State v. Washington , 2024 S.D. 64 ( 2024 )

#30237-a-PJD
2024 S.D. 64IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
DANNY LAMAAR WASHINGTON, Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
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THE HONORABLE PATRICIA C. RIEPEL
Retired Judge
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LYNDSAY E. DEMATTEO
Sioux Falls, South Dakota Attorney for defendant
and appellant.
MARTY J. JACKLEY
Attorney General
JOHN M. STROHMAN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
****
CONSIDERED ON BRIEFS
FEBRUARY 13, 2024
OPINION FILED 10/23/24
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DEVANEY, Justice
[¶1.] A jury found Danny Washington guilty on all counts alleged in an
eight-count indictment, including first-degree kidnapping, injury to personal
property, and multiple counts of aggravated and simple assault. He appeals,
asserting his trial counsel was ineffective, there was insufficient evidence to support
the kidnapping conviction, and he was improperly convicted on two counts of
aggravated assault. He also argues that the circuit court’s written sentence does
not conform to its oral sentence. We affirm.
Factual and Procedural Background
[¶2.] J.B. and Washington were in a romantic relationship in October 2021.
At the time, Washington was living in his father’s home with his daughter, father,
and stepmother. J.B. was living in a different home with her six children and their
father, Bernard Vincent. Vincent and J.B. were no longer in a romantic
relationship, but they continued to live together for the children. Much of the
remaining evidence and testimony is disputed and is thus stated “in a light most
favorable to the jury’s verdict.” State v. Seidel, 2020 S.D. 73, ¶ 2, 953 N.W.2d 301,
305.
[¶3.] On October 25, 2021, J.B. drove to Washington’s house after he sent
her a text message asking to meet and talk. While parked in his driveway, they sat
inside her vehicle and had a conversation. Washington was upset and started
yelling at J.B., asking her why she does not “take him seriously” and if she thinks
“everything is a game.” He also accused her of cheating on him. J.B. testified that
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he then began choking her and slamming her head and face into the driver’s side
window.
[¶4.] At some point, Washington’s father called him to come inside the
house. According to J.B., Washington forced her to get out of the vehicle, and when
she did, he “came around to [her] side and he grabbed a handful of [her] hair in the
back of her head and forcibly took [her] up the driveway and up the stairs to the
front door.” Washington’s stepmother opened the front door and told them to argue
somewhere else. Washington told J.B. “to stay put,” but after he went inside, J.B.
ran back to her car and drove away.
[¶5.] J.B. testified that after she left, she did not call the police to report
what had happened because she “was more scared than anything[.]” She drove
directly to where she works as a caregiver at a residential facility for a company
that provides daily care to residents. Her usual shift is from 9:00 p.m. to 7:00 a.m.
[¶6.] After finishing her shift on the morning of October 26, J.B. exchanged
multiple text messages with Washington regarding Washington’s desire to meet
with her. These were admitted as evidence during the trial. In one message, J.B.
told Washington that she did not want anything to do with him, and in a reply, he
stated, “I am going to make you hate me.” She asked why and then told him to
“[j]ust peacefully move on.” She testified that she sent this text to try to end her
relationship with him. She later sent a text indicating she was going to work, and
thereafter, Washington sent her multiple messages that made her “feel
uncomfortable[,]” including: “I will make you lose your job tonight I swear to god”;
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“Answer”; “Okay here I come”; “Answer me”; “You think I’m fucking playing[.]” She
testified that she did not reply to these messages.
[¶7.] Later that day, when J.B. was at work, she heard Washington’s voice
through a monitor the facility uses for the residents. She could see him in the
hallway through a peephole in the door, and she heard him try to open the door to
the room in which she was located. The door was locked, and Washington started
knocking and asking J.B. to let him inside. She did not open the door and told him
that she had already asked him to leave her alone. J.B. used her phone to record
Washington’s actions through the door’s peephole, and the recording was entered
into evidence at trial.
[¶8.] It is undisputed that Washington eventually left the building and
walked into the parking lot. While there, he threw rocks at the back and driver’s
side windows of J.B.’s vehicle, shattering the windows. J.B. was unaware of the
damage to her vehicle until around midnight when she entered the parking lot. She
did not see Washington cause this damage, although she suspected he did. J.B.
called law enforcement to report the vandalism, and at approximately 1:00 a.m. on
October 27, 2021, an officer from the Sioux Falls Police Department responded. J.B.
told the officer she did not know who damaged her vehicle, but while testifying at
trial, she explained that she said this because she “was scared” and she did not
“want to tell on him.”
[¶9.] J.B. went back inside and resumed working. When she completed her
shift at approximately 7:00 a.m., it was raining, so she began placing towels in her
broken car windows. Because she could not drive her vehicle, she sent Vincent a
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text asking to borrow his vehicle. While she was waiting in the parking lot for
Vincent, Washington appeared in front of her vehicle out of nowhere. He told her to
get into his vehicle. She claimed that she tried to “talk him down, keep the
conversation calm[,]” but “eventually, [she] agreed to get into his car.” She then
sent Vincent a text stating, “Send help to my job[.]” She also called her coworker to
say she had keys the coworker would need for the shift and asked the coworker to
meet her at her car. At trial, J.B. explained that she did not really have keys her
coworker would need, but made the call thinking she could ask the coworker for
help. However, when the coworker arrived, Washington was standing in the
vicinity of J.B.’s vehicle and J.B. did not feel it was safe to ask for help, so she gave
the coworker her bag and told her to take it to the office.
[¶10.] After the exchange with the coworker, J.B. followed Washington back
to his vehicle and sat in his passenger seat because he told her to. As Washington
drove out of the parking lot, J.B. noticed that he had a black gun on his lap. He
began yelling at her about the same things he expressed during their argument on
October 25. She testified that she was afraid.
[¶11.] Vincent testified that he sent J.B. repeated texts after her request for
help, but she did not respond. He went to her place of work, and after seeing her
broken vehicle windows, he called 911. Eventually, Vincent was able to make
phone contact with J.B. He testified that he could hear “in her voice that she was in
danger; meaning, she was weeping, like crying.” Officer John McMahon was beside
Vincent during the call and testified that “she sounded like she was scared” and “as
though she was crying.” Officer McMahon’s body camera footage was played for the
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jury. It captured a female voice on the other end of Vincent’s call crying and stating
that she does not know where she is and that she could not talk.
[¶12.] Although J.B. testified that she did not recall speaking to Vincent on
the phone, she recalled speaking to her mother briefly as she and Washington were
leaving the parking lot. She claimed she told her mother about the broken windows
and that she had reported it to law enforcement. She did not say anything more to
her mother because Washington was rushing her to get off the phone. After she
hung up, he told her to turn off her phone, which she did.
[¶13.] J.B. testified that at multiple points while Washington was driving,
she considered jumping out of the vehicle but did not because she was worried no
one would be able to help her or that Washington would shoot her. At one point,
Washington stopped the vehicle on the side of the road in a residential area. He
told her he was going to kill her and then himself and that she should call her
children to tell them goodbye and that she loves them. She called her oldest son,
but he did not answer. She called two of her younger children, and after they
answered, she told them to have a good day at school and that she loved them.
