State v. Foote, Sr. , 2019 S.D. 32 ( 2019 )

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2019 S.D. 32IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
BEAU DEAN FOOTE, SR., Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
STANLEY COUNTY, SOUTH DAKOTA
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THE HONORABLE PATRICIA DEVANEY
Judge
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BRAD A. SCHREIBER
Pierre, South Dakota Attorney for defendant and
appellant.
MARTY J. JACKLEY
Attorney General
PAUL S. SWEDLUND
QUINCY R. KJERSTAD
Assistant Attorneys General
Pierre, South Dakota Attorneys for plaintiff and
appellee.
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CONSIDERED ON BRIEFS ON
APRIL 29, 2019
OPINION FILED 06/19/19
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WILBUR, Retired Justice
[¶1.] Beau Dean Foote Sr. was convicted of resisting arrest; he does not
dispute this conviction. He was also convicted of two counts of aggravated assault
against a law enforcement officer. For these convictions, he claims the evidence was
insufficient because, in his view, a Taser is not a dangerous weapon and he did not
attempt to use the Taser to cause serious bodily harm to either officer. We affirm.
Background
[¶2.] Parole Agent Mike Stolley and Stanley County Deputy Sheriff Greg
Swanson went to a residence in Fort Pierre to execute an arrest warrant for Foote.
Foote was on parole at the time, and Agent Stolley was his parole agent. Agent
Stolley knocked on the front door and announced his presence while Deputy
Swanson stood outside the back door. No one came to the front door, but Agent
Stolley heard a sound from inside suggesting that someone was moving. The front
door was unlocked, and Agent Stolley entered the residence and called for Foote. At
the same time, Deputy Swanson entered the residence through the back door and
began walking down a hallway toward the living room.
[¶3.] Once inside, Agent Stolley saw Foote lying face down on the floor of the
living room. Agent Stolley tried to handcuff him, but Foote jumped up and ran
down the hallway toward Deputy Swanson. Deputy Swanson pushed Foote onto the
couch, and in doing so, the deputy’s Taser fell out of its holster. Foote noticed the
Taser had fallen and reached for it at the same time as Deputy Swanson. A short
but intense struggle ensued while Deputy Swanson wrestled Foote to attempt to
gain control of the Taser. Foote held the pistol grip and pointed it at the deputy’s
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face. Deputy Swanson grabbed the barrel of the Taser and pushed it away from his
face. The probes deployed and lodged into the back of the couch. Deputy Swanson
became tangled up in the Taser wires and received an electrical shock. He
continued to receive electrical shocks as the Taser fired three more times. The
repeated electrical shocks caused Deputy Swanson to lose his partial grip of the
Taser.
[¶4.] With full control of the Taser, Foote focused his efforts on Agent
Stolley. He pushed the barrel against Agent Stolley’s chest and pulled the trigger.
Agent Stolley’s bulletproof vest prevented him from being stunned. Agent Stolley
drew his weapon and pointed it at Foote. Foote dropped the Taser and put his
hands behind his back. Although he initially seemed amenable to arrest, Foote
again resisted while handcuffed, kicking at the officers and trying to wriggle free.
After being placed in wrist and ankle restraints, with an attachment to his waist,
Foote was arrested and taken into custody.
[¶5.] Foote was charged with two counts of aggravated assault with a
dangerous weapon against a law enforcement officer, and in the alternative two
counts of simple assault against a law enforcement officer. Foote was also charged
with resisting arrest. The State filed a part II information alleging Foote to be a
habitual offender. Foote pleaded not guilty, and after a trial, the jury found Foote
guilty of two counts of aggravated assault against a law enforcement officer and
guilty of one count of resisting arrest. After Foote admitted to the part II
information, the court imposed sentence.
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[¶6.] Foote appeals, asserting the circuit court erred when it denied his
motion for a judgment of acquittal. He also challenges the sufficiency of the
evidence for both convictions of aggravated assault against a law enforcement
officer.
Analysis
[¶7.] Foote combines his arguments as to both issues because whether the
circuit court erred when it denied a judgment of acquittal and whether sufficient
evidence exists to support a verdict implicate the same standard of review. Both
questions require us to examine “whether there is evidence in the record which, if
believed by the fact finder, is sufficient to sustain a finding of guilt beyond a
reasonable doubt.” State v. Carter, 2009 S.D. 65, ¶ 44, 771 N.W.2d 329, 342. A
circuit court properly denies a motion for a judgment of acquittal if the State
produces evidence that—if believed by the jury—may reasonably support a guilty
verdict. State v. Abdo, 518 N.W.2d 223, 227 (S.D. 1994). Our review as to the
sufficiency of the evidence to sustain the convictions is de novo. State v. Jucht,
2012 S.D. 66, ¶ 18, 821 N.W.2d 629, 633. However, we do not resolve conflicts in
the evidence, “assess the credibility of witnesses, or reevaluate the weight of the
evidence.” Id.[¶8.] Foote was found guilty of two counts of aggravated assault against a
law enforcement officer in violation of SDCL 22-18-1.1 and SDCL 22-18-1.05.
