State v. Kiir, 2017 SD 47

Background

Police responded to an aggravated-assault-with-a-firearm call; witnesses (through an interpreter) described a Chevy Impala/Malibu with several African American males, one wearing a red hat and white T-shirt, and a firearm with a black grip and silver slide.
Officer Vanderhule located Diw Bol Kiir nearby matching that description, detained him after a confrontation in which Vanderhule deployed his taser and handcuffed Kiir following a struggle.
Officers found a firearm near the struggle site and later searched a vehicle in the lot (with owner consent) and recovered a backpack containing methamphetamine, scales, jeweler’s bags, underwear, and a bus ticket bearing Kiir’s name.
A grand jury indicted Kiir on eleven counts, including drug-possession, drug-possession-while-armed (SDCL 22-14-12), assault on a law enforcement officer (and alternatives), possession of a firearm with an altered serial number, and habitual-offender allegations; jury convicted on several counts and trial court sentenced on multiple counts.
Kiir moved in limine to exclude out-of-court witness statements; the court allowed Officer Vanderhule to repeat those statements as res gestae (context) but suppressed one out-of-court identification; Kiir appeals on admission of res gestae evidence and sufficiency for several convictions.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Kiir)	Held
1. Admissibility of witnesses' out-of-court statements (res gestae / Confrontation Clause)	Statements were admissible as res gestae to explain officer's actions and situational context	Admission converted hearsay into testimonial evidence violating Sixth Amendment because witnesses did not testify	Court upheld admission: statements were res gestae, not offered for truth; Kiir had chance to cross-examine the officer repeating them; no Confrontation Clause violation
2. Sufficiency: possession of controlled substance while armed (SDCL 22-14-12; Count 6)	Evidence (gun near struggle; drugs in vehicle with Kiir’s bus ticket) supported jury inference of being armed while committing drug possession felony	Drugs were in backpack in vehicle not on Kiir; no evidence he used or attempted to use the gun in committing the drug offense; counsel erred by not moving for acquittal	Majority: evidence did not support the "while armed" element for Count 6; declined to reach ineffective-assistance/plain-error on direct appeal and affirmed sentence because Kiir was sentenced under the same firearm statute on a separate count. Concurrence would notice plain error and remand for sentencing adjustments
3. Sufficiency: simple assault on officer while armed (Count 7)	Evidence of struggle, Kiir reaching toward waistband, and attempts to resist supported an inference he attempted to use a firearm against the officer	Kiir argues insufficient to show he was armed in committing assault	Court affirmed: viewed in prosecutor’s favor, evidence supports that Kiir attempted to use a firearm during the assault; conviction stands
4. Sufficiency: possession of controlled substance (Count 5)	Circumstantial evidence (backpack in vehicle, bus ticket with Kiir’s name, proximity, other incriminating items) permitted inference Kiir knew of and controlled the drugs	No direct proof Kiir possessed or knew of drugs; only link was res gestae testimony tying him to the vehicle	Court affirmed: circumstantial and direct evidence together suffice under Jackson standard; no plain error shown

Key Cases Cited

State v. Goodroad, 563 N.W.2d 126 (S.D. 1997) (standard for reviewing evidentiary rulings for abuse of discretion)
Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause limits on testimonial out-of-court statements)
State v. Johnson, 771 N.W.2d 360 (S.D. 2009) (distinguishing res gestae/context testimony from hearsay used for truth)
State v. Wright, 768 N.W.2d 512 (S.D. 2009) (res gestae rule admitting evidence explaining circumstances)
United States v. LaDue, 561 F.3d 855 (8th Cir. 2009) (res gestae/admission of connected evidence may implicate other acts)
State v. Stark, 802 N.W.2d 165 (S.D. 2011) (informant/tip context can be admissible to explain investigative conduct)
State v. Buchhold, 727 N.W.2d 816 (S.D. 2007) (plain error framework and requirements)
State v. Chavez, 649 N.W.2d 586 (S.D. 2002) (purpose of SDCL 22-14-12—enhanced punishment when firearm used in perpetration of felony)
State v. Simons, 313 N.W.2d 465 (S.D. 1981) (statutory purpose of firearm-enhancement statute)
State v. Cook, 319 N.W.2d 809 (S.D. 1982) (application limits of firearm-enhancement statute)
State v. Pellegrino, 577 N.W.2d 590 (S.D. 1998) (reviewing sufficiency by accepting favorable evidence and reasonable inferences)
State v. Laplante, 650 N.W.2d 305 (S.D. 2002) (circumstantial and direct evidence given equal weight)
State v. Guthrie, 627 N.W.2d 401 (S.D. 2001) (Jackson sufficiency standard discussion)
State v. Well, 620 N.W.2d 192 (S.D. 2000) (remand for sentencing adjustment where preserved insufficiency required reversal)