State v. Fast Horse

Dakota, Plaintiff of South STATE Appellee, HORSE, Defendant C. FAST

Lavern Appellant.

No. 17664. Dakota. of South

Supreme Court May 1992. on Briefs

Considered Aug. 1992.

Decided Gen., Barnett, Atty. Bogue, purchase Scott tribe failed to Mark it. When Dale Pierre, Gen., plaintiff Horse, and Atty. attempted for to reach he Asst. Fast found he appellee. already fact, had left for California. Fast Horse took the camcorder with him to Stonefield, Rapid City, for de- Michael S. where, his according California to own tes- appellant. fendant timony, by was seized law enforcement from authorities his hotel room. SABERS, Justice. (Fast Horse) ap- Horse Lavern C. Fast ultimately State filed an information his for embezzlement peals conviction charging Fast Horse one count

property received in trust. We affirm. deception by theft and an alternative count property of embezzlement of received in FACTS trust. The matter was before a jury tried (Dale) operated a Jeff Dale business in July 1991 and the returned a verdict Rapid City, Dakota that sold South satellite Fast Horse of embezzlement televisions, systems, VCRs and camcord- of A property judgment received in trust. Fast Dale’s ers. Horse visited business was accordingly entered and Fast Horse seeking employment. Dale December appeals. told positions had no salaried available but he in a bring

Fast Horse that if could ISSUE ONE give item he him customer or sell an would time, small After that commission. WHETHER THE TRIAL COURT stop periodically Horse would in Dale’s ERRED IN FAST HORSE’S DENYING to talk Dale or to litera- business to obtain PROPOSED JURY INSTRUCTION ON During ture on Dale’s merchandise. one CIRCUMSTANTIAL EVIDENCE? visits, Fast Horse noticed a these camcord- gave following jury The trial court displayed er Dale had sale. Fast Horse on circumstantial evidence: a local he told Dale he knew Indian Tribe looking worked for video once was for a Direct evidence means evidence that di- if he camera and asked could take rectly proves a fact. Circumstantial evi- camcorder to tribe. Dale proves show Since dence means evidence a fact that previous had information that the was tribe from which conclusion can be drawn camcorder, looking let agreed for a he that another fact exists. one on display

Fast Horse take the to show necessary It be proved is not that facts tribe. by They may proved evidence. be direct Fast Horse returned to Dale’s sev- store by circumstantial or by also evidence taking days after but eral camcorder of direct circumstantial combination bring did not the item back with He him. no The distinction evidence. law makes Dale the did not cam- told tribe want the evi- between direct and circumstantial corder but one of tribal was officials proof. a means of Neither is dence as trying pur- if he out to see wanted to weight than any greater entitled personal days it for his use. A chase few other. later, again stopped Fast Horse in Dale’s instruc- During settlement returning without

business camcorder. tions, proposed following Fast Horse Dale Fast Horse When asked about which circumstantial evidence instruction item he still on the said it was reservation. rejected was the trial court: he going Fast Horse also said to be that Direct means evidence di- evidence leaving trip to After soon on a California. fact, an infer- rectly proves a without left, Fast Horse contacted Dale two tribal ence, itself, which in if true estab- inquire officials to about the whereabouts fact. lishes that One of them confirmed camcorder. item Fast Horse had the tribe the Circumstantial evidence means shown proves said took it a fact from an infer- back when that court did not instruct the may The trial of another fact existence ence of the case of the state rests that where the be shown. circumstan- substantially entirely or proven necessary facts be It is not evidence, they permitted are not tial They may proved be by direct evidence. proved unless convict the accused circumstantial also only not consistent and circumstantial circumstances are of direct combination accused, no distinction guilt makes of the but cannot evidence. The law with and circumstan- any direct evidence con- be reconciled with other rational between Nei- proof. of as a means tial evidence which is essen- clusion and each fact weight greater any entitled to ther is complete tial to set of circumstances than the other. guilt necessary to the accused’s establish rests sub- proved beyond of the state has been a reasonable Where the case entirely stantially on circumstantial doubt. evidence, to find you permitted are not The trial court’s failure to so instruct the guilty of the crime the defendant opinion clearly jury in our and substan- proved against him unless the appellant. though tially prejudiced Even only not consistent circumstances are appeal, this was not raised on we issue defendant, guilt can-

