State v. HaugeState v. Hauge
[¶ 1.] A jury convicted Kenneth Hauge of possession of onе to ten pounds of marijuana in violation of
FACTS AND PROCEDURAL HISTORY
[¶ 2.] On June 23, 2011, Hanson County Sheriff Randell Bartlett received a phone call from Drug Enforcement Agency Agent Richard Mulholland. Agent Mulholland had obtained information that Hauge was growing marijuana in his yard near the back door to his residence in Alexandria, South Dakota. As a result, Sheriff Bartlett went to Hauge‘s residence and observed what appeared to be marijuana plants “growing in a flower bed near the back deck or back patio.”
[¶ 3.] The next day, Sheriff Bartlett and Drug Task Force Agent Dean Knippling went to the alley by Hauge‘s residence and observed the marijuana plants growing in the backyard. The flower bed
[¶ 4.] Sheriff Bartlett questioned Hauge about the marijuana growing in his yard. Sheriff Bartlett informed Hauge that it was illegal for Hauge to grow marijuana. In addition to asking permission, Sheriff Bartlett asked that Hauge sign a permission to search form to remove the marijuana plants. In response, Hauge asked what would happen if he refused to sign the form. Sheriff Bartlett stated that he would get a warrant. At this point, Hauge said that the marijuana did not belong to him and that someone named “Brenda” had planted it. He then remarked that “it wasn‘t good stuff” and “that it was just plants growing.” Hauge also told the officers that he had harvested some marijuana in the past and attempted to use it. Additionally, Hauge stated that he had paperwork saying that it was legal to grow the marijuana and gave the paperwork to Sheriff Bartlett. Agent Knippling testified that the papers did not give Hauge permission to grow marijuana. Sheriff Bartlett and Agent Knippling also testified that at no time throughout the course of thе investigation did they doubt that Hauge knew that the plants were marijuana.
[¶ 5.] Hauge signed the permission to search form. The officers then began to pull the plants that were growing in the flower bed. Hauge assisted the officers. The plants ranged in size from 6 inches to 36 inches tall. Sheriff Bartlett testified that they pulled over 200 plants before they “quit counting.”
[¶ 6.] The plants were then transported to the Hanson County Sheriff‘s Office and dried for 60 to 90 days. On September 12,
[¶ 7.] On October 19, 2011, Hauge was charged with one count of possession of marijuana, one to ten pounds, in violation of
[¶ 8.] On May 18, 2012, a jury convicted Hauge of possession of one to ten pounds of marijuana in violation of
[¶ 9.] Hauge appeals the following issues:
- Whether the trial court erred in denying Hauge‘s motion for judgment of acquittal.
- Whether the trial court abused its discretion in denying Hauge‘s proposed jury instructions.
- Whether the trial court abused its discretion in denying Hauge‘s motion to allow the jury to visit Hauge‘s residence.
- Whether the trial judge abused his discretion when he failed to recuse himself on his own accord pursuant to
SDCL 15-12-37 .
ANALYSIS AND DECISION
[¶ 10.] 1. Whether the trial court erred in denying Hauge‘s motion for judgment of acquittal.
[¶ 11.] Hauge argues that the trial court erred when it denied Hauge‘s motion for judgment of acquittal because the State failed to prove beyond a reasonable doubt that he knowingly possessed between one and ten pounds of marijuana. Hauge asserts that he did not exercise dominion or control sufficient to constitute the crime of possession of marijuana. Hauge further contends that there was nothing to suggest that the marijuana was being cultivated or controlled in anyway and the area in which the marijuana plants were growing was “nothing more than a patch of weeds and grassеs with trash and junk strewn throughout.” Additionally, he argues that he did not have exclusive control of the premises because he lives in the middle of town near an alley where any person could throw seeds onto his lawn.
[¶ 12.] “The standard of review for denial of a motion for judgment of acquittal is whether the ‘evidence was sufficient to sustain the conviction[].‘” State v. Janklow, 2005 S.D. 25, ¶ 16, 693 N.W.2d 685, 693 (quoting State v. Running Bird, 2002 S.D. 86, ¶ 19, 649 N.W.2d 609, 613). Whether the State has provided sufficient evidence to sustain the conviction is a question of law reviewed de novo. State v. Jucht, 2012 S.D. 66, ¶ 18, 821 N.W.2d 629, 633. “Claims of insufficient evidence are ‘viewed in the light most favorable to the verdict.‘” State v. Morgan, 2012 S.D. 87, ¶ 10, 824 N.W.2d 98, 100 (quoting State v. Beck, 2010 S.D. 52, ¶ 7, 785 N.W.2d 288, 292). “The question is whether ‘there is evidence in the record which, if believed by the fact finder, is sufficient to sustain a finding of guilt beyond a reasonable doubt.‘” Id. “We will not ‘resolve conflicts in the evidence, assess the credibility of witnesses, or reevaluate the weight of the evidence.‘” Id. “If the evidence, including circumstantial evidence and reasonable inferences drawn therefrom sustains a reasonable theory of guilt, a guilty verdict will not be set aside.” Id.
