994 N.W.2d 212
S.D.2023Background
- On Nov. 22, 2020, Damen Long Soldier entered Happy Jacks casino, produced a pistol, and forced 76‑year‑old cashier Helga Harris behind the counter.
- He struck Harris in the head with the pistol, causing heavy bleeding and incapacitation; he attempted to open cash registers and check her pockets.
- After failing to obtain cash, Long Soldier took Harris’s purse from a chair in the office roughly ten feet from where she had been sitting and fled.
- Harris did not immediately realize the purse was gone; she called 911 while bleeding and was later treated at the hospital.
- Long Soldier was indicted and convicted of first‑degree robbery (use of a dangerous weapon); the court denied his motion for judgment of acquittal and sentenced him to forty years.
- On appeal he contended the evidence was insufficient because the purse was not both in Harris’s possession and in her immediate presence, Harris lacked knowledge of the taking, and the purse was taken after force/fear had ceased.
Issues
| Issue | State's Argument | Long Soldier's Argument | Held |
|---|---|---|---|
| Whether the purse was "in the possession" of the victim when taken | Possession can be broadly construed (dominion/control); purse was within Harris’s control and immediate presence when attacked ten feet away | Harris had set the purse on a chair and therefore relinquished possession before the taking | The statute requires both possession and person/immediate presence; a jury could reasonably find Harris still possessed the purse given facts (only employee on duty, proximity, control) |
| Whether the taking was "against the will" (victim's knowledge) | A victim need not observe the final act if force/fear was used to render the victim unable to resist or aware; SDCL 22‑30‑4 does not apply where force made victim unaware | Because Harris did not know the purse was taken until later, the taking was "fully completed without the person’s knowledge" and thus not robbery under SDCL 22‑30‑4 | The taking was part of a continuous act of force/fear; Harris was initially aware and force rendered her unable to prevent the taking, so the element was satisfied |
| Whether force or fear was employed to obtain or retain the property (timing) | Force/fear used to overcome resistance to taking other property is sufficient when it enables defendant to take additional property | Force must be used contemporaneously with the obtaining of the specific property; here force had ceased when he reached the office for the purse | The statute does not require simultaneity; force/fear that precedes and enables the taking satisfies the element; jury could find force/fear was operative when purse was taken |
Key Cases Cited
- State v. Stecker, 79 S.D. 79, 108 N.W.2d 47 (1961) (victim need not be aware at time of robbery when force is used)
- State v. Schmiedt, 525 N.W.2d 253 (S.D. 1994) (no need to define commonly understood words in jury instructions)
- State v. Goodroad, 442 N.W.2d 246 (S.D. 1989) (possession signifies dominion or right of control with knowledge)
- Sutton v. United States, 988 A.2d 478 (D.C. 2010) ("immediate possession" can extend beyond a short physical distance)
- People v. Webster, 814 P.2d 1273 (Cal. 1991) (reasonable definition of "immediate presence" tied to ability to resist taking)
- People v. Hayes, 802 P.2d 376 (Cal. 1990) (property is in immediate presence when within reach, inspection, observation, or control)
- People v. Scott, 200 P.3d 837 (Cal. 2009) (possession element construed broadly to include actual or constructive possession)
- People v. Bartowsheski, 661 P.2d 235 (Colo. 1983) (victim need not be aware of the taking if force/fear was used to make victim unaware)