State v. Uhing, 2016 SD 93

Background

Police surveilled a Sioux Falls residence in a drug-free zone after tips; traffic stop of a visitor produced hashish and marijuana. A search warrant recovered ~0.53 lb marijuana, hashish residue, digital scales, jeweler’s baggies, money, butane cans, mesh bags, capped tubes, and other equipment consistent with hashish manufacture and a grow operation.
Occupants were Christopher Uhing and his girlfriend Brooke Schrempp; Schrempp told police she and Uhing sold drugs from the residence the day before the search, but the court excluded any statements that directly implicated Uhing at trial for Bruton reasons.
Uhing testified he used/smoked marijuana and hashish, had previously grown and made hashish in Colorado, bought bulk marijuana for personal use, and denied manufacturing or distributing in South Dakota.
Uhing and Schrempp were charged on eight counts (six felonies and one misdemeanor relevant here), including possession with intent to distribute marijuana, possession with intent to manufacture/distribute hashish (a Schedule I substance), maintaining a drug premises, and enhanced counts for offenses near an elementary school.
Jury convicted Uhing on seven counts (acquitted on the cocaine count). Trial court sentenced to aggregated 45 years plus 30 days, suspended all but 6 years and 30 days in prison (and 30 days county jail concurrent). Uhing appealed, raising sufficiency of evidence, indictment amendment, jury instructions on specific intent, handling of a jury question, and an Eighth Amendment challenge.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence to convict	State: circumstantial evidence (quantity, scales, baggies, manufacturing items, residue, Schrempp’s admission) supports intent to distribute/manufacture	Uhing: no proof of intent to distribute or manufacture; items attributable to prior Colorado activity or personal use	Court: Affirmed; evidence (including circumstantial and forensic residue) sufficient for a rational jury to infer guilt
Amendment of indictment (changing “hashish” wording)	State: amendment was proper; defense had agreed at trial	Uhing: amendment the day before trial was improper	Court: Waived—Uhing consented at trial and failed to object, so issue not preserved
Jury instruction on specific intent	State: general intent instruction was adequate	Uhing: offenses required specific intent instruction	Court: Waived—Uhing never requested a specific-intent instruction at trial; issue not preserved
Trial court handling of jury question without notifying parties	State: court’s response (sending preliminary instructions excerpt) was non-prejudicial	Uhing: court should have notified parties and requested a read-back of testimony	Court: Waived—Uhing did not object at trial and cites no authority for plain-error review
Eighth Amendment (cruel and unusual) challenge to sentence	State: individual sentences are within statutory ranges; most were suspended; Uhing will serve 6 years and 30 days—proportionate to offenses	Uhing: aggregate 45-year term is grossly disproportionate	Court: Rejected—compare offense gravity and penalty; individual sentences not excessive, many suspended, parole eligibility reduces actual time; no Eighth Amendment violation

Key Cases Cited

State v. Doap Deng Chuol, 849 N.W.2d 255 (S.D. 2014) (standard for reviewing denial of judgment of acquittal)
State v. Plenty Horse, 741 N.W.2d 763 (S.D. 2007) (sufficiency review and viewing evidence in light most favorable to prosecution)
State v. Overbey, 790 N.W.2d 35 (S.D. 2010) (upholding intent-to-distribute conviction based on quantity and scales)
State v. Liaw, 878 N.W.2d 97 (S.D. 2016) (discussing specific-intent instruction where defendant requested alternative instruction)
State v. Chipps, 874 N.W.2d 475 (S.D. 2016) (Eighth Amendment proportionality framework)
Solem v. Helm, 463 U.S. 277 (U.S. 1983) (criteria for gross disproportionality analysis)