[¶14.] After J.B. made these phone calls, Washington drove them to his
home. J.B. testified that Washington took backroads to get there rather than the
main streets. She also testified that while they were driving, he repeated that he
was going to shoot her and then himself and explained that he planned to do so
after he parked the vehicle in the garage. When they arrived at his home,
Washington drove the vehicle into the garage and closed the garage door. J.B.
testified that he then “clicked the gun,” and “at that point, [she was] just crying,
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begging him” to let her call her son. In response to her plea, he told her that she
now knows “what it feels like to beg because he had to beg for [her] to open the
door” at her work the night before.
[¶15.] Washington did not let J.B. call her son. Instead, he pointed the gun
to her head. She testified that she was crying and covering her face and that he
told her to “put [her] hands down because he wanted to see [her] when he shoots
[her].” She also testified that he was yelling at her because she was crying. She
eventually looked at him and saw that he was getting out of the car. She saw him
go to the front of the car and then reenter the vehicle without the gun. After this,
he opened the garage door and started backing the vehicle out.
[¶16.] As Washington was backing out of the garage, law enforcement
officers, who had arrived because of what they had learned since Vincent’s 911 call,
directed him to stop his vehicle. Officer John Wollman testified that he and Officer
Gleg Slaven first told J.B. to exit the vehicle and stand by the patrol vehicles.
Officer Wollman noticed she was nervous and had been crying. Officer Slaven
testified that he then pulled Washington out of the driver’s seat and placed him in
handcuffs. Officer Wollman questioned Washington about “what was going on.”
Washington told him that he had picked up J.B. from work and that they were
having an argument about their relationship. He claimed that she was crying and
upset because of this and because he thought she was cheating on him.
[¶17.] Meanwhile, Officer Slaven spoke with J.B. in his patrol vehicle. He
testified that “she was crying pretty hysterically” and would not give him much
information. He explained that “[i]t got to the point where all she would say is that
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she got in the car willingly” and that “she was not assaulted[.]” To Officer Slaven,
her behavior was not unusual in his experience when responding to domestic
violence calls. He testified that because her emotions did not fit with what she was
saying to him, he did not believe she was telling the truth.
[¶18.] At some point, Sergeant Aaron Nyberg arrived at the scene and joined
Officer Slaven in speaking with J.B. J.B. eventually provided details that prompted
the officers to arrest Washington for “[s]imple assault domestic intimidation.” After
the officers left the scene with Washington, J.B. began sharing more details about
what had occurred, including that Washington had a gun. She told Sergeant
Nyberg where the gun could be located in the garage. After obtaining permission
from Washington’s stepmother to search the garage, law enforcement found the gun
in a bag containing softballs in front of where the car would have been parked in the
garage. The gun had a bullet in the chamber.
[¶19.] On November 9, 2021, a grand jury indicted Washington on the
following charges: (1) first-degree kidnapping; (2) aggravated assault (deadly
weapon); (3) aggravated assault (physical menace); (4) possession of a firearm by a
felon; (5) injury to personal property; (6) aggravated assault (impede breathing or
circulation); (7) simple assault (attempt/has ability); and (8) simple assault
(physical menace). Counts 1 through 5 were alleged to have taken place on or about
October 27, 2021, and counts 6 through 8 on or about October 25, 2021. The State
also filed a part II information alleging Washington to be a habitual offender.
[¶20.] Washington pled not guilty. Prior to trial, he filed multiple pretrial
motions, including motions in limine to direct the State and its witnesses to refrain
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from referring to J.B. as a “victim” and from referencing his status on parole. 1
Washington also filed a motion for the circuit court to allow him to have a personal
copy of the discovery while he was incarcerated. The State objected, and the court
denied the motion after noting that Washington had access to all discovery through
his attorney and that there were risks associated with having unsecured police
reports and other discovery documents in the jail. The court granted Washington’s
motions to preclude references to his parole status and use of the word “victim.”
[¶21.] A jury trial began on March 28, 2022, during which J.B., Vincent,
Officers Wollman and Slaven, and Sergeant Nyberg provided testimony for the
State consistent with the above-described events. J.B. additionally testified about a
letter she had written to the circuit court on November 1, 2021, stating that
Washington did not physically harm her and requesting that all charges against
him be dropped. At trial, she testified that Washington pressured her to write this
letter.
[¶22.] During the testimony from the law enforcement officers, the State
offered the officers’ body camera footage from October 27, 2021, into evidence.
Washington did not object, and the footage was played for the jury. After the jury
watched the footage from Officer Wollman’s body camera, Washington moved for a
mistrial because during the video Officer Wollman can be heard saying he had not
called Washington’s parole officer yet. Defense counsel noted that he had “done his
best to make sure” he caught all references to Washington’s parole status when he
1. Washington committed the current offenses against J.B. after being released
on parole in September 2021 for a conviction of aggravated assault against a
previous girlfriend, C.B.
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reviewed the videos for redaction, but “missed one.” Nevertheless, he requested a
mistrial because the reference to Washington’s parole status violated the court’s
ruling on his motion in limine. The State agreed that the statement was missed by
both parties but argued the error was harmless. The court took the motion under
advisement.
[¶23.] Thereafter, the State called additional law enforcement officers,
including Detective Logan Eilers, who testified that between October 28 and
November 1, 2021, Washington, while incarcerated, attempted to contact J.B. 126
times by telephone, 25 times successfully. He also testified that Washington sent
J.B. many emails. According to Detective Eilers, the topic of conversation in the
phone calls concerned him because Washington repeatedly asked J.B. to recant the
statements she had made to the officers on October 27 and to not show up for the
grand jury proceeding.
[¶24.] Detective Eilers further testified about a letter J.B. had received prior
to the date of the grand jury proceeding. J.B. gave the letter to law enforcement
and reported that a man, acting on behalf of Washington, gave her the letter at a
gas station. The letter was entered into evidence at trial. In it, Washington
directed J.B. to call the State and say that she is not pressing charges. He then
wrote what she was to say “word for word,” including that he did not do the things
she said he did, that she was requesting contact with him, that her “emotions got
the best of [her,] and [that she was] sorry for wasting the court’s time.”
[¶25.] After Detective Eilers’s testimony, the State rested, and Washington
moved for a judgment of acquittal on “all counts, specifically as to Count II,
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aggravated assault,” which alleged aggravated assault by knowingly causing or
attempting to cause bodily injury with a deadly weapon. The circuit court denied
Washington’s motion. He then renewed his motion for a mistrial. In regard to
whether Washington was prejudiced by the jury hearing the reference to his parole
officer, defense counsel informed the court that Washington had told him “a couple
of jurors had reacted when they heard the word ‘parole officer’ on the video[.]” In
response, the State argued that the motion should be denied because Washington
failed to show actual prejudice from the mention of “parole officer.” The circuit
court denied the motion.