Aggravated assault occurs when “[a]ny person . . . [a]ttempts to cause, or knowingly
causes, bodily injury to another with a dangerous weapon[.]” SDCL 22-18-1.1(2).
Foote claims the State presented insufficient evidence to prove he possessed a
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dangerous weapon. More specifically, he argues a Taser is not a dangerous weapon
because it was not calculated or designed to cause serious bodily injury or death and
it was not used in a manner that was likely to inflict death or serious bodily harm.
[¶9.] The Legislature has defined a dangerous weapon to be “any firearm,
stun gun, knife, or device, instrument, material, or substance, whether animate or
inanimate, which is calculated or designed to inflict death or serious bodily harm, or
by the manner in which it is used is likely to inflict death or serious bodily harm[.]”
SDCL 22-1-2(10) (emphasis added). From the language of the statute any stun gun
is, by definition, a dangerous weapon, and a Taser is a type of stun gun. See SDCL
22-1-2(50) (defining “Stun gun”). Therefore, contrary to Foote’s argument, we need
not determine whether a Taser is calculated or designed to cause serious bodily
injury or death or whether Foote used the Taser in a manner that was likely to
inflict death or serious bodily harm. The State presented sufficient evidence that
Foote used a dangerous weapon—a stun gun.
[¶10.] Foote, however, further contends that insufficient evidence exists to
establish beyond a reasonable doubt that he attempted to use the Taser to cause
bodily harm to Agent Stolley or Deputy Swanson. He contends there is no evidence
establishing his intent and neither Deputy Swanson nor Agent Stolley suffered
serious injuries. In his view, the evidence established he merely acted in an effort
to get away and avoid being arrested.
[¶11.] At trial, the State presented testimony from two witnesses regarding
whether a Taser can cause serious bodily harm in the manner used by Foote.
Jeffery Hill, an instructor on the “Taser platform” since 2010, explained that a
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person can receive an electrical shock by coming into contact with the wires after
the Taser deploys and can continue to receive an electrical shock if the trigger is
held continuously or depressed again. In regard to Deputy Swanson’s Taser, Hill
testified that it produced eighteen seconds of electrical shock after the probes
deployed into the couch. In Hill’s opinion, this type of continuous exposure to
conductive electronic weapons could cause cardiac arrest. He also opined that a
Taser deployed while pointed at someone’s face would “cause severe damage.”
[¶12.] Don McCrea is an instructor with the Division of Criminal
Investigation and is certified in the mechanics and use of a Taser. He testified that
Deputy Swanson’s Taser is a type of “stun gun” because “it is [a] conductive
electronic weapon. . . . It sets up a major neurological interface, . . . and people
cannot operate properly, and it sends their muscles into overload and spasms and
creates quite a bit of pain.” He explained that depending on how the weapon is
used, it can cause death. And according to McCrea, it “[m]ost certainly” can cause
serious bodily injury. He further opined that pointing the Taser at someone’s face
and pulling the trigger “would be considered deadly force[.]”
[¶13.] Agent Stolley and Deputy Swanson also testified. According to Deputy
Swanson, after Foote grabbed the Taser (although at the same time as the deputy),
he pointed the barrel at the deputy’s face. Deputy Swanson explained that Foote
held the Taser “three or four inches away from [his] face[.]” Although Deputy
Swanson grabbed the barrel and “pushed it toward the center of the couch,” he was
“in fear that [Foote] would figure out how to get the safety off and shoot [him] with
it.” Eventually the safety did deactivate and the Taser deployed causing Deputy
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Swanson to experience electrical shocks and become immobilized. He claimed that
Foote kept pulling the trigger, which caused him to continue to be immobilized. He
further claimed that once Foote obtained full control of the Taser, he pointed it at
Agent Stolley’s chest.
[¶14.] Agent Stolley similarly testified that once Foote had full control of the
Taser, he pointed it at the agent’s chest and “jabbed” him in the chest. Agent
Stolley could not experience an electrical shock because of his bulletproof vest;
however, Agent Stolley claimed he was not aware of that fact. He believed Foote
desired to stun him. Agent Stolley also testified that he had observed Foote point
the Taser at Deputy Swanson’s face, but that the deputy was able to bat it away
before it deployed.
[¶15.] From our review, the jury could have concluded Foote attempted to use
the Taser in a manner likely to inflict serious bodily harm upon the officers.
Because the State’s evidence and all favorable inferences drawn therefrom support
a rational theory of guilt, we affirm Foote’s convictions.
[¶16.] Affirmed.
[¶17.] GILBERTSON, Chief Justice, and KERN, JENSEN, and SALTER,
Justices, concur.
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