955 N.W.2d 759
S.D.2021Background
- Thoman, angry over his wife Kathy’s cancer treatment and death, asked friend Kenneth Jones to obtain an untraceable firearm (and discussed silencers/other means) so Thoman could kill Dr. Mustafa Sahin, Kathy’s oncologist.
- Jones reported the conversation to law enforcement, made a recorded call to Thoman, and detectives surveilled and then searched Thoman’s home, recovering multiple firearms and ammunition.
- Thoman was indicted on attempted first-degree murder (later dismissed) and criminal solicitation under SDCL 22-4A-1, charged as solicitation to aid and abet first-degree murder.
- At trial the State relied principally on Jones’s testimony and the recorded call; other witnesses described Thoman’s threats and prior statements. The jury convicted Thoman of criminal solicitation for asking Jones to obtain a firearm.
- Thoman moved to dismiss before trial and to arrest judgment afterward, arguing one cannot solicit an inchoate offense (aiding and abetting) because aiding and abetting requires completion of the underlying crime; he also challenged jury instructions and certain testimony by Dr. Sahin.
- The circuit court denied motions; the South Dakota Supreme Court affirmed: SDCL 22-4A-1 allows solicitation of conduct that would constitute aiding and abetting, solicitation does not require completion of the underlying offense, and admission of some of Dr. Sahin’s testimony was harmless error.
Issues
| Issue | State's Argument | Thoman's Argument | Held |
|---|---|---|---|
| Whether indictment/conviction for solicitation of aiding and abetting is permitted under SDCL 22-4A-1 | SDCL 22-4A-1 criminalizes soliciting another to engage in specific conduct that would constitute commission or attempt; solicitation is complete upon the ask, and the statute explicitly covers attempted commission | Solicitation of an inchoate crime (aiding and abetting) is impossible because aiding and abetting requires the principal to commit the underlying offense; legislature did not intend to criminalize solicitation of aiding/abetting | Affirmed: statute permits solicitation of conduct that would constitute aiding and abetting; solicitation is a preparatory offense and is complete on solicitation (no requirement that underlying offense occur) |
| Whether jury should have been instructed that aiding/abetting requires completion of the underlying crime (per Jucht) | The solicitation instruction should track SDCL 22-4A-1 language; solicitation need not require completion of the underlying offense and jury must agree on a theory (here, obtaining a gun) | Requested instruction would have required proof that the principal completed murder, which is impossible here and would have compelled acquittal | Affirmed: court properly refused instruction; solicitation and aiding/abetting are distinct stages, and solicitation does not require completion of the underlying offense |
| Sufficiency of evidence for judgment of acquittal | Recorded call, Jones’s testimony, multiple witnesses reporting threats, and recovered firearms supplied sufficient evidence of specific intent and solicitation | Defense argued statements were jokes and State failed to prove requisite specific intent | Affirmed: viewing evidence in light most favorable to State, a rational jury could find elements beyond reasonable doubt |
| Admissibility of Dr. Sahin’s testimony about impact of threats | Testimony showed seriousness of threats and rebutted defense that statements were joking; therefore relevant to intent | Testimony was victim-impact (post-threat) and not relevant to Thoman’s intent at time of solicitation; prejudicial under Rules 401/403 | Affirmed in result but reversed on reasoning: admission was erroneous as not relevant, but error was harmless given strength of State’s case and limited nature of testimony |
Key Cases Cited
- State v. Disanto, 688 N.W.2d 201 (S.D. 2004) (distinguishes solicitation as preparatory offense from attempt; solicitation requires no overt act)
- State v. Jucht, 821 N.W.2d 629 (S.D. 2012) (aiding and abetting requires principal committed elements of underlying offense)
- State v. Tofani, 719 N.W.2d 391 (S.D. 2006) (discusses elements required to show aiding and abetting)
- State v. Everett, 330 P.3d 22 (Or. 2014) (solicitation is complete upon the ask; conviction for solicitation to aid and abet upheld even though underlying murder did not occur)
- State v. DePriest, 907 P.2d 868 (Kan. 1995) (crime of solicitation completed when solicitation is communicated with requisite mens rea)
- State v. Webber, 918 P.2d 609 (Kan. 1996) (solicitation is complete upon communication; no further act required)
- People v. Harsit, 745 N.Y.S.2d 872 (Sup. Ct. 2002) (New York decision holding solicitation statute reaches solicitation to aid and abet despite defendant’s personal intent to be principal)