[¶26.] In his defense, Washington took the stand and acknowledged that he
and J.B. had gotten into an argument on October 25. However, he claimed it was
only a verbal argument. Washington also did not dispute that he was at J.B.’s place
of work on October 26 at approximately 11:00 p.m. and broke her vehicle windows.
However, in regard to what occurred after J.B.’s shift ended that next morning,
Washington testified that he did not force or threaten her to get into his vehicle. To
support this, defense counsel played the surveillance video from the parking lot
while Washington explained to the jury what was occurring on the video. During
his explanation, Washington repeatedly stated that there was no hostility exhibited
between them.
[¶27.] When asked about the drive to his home, Washington disputed that he
took backroads, that he stopped the vehicle for an extended time, or that he had a
firearm on his person or in the vehicle. He agreed that J.B. was crying while he was
driving, but he claimed it was “like a small cry” and not hysterical.
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[¶28.] During cross-examination, Washington admitted to sending J.B. text
messages but claimed that the exhibit showing the messages did not include
messages she had deleted. He further testified that he could not produce the
deleted texts because J.B. “took [his] phone from [his] father” after he was
incarcerated. Washington did not dispute that he wrote the letter asking J.B. to
forego testifying at the grand jury but claimed he made the request “[b]ecause this
is all a lie. This is all a charade. This is all a theatrical.” In response to the State’s
questions during cross-examination, Washington agreed that he had been convicted
of a crime of dishonesty in 2010 as well as felonies in 2012 and 2017. Defense
counsel did not ask any questions on re-direct, and after Washington’s testimony,
the defense rested.
[¶29.] The jury returned a guilty verdict on all counts. After trial,
Washington sent a pro se letter to the circuit court requesting new counsel. Defense
counsel thereafter filed a motion to withdraw. At a hearing in April 2022, the court
heard comments from Washington and defense counsel. Washington claimed that
counsel first communicated with him on December 3, 2021, met with him for only
twenty minutes on December 23, and did not stay long enough to give him a chance
to fully review the discovery. He further stated that he sent counsel 99 emails and
counsel sent only 23 to him. He claimed that counsel did not come to see him again
until March 22, the week before the trial, and only talked to him for 30 to 45
minutes. He thus argued that his attorney could not say “he really fought for [him]
or that he put his best foot forward for [him.]”
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[¶30.] Defense counsel agreed there had been a breakdown because of a loss
of trust. However, he disagreed with the suggestion that he only worked on
Washington’s case one week before trial. He noted that he was able to work on the
case without meeting with Washington because Washington had given him a sense
of direction for his defense after reviewing the discovery. Counsel did not dispute
the disproportionate number of emails sent by Washington compared to his
responses but claimed “that the numbers only tell part of the story.” Counsel
expressed concern with having Washington proceed to sentencing with new counsel
who is unfamiliar with the trial; however, he believed the benefits of appointing
new counsel outweighed the drawbacks. The circuit court granted the motion and
allowed trial counsel to withdraw.
[¶31.] On September 13, 2022, the circuit court held a change of plea hearing
during which Washington’s new counsel advised the court that a plea agreement
had been reached regarding the part II information filed in this current file, #21-
7754, and on the charges in four additional criminal files in Minnehaha County:
#21-7855 (witness tampering and seven counts of violating a protection order as to
J.B. from October 20 to November 1, 2021); #21-8213 (witness tampering and eight
counts of violating a condition of bond (no contact order as to J.B.) from November 1
to November 9, 2021); #22-1558 (one count of violating a protection order or no
contact order as to J.B. on March 3, 2022); and #22-5819 (ten felony counts of
violation of a protection order or no contact orders as to his prior victim, C.B., on
August 27 and 28, 2022). Washington agreed to plead guilty to count 1 in criminal
file #21-7855 (witness tampering) and admit to the part II information in the
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current file, #21-7754. In exchange, the State would dismiss the remaining charges
and part II information in criminal file #21-7885 and all charges in criminal files
#21-8213, #22-1558, and #22-5819. The circuit court accepted Washington’s guilty
plea and admission and ordered the completion of a presentence investigation
report.
[¶32.] On November 17, 2022, the same day set for sentencing, Washington
filed a motion for a new trial, arguing that he was denied a fair trial. The motion
alleged the following grounds: the State and its witnesses used the word “victim” at
trial; Officer Wollman referenced Washington’s parole status in the video; trial
counsel failed to tell Washington’s father that he could not be in the courtroom
during the testimony of other witnesses, thereby rendering his father incapable of
testifying; the circuit court conducted voir dire in chambers for certain jurors
without his presence; and trial counsel was ineffective. Washington attached to his
motion an affidavit from his father alleging that he had asked trial counsel to be a
witness and that his testimony was important because it related to the credibility of
J.B.’s trial testimony. His father further alleged that trial counsel “never told [him]
that [he] needed to remain outside the courtroom or be sequestered.”
[¶33.] The circuit court proceeded with the sentencing hearing on November
17 and advised the parties it would consider the motion for a new trial at a
subsequent hearing. After considering arguments from counsel and an allocution
from Washington, the court orally sentenced Washington, in file #21-7754, to 100
years on count 1 (kidnapping); 15 years on count 2 (aggravated assault with a
deadly weapon); five years on count 4 (possession of a firearm by a felon); five years
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on count 5 (injury to personal property); and one year in county jail for simple
assault. The court ordered these sentences to run concurrently with each other.
The court also imposed 15 years on count 6 (aggravated assault by impeding
breathing or circulation), to run consecutively to the sentences for the other counts.
The court did not impose sentences on the other counts in file #21-7754. All of the
sentences in #21-7754 were ordered to run consecutively to the sentences imposed
in two other criminal files (#17-999 and #16-8651) in which Washington had been
previously convicted of aggravated assault and witness tampering regarding C.B.
These were the two convictions for which Washington was on parole at the time he
committed the offenses against J.B.
[¶34.] Additionally, in file #21-7855 (witness tampering regarding J.B.), the
court imposed a fully suspended ten-year sentence, consecutive to the sentences in
file #21-7754 and to the sentences imposed in files #17-999 and #16-8651.
[¶35.] The circuit court held a hearing on Washington’s motion for a new trial
on December 1, 2022. After considering arguments from counsel, the court noted
that the crux of Washington’s motion was the alleged poor quality of his trial
counsel’s representation. To the court, however, nothing in the record showed, as
asserted by new counsel, that Washington was constructively denied the assistance
of counsel. The court also determined that Washington was not denied a fair trial.
The court denied the motion.
[¶36.] During this same hearing, the circuit court indicated its intent to
modify the sentence it had orally imposed on November 17, and it heard arguments
from both parties and statements from J.B. and Washington’s prior victim, C.B.
