911 N.W.2d 738
S.D.2018Background
- On Jan. 7, 2016, after heavy drinking, Philomene sustained severe injuries (including the tip of her nose bitten off) at a Wagner, SD residence; she was treated by Dr. Bradley Coots and required surgery.
- Winston and Roseanne lived with permission in the house; Abdo stayed there intermittently and had a curtained bedroom area.
- Winston reported the incident to police, consented in writing to officers entering the house, and officers found Abdo passed out in the bedroom with blood on his hands and mouth; Abdo was arrested.
- Grand juries indicted Abdo for aggravated assault (domestic) and, later, for second-degree escape; the State filed habitual-offender informations in both files.
- Abdo moved to suppress, challenging the warrantless entry; trial admitted graphic injury photographs and a treating surgeon’s testimony repeating the victim’s statement that her boyfriend bit her; jury convicted Abdo of aggravated assault and simple assault (lesser-included), and convicted him of second-degree escape in a separate trial.
- The circuit court denied suppression, admitted the evidence, vacated the lesser-included conviction as a nullity for sentencing purposes, and imposed consecutive sentences; Abdo appealed.
Issues
| Issue | State's Argument | Abdo's Argument | Held |
|---|---|---|---|
| 1. Denial of motion to suppress (warrantless entry/seizure) | Winston had common authority to consent to officers’ entry; officers reasonably believed his consent was valid. | Abdo claimed sufficient residency/exclusive control of the bedroom to preclude third-party consent. | Denial affirmed: court’s factual findings (overnight guest, Winston had authority) not clearly erroneous; consent valid. |
| 2. New trial/mistrial re: guilty verdicts on both greater and lesser-included offenses | Jury could convict of greater offense, and a concurrent guilty on lesser is not reversible error; court can vacate lesser conviction. | Jury disregarded instructions (could not convict of both); verdict shows jury failed to follow law; a mistrial/new trial required. | Denial affirmed: inconsistent dual guilty verdict not reversible; lesser conviction vacated as a nullity. |
| 3. Judgment of acquittal / sufficiency of the evidence | Circumstantial and testimonial evidence (victim identification, surgeon testimony, police observations) supported guilt beyond a reasonable doubt. | Evidence was speculative: no eyewitness or DNA; victim lacked memory who caused injuries; Abdo was passed out—insufficient proof. | Denial affirmed: court views evidence in light most favorable to verdict; reasonable inferences sustain guilt. |
| 4. Admission of evidence (graphic photos and victim’s statement to surgeon) | Photos were relevant to serious bodily injury and intent and assisted expert testimony; victim’s statement admissible as medical-diagnosis exception. | Photos were inflammatory and cumulative; victim’s statement identified perpetrator and was not reasonably pertinent to treatment (identification unnecessary). | Denial affirmed: photos relevant and not unduly prejudicial; surgeon’s testimony admissible under medical-diagnosis hearsay exception (declarant’s motive consistent with treatment; content useful for diagnosis). |
Key Cases Cited
- Illinois v. Rodriguez, 497 U.S. 177 (warrantless entry valid when officers reasonably believe third party has authority to consent)
- United States v. Matlock, 415 U.S. 164 (third party consent to search valid when party has common authority)
- United States v. Howard, 507 F.2d 559 (conviction on both greater and lesser included offenses not per se inconsistent)
- United States v. Belt, 516 F.2d 873 (when convicted of both, conviction/sentence on lesser included must be vacated)
- United States v. Renville, 779 F.2d 430 (two-part test for medical-statement hearsay exception: motive and content reasonably relied on for treatment)
- Lovejoy v. United States, 92 F.3d 628 (application of medical-diagnosis hearsay exception)