Lead Opinion
[¶ 1.] Defendant Leon Charger (Charger) appeals his conviction for witness tampering. We affirm.
FACTS AND PROCEDURE
[¶2.] In July of 1998 Charger was charged with sexual contact with Jacqueline Swimmer’s (Swimmer) two daughters. Swimmer testified as a witness against Charger in the first criminal trial in February 1999, which resulted in a hung jury. Subsequently, Swimmer was subpoenaed as a witness to testify against Charger a second time during the May 25 and 26, 1999 retrial proceedings. Charger was acquitted by the jury in this second trial. It was during the interim between these two trials that Charger was charged with tampering with a witness, in violation of SDCL 22-11-19(2).
[¶ 3.] On May 7, 1999, Charger met with his cellmate, Leon Norman (Norman), and instructed him to deliver or relay a note to Swimmer. Norman was scheduled to be released later that day. Charger offered' Norman five dollars to deliver the message. Charger completed a cash-out request from his jail account, indicating as his reason that a “cousin” of his needed “gas to get home” from jail. Norman is not Charger’s cousin. Charger wrote what he believed to be Swimmer’s telephone number and a message on a piece of paper for Norman to read to Swimmer.
[¶4.] Norman went to the house of an acquaintance, Larry Welder, where he made a telephone call, utilizing the phone number Charger had given him. He reached a woman he thought was Swimmer. Swimmer did not have a telephone, so she frequently used the phone of her sister-in-law, good friend and neighbor, Jacalyn Hagans (Hagans), to receive messages from callers. Thus, the phone number Charger had given Norman was actually Hagans’. When Hagans answered the phone, Norman asked to speak “to Jackie,” and when Hagans answered “this is Jackie,” Norman stated “I have a message from Leon.”
[¶ 5.] Hagans testified that during the phone call, Norman stated:
I have a message from Leon and I said okay. And he said that the State has a file from Behavior Management. And that if you testify in court you’ll be arrested. He said that the prosecutor is not a friend of yours, he is a friend of Leon’s. He said if you even try to contact the prosecutor, you’ll be arrested. If you show up in court, all I have to do is say your name and- you’ll be arrested. He said that he’s protected under the Shield Act, and that meant that any crime that’s not pled in one year you can’t be prosecuted for it even if it’s a sexual abuse. Then I asked him if this was a threat. And he said yeah that’s what it sounds like, but I’m having a hard time reading his writing.
Hagans asked the caller to identify himself, and Norman “said he was a friend of Leon’s,” and that “we were in jail together, I just got out.” Hagans testified she immediately concluded that the caller was referring to Leon Charger, and his message was mistakenly being relayed to her, rather than to Swimmer.
[¶ 6.] Hagans testified that because she “thought this was a threat,” she “dialed Star 69” on her telephone, so she could identify the origin of the call for law enforcement. She promptly called the police. Officer Jegeris returned her call “right away” and reviewed the situation with her. At approximately 6:30 p.m., Hagans encountered Swimmer in the apartment complex parking lot. Hagans told Swimmer about the phone call she had received, and that she was “scared for [Swimmer],” but that she had contacted the police.
[¶ 7.] Norman was brought back to the Pennington County Jail on May 8, 1999. Charger made a written request to cancel his previous jail “cash-out” payment to Norman the same day Norman was returned to jail.
■ [¶ 9.] On June 7, 1999, Charger was accused by information with one count of Tampering With a Witness, in violation of SDCL 22-11-19(2), a Class 4 felony. He was arraigned before the Pennington County Circuit Court, and pled not guilty.
[¶ 10.] Charger was tried before a jury on July 7, 1999. At trial Norman could not recall the exact contents of Charger’s handwritten note. However, he did remember Charger’s message included the premise “[t]he attorney is not your friend if you don’t cooperate with him or her,” and that “[Swimmer would] go to jail if she didn’t cooperate with the attorney.” Norman also indicated “I just read what I could read that was legible writing, and then I just couldn’t read his chicken scratching writing.” Norman testified he had thrown the note away “in a garbage can up at Arnaco.” Jegeris was unable to find the note.