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Thereafter, the court orally modified its sentence for the kidnapping conviction. On
January 4, 2023, the court issued both a written “Judgment & Sentence” and a
written “Sentence Modification Order.” The judgment and sentence sets forth the
court’s sentences as orally stated at the November 17 hearing. The sentence
modification order states that “[t]he [c]ourt modified [Washington’s] sentence as to
[the kidnapping count] FROM – one hundred (100) years . . . TO – one hundred
(100) years . . . with . . . sixty (60) years suspended.” The order further provided
that “[a]ll other terms and conditions imposed on November 17, 2022 shall remain
in full force and effect.”
[¶37.] Washington appeals, asserting the following restated issues:
1. Whether trial counsel was ineffective.
2. Whether the circuit court erred in denying Washington’s
motion for a judgment of acquittal on the kidnapping
charge.
3. Whether Washington was denied a fair trial due to the
cumulative effect of alleged errors.
4. Whether the circuit court’s written sentence conforms to
its oral sentence.
5. Whether Washington was improperly convicted on
multiple counts of aggravated assault.
Analysis and Decision
1. Whether trial counsel was ineffective.
[¶38.] In support of his argument that trial counsel’s performance was
ineffective, Washington sets forth multiple inactions by trial counsel, including the
failure to:
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• “adequately consult or communicate with Washington
prior to the jury trial”;
• “investigate defenses”;
• sequester Washington’s father “resulting in that witness
not being able to testify on Washington’s behalf”;
• object to the admission of text messages from J.B.’s
phone;
• subpoena J.B.’s phone records;
• redact the “parole officer” statement from Officer
Wollman’s body camera footage;
• object when the State used the word “victim” in voir dire
and closing argument;
• advocate for Washington’s “request for a personal copy of
his discovery”;
• object when the State “allowed [Washington’s] character
and lifestyle to be dragged through the mud” on cross-
examination; and
• re-direct Washington to point out errors in the State’s
case.
According to Washington, trial counsel’s deficient performance in these respects fell
below an objective standard of reasonableness. He also argues that counsel’s
deficient performance prejudiced him because, in his view, but for the errors, there
is a reasonable probability that the result of the trial would have been different. 2
[¶39.] It is well settled that “[a]bsent exceptional circumstances, we will not
address an ineffective assistance claim on direct appeal.” State v. Dillon, 2001 S.D.
97, ¶ 28, 632 N.W.2d 37, 48. “The rule is a practical one, necessitated by the fact
2. Washington alternatively argues that he need not show prejudice because
“trial counsel’s dereliction of duty was so great as to result in a structural
error in that [Washington] was constructively denied counsel.” But
Washington was not denied counsel; rather, he challenges the adequacy of
trial counsel’s representation. As the United States Supreme Court has
explained, it is only “the complete deprivation of counsel,” Neder v. United
States, 527 U.S. 1, 9, 119 S. Ct. 1827, 1833, 144 L. Ed. 2d 35 (1999) (emphasis
added), or “a total deprivation of the right to counsel,” Johnson v. United
States, 520 U.S. 461, 469, 117 S. Ct. 1544, 1549, 137 L. Ed. 2d 718 (1997)
(emphasis added), that constitutes structural error.
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that ‘the record on direct appeal typically does not afford a basis to review the
performance of trial counsel.’” State v. Alvarez, 2022 S.D. 66, ¶ 34, 982 N.W.2d 12,
20 (quoting State v. Vortherms, 2020 S.D. 67, ¶ 30, 952 N.W.2d 113, 120).
Therefore, “[t]he preferred arena for an ineffective assistance of counsel claim is a
habeas corpus proceeding[,]” where “attorneys charged with ineffectiveness can
explain or defend their actions and strategies, and thus a more complete picture of
what occurred is available for review.” Dillon, 2001 S.D. 97, ¶ 28, 632 N.W.2d at 48.
It is “only when trial counsel was so ineffective and counsel’s representation so
casual as to represent a manifest usurpation of the defendant’s constitutional
rights” that this Court will depart from our general rule declining to address
ineffective assistance of counsel claims on direct appeal. State v. Arabie, 2003 S.D.
57, ¶ 20, 663 N.W.2d 250, 256 (cleaned up).
[¶40.] Here, Washington’s challenge to trial counsel’s performance illustrates
the reason for this Court’s preference that ineffective assistance of counsel claims be
addressed in a habeas corpus proceeding where a record can be developed to allow
this Court to adequately review counsel’s performance. For example, while
Washington contends he asked trial counsel to subpoena J.B.’s phone records and
counsel failed to do so, there is nothing in the current record establishing either
contention. Similarly, on this record, the Court cannot examine whether
Washington’s father was an intended witness or whether the only reason counsel
did not call him was because the sequestration order was violated. Likewise, any
inferences that could be drawn from trial counsel’s billing records without testimony
from counsel explaining how his time spent on these tasks prepared him for trial,
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are limited. Given this undeveloped record, and because a review of trial counsel’s
performance as a whole does not reveal exceptional circumstances or a manifest
usurpation of Washington’s rights, we decline to address Washington’s ineffective
assistance of counsel claim on direct appeal.
2. Whether the circuit court erred in denying
Washington’s motion for a judgment of acquittal on
the kidnapping charge.
[¶41.] Washington argues that the circuit court erred in denying his motion
for a judgment of acquittal when “[t]he facts presented at trial show without a
reasonable doubt that [J.B.] willingly entered Washington’s car and, thereafter,
made no move to leave the car, call for help, or request to be let out of the vehicle or
garage[.]” He is essentially asking this Court to reweigh the evidence and view it in
a light most unfavorable to the prosecution. But when reviewing de novo the denial
of a motion for judgment of acquittal, “we ask 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.” State v.
Peneaux, 2023 S.D. 15, ¶ 24, 988 N.W.2d 263, 269 (citation omitted). Further, “the
jury is the exclusive judge of the credibility of the witnesses and the weight of the
evidence[,]” and “this Court will not resolve conflicts in the evidence, pass on the
credibility of witnesses, or weigh the evidence.” Id. (first alteration in original)
(citation omitted).
[¶42.] Applying these rules of review here, we conclude that the evidence
supports the jury’s guilty verdict on the kidnapping charge. J.B. testified that she
was afraid of him, she entered his vehicle because he told her to, and she stayed in
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the vehicle because she was afraid of what he would do to her if she tried to leave.
Also, in finding that the elements of kidnapping had been met, the jury could have
considered the physical abuse Washington inflicted on her on October 25, his
threats thereafter, and his acts of coming to her place of work demanding she let
him inside and breaking her vehicle windows when she refused. The jury could
have further relied on J.B.’s testimony that she sent Vincent a text asking him to
send help and that Washington thwarted her plan to ask for help from her
coworker.
[¶43.] However, Washington also argues that he could not be convicted of
kidnapping because even if J.B. felt confined by the presence of the firearm, “the
evidence presented for kidnapping and presented for aggravated assault were
identical[,]” and thus, the confinement was incidental to the act of aggravated
assault. 3 On the contrary, in State v. St. Cloud, the Court determined that
“kidnapping cannot be considered incidental to another crime” where “the
3. Washington’s argument, though not stated in such terms, implicates what
this Court has called the “Curtis/Reiman test.” See State v. Reiman, 284
N.W.2d 860 (S.D. 1979) and State v. Curtis, 298 N.W.2d 807 (S.D. 1980).
