crime of which he is to be convicted on an accomplice theory.”).
[¶28.] Importantly, Jucht does not argue the trial court erroneously
instructed the jury regarding the mental state required of an aider and abettor.
_______________________________
(. . . continued)
Bradley, 431 N.W.2d at 322 (quoting Woods, 405 N.W.2d at 63).
- 12 -
#26074
Jucht only argues that there was not a sufficient basis for the jury’s finding that
Jucht was guilty of malicious intimidation or harassment. We will restrict our
review of this case to the issue raised.
[¶29.] This Court has recognized that “[c]ircumstantial evidence is critically
important in [determining the intent of an aider and abettor] because a state of the
mind is rarely proved by direct evidence.” Tofani, 2006 S.D. 63, ¶ 45, 719 N.W.2d
at 404 (citations omitted). During the trial, Anderson testified that Jucht
approached him in the bar and asked, “[W]hat’s—what’s all this I hear about the
stuff that’s going on up the street in town[?]” Anderson testified that while he and
Jucht were discussing the individuals who were residing in Neuman’s house, Jucht
stated, “[I]t would be nice if somebody would run them out . . . it’s too bad that
somebody don’t run them out of town.”
[¶30.] Several witnesses testified that while Anderson was arguing with
Neuman and Lape, he broke the glass out of the screen door. 3 Anderson testified
that, while he was arguing with Neuman, he pointed to Dre, who was sitting on a
couch in the living room, and yelled, “Why don’t you n****** get—get the hell out
of town if this is the kind of shit you’re going to pull.” Neuman testified that
Anderson pointed to Dre and said, “We want you to leave with him, you n*****.”
According to both Anderson and Neuman, Jucht was standing directly behind
Anderson when these comments were made.
3. Neuman also testified that after the men left, she noticed the latch on the
screen door was broken.
- 13 -
#26074
[¶31.] The record also shows that Jucht brought Anderson’s pistol with him
to Neuman’s house. When the two men arrived, Anderson testified that Jucht
grabbed the handle of the door to Neuman’s house, “leaned up against it and—and
it opened.” But Neuman testified that “the door had came open, like, had been
kicked open.” Finally, after Neuman’s brother and his friend pulled up to the
house, Jucht walked to the middle of the street and fired three shots in rapid
succession.
[¶32.] Viewing the evidence in a light most favorable to the State, there was
a sufficient basis for the jury’s finding that Jucht was guilty of malicious
intimidation or harassment under South Dakota’s aiding and abetting statute. We
therefore hold the trial court did not err in denying Jucht’s motion for acquittal on
his conviction for malicious intimidation or harassment.
First-degree burglary
[¶33.] Jucht was convicted of first-degree burglary in violation of SDCL 22-
32-1(3). The statute states, in pertinent part:
Any person who enters or remains in an occupied structure, with
intent to commit any crime, unless the premises are, at the time,
open to the public or the person is licensed or privileged to enter
or remain, is guilty of first degree burglary if:
...
(3) The offense is committed in the nighttime.
SDCL 22-32-1.
[¶34.] Jucht concedes there was sufficient evidence from which a reasonable
jury could conclude that Jucht entered Neuman’s house at nighttime. However,
Jucht argues there was not sufficient evidence to support the jury’s finding that he
did so with the intent to commit the underlying crimes named in the indictment
- 14 -
#26074
and the jury instructions. Specifically, the jury was instructed that the State was
required to prove Jucht unlawfully entered the premises “with the intent to commit
the crimes of Malicious Intimidation or Harassment” or “Intentional Damage to
Property.”
[¶35.] Jucht argues that he lacked the specific intent to intimidate any
person on the basis of race or ethnicity, which is a necessary element of the crime
of malicious intimidation or harassment. However, we held above that there was
sufficient circumstantial evidence to support the jury’s finding that Jucht was
guilty of malicious intimidation or harassment under South Dakota’s aiding and
abetting statute. Further, we hold that there was sufficient circumstantial
evidence to support the jury’s finding that Jucht possessed the criminal intent
required under South Dakota’s malicious intimidation or harassment statute at the
time he unlawfully entered Neuman’s home. We find no merit to Jucht’s claim that
his conviction for malicious intimidation or harassment cannot serve as the
underlying predicate for Jucht’s first-degree burglary charge.