[¶ 11.] Charger testified on his own behalf. Charger testified that he had been involved with Swimmer “on and off for five years.” He also alleged the note had been meant for both Swimmer and Robert Swimmer, her brother, and that Robert was “the root of the problem” from which the sexual contact charges had arisen. Charger claimed that Robert had sexually molested Swimmer, which caused her to file false criminal charges against Charger for sexual contact with her two daughters.
[¶ 12.] Charger’s account of the contents of the note was different than Hagans’. He claimed the note stated:
I want to warn you the prosecutor isn’t anybody’s friend. If I get on the stand and he asks me about your sex abuse, who sexually abused you, Jackie, I’ll tell him it was your brother Robert. He’s one root to this whole problem. You filed false allegations against me. I just wanted to tell you that though.
[¶ 13.] During Hagans’ direct testimony at trial, Charger objected to her perceptions and descriptions of Norman’s May 7, 1999 telephone call. Charger claimed Ha-gans’ testimony violated the hearsay rule. The circuit court denied his objection, concluding Hagans’ testimony concerning the contents of Norman’s threatening phone call on behalf of Charger constituted verbal acts, not hearsay.
[¶ 14.] Charger also proposed four jury instructions at the close of the evidence. Specifically, Charger claimed that since Norman had phoned the wrong “Jackie,” his proposed jury instructions 3 and 4 were required to explain that “attempt” is a lesser included offense of the completed crime of witness tampering. Charger also argued proposed jury instructions 1 and 2 were necessary to advise the jury about his “free speech rights.” The circuit court rejected all four of Charger’s proposed jury instructions.
[¶ 15.] Charger was convicted of one count of Tampering With a Witness (SDCL 22-11-19(2)). Subsequently, Charger filed a Motion for New Trial. The circuit court conducted a hearing on this post-trial motion, at which Charger argued his proposed “attempt” instructions should have been given at trial. The circuit court denied this motion. On August 9, 1999, the circuit court sentenced Charger to serve four years in the state penitentiary, giving him credit for 75 days already served in the county jail.
[¶ 16.] Charger now appeals his conviction, raising the following issues for our consideration:
1. Whether Hagans’ testimony concerning Norman’s telephone call on behalf of Charger constituted inadmissible hearsay.
*225 2. Whether the circuit court erred when it refused to instruct the jury on attempted witness tampering.
STANDARD OF REVIEW
[¶ 17.] The circuit court has broad discretion in making evidentiary rulings. State v. Knecht,
Evidentiary rulings made by the trial court are presumed correct and are reviewed under an abuse of discretion standard. State v. Oster,495 N.W.2d 305 , 309 (S.D.1993). The test is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion. State v. Rufener,392 N.W.2d 424 , 426 (S.D.1986).
Veeder v. Kennedy,1999 SD 23 , ¶41,589 N.W.2d 610 , 619 (citing State v. Goodroad,1997 SD 46 , ¶ 9,563 N.W.2d 126 , 129).
[¶ 18.] Our standard of review of the circuit court’s refusal to give a requested instruction is well settled. This Court stated in State v. Tapio,
Where a request has been made to charge the jury on a lesser-included offense, the duty of the trial judge is determined by the evidence. If evidence has been presented which would support a conviction of a lesser charge, refusal to give the requested instruction would be reversible error.... There must be sufficient evidence, however, when read in the light most favorable to the defendant, which would justify a jury in concluding that the greater offense was not committed and that a lesser offense was, in fact,, committed, (emphasis in original.)
[State v. Scholten,445 N.W.2d 30 , 32 (S.D.1989]) (citing State v. Rich,417 N.W.2d 868 (S.D.1988)). See also [State v. Gregg,405 N.W.2d 49 (S.D.1987)]; State v. Woods,374 N.W.2d 92 (S.D.1985). “A trial court is not required to instruct on matters that find .no support in the evidence.... ” State v. Wilson,297 N.W.2d 477 , 482 (S.D.1980); State v. Kafha,264 N.W.2d 702 , 703 (S.D.1978).