Under that test, “kidnapping cannot occur if the acts of confinement in the
kidnapping are only incidental to another crime.” State v. Traversie, 2016
S.D. 19, ¶ 10, 877 N.W.2d 327, 331. This test has not been cited by the Court
since Traversie, and we note that it may be in tension with our well-settled
law that a defendant can be convicted of more than one crime when the
Legislature intends to impose multiple punishments for the same act. See
State v. Chavez, 2002 S.D. 84, ¶ 15, 649 N.W.2d 586, 593. In any event, it is
apparent that this Court has either stepped back from or narrowly applied
the Curtis/Reiman test. See, e.g., State v. Lykken, 484 N.W.2d 869, 876 (S.D.
1992) (noting that “the Curtis/Reiman doctrine is not meant to allow a rapist
a free kidnapping because he also commits a rape”); State v. St. Cloud, 465
N.W.2d 177, 181 (S.D. 1991) (declining to apply the doctrine, noting that
“most movement of rape victims by their attackers is designed to seclude the
victim from possible assistance and to prevent escape”).
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kidnapping consists of prolonged confinement or movement from one premises to
another[.]” 465 N.W.2d 177, 181 (S.D. 1991). Here, the record establishes that
Washington’s confinement of J.B. was prolonged and that he moved her a
substantial distance from her place of work to his home. See State v. Traversie,
2016 S.D. 19, ¶ 11, 877 N.W.2d 327, 331 (rejecting the defendant’s argument that
the kidnapping was merely incidental to the assault when the confinement “greatly
exceeded the period necessary to” commit the assaults). The record also establishes
that Washington’s confinement of J.B., including when he took less-populated
backroads to his home and closed the garage door to hide J.B. from view, increased
the risk of harm otherwise present. See State v. Reiman, 284 N.W.2d 860, 874 (S.D.
1979) (addressing whether alleged kidnapping was incidental to a rape by
considering whether the movement of the victim increased the risk of harm
otherwise present).
[¶44.] Additionally, the offense of kidnapping is not limited to an allegation of
confinement and the jury was also instructed, in accord with SDCL 22-19-1, that
first-degree kidnapping occurs when one unlawfully removes another a substantial
distance from the vicinity where the other was at the commencement of the
removal. In that regard, the evidence presented at trial supports that Washington
unlawfully removed J.B. a substantial distance from her place of work when he
drove her from the parking lot, through backroads, to his home. The circuit court
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properly denied Washington’s motion for judgment of acquittal on the kidnapping
charge. 4
3. Whether Washington was denied a fair trial due to
the cumulative effect of alleged errors.
[¶45.] Washington argues that the cumulative effect of errors occurring at
trial denied him his constitutional right to a fair trial. His first alleged error
reverts to his claim that his trial counsel’s performance was deficient, and for the
reasons stated above, we cannot address his ineffective assistance of counsel claim
on direct appeal. His other alleged errors include: (1) the State and its witnesses
collectively referring to J.B. as a “victim” six times; (2) the jury hearing the “parole
officer” statement from Officer Wollman’s body camera footage; (3) the circuit court
interrupting his testimony when he was answering the State’s questions; and (4)
the court conducting voir dire for some prospective jurors in chambers without him
being present.
[¶46.] Though we have not found the existence of cumulative error, we have
recognized that a series of unrelated errors could conceivably aggregate to a critical
tipping point of prejudice. State v. Wilson, 2020 S.D. 41, ¶ 34 n.16, 947 N.W.2d 131,
140 n.16. In this case, we are not convinced that the alleged errors Washington
identifies resulted in incremental, much less aggregated, error.
4. In his reply brief on appeal, Washington raises for the first time an argument
that the circuit court erred in denying his motion for judgment of acquittal on
count 2 (aggravated assault with a deadly weapon). Although this was the
count he specifically challenged below, it is well settled that a party may not
raise an issue for the first time in the reply brief when the opposing party on
appeal can no longer address it. Therefore, the issue is not properly before
this Court. In re S.A., 2023 S.D. 47, ¶ 17 n.4, 996 N.W.2d 66, 71 n.4; State v.
Roedder, 2019 S.D. 9, ¶ 24, 923 N.W.2d 537, 545.
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[¶47.] Here, while Washington is correct that error occurred when the State
and its witnesses violated the court’s in limine orders by using the word “victim”
and by the jury hearing Officer Wollman refer to Washington’s parole status,
Washington’s analysis of this issue fails to address how he was prejudiced by these,
or any of the other alleged errors, under our governing case law. Moreover,
Washington did not object below to at least some of the uses of the term “victim,” to
the court’s alleged interruptions, or to the alleged questioning of jurors in chambers
in his absence. 5 Thus, these unpreserved alleged trial errors could only be
considered under the more stringent plain error review. See State v. Guziak, 2021
S.D. 68, ¶ 10, 968 N.W.2d 196, 200 (providing that this Court reviews unpreserved
claims under plain error review).
[¶48.] As to the alleged errors, it is apparent from the context in which the
term “victim” was used at trial and the very damaging evidence against Washington
as a whole, that he has not shown a reasonable probability that but for this error,
the jury would have likely reached a different verdict. See id. ¶ 21, 968 N.W.2d at
202–03 (providing that to prevail on the third prong of plain error review, there
must be a “‘reasonable probability’ that, but for the error, the result of the
proceeding would have been different”). He also has not shown prejudice by the
jury hearing Officer Wollman refer to his parole officer on the body camera footage,
5. It appears from the trial transcript that Washington’s counsel may have
eventually objected to the use of the term “victim” during the State’s
examination of Detective Eilers because counsel asked to approach the bench
and there were no further uses of the term during Detective Eilers’s
testimony. However, there was no follow-up record made regarding the
discussion at the bench.
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given his own testimony that he had prior felony convictions. 6 And in regard to the
circuit court interrupting his testimony, Washington has not established error
because the alleged interruptions generally occurred when Washington strayed
from the question answered or when he provided a narrative. In such instances, the
court’s interruptions were within its authority under SDCL 19-19-611 to “exercise
reasonable control over the mode and order of examining witnesses . . . to . . . [a]void
wasting time[.]” See Blue v. Blue, 2018 S.D. 58, ¶ 22, 916 N.W.2d 131, 138
(concluding that the “court’s restriction in limiting narrative answers was a
perfectly reasonable control over the method of examining witnesses and presenting
evidence”). To the extent the jury may have looked unfavorably on his testimony,
this was a result of Washington’s own actions. Finally, although Washington
contends he was not present during the portion of voir dire that occurred in
chambers, the record is inadequate for this Court to review that claim. 7
[¶49.] Based on our review, we conclude Washington has failed to establish
he was denied a fair trial.
