State v. Cook
319 N.W.2d 809
S.D.
1982
Check Treatment

*1 for a directed verdict On motion judge:

trial Dakota, STATE of South Plaintiff Appellee, which is accept “must that evidence most party against to the whom favorable sought, indulge legiti- all motion COOK, Alvy F. Appellant. Defendant and inferences in his favor that can mate * * * If, fairly drawn therefrom. No. 13525. viewed, any so there is substantial Supreme Court of South Dakota. evidence sustain the cause action defense it must be submitted to the Argued March 1982. jury.” Decided May ruling In on this it was not the motion function, trial court’s and it is not now

ours, weigh judge the evidence or

credibility witnesses. Our review is whether, question

limited to the sole light most favorable to the nonmov-

ing party, ‘any there was substantial evi-

dence to sustain the cause of action.’ words, proof was there a failure of part plaintiff-respondent

establish a valid cause of action? Chrysler Corporation,

Ehlers v. Motor (1975) (cita- omitted).

Viewing light the record in the most appellant,

favorable to we are unable to

find evidence to sustain ap substantial

pellant’s first cause of action. We likewise

fail find substantial evidence to sus neg alleging

tain his second cause of action

ligent inspection bottle and carbonization. directing appellee

The order a verdict for

accordingly affirmed.

All the Justices concur.

Jeffrey Hallem, P. Atty. Gen., Asst. Pierre, plaintiff appellee; Mark V. Gen., Meierhenry, Atty. Pierre, brief. Goetz, J. Klimisch of William Hirsch & Klimisch, Yankton, for defendant and ap- pellant.

DUNN, Justice. away. broke Officers and Vlieger again attempted to restrain Alvy appeals Cook from appellant. A struggle ensued and all three guilty him finding verdict men landed on the floor. Appellant, while assault of a commission armed, thrashing floor, around simple while and re- kicked Offi- sisting cer part, arrest. affirm reverse three times in the face and part, and remand. *3 chest, once in the and Vlieg- kicked Officer er Appellant once. finally was subdued and Tjarks Officer On December During arrested. the booking procedures at moving Yankton, observed a automobile in Station, the Yankton Police appellant complaint A about similar South Dakota. a turned over .25 caliber handgun evening was filed earlier that which he automobile Tjarks possession the had had in his with Yankton Police. Officer prior the attempted stop automobile. incident. immediately. stop automobile did not A Appellant contends that the evi later, the stopped

few blocks automobile in dence was insufficient to support his convic Sieverding. of the home of front Sheila tion assault. We disagree. (Siev- Tjarks Alvin Officer observed Novak determining the sufficiency of evidence erding’s boyfriend) exit from the driver’s appeal, the test is whether there is evi automobile, side while and which, dence in the record believed Danny Wagner passenger exited from the jury, is sufficient to sustain finding through side. Novak entered the house guilt beyond a reasonable doubt. State v. let appellant Wagner back door and and Lien, (S.D.1981); into the through house front door. Robb, Meanwhile, Furdeck, Vlieger Officers Moeller, (S.D.1980). In mak Whiting arrived at the scene. Officer ing determination, this this court must ac Vlieger told Novak that had re- cept that evidence and the most favorable complaint ceived a about automobile. inferences that can be drawn therefrom in Novak invited the officers into the house to support Lien, verdict. su Tjarks discuss the matter.1 When Officer pra; Antelope, entered, she stated that she had observed (S.D.1981). automobile, driving Novak and that she driving suspend- was aware he was under a Aggravated assault under SDCL 22- ed driver’s license. Novak he claimed was 18-1.1(3) requires 1) of: an automobile, driving not but rather that knowing to cause or the causation driving. was be- discussion 2) of any bodily injury, a law enforce came heated and Novak told the officers to officer, 3) ment while the engaged officer is leave house.2 The officers did not performance in the of his duties. See State Whiting leave. Novak swore at Officer Corle, (S.D.1980). is N.W.2d It