Commission of felony while armed with a firearm.
[¶36.] The State charged Jucht with the commission of a felony with a
firearm under SDCL 22-14-12. The statute provides:
Any person who commits or attempts to commit any felony while
armed with a firearm, including a machine gun or short
shotgun, is guilty of a Class 2 felony for the first conviction. A
second or subsequent conviction is a Class 1 felony. The
sentence imposed for a first conviction under this section shall
carry a minimum sentence of imprisonment in the state
penitentiary of five years. In case of a second or subsequent
conviction under this section such person shall be sentenced to a
minimum imprisonment of ten years in the penitentiary.
- 15 -
#26074
Any sentence imposed under this section shall be consecutive to
any other sentences imposed for a violation of the principal
felony. The court may not place on probation, suspend the
execution of the sentence, or suspend the imposition of the
sentence of any person convicted of a violation of this section.
SDCL 22-14-12.
[¶37.] Jucht was convicted of two felonies: malicious intimidation or
harassment and first-degree burglary. His other convicted count, disorderly
conduct, is a misdemeanor. Jucht argues that the two felony convictions are not
supported by the evidence and, therefore, the trial court erred in denying Jucht’s
motion for judgment of acquittal on the charge of commission of a felony while
armed with a firearm.
[¶38.] Above, we held that there was sufficient evidence in this case to
support the jury’s finding that Jucht was guilty of malicious intimidation or
harassment under South Dakota’s aiding and abetting statute. We also held that
there was sufficient circumstantial evidence to support Jucht’s conviction for first-
degree burglary. Thus, Jucht’s argument is without merit. The trial court did not
err in denying Jucht’s motion for judgment of acquittal on his conviction of
commission of a felony while armed with a firearm.
[¶39.] 2. Whether the trial court erred in excluding evidence
offered by Jucht.
[¶40.] The State made an oral motion in limine to preclude Jucht from
introducing evidence that Anderson suspected the individuals residing in
Neuman’s house had stolen tires from Anderson and committed other thefts in
town. The State also sought to preclude Jucht from introducing evidence that
Anderson received complaints from town residents about individuals who were
- 16 -
#26074
allegedly residing in Neuman’s house. In addressing the State’s motion, the trial
court expressed concern that the evidence would be used at trial to improperly
attack Neuman’s credibility as a witness. The trial court explained, “It’s one thing
to . . . allow some testimony so that the defendant can assert his defense, . . . but
it’s another thing to . . . use unproven allegations to attack collaterally the
credibility of another witness, in this case, Summer Neuman.” The trial court
granted the State’s motion, but noted that “the better time to resolve this issue . . .
is after the direct examination of Bobby Anderson.”
[¶41.] Following the State’s direct examination of Anderson, the trial court
revisited the State’s motion in limine. It held that Jucht could elicit testimony
from Anderson concerning complaints he received from town residents. The trial
court determined this was relevant evidence of Jucht and Anderson’s motive for
going to Neuman’s house. However, the court barred the introduction of any
evidence regarding rumors that Neuman or other individuals staying in her house
had committed thefts. The trial court concluded that, under SDCL 19-12-3 (Rule
403), the probative value of this evidence was substantially outweighed by the
danger of unfair prejudice.
[¶42.] Jucht argues the evidence regarding Anderson’s suspicion that
individuals staying in Neuman’s house were committing thefts in town was highly
relevant to show that Jucht and Anderson lacked the “specific intent to intimidate
or harass” the individuals in Neuman’s home “because of” their “race, ethnicity,
religion, ancestry, or national origin.” See SDCL 22-19B-1.
- 17 -
#26074
[¶43.] “We afford broad discretion to circuit courts in deciding whether to
admit or exclude evidence.” Ronan v. Sanford Health, 2012 S.D. 6, ¶ 8, 809 N.W.2d
834, 836 (quoting Kurtz v. Squires, 2008 S.D. 101, ¶ 3, 757 N.W.2d 407, 409). “A
trial court’s evidentiary ruling that limits cross-examination will be reversed only
when there is a clear abuse of discretion as well as a showing of prejudice to the
defendant.” State v. Bruce, 2011 S.D. 14, ¶ 17, 796 N.W.2d 397, 403 (citing State v.