6. Also, the body camera reference to Washington’s parole status does not, itself,
reflect judicial error. The circuit court granted Washington’s motion to
exclude any evidence of parole. The reference to parole was the result of both
parties’ inadvertent failure to excise it from the footage.
7. Notably, when newly appointed defense counsel raised this issue during the
hearing on the motion for a new trial, the circuit court indicated it could not
recall whether Washington was present; however, the court stated that it is
the court’s “practice to [have] the lawyer, the defendant, the prosecutor, the
court reporter, [and] the clerk” present.
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4. Whether the circuit court’s written sentence
conforms to its oral sentence.
[¶50.] The parties dispute whether the terms of the circuit court’s written
order modifying Washington’s sentence control over a seemingly inconsistent
statement the court made during its oral pronouncement at the sentence
modification hearing. “It is well settled that the written sentence must conform to
the court’s oral pronouncement.” State v. Thayer, 2006 S.D. 40, ¶ 8, 713 N.W.2d
608, 612. “When there is a difference between the written and oral sentences, we
review the sentence ‘under the premise that the oral sentence controls.’” State v.
Cook, 2015 S.D. 46, ¶ 6, 865 N.W.2d 878, 880 (quoting Thayer, 2006 S.D. 40, ¶ 7,
713 N.W.2d at 611). However, “if the oral sentence is ambiguous, the written
judgment may be relied upon to clarify the ambiguity.” State v. Munk, 453 N.W.2d
124, 125 (S.D. 1990).
[¶51.] To determine whether the written sentence conforms to the oral
sentence and whether there is ambiguity in the court’s oral sentence, it is important
to note that Washington’s sentence in the file at issue (#21-7754) references three
other criminal files—file #21-7855 in which he pled guilty to witness tampering
related to J.B., and files #16-8651 and #17-0999 in which he had been previously
sentenced for crimes associated with a different victim, C.B.
[¶52.] In regard to the circuit court’s oral sentence in criminal file #21-7754,
the court imposed a 100-year sentence on the first-degree kidnapping conviction
with credit for 386 days served and no time suspended. Also within criminal file
#21-7754, the court imposed concurrent sentences on other counts and a 15-year
consecutive sentence on the October 25 aggravated assault conviction. In the
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separate witness tampering file related to J.B., #21-7855, the court imposed a fully
suspended ten-year sentence and ran it consecutive to the sentences in file #21-
7754. The court ordered all sentences imposed in files #21-7754 and #21-7855
pertaining to crimes against J.B. to run consecutively to the sentences in files #16-
8651 and #17-999 pertaining to crimes against C.B. 8 The court later entered a
written judgment and sentence containing these sentencing terms.
[¶53.] However, at the sentence modification hearing, the circuit court orally
stated as follows:
With regards to file number, um, 21-7754 the court imposed 100
years in that case. The court will suspend 60. 40 years
concurrent with the [C.B.] case, however, the other count in that
case that will, that the court previously sentenced him on that
will be concurrent.
The third - - the second case dealing with tampering that
sentence remains and that will be consecutive.
(Emphasis added.) Relying on this emphasized language, Washington argues that
the court orally modified the kidnapping sentence in two ways: (1) by suspending 60
years and (2) by ordering it to run concurrently with the sentence in #16-8651 (one
of the criminal files concerning C.B.). He then notes that the written sentence
modification order does not contain a provision reflecting the second sentence
modification. Therefore, Washington argues that remand is necessary for the court
to enter a written sentence conforming to its oral pronouncement.
8. In criminal file #16-8651, a different circuit court judge imposed a 15-year
sentence with five years suspended, and in file #17-999, that same judge
imposed a ten-year sentence, fully suspended, and ordered that it be
consecutive to the sentence in #16-8651.
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[¶54.] The circuit court’s reference to “40 years concurrent with the [C.B.]
case,” when read in isolation, suggests the court modified Washington’s kidnapping
sentence to run concurrently with his sentence in a case involving C.B. However, it
is not clear that the court intended such a modification, when the phrase is
considered in light of the court’s subsequent statements at the modification hearing
and its prior oral sentence on November 17. See State v. Cady, 422 N.W.2d 828, 832
(S.D. 1988) (determining whether the oral sentence was ambiguous by examining
the circuit court’s statements at both the original and subsequent sentencing
hearings); State v. Sieler, 1996 S.D. 114, ¶ 12, 554 N.W.2d 477, 481.
[¶55.] For example, after stating that the kidnapping sentence will be
“concurrent to the [C.B.] case,” the court used the word “however,” cueing that a
different directive would be stated next. Yet, the court again used the word
“concurrent” in its statement following “however,” when stating how the kidnapping
sentence will run in relation to other counts in “that case.” When these initial
statements by the court are compared to its original sentence ordering the
kidnapping conviction to run concurrently with other sentences in the kidnapping
file but consecutively to both files involving C.B., a reasonable inference is that the
court misspoke and was, instead, attempting to restate the remainder of its original
sentencing terms.
[¶56.] As further indications that the circuit court may have misspoken, we
note the court’s statements thereafter which, instead of clarifying the court’s intent,
contain what appear to be additional misstatements or inaccuracies. First, the
court referred to “the other count in that case being concurrent”; yet there were
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actually multiple other counts in the kidnapping case on which concurrent
sentences were imposed and one single count with a consecutive sentence. 9
(Emphasis added.) Then, later in the modification hearing, the court referred to the
ten-year consecutive sentence on the witness tampering charge and appears to have
added that to the 40 years of time imposed on the kidnapping conviction (as
modified) when referring to the 50 years on which Washington’s parole would be
calculated. In response, the State asked for a clarification on whether the court was
also modifying the ten-year sentence that it had previously fully suspended. The
State also reminded the court that there were sentences on counts within the
“original case” (referring to the kidnapping case) that were consecutive.
[¶57.] When posed with these questions, the circuit court asked for a bench
conference, presumably in an effort to clear up the confusion. But after going back
on the record, the court (inconsistently) referred to only 40 years being suspended
on the kidnapping count, rather than 60 as previously stated. 10 The court then
referred to a “second set of cases with the agg assault and simple assault” when
9. Washington’s claim that the circuit court modified the kidnapping sentence to
run concurrent to only one of the two files relating to C.B. (#16-8651)
suggests he may be interpreting the court’s statement regarding “the other
count in that case” to be a reference to the other case file relating to C.B.
(#17-999) being concurrent. However, given that the court also used the
phrase “that case” in the proceeding sentence when referring to the
kidnapping case regarding J.B., it is plausible that the court’s subsequent
reference to “that case” was in regard to another count in the kidnapping file.
The lack of clarity as it pertains to the second reference to “that case” further
illustrates how the court’s oral sentence is ambiguous.
10. Notably, when arguing that the oral modification controls over the written
modification order, Washington is not asking this Court to apply the court’s
oral statement made after the bench conference in which the court suspended
only 40 years, rather than 60, of the 100-year kidnapping sentence.
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those were, in fact, from the same case file containing the kidnapping conviction.