ANALYSIS AND DECISION
[¶ 19.] 1. Whether Hagans’ testimony concerning Norman’s telephone call on behalf of Charger constituted inadmissible hearsay.
[¶20.] Charger argues the circuit court abused its discretion in allowing Ha-gans to testify concerning the statements made to her by Norman on behalf of Charger during the telephone call. Charger contends that these statements were inadmissible hearsay and thus, should have been excluded. The State argues the circuit court was correct in concluding Hagans’ testimony concerning the^ substance of Charger’s telephone message constituted ■ “verbal acts,” and thus was nonhearsay. We agree.
[¶ 21.] “Hearsay” is defined as “a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered to prove the truth of the matter asserted.” SDCL 19-16-1(3). Norman’s statements on behalf of Charger to Ha-gans were not offered for their truth. The State’s intention was not to convince the court and >jury that “the prosecutor [was] not a friend of [Swimmer’s]” or that Charger would actually have her arrested if she contacted the prosecutor. Its purpose was to show that Charger had induced Norman to deliver the message during the phone call, because it was these threatening statements which, by attempting to discourage Swimmer from testifying, violated SDCL 22-11-16.
[¶ 22.] In State v. Carlsen,
[¶ 23.] Similarly, in United States v. Jones,
[¶ 24.] Likewise, in this case, the testimony was offered as evidence of the fact that the call was made to Hagans, but intended for Swimmer. Because Norman’s statements to Hagan were not offered to prove the truth of the matter asserted, Norman’s statements were not hearsay.
[¶ 25.] Instead, Hagans’ testimony was evidence of a verbal act. “Verbal acts are those ‘out-of-court statements [that] are operative legal facts which constitute the basis of a claim, charge or defense ... and are nonhearsay.’ ” Banks v. State,
Two types of evidence are not hearsay simply because § 19-16-1(801) excludes them by definition. First, verbal acts that are not offered to prove the truth of the matter asserted, but rather to establish what was done or created, are an actual part of the transaction involved in the lawsuit, and are excluded from the definition of hearsay by § 19-16-1(3) (801(c)). Obviously, a contract, [for example,] written or oral, would not be excluded as an out-of-court statement in a lawsuit based on it. The contract was an actual part of the transaction, and had independent legal significance or consequence.
John W. Larson, South Dakota Evidence § 801.1, at 535 (1991).
[¶ 26.] The “verbal acts” rule is a firmly established principle in the law of evidence:
Not all out-of-court statements are hearsay. The hearsay rule only prohibits admission of evidence of out-of-court statements offered to prove the truth of the out-of-court declaration. Defendant overlooks the well-established ‘verbal acts’ rule. Utterances made contemporaneously with or immediately preparatory to an act which is material to the litigation that tends to explain, illustrate or show the object or motive of an equivocal act and which are offered irrespective of the truth of any assertion they*227 contain, are not hearsay and are admissible.
State v. Kelley,
[¶ 27.] The Best court, in affirming the defendant’s conviction, recognized by analogy:
Testimony concerning telephone calls made to or received at a particular location has been held admissible frequently in prosecutions for bookmaking and other gambling activities, where such testimony is offered not to establish the truth of what was said over the telephone, but as evidence that the calls were made to the location for the purpose of placing bets.
Id. (citing Courtney v. State,
[¶ 28.] The circuit court’s decision allowing Hagans’ testimony as evidence of verbal acts is affirmed.
[¶ 29.] 2. Whether the circuit court erred when it refused to instruct the jury on attempted witness tampering.