with plain requires conclude that this any rational reconciled with other not be retrial. each fact which is essen- conclusion and Breed, (emphasis 399 N.W.2d at 312-13 complete a set of circumstances tial to omitted). added) (citations the defendant’s necessary to establish Breed, proved beyond a reason- In contrast with where guilt has been circumstantial, totally able doubt. state’s case was any real only element embezzlement circumstances shown If all the facts and dispute present in the was whether case reasonably upon can accounted be Fast Horse acted with an intent to defraud. innocence any theory consistent with the defendant, evidence in acquit Generally, must a circumstantial is the is not where intent struction the defendant. proven by direct evidence. only element not submits, the trial court’s As Fast Horse State, See, Ind. 401 Spears v. 272 language lacks the con- jury instruction (1980), on other 331 N.E.2d modified proposed instruction concern- tained in his 647, 403 N.E.2d 828 grounds, 272 Ind. substantially cir- ing prosecutions based (1980); 610 Kaufman, v. 265 N.W.2d State Citing evidence. v. cumstantial State Moehlis, (Iowa 1978), v. 250 N.W.2d State (S.D.1987), Breed, where 399 N.W.2d 311 State, (Iowa 1977)*; Lindsey v. 671 42 importance of such lan- we stressed the (Okla.Crim.App.1983); v. P.2d 57 State argues the trial court’s guage, Fast Horse 1981). Brooks, (Utah P.2d 878 631 proposed instruction consti- rejection of his disagree. tutes error. We reversible supra, the defendant was con- Spears, kill and with intent victed of assault counts of Breed was convicted of several trial, During degree second murder. receiving proper- burglary, theft and stolen give proper circum- trial court failed ty. appeal, we found the evidence On appeal, stantial evidence instruction. On circumstantial,” partic- against “totally him Supreme Court found revers- the Indiana Breed, ularly to identification. 399 as give the instruc- error in the failure to ible sufficiency As to N.W.2d at 312. charge because that tion as to the murder on circumstantial evi- proved circumstan- dence, charge was nearly identical to the one in this However, to the assault case, tial evidence. held: * O'Connell, (Iowa upon list of federal and based an extensive State 1979), Supreme disposed of the the Iowa Court have eliminated the distinc- state courts which cautionary requirement evi- of a circumstantial circumstantial evidence tion between direct and equali- the rule of dence instruction based sufficiency. testing evidential ty between direct and circumstantial evidence charge, kill the Indiana Regarding Necessity with intent to Court Status Rule observed: Instruction on Circumstantial Evidence Cases, in Criminal Trial —State any claims that evidence of Defendant (1985) (where A.L.R.4th and, element kill circumstantial § intent proved by therefore, circumstantial evidence circumstan- is defen- instruction [on mind, dant’s intent or apply equally state of court’s have tial would to that evidence] special required as, held no charge. The evidence from which intent nature, Thus, by their could be inferred was direct. intent and state of mind apply usually must instruction would not as- be inferred from the circum- stances). charge. sault with intent to kill To hold require otherwise would circumstantial proved since the element every evidence instruction case involv- by circumstantial evidence was Fast ing containing a crime the element of intent, Horse’s we find no error in the trial Unnecessary intent. confusion would re- court’s refusal of proposed Fast Horse’s sult from such a course. jury circumstantial evidence instruction.

Spears, 401 quoted N.E.2d at 335. Or as Ap- the Oklahoma Court of Criminal ISSUE TWO peals Lindsey, supra: WHETHER THE TRIAL COURT Intent, cases, in practically all must be ERRED IN THE INSTRUCTING JURY arising shown the inference from the ON FLIGHT? that, facts shown. We do not think from gave following The trial court practical standpoint, say it is correct to jury instruction objec over Fast Horse’s that it is “a conviction on circumstantial tion: evidence,” where all salient facts of the defendant, Flight by the the crime (including case the facts on which the committed, has been does not create a rests) directly proved, inference itself are guilt. presumption may You consider and proved intent with which however, flight, tending evidence of acts were committed is a matter of infer- prove the defendant’s so, consciousness If proper speak ence. would be guilt. You are not to do so. being of a conviction for homicide as “a [weigh] You should evidence,” consider evi- conviction on circumstantial flight by dence of the defendant in con- eyewitnesses killing, where see the nection with all the other evidence in the must infer the malice or heat of give weight be, your case and it such as in passion, may as the case from circum- receive, judgment fairly entitled to surrounding stances the transaction. added). (emphasis Lindsey, 671 (quoting P.2d at 59 Love v.