As the State aptly notes on appeal, a review of this transcript as a whole reveals the
court was “confus[ed] regarding the interaction of the various criminal files and the
modification being made.” See State v. Holsing, 2007 S.D. 72, ¶ 12, 736 N.W.2d 883,
885 (noting that “[a]n oral sentence is ambiguous if ‘the extent of the sentence
cannot be ascertained from the language used’” (citation omitted)).
[¶58.] While the circuit court attempted to clarify, at the conclusion of the
sentence modification hearing, that the only sentence being modified was “the
kidnapping case[,]” the court’s pronouncement in totality, including the court’s
initial statement, was ambiguous. Therefore, this Court can use the circuit court’s
written sentence to clarify the ambiguity. See Cady, 422 N.W.2d at 832 (concluding
that the written sentence clarifies the ambiguous oral pronouncement). In
unambiguous terms, the written modification order provides that the court modified
only the 100-year kidnapping sentence by suspending 60 of those years. Contrary
to Washington’s claim, the court did not modify the kidnapping sentence to run
concurrently with the sentence in file #16-8651. As such, it is unnecessary to
remand for the court to issue an amended written sentence.
5. Whether Washington was improperly convicted on
multiple counts of aggravated assault.
[¶59.] Washington argues that the circuit court improperly entered
convictions on both count 2 (aggravated assault with a deadly weapon) and count 3
(aggravated assault by physical menace) when these two counts arose out of the
same factual incidents. He acknowledges that the court only imposed one sentence,
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on count 2, but he maintains that imposing convictions on both aggravated assault
counts violated his constitutional right to be free from double jeopardy. 11
[¶60.] As it pertains to Washington’s conduct on October 27, 2021, he was
indicted on two counts of aggravated assault in violation of SDCL 22-18-1.1: one
under subsection (2) alleging he attempted to cause, or knowingly caused, bodily
injury to J.B. with a dangerous weapon; and the second under subsection (5)
alleging he attempted by physical menace with a deadly weapon to put J.B. in fear
of imminent serious bodily harm. The jury found Washington guilty on both counts.
At the November 17 sentencing hearing, the court asked the parties whether there
was any objection to sentencing Washington on count 2 (aggravated assault with a
deadly weapon). Neither party objected, and the court imposed a 15-year sentence,
stating that it is “obviously one act[.]” 12 In its written judgment and sentence, the
court identified all of the counts on which the jury found Washington guilty,
including counts 2 and 3. However, under the portion of the judgment relating the
sentence, the court stated that as to count 3, it “did not imposed [sic] or suspended
[sic] any incarceration time.”
11. Washington’s reply brief alleges the circuit court imposed sentences on both
counts 2 and 3, albeit concurrently. While there is language near the end of
the written judgment and sentence stating that “the sentences in Counts 1, 2,
3, 4, 5, 7 and 8 shall run concurrently to each other,” it appears the court
mistakenly included count 3 in this sentence provision because in an earlier
paragraph relating specifically to count 3, the court did not impose or
suspend any incarceration on this count.
12. On appeal, the State asserts that Washington’s convictions on counts 2 and 3
were based on separate acts; however, the State did not object below to the
circuit court’s statement to the contrary.
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[¶61.] The Double Jeopardy Clause protects “criminal defendants from both
multiple prosecutions and multiple punishments for the same criminal offense if the
Legislature did not intend to authorize multiple punishments in the same
prosecution.” State v. Manning, 2023 S.D. 7, ¶ 34, 985 N.W.2d 743, 754 (citing State
v. Bausch, 2017 S.D. 1, ¶ 26, 889 N.W.2d 404, 412). There is no question here that
the State could prosecute Washington on multiple counts of aggravated assault
even though both counts arose out of the same factual incidents. As this Court
stated in State v. Baker, “It is permissible under [SDCL 23A-6-23] to charge in
separate counts the commission of the same offense in different ways in order to
meet the evidence which may be adduced[.]” 440 N.W.2d 284, 293 (S.D. 1989); see
also Manning, 2023 S.D. 7, ¶ 36, 985 N.W.2d at 755 (providing that the charges at
issue were not required to be charged in the alternative and noting that “[t]he State
is not required to pick between two viable theories that are supported by the
evidence”).
[¶62.] However, because SDCL 22-18-1.1 “describes one violation that may be
established in four different ways[,]” when the charges arise out of the same alleged
conduct and result in multiple guilty verdicts, “only one offense” is committed and
to punish a defendant twice violates double jeopardy. Baker, 440 N.W.2d at 293; see
also State v. Chavez, 2002 S.D. 84, ¶ 16, 649 N.W.2d 586, 593 (noting that it is not
“permissible to punish a defendant more than once for one offense in violation of a
single statute”). Thus, we must decide in this appeal whether the imposition of
multiple convictions, but only one sentence, violates the prohibition against
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multiple punishments contrary to the Double Jeopardy Clause. In regard to that
question, this Court’s past cases do not provide a clear answer.
[¶63.] On the one hand, it appears the Court has upheld the imposition of
multiple convictions so long as there is only one sentence. See Baker, 440 N.W.2d at
293 (reversing multiple sentences but deeming it unnecessary to vacate the
multiple convictions of aggravated assault); State v. Morato, 2000 S.D. 149, ¶ 27,
619 N.W.2d 655, 663 (referring only to multiple sentences when directing a
remand); see also State v. Wright, 2009 S.D. 51, ¶¶ 67–68 n.14, 768 N.W.2d 512,
533–34 n.14 (declining to address whether convictions for kidnapping and felony
murder violated the Double Jeopardy Clause, but noting that defendant did not
receive multiple punishments because the court did not impose a sentence on the
felony murder conviction). On the other hand, in State v. Well, we held that
multiple convictions could not stand despite the fact that the circuit court imposed
only one sentence. 13 2000 S.D. 156, ¶ 23, 620 N.W.2d 192, 197. In particular, we
stated that “[i]t is established law that a defendant cannot receive two convictions
for one crime unless the legislature intended multiple punishments.” Id. (emphasis
added). We therefore vacated the conviction on which the court imposed no
sentence. Id. ¶ 25.
[¶64.] In other cases decided after Well, the Court reiterated the premise that
the remedy on appeal, when a defendant is punished twice for the same act, is to
vacate the conviction. See State v. Perovich, 2001 S.D. 96, ¶ 35, 632 N.W.2d 12, 19;
13. The Court in Well based its decision, in part, on the incorrect view that
multiple counts based on the same offense may not be submitted to the jury
without an instruction indicating the counts were in the alternative.
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Dillon, 2001 S.D. 97, ¶ 22, 632 N.W.2d at 46; Chavez, 2002 S.D. 84, ¶ 17, 649
N.W.2d at 593 (noting that “two convictions for the same crime cannot stand
without specific legislation to that effect” (emphasis added)). However, in these
three cases, unlike here, the defendant also received multiple sentences.