punched him the Whiting, in chest. Officer disputed Whiting that Officer awas while to subdue Novak and ef- law enforcement officer in Yankton. arrest, fect his shoved Novak back onto a chair. does contend that since Officer Whiting did not leave the property ques- in point, appellant jumped At this off the requested, tion Novak Whiting so was pull Whiting couch and tried to Officer off was, trespassing property there- Whiting appel- of Novak. Officer warned fore, engaged performance in the of his stop lant to he be would arrested for adopted partic- duties. This court has not interfering with an officer. ular test to determine if a challenged swore at Officer fight. engaged performance Whiting grabbed him to Officer in of his ap- duties. pellant’s However, wrists to consummate the arrest. Ap- Second Circuit Court of only 1. Novak testified that one he invited offi- he Novak testified told officers three in. cer times to leave house. in United States peals address this issue The State must did also show that Heliczer, cert. Cir.) (2d 373 F.2d appellant attempted to or knowingly cause denied, 917, 87 U.S. S.Ct. any bodily injury. caused The evidence in (1967), interpreted which L.Ed.2d 1359 at, appellant repeatedly dicates that swore in a statute phrase duties” federal “official at, pulled and threatened Officer Whiting. upon federal narcotics proscribing assaults arrest, During struggle to effect The Heliczer court stated: officers. Officer appellant kicked in the * * * of official ‘Engaged chest, face three times and once acting scope simply within the duties’ is resulting in swollen cheeks and cut chin. to do. agent employed of what Two officers testified that kick agent is whether The test appeared be ing ap intentional. Even engaging or is compass within that that he pellant flailing admitted was frolic of his own. It cannot personal legs. Appellant contends was at an agent who has made said that Whiting and tacked Officer a second if the capacity arrest loses official officer, however, kicking and that his ac *4 adjudged to be un- subsequently arrest is prove were in self-defense. To a de lawful. self-defense, appellant fense of must intro also United See States 373 F.2d at duce sufficient evidence to a create reason Smith, cert. 1977), (7th F.2d 453 Cir. 562 justification. State v. doubt as to able denied, 1072, 1256, 98 434 U.S. S.Ct. 55 Mier, 515, 74 55 (1952). v. Cun United States (1978); L.Ed.2d 775 accept jury refused to self-de ningham, (D.C.Cir.1975); 509 F.2d 961 evidence, they fense after were thoroughly Barrett, 174, 96 291 498 Wis.2d N.W.2d self-defense,3 instructed on issue of (1980). appellant concluded that guilty ag was of Ordinarily, an officer of the law who gravated assault. We find that there was goes private property while investi upon in sup substantial evidence the record to trespasser. United gating a crime is not a port jury’s verdict. Barnett, (5th States v. 492 F.2d 790 Cir. Appellant alleges evidence Knight, United States 1974); F.2d 451 support was insufficient to his conviction cert, denied 405 U.S. 1971), (5th 275 Cir. resisting 22-11-4, for arrest. Under SDCL 1171, (1972); 92 31 L.Ed.2d 240 S.Ct. guilty he, of person resisting a arrest if Rees, (Iowa Van intentionally prevents attempts pre or to Lukus, 1976); Mont. jailer, vent law enforcement officer or general P.2d 49 rule is that: acting authority, under color of his from trespass Conduct otherwise a is often effecting an arrest of the or actor anoth justifiable by of authority reason vested er, by: as, act, in for person who does (1) Threatening to use physical force or an officer of the in example, law against violence the law enforcement performance duty. of his jailer person; officer or or other Trespass (foot- (1974) 43§ Am.Jur.2d or omitted). *5 instruct jury applicable as to the law to of perpetration predicate felony. the case. See SDCL 23A-25-3. de The statute, purpose namely of the to dis- The option fense does not have the of precluding courage prob- firearm use and decrease the carrying court from out this bodily felony ability of serious harm to vic- forcing of tims, hopes nothing” an “all or verdict. by applying would not be furthered Chamblis, People v. 395 this statute to the situation before us. Mich.