State, Ga.App. 874, (1911)). 9 72 S.E. 433 argues the trial court erred in giving emphasized portion of this

These authorities are consistent with the instruction because it removed an issue general view that: jury by requiring from the it to find that a The failure give or refusal to an instruc- was, fact, crime committed. He asserts tion on circumstantial evidence is er- not preferable it would have in- been ror where there is direct evidence that struction to make reference to defendant committed the act alleged commission of an crime rather than also, charged. So it would not be error agree commission of While we fail or refuse to instruct circum- phraseology such would be more technical- stantial evidence where ... state re- accurate, ly prejudicial we find no error in prove lied on direct evidence to the acts of the instruction. of crime identity perpetra- and the tor relied on circumstantial “[J]ury adequate instructions are prove evidence to intent. when, whole, they give considered as 75B (empha- appli Am.Jur.2d Trial 1391 full and correct statement of the law § added). Annotation, also, Owl, sis See Grey Modern cable to the case.” State v. 295

500 (S.D.1980)(emphasis N.W.2d possibility add- we find no could have ed). Accord, Cloud, State v. St. been misled. being hyper- Defendant is (S.D.1991). Thus, N.W.2d 177 critical, and we find no objec- merit his alleged portion in a of a [w]hen tion. charge, challenged review (citation Upton, 167 N.W.2d at 630 omit- passage not in “artificial isolation” but ted). the context of the as a instructions, in various grounds It whole. is not for reversal was told: questions it must decide all charge might

that the have been differ- better, fact; worded; ently, or even guilty plea Horse’s not placed [trial] court has wide discretion on choice of every material constituting fact the of- language, and we not find will that dis- charged issue; fenses Fast Horse was cretion abused when the instructions as a presumed innocent unless it was satisfied accurately adequately whole state guilt beyond doubt; of his a reasonable the relevant law. state had the of proving burden every ele- Kabat, United States 797 F.2d ment of the offenses beyond a (8th (citations Cir.1986) omitted). See also doubt; and, reasonable it must if determine McMillan, (8th U.S. v. 820 F.2d 251 Cir. Fast Horse committed acts constituting one 1987) (challenged jury instruction not re and, charged so, of the offenses if in viewed isolation in charge but context of offense. in Upton, As when these instruc- trial). as a whole in context of whole whole, tions are read as a possi- we find no Or, succinctly put by as more the Fourth bility jury the was misled into the mistaken Appeals, Circuit Court of “[reviewing belief had no discretion concerning the courts temptation must resist the to read determination of whether a crime was com- jury myopically.” Briley v. mitted. Bass, 1238, (4th Cir.1984). 750 F.2d 1243 Principles similar to those outlined above In order to be entitled to reversal of applied by Supreme were the Court of Iowa a conviction due to error in instructing the Upton, (Iowa in State v. 167 N.W.2d 625 jury, appellant an only must not show er 1969). Upton receiving was ror, prejudicial error in the instruction. property. stolen jury The was instructed See, Hawk, Eagle State v. 411 N.W.2d 120 “ find, that to him ‘beyond convict it had to (S.D.1987). requires This showing that doubt, a reasonable that the defendant had error, alleged in all probability, pro knowledge it property] was stolen [the duced upon jury’s some effect verdict ” when he aided in Up- its concealment.’ and was harmful rights to the substantial ton, 167 (emphasis original). N.W.2d at 630 party of the assigning it. State v. Micha appeal, Upton, Horse, On similar to Fast lek, (S.D.1987). 407 inqui N.W.2d 815 The argued the instruction removed an issue ry whether, in regard this absent the from the because it told the he alleged error, beyond it is clear a reason did aid concealing in property and the able doubt the would have returned a jury only had to beyond find a reasonable verdict. Id. Fast Horse ren doubt he knew it was stolen when he did myopic, hypercritical ders a reading to the so. The Iowa court held: challenged jury instruction reject. which we doWe not believe the fairly instruction is instructions, The whole, viewed as a ade open objection. instructions, The quately presented the law and Fast Horse course, must be in considered their has failed to any probability demonstrate entirety. In places at least three flight

throughout instruction’s use of the terminol instructions the was duty ogy told the of the “the crime” rather prove alleged State to all than “the necessary elements guilt to a any crime” had jury’s effect on the verdict. beyond a reasonable doubt. Thus, prejudicial we find no in When this instruction is read as a whole instruction under the facts of instructions, and is related to the other this case. flight also in- Appeals contends The Court of Eighth for the improperly given because the Circuit has stated that “the