Nevertheless, in a recent case where the defendant alleged a double jeopardy
violation after a jury found him guilty on both rape and sexual contact charges, we
determined that no violation occurred. Manning, 2023 S.D. 7, ¶ 36, 985 N.W.2d at
755. We reached this conclusion not only because no sentences were imposed on the
sexual contact charges, but also because the circuit court did not enter multiple
judgments of conviction on those charges. Id.
[¶65.] Because this Court’s past cases have not consistently resolved the
question whether it is a violation of double jeopardy to impose multiple convictions,
it is instructive to consider the United States Supreme Court’s reasoning when
addressing similar double jeopardy claims. In Rutledge v. United States, the Court
granted certiorari to resolve the conflict between circuits on the question whether it
is proper to allow a judgment of conviction to be entered on two counts arising out of
the same factual incident when only one sentence is imposed. 517 U.S. 292, 296,
116 S. Ct. 1241, 1245, 134 L. Ed. 2d 419 (1996). The Court began by noting that as
to the offense at issue, the district court was required to impose a $50 special
assessment for every conviction; thus, multiple punishments resulted, even though
one sentence was entered. Id. at 301, 116 S. Ct. at 1247. However, the Court then
stated that even if the assessment is ignored, the second conviction cannot stand in
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light of the Court’s decision in Ball v. United States, 470 U.S. 856, 105 S. Ct. 1668,
84 L. Ed. 2d 740 (1985). Rutledge, 517 U.S. at 302, 116 S. Ct. at 1248.
[¶66.] In particular, the Court explained:
The separate conviction, apart from the concurrent sentence,
has potential adverse collateral consequences that may not be
ignored. For example, the presence of two convictions on the
record may delay the defendant’s eligibility for parole or result
in an increased sentence under a recidivist statute for a future
offense. Moreover, the second conviction may be used to
impeach the defendant’s credibility and certainly carries the
societal stigma accompanying any criminal conviction. Thus,
the second conviction, even if it results in no greater sentence, is
an impermissible punishment.
Id. (internal citations omitted) (quoting Ball, 470 U.S. at 865, 105 S. Ct. at 1673).
The Court in Ball further explained that although the government may seek a
multi-count indictment and multiple counts can be submitted to the jury, if the jury
returns a guilty verdict on each count, “the district judge should enter judgment on
only one of the statutory offenses.” 470 U.S. at 865, 105 S. Ct. at 1673. To conclude
otherwise, the Supreme Court stated, “cannot be squared with Congress’ intention”
not to subject a defendant to two convictions for a single criminal act. Id. at 864,
105 S. Ct. at 1673.
[¶67.] Under SDCL 22-7-9, multiple convictions arising from the same
transaction would not impact a habitual offender’s status if prosecuted under South
Dakota law, nor would they affect parole status under SDCL 24-15A-18, both of
which treat such convictions as one. Whether or not multiple convictions could
impact a defendant who is later prosecuted as a recidivist offender in other
jurisdictions is another matter, one we need not resolve here. In any event, the
Supreme Court’s reasoning in Ball and Rutledge, although not directly on point,
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aligns more closely with what this Court has said in Well, Chavez, Dillon, and
Perovich—multiple convictions for the same crime cannot be entered unless the
Legislature has intended multiple punishments. 14 As such, we now clarify that a
court violates double jeopardy when it imposes multiple convictions for a single
statutory offense arising out of the same act.
[¶68.] Here, Washington did not allege a double jeopardy violation after the
circuit court entered its judgment and sentence, and therefore, the State contends
that whether the court improperly entered convictions on both counts 2 and 3 can
only be reviewed for plain error. “To demonstrate plain error, [the appellant] must
establish that there was: ‘(1) error, (2) that is plain, (3) affecting substantial rights;
and only then may we exercise our discretion to notice the error if (4) it seriously
affect[s] the fairness, integrity, or public reputation of the judicial proceedings.’”
Guziak, 2021 S.D. 68, ¶ 10, 968 N.W.2d at 200 (citations omitted).
[¶69.] From our review of the circuit court’s written judgment and sentence,
it is not clear whether the court committed the error Washington alleges on
appeal—that the court entered a conviction on count 3. Under SDCL 23A-27-4, the
judgment of conviction must contain, among other things, “the plea, the verdict or
findings, and the adjudication and sentence.” The judgment does not contain any
14. This is not to say that collateral consequences relevant to the question
whether there has been a double jeopardy violation are relevant when
examining the propriety of a defendant’s sentence. For example, parole
eligibility is not part of a defendant’s sentence. State v. Semrad, 2011 S.D. 7,
¶ 7, 794 N.W.2d 760, 763.
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language expressly adjudicating Washington guilty of count 3. 15 See, e.g., SDCL
Title 23A Appendix of Forms, Form 19 (including a paragraph after the
identification of the jury’s verdict, stating, “It is, therefore, ORDERED that a
Judgment of (guilty) . . . is entered as to the following: . . .”). Arguably, by not
expressly entering a judgment of conviction by adjudicating him guilty on count 3,
the circuit court did not violate Washington’s right to be free from double jeopardy.
In such a case, no error occurred, and our review would end.
[¶70.] However, even if we assume that the circuit court did enter a
conviction on count 3 and thus violated double jeopardy principles, the court’s error
cannot be regarded as plain. Plain error requires a “clear or obvious” error. State v.
McMillen, 2019 S.D. 40, ¶ 23, 931 N.W.2d 725, 732. “In considering whether an
error is ‘clear or obvious’ . . . we must decide whether controlling . . . precedent has
reached the issue in question, or whether the legal question would be subject to
‘reasonable dispute.’” State v. Stevens, 2024 S.D. 3, ¶ 23, 2 N.W.3d 372, 379
(quoting McMillen, 2019 S.D. 40, ¶ 23, 931 N.W.2d at 732); see also State v. Bryant,
2020 S.D. 49, ¶ 32, 948 N.W.2d 333, 341 (concluding that an error was not plain
“[b]ecause our precedent results in a mixed message as to the correct interpretation
of the statute”). Because this Court’s past decisions on the question whether
entering multiple convictions for a single statutory offense arising out of the same
alleged act violates double jeopardy have not been clear, particularly when only one
15. Although the same can be said for all of the counts on which the circuit court
sentenced Washington, we can safely presume that, at least for the counts on
which the court imposed a sentence, the court adjudicated Washington guilty
of such counts.
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sentence has been imposed, this legal question was subject to reasonable dispute.
Therefore, the second prong of plain error review cannot be met.
[¶71.] Going forward, in cases like this one, where a guilty verdict has been
rendered on multiple counts for a single statutory offense resulting from the same
act, a sentencing court should include express language stating that no judgment of
conviction is being entered on a particular count. Many judgments reviewed by this
Court appropriately contain language of this sort. Indeed, such clarity is helpful
when later determinations are made on matters such as parole calculations or
habitual offender status.
[¶72.] Affirmed.
[¶73.] JENSEN, Chief Justice, and KERN, SALTER, and MYREN, Justices,
concur.
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