State v. Robertson, 990 N.W.2d 96

Background:

Around 4:30 a.m. on July 21, 2020, Bradley Tucker woke to a crash and observed Billy Robertson at his driveway taking a tackle box and getting into Tucker’s GMC pickup.
Robertson entered the driver’s side of the pickup, put it in gear, and Tucker was dragged, then managed to get a headlock on Robertson; Robertson said, “Let’s go for a fucking ride,” both fell from the moving pickup, and Robertson fled in a red Ford pickup.
Police later found the red pickup crashed and detained Robertson; DNA from an empty whiskey bottle at Tucker’s scene matched Robertson.
A grand jury charged Robertson with first-degree burglary (nighttime), alternative aggravated‑assault counts, grand theft, and alternative aggravated‑assault counts against an officer; the State later dismissed the officer-related counts; Robertson pled no contest to habitual‑offender allegation.
A jury convicted Robertson of first‑degree burglary, aggravated assault under SDCL 22‑18‑1.1(5) (physical menace with a deadly weapon), and grand theft; Robertson moved for judgment of acquittal (JOA) which the court denied; he appealed.
On appeal Robertson challenged (1) admission of testimony that he invoked counsel (plain‑error), (2) sufficiency of evidence for aggravated assault (vehicle as deadly weapon/physical menace), and (3) sufficiency of evidence that the burglary occurred "in the nighttime."

Issues:

Issue	Plaintiff's Argument (State)	Defendant's Argument (Robertson)	Held
1. Whether it was plain error to allow Sergeant Koch to testify Robertson invoked counsel	Testimony was unsolicited, not used by State to suggest guilt, and did not implicate silence; any error was not plain or prejudicial	Testimony highlighted invocation of counsel and implicitly commented on his silence, prejudicing jury	No plain error; testimony about invoking counsel did not warrant reversal or show prejudice
2. Sufficiency of evidence for aggravated assault under SDCL 22‑18‑1.1(5) (physical menace with a deadly weapon)	Evidence showed Robertson drove Tucker’s pickup with Tucker hanging onto the open door, said "let’s go for a … ride," and Tucker was injured — vehicle can be a deadly weapon and actions supported attempt to put victim in fear	Robertson argued he was merely trying to flee with the truck and did not use vehicle as a physical menace or deadly weapon; actions insufficient for aggravated assault	JOA denial affirmed: viewed in State’s favor a rational juror could find physical menace and deadly‑weapon use (vehicle) beyond a reasonable doubt
3. Sufficiency of evidence that burglary occurred "in the nighttime" (statutory period 30 min after sunset to 30 min before sunrise)	Jury could infer from testimony and photographs that events occurred before sunrise and that at least 30 minutes elapsed before sunrise, supporting first‑degree burglary	State failed to prove the precise sunrise time; without that proof, the ‘‘nighttime’’ element was not established beyond a reasonable doubt	Majority: JOA denial affirmed — reasonable inference supported nighttime element; dissent: State failed to prove sunrise time so essential element lacking

Key Cases Cited

State v. Randle, 916 N.W.2d 461 (discussing unsolicited reference to invocation of counsel and mistrial/plain‑error considerations)
State v. McMillen, 931 N.W.2d 725 (plain‑error standard for unpreserved issues)
State v. Ahmed, 973 N.W.2d 217 (review of sufficiency of evidence and aggravated assault analysis)
State v. Seidschlaw, 304 N.W.2d 102 (automobile can be a deadly weapon when used in a manner likely to inflict serious harm)
State v. Barrientos, 444 N.W.2d 374 (automobile may constitute a dangerous weapon depending on use)
State v. Shaw, 705 N.W.2d 620 (circumstantial evidence and reasonable inferences can sustain a guilty verdict)
State v. Bausch, 889 N.W.2d 404 (standard for sufficiency review — view evidence in light most favorable to prosecution)