struction inference of guilt that flight may facts do not reflect a “classic situa- be drawn the fact of flight ‘immediately he arises after the support of this contention tion.” crime, commission of a or defen- trip points out his did not [a California is accused a crime that has really alleged dant] follow offense but was ” been committed.’ United States v. part of proven as a the commission of the White, 660, (8th Cir.1973) 488 F.2d offense. (emphasis original). requirement in The Hoover, 608, In State v. 89 S.D. immediacy flight greatly dimin- (1975), defendant, suspect- N.W.2d 635 ished, however, when the defendant participating burglary Rapid ed of in a that he sought knows is accused of or Dakota, City, South was arrested Mis- charged. the crime weeks A souri several Waller, 338 N.W.2d at 292. flight given during instruction was the de- authorities, Based the above this addressing challenge fendant’s trial. recognized court has sup- evidence will on appeal, instruction this court ob- port giving jury flight instruction on served, might “we well be accord with attempt where shows the defendant’s Supreme the Colorado Court Robbins immediately flee followed after the com- 254, People, 1960, 142 Colo. 350 P.2d mission of a crime that it followed his flight it held that a ‘is where obtaining knowledge he had been accused rarely never given advisable should be being Thus, sought or was for a crime. peculiar unless the appear facts of case Menard, (S.D. State v. Hoover, to make it essential’ ...” 89 S.D. 1988), giv- we found no reversible error in at 236 N.W.2d at Despite 640-41. this ing instruction where the defen- flight, dim view of dant the of stabbing/murder fled scene recognized have also that: immediately stabbing after the but before [ojrdinarily, flight decep- evidence of police arrived on the scene. Neverthe- tion, standing alone, is insufficient to less, flight instructions, we cautioned that convict, when accompanied by but other “as appear well others which to be a evidence, may justify it an inference of commentary evidence, on the should be guilt. attempt An by the accused flee to sparingly special used when the following alleged commission require.” of circumstances and evidence Me- circumstantially crime is relevant nard, 424 N.W.2d at 384. prove act, not commission of the Application principles of these also the purpose intent and with made in fact difficult this case Fast was committed. trip to fit Horse’s California does not con State, Marshall N.W.2d 840-41 veniently any temporal within re (S.D.1981) (citations (emphasis added) omit- recognized in Marshall, supra strictions or ted). Thus, we have of found evidence Waller, supra. In contrast those with flight to be relevant if it meets the tempo- cases, crime in the instant case did not attempt ral restriction that the to flee fol- so occur on much a date certain as it consti alleged low the commission of an crime. ongoing enterprise tuted an from the time Horse Fast obtained the camcorder until concerning temporal relevancy Issues apprehension his with the device in Califor flight propriety evidence and the Thus, nia. it cannot be said that Fast flight instructions on in were revisited trip to Horse’s California followed immedi Waller, (S.D.1983). State v. ately after commission of a crime or Waller, In challenged the defendant obtaining knowledge being after his he was giving of flight instruction because he did sought for a crime. immediately not flee of a crime the scene but, rather, analogous left the state several months Horse’s Fast situation is more the alleged after We offense. held: to that of the defendant in Kamees v.

State, (Okla.Crim.App.1991). of the same evi- 815 P.2d 1204 VCR. Consideration Kamees, flight defendant committed a dence in the context of could not “grab-and-run theft” from a store tak- change any way jury’s fundamen- closing at time and ing a VCR off the shelf guilt. tal determination of Therefore the running out of the store. Id. at 1206. require erroneous instruction does not During grand the defendant’s trial for lar- reversal of this case. gave