Fasthorse, 2009 S.D. 106, ¶ 14, 776 N.W.2d 233, 238). “An abuse of discretion
refers to a discretion exercised to an end or purpose not justified by, and clearly
against reason and evidence.” Ronan, 2012 S.D. 6, ¶ 8, 809 N.W.2d at 836 (quoting
St. John v. Peterson, 2011 S.D. 58, ¶ 10, 804 N.W.2d 71, 74). “A misapplication of
the rules of evidence is by definition an abuse of discretion.” State v. Dillon, 2010
S.D. 72, ¶ 37, 788 N.W.2d 360, 371 (citing State v. Guthrie, 2001 S.D. 61, ¶ 30, 627
N.W.2d 401, 415).
[¶44.] The factual relevance of evidence is determined under SDCL 19-12-1
(Rule 401), which provides:
“Relevant evidence” means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.
[¶45.] Under SDCL 19-12-3 (Rule 403), relevant evidence may be excluded
“if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury . . . .” In this case, the
trial court concluded the probative value of evidence regarding Anderson’s
suspicion that individuals staying in Neuman’s house had stolen tires from him
and committed other thefts in town was substantially outweighed by the danger of
- 18 -
#26074
unfair prejudice. The trial court noted that if this evidence were admitted, it could
lead the jury to infer that Neuman and Lape, who both testified during the trial,
were involved in the alleged thefts.
[¶46.] While the trial court correctly noted that it would be improper for
Jucht to attack the credibility of Neuman and Lape with evidence of the reported
thefts, this was not the purpose for which Jucht sought to offer the evidence.
Rather, Jucht sought to offer the evidence to show that Jucht and Anderson lacked
the “specific intent to intimidate or harass” the individuals in Neuman’s home
“because of” their “race, ethnicity, religion, ancestry, or national origin.” See SDCL
22-19B-1. Because such specific intent is a necessary element of the crime of
malicious intimidation or harassment, the evidence Jucht sought to introduce was
a vital component of his defense. The probative value of this evidence was not
substantially outweighed by the risk of unfair prejudice. We therefore hold that
the trial court abused its discretion in precluding Jucht from eliciting testimony
from Anderson regarding his suspicion that individuals staying in Neuman’s house
had stolen tires from Anderson and committed other thefts.
[¶47.] We have stated that “[e]ven if a trial court’s evidentiary ruling is
erroneous, the error must be prejudicial in nature before we will overturn the
ruling.” State v. Fisher, 2011 S.D. 74, ¶ 32, 805 N.W.2d 571, 578 (citing State v.
Mattson, 2005 S.D. 71, ¶ 13, 698 N.W.2d 538, 544). “Error is prejudicial when, in
all probability . . . it produced some effect upon the final result and affected rights
of the party assigning it.” Id. (internal quotation marks omitted).
- 19 -
#26074
[¶48.] We have recognized that an accused must “be afforded a meaningful
opportunity to present a complete defense.” State v. Packed, 2007 S.D. 75, ¶ 27,
736 N.W.2d 851, 860 (quoting State v. Iron Necklace, 430 N.W.2d 66, 75 (S.D.
1988)). “Those denied the ability to respond to the prosecution’s case against them
are effectively deprived of a ‘fundamental constitutional right to a fair opportunity
to present a defense.’” Id. (quoting State v. Lamont, 2001 S.D. 92, ¶ 16, 631
N.W.2d 603, 608). Here, the trial court’s ruling excluded relevant evidence of Jucht
and Anderson’s intent. In all probability, the ruling affected the final result of the
trial and deprived Jucht of “a meaningful opportunity to present a complete
defense.” See id. Accordingly, we hold that the trial court committed a prejudicial
error by precluding Jucht from introducing evidence regarding Anderson’s
suspicion that the individuals staying in Neuman’s house stole tires from Anderson
and committed other thefts.
[¶49.] Reversed and remanded for a new trial.
[¶50.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and
WILBUR, Justices, concur.
- 20 -