[¶ 30.] Charger argues the circuit court improperly rejected his proposed jury instructions 3 and 4, regarding attempted witness tampering. He states a reasonable jury could have viewed his actions as an attempt to tamper with a witness because: (1) the wrong person was threatened; (2) Hagans was not a witness in an official proceeding; and (3) the contents of Charger’s note did not constitute a threat “even though they may have been intended as one.” The circuit court ruled no attempt instructions were warranted, because pursuant to State v. Peck,
[¶ 31.] This Court has recently held that “|j]ury instructions are sufficient when, considered as a whole, they correctly state the applicable law and inform the jury.” State v. Jemison,
[¶ 32.] Charger’s proposed jury instruction 3 stated:
Any person who attempts to commit any crime and in such attempt does any act toward the commission of such crime, but fails or is prevented or intercepted in the perpetration is guilty of a crime.
Proposed jury instruction 4 provided:
The elements of the crime of Attempting Witness Tampering, each of which the state must prove beyond a reasonable doubt, are that at the time and place alleged:
1. The defendant had the specific intent to commit the crime of Witness Tampering;
2. The defendant did a direct act toward the commission of the intended crime; and
3. The defendant failed or was prevented or was intercepted in the perpetration of the crime.
As stated above, the circuit court refused both of these instructions.
[¶ 33.] Inherent in Charger’s argument is the notion that in order to be rightfully convicted of tampering with a witness, he must have successfully completed the tampering. However, this argument is flawed. Generally, “[i]n the typical case of a criminal attempt, the factor distinguishing the attempt from the completed crime is that the intended criminal result, an element of the completed crime, was not achieved.” Brown v. State,
[¶ 34.] However, under the laws of this state, to prove the crime of witness tampering a criminal defendant does not need to succeed in actually inducing a witness to testify falsely, or withhold information. “The focus of anti-tampering statutes is on the actions and intent of the person trying to influence the witness.” Peck,
[¶ 35.] Thus, it was not necessary under SDCL 22-11-19(2) for the State to prove that Charger was successful in his effort to influence Swimmer not to testify or withhold information. Id. (citing State v. Boutchee,
[¶ 36.] Once Charger instructed Norman to place the phone call to Swimmer and relay the message inferring she should not testify against him, and after Hagans passed the message on to the person to whom it was intended for, the act of tampering with a witness was complete. See Navarro v. State,
Elf 37.] There is evidence in the record that Charger’s message achieved his desired results in trying to persuade Swimmer not to testify against him in his upcoming criminal trial. Hagans testified that she relayed Charger’s message directly to Swimmer approximately two hours after Norman’s telephone call. Hagans’ testified she explained the message to Swimmer, because she was “scared for her.” When Swimmer heard the details of the message, she “looked scared” and “got tears in her eyes and she said she was scared.” During her direct testimony at trial, Swimmer testified after hearing about the message she “felt fear,” and perceived the telephone message from Charger “as a threat.”
[¶ 38.] Although Charger claimed his warning was only directed at Robert Swimmer to warn him of potential prosecution, when Norman phoned Hagans, he asked only for “Jackie,” not “Jackie and Robert,” or “Jackie or Robert,” or simply “Robert.” Robert’s name was never mentioned during the phone conversation.
[¶ 39.] Moreover, the jury rejected his version of the facts in finding him guilty of witness tampering, which, as the factfinder, it was entitled to do. It is well settled that it is the function of the jury to determine credibility of witnesses. State v. Raymond,
[¶ 40.] We find that under the evidence in this record, Charger was guilty of the charged offense of witness tampering or guilty of nothing. A defendant in a criminal case is entitled to an instruction on his theory of the case only if there is evidence to support it. State v. Pellegrino,
[¶41.] The circuit court did not err in refusing to include an attempt instruction in this case. Affirmed.
Notes
. Charger has not appealed the circuit court’s refusal to instruct the jury on free speech.
. The circuit court also concluded the elements of attempted witness tampering in this case did not meet the legal test for a lesser-included offense, as set forth in State v. Tammi,
Concurrence Opinion
(concurring specially).
[¶ 44.] I concur specially because, under the majority in State v. Springer-Ertl,
[¶ 45.] Accordingly, I write specially to expressly overrule Springer-Ertl.