ceny, the trial court an instruction on Kamees, 815 P.2d at 1207. addressing chal- flight. the defendant’s Much the same is true here. To find lenge appeal, the instruction on Horse of embezzlement the Court stated: Oklahoma jury had to appropriated find he the cam- appellant agree We with the purpose corder to a use or not the due flight The the instruction on is error. and lawful execution of his trust. Under running away appellant’s act of case, misappropriation the facts of this his “carrying completed the element of VCR complete when he traveled to Califor- away” required grand larceny. nia with the camcorder in hand. Consider- definition, Flight, by running away is a ation of this same the context Certainly commission flight change any way not could person could occur after a commit- jury’s guilt. fundamental determination of However, grand larceny. ted the facts Moreover, Waller, supra, as in support do not such a here. to, opportunity had the attempt and did Id. explain trip his California Here, an essential element of the embez- was instructed it was not to con- zlement offense was that it be shown Fast sider this evidence as consciousness of appropriated Horse the camcorder to a use Nevertheless, guilt. doubtless Fast purpose not in the due and lawful execu- convoluted, Horse’s twisted and inconsis- tion his trust. SDCL 22-30A-10. Given explanations tent why as to he took the the fact Fast Horse was entrusted with the camcorder to California did far more to camcorder in order to show it to a local any assure his conviction than erroneous tribe, taking Indian his act of it to Califor- flight. instruction on really represent flight nia does not Based analysis, the above we are but, commission of a crime similar to the beyond any convinced reasonable doubt Kamees, running away defendant’s flight that even absent erroneous in- completion misappropria- of element of jury struction the would have a returned Certainly tion for embezzlement. Accordingly, verdict. we find no flight person could occur commit- prejudicial in giving error the trial court’s embezzlement, appear ted but would not provides the instruction and that it no support finding the facts such a here. foundation for a reversal of Fast Horse’s Irrespective flight of the fact a in conviction. case, struction was unwarranted this Affirmed. Hoover, supra, prejudicial we find no error in the of the instruction. In MILLER, C.J., and and WUEST Kamees, supra, Appellate the Oklahoma AMUNDSON, JJ., concur. although flight Court found that in HENDERSON, J., erroneously given, specially. struction was concurs the error part was harmless. This was based in on HENDERSON, (specially Justice concur- its that the super instruction was ring). fluous because: Regarding proposed circumstantial appellant guilty grand find the [t]o Horse, jury by I instruction larceny jury had to find he carried outright majority opinion. concur with the away merchandise. Under the facts of carrying away this case the complet- Concerning jury the instruction to the appellant away ed when the ran I flight, specially with the concur. South Dakota’s sick and it govern. instruction on is stances of the case State v. Branch, needs a doctor. (S.D.1980). 298 N.W.2d 173 When instructing jury, reversal, to warrant a Here, Fast victim Horse told the error, establish, based an it is vital to leaving crime that he was for California. * if the reversed, conviction is to be that “flight?” “fleeing Is this this Is from prejudicial error be established. Stare deci- justice?” Secondly, State’s Information did sis on erroneous instructions is set forth in not fix a date certain for Fast Horse’s Willis, (S.D.1985). State v. 370 N.W.2d 193 offense, rather, commission of the Furthermore, case, in said we held that an “during the commission the month appellant that, must establish under the December, 1990, through January, evidence, might probably essence, position 1991.” State took the would have returned a different verdict but continuing that this was a for the error in the instructions. jury’s Is it not the function to determine if, indeed, a crime has been committed? bought way a one air- then, state, Obviously. Why, in this do we plane ticket to California. He took the instruction, continue to bless an such as the camcorder him. He also offered to here, given “Flight by one the defen- sell the camcorder to one Joann Thunder- dant, committed, the crime has been Dale, hawk. Fast Horse also told the vic- presumption does not create guilt.” tim, that the camcorder was still on the mine). (Emphasis supplied effect, brought reservation. But he the camcord- (a) assumption is made that a crime has er girlfriend’s apartment to his in Rapid (2) been committed the defendant commit- City, going before story California. His ted the crime and defendant fled from it, it, where he had what he did with Then, effect, the crime. tells the it, what he intended to do with is rife with you do not have to consider those three prevarication. My point is: There is over- assumptions. It baloney. is instructional whelming evidence of his embezzlement. Frankly, my opinion, this South Dakota error, And there prejudicial but no Pattern Criminal Instruction 1-14-9 in- Dakota, decisional law in in giv- South herently against every skewed defendant ing what I lousy believe to be a where the given. instruction is In State v. se) (per Notwithstanding law. in- this Menard, (S.D.1988) we ad- struction, jury might probably monished the trial courts in this state to would not have returned a different ver- use this flight “sparingly” instruction on also, dict. Stapelton, See State v. “only special when the circumstances (S.D.1986). N.W.2d 28 A fundamental de- require.” and evidence We went on in termination of embezzlement express, Menard to “To that extent Ramees, was sound. 815 P.2d at 1207. suggest would modifying the comment Our Jury committee on Pattern Instruc- accompanies Jury Pattern Instruc- tions in this state needs to review and (Criminal) tion 1-14-9.” Could not the trial improve “flight” instruction for our modifier, say, courts as a “after the al- Bench and Bar. leged commission of the offense?” This However, beginning. would be a we need complete overhaul. instruction, case,

An used in this However,

error. our review does not end

there. SDCL 23A-44-14 “Any reflects:

error, defect, irregularity or variance which rights

does not affect substantial shall be

disregarded.” case, In each to determine if prejudicial error,

it is the facts and circum- * States, 471, 483, Evidence of can be attributed to causes United 371 U.S. 83 S.Ct. 441, 452-53, guilt. Wong (1963). other than consciouness of Sun v. 9 L.Ed.2d n. 10

Case Details

Case Name: State v. Fast Horse

Court Name: South Dakota Supreme Court

Date Published: Aug 5, 1992

Citation: 490 N.W.2d 496

Docket Number: 17664

Court Abbreviation: S.D.