Here, (1975). Thus, did not use the firearm N.W.2d 473 judge during felony; the commission of the may sponte sua instruct on a lesser included the presence officers were not aware of of offense if the evidence adduced at trial after appellant’s the firearm until arrest would warrant' conviction of the lesser process strip search at charge and if the defendant has been af station when voluntari- fair forded notice of those lesser included to ly turned the firearm over the officers People Johnson, offenses. v. 409 Mich. appellant they looking told they after were 297 N.W.2d 115 weapons; appellant permit had a for determining whether the trial court firearm; and he testified that had should submit a lesser included in- offense practice target used the firearm for earlier jury, struction to the two tests must be day. that test, legal satisfied. The first is a distinguish We this case from the deci Pickering, second is v. factual. State holding no sions nexus between the (S.D.1982); Heumiller, v. N.W.2d 926 firearm need established Oien, State v. . Farmer, (Me.1974); A.2d (S.D.1981). Wayne Cty. Judge, Pros. Recorder’s Ct. legal necessarily The test of a in (1979); 406 Mich. Peo (1) requires cluded offense the ele Elowe, ple Mich.App. of are ments the included offense fewer in (1978). Here, felony (ag greater number than the elements of the officer) grew gravated assault on a offense, (2) penalty for the included “topsy” like a heated discussion and out regard arresting companion. greater charged offense less than melee in to prospective offense, (3) This situation where the two offenses must con- greater prejudicial elements so that the but also tain common error to the effect that also be committed without offense cannot evidence, jury might under Pickering, lesser. committing the would probably have returned a different Heumiller, supra; supra; State verdict if instructions had been Oien, supra. given. Owl, State v. Grey supra. After comparing proposed jury the four instruc- legal been satis The test has not given with the instructions fied; therefore, we need not address court, we aggravated trial find that the trial court test. elements of did factual (1) 22-18-1.1(3) SDCL are: in refusing appellant’s proposed assault under not err in- knowing cause or causa to structions. bodily injury, (2) a law en tion of affirm aggravated the convictions of officer, (3) forcement while the resisting assault and arrest. We reverse his duties. engaged in the assault simple convictions and com- Corle, supra. The elements of sim mitting a felony while armed with a fire- 22-18-1(2) (1) are: ple assault under SDCL arm, and remand for dismissal these two another, bodily (2) in injury to cause by the convictions trial court. reckless manner. third element legal this case. test has been met in WOLLMAN, J.,C. and MORGAN and aggravated The crime of assault under POSHEIM, JJ., concur. 22-18-1.1(3) SDCL could be committed bodily injury. to cause Actual HENDERSON, J., concurs in result. Simple need not bodily injury be shown. HENDERSON, (concurring Justice in re- 22-18-1(2) SDCL oth under sult). hand, bodily inju er requires ry. the crime of assault Since agree I with the of this result decision committing without could be committed approve but I cannot standard set forth assault, it for the simple crime of was error Heliczer, supra. in United States v. It is trial court instruct the lesser “frolic” the word which causes me to rebel simple included offense of assault.4 the Heliczer against standard. “Frolic” tri merriment, fun, contends that the a playful means mischie- refusing give al four of his court erred “mission,” vous action. Were the words *6 instruc requested jury instructions. These “act,” “enterprise,” “quest” or substituted given tions were similar to the instructions “frolic,” adopt for the word I could said court, except they specifi The term simply standard. “frolic” denotes cally to the conduct of referred leeway too or professional flexibility much officers. have held that it is not error part My of an officer. concern is give jury for the trial court to refuse to may subjectively perceive officer already are instructions which embodied duty so private property as to enter and given Grey instructions. State investigate while the facts could show that Owl, (S.D.1980); Jahnig subjective perception was not the objec- Coisman, (S.D.1979); Egan 283 N.W.2d perception tive a reasonable man Sheffer, as an of the law under like circum- adequate, instructions are Jury stances. whole, they correctly when considered as I fear an law encroachment enforce- applicable state the law to the case. State upon officers private property ment under Gallegos, If, guise “investigating a crime.” Owl, Grey supra; State West indeed, time permit, and circumstances phal, (S.D.1978). Appellant an only error, has the burden of officer should obtain a or arrest search war- however, 4. contends that the trial court erred on ted assault it was instructing on lesser included offenses on harmless error to also instruct on sim- ple both assault. Since he counts assault this count. aggrava- guilty was found first count going private property prior rant

investigate. Obviously, if be is in the heat quell

of the chase proce-

on-going crime or disturbance such required. believe that

dure would not be I trespass, just can

law enforcement officers badge

like other citizen. Their must private as a shield to invade

not be used a standard which has

property under its

perimeters between the a frolic. and REIF,

William G. Reif d/b/a Construction, Reif, Marge Appellants,

Plaintiffs and Hills,

First National Bank of the Black Intervenor,

Plaintiff Smith,

David A. M. SMITH Patricia Appellees.

Defendants

No. 13345.

Supreme Court of South Dakota.

Argued Nov. 1981. May

Decided notes (2) Using any other means which creates case, present In Officer causing substantial risk of physical investigate had been directed to a com injury to the law enforcement plaint He police. received the Yankton jailer person[.] acted of scope employment within light In of previously the evidence discussed questioning appellant, Novak regarding appellant’s aggra- conviction for engaged personal he was frolic of vated we find that his own. There evidence was sufficient evidence also support appellant’s show that Officer was in was sufficient engaged resisting of his duties. conviction for arrest. given by requested 3. The self-defense instruction in United States ex rel. Means v. the trial Solem, (D.S.D.1979). F.Supp. court similar was to the self-defense instruction the evi contends felon has a firearm at his disposal to bolster support his convic was insufficient dence courage during the commission of a SDCL 22-14-13 the commis tion under crime or for use to effect an escape if the with felony while armed a firearm. sion enterprise criminal goes awry. Rather, the Corle, 294 we N.W.2d at In undisputed evidence at trial indicates that this crime re stated that elements of legal had possession of the fire- “(1) the commission or quire of: arm; he target had used it for practice (2) any felony, attempted commission of earlier in day; and he did not use or with a firearm.” while armed to use the firearm not armed with a firearm and claims was brawl that resulted in the commission under this statute the state argues that felony. agree with that un- must show that the firearm was used peculiar der the circumstances of this case felony. commission the evidence was to support insufficient Simons, Recently, charge. conviction on this recognized (S.D.1981), this court Appellant contends that is an enhancement that “SDCL 22-14-13 instructing court erred in over his designed discourage statute firearm use objection 22-18-1(2) that SDCL (simple as probability of serious bodi- and decrease sault) is a lesser included offense in SDCL gun victims .... It is a ly harm to 22-18-1.1(3) (aggravated assault). Appel that mandates additional control statute objection to giving lant’s the instruc in the punishment a firearm used tion lesser included offenses is not con predicate felony.” perpetration trolling. It the trial court to us, the the case before firearm was used