[¶ 14.] Here, Hauge constructively possessed the marijuana plants. The record demonstrates that Hauge had control over his yard and the flower bed. The flower bed was located a few feet from Hauge‘s back door and was approximately 14 to 15 feet long and 3 feet wide. The area surrounding the flower bed had been mowed. Additionally, Hauge did not express any surprise that the marijuana was growing in his back yard and, at one point, said he had paperwork that said it was legal for him to grow the marijuana. Further, Hauge‘s explanation as to how the marijuana came to grow in his back yard сhanged as the investigation progressed. Initially, Hauge told the officers that a woman named “Brenda” planted the marijuana, yet later admitted that, in the past, he had harvested some and attempted to use it. From the record, the jury had sufficient evidence to sustain a finding of guilt beyond a reasonable doubt that Hauge knowingly possessed the marijuana in his yard. Therefore, the trial court correctly denied Hauge‘s motion for a judgment of acquittal.
[¶ 15.] 2. Whether the trial court abused its discretion in denying Hauge‘s proposed jury instructions.
[¶ 16.] In declining to grant Hauge‘s proposed jury instructions, the trial court determined that Hauge‘s proposed jury instructions on the law on noxious weeds in South Dakota were not relevant. Hauge asserts that this determination was an abuse of discretion. At trial, Hauge‘s theory of defense was that marijuana grows wild in South Dakotа and is not classified as a noxious weed. Thus, according to Hauge, the property owner has no duty to eradicate the marijuana from his property. Hauge argues that his proposed jury instructions accurately stated the law, namely that marijuana grows wild and that he does not have a duty to eradicate it in his yard because it is not a noxious weed. Lastly, he contends that the jury would have come back with a diffеrent verdict had they been allowed to consider his proposed jury instructions.
[¶ 17.] “A trial court has discretion in the wording and arrangement of its jury instructions, and therefore we generally review a trial court‘s decision to grant or deny a particular instruction under the abuse of discretion standard.” State v. Roach, 2012 S.D. 91, ¶ 13, 825 N.W.2d 258, 263 (quoting State v. Klaudt, 2009 S.D. 71, ¶ 13, 772 N.W.2d 117, 121). “[The] jury instructions are to be considered
[¶ 18.] Generally, “an accused must be afforded a meaningful opportunity to present a complete defense.” Roach, 2012 S.D. 91, ¶ 13, 825 N.W.2d at 263 (quoting Klaudt, 2009 S.D. 71, ¶ 13, 772 N.W.2d at 121). “When a defendant‘s theory is supported by law and ... has some foundation in the evidence, however tenuous, the defendant has a right to present it.” Id. “However, ‘the law in South Dakota is well settled on the point that courts are not required to instruct as to matters which find no support in the evidence.‘” Janklow, 2005 S.D. 25, ¶ 26, 693 N.W.2d at 695 (quoting State v. Jenner, 451 N.W.2d 710, 720 (S.D.1990)). “Further, ‘it is axiomatic that there can be no abuse of discretion in the refusal of a proposed jury instruction that does not represent a correct statement оf the law.‘” Id. (quoting State v. Downing, 2002 S.D. 148, ¶ 27, 654 N.W.2d 793, 801).
[¶ 19.] The instructions provided to the jury correctly stated the law and informed the jury. Hauge was charged with possession of marijuana, not the failure to control noxious weeds. Thus, the instructions informed the jury on the law of the charged offense—possession of marijuana.
[¶ 20.] Moreover, Hauge was given the opportunity to present a complete defense and was not prejudiced from the court‘s denial of his proposed jury instructions. Hauge‘s theory of defense was that marijuana grows wild in South Dakota, was not a noxious weed to be eradicated, and was planted by someone else. In support of his theory, he argued to the jury that other plants and grasses were growing in the flower bed with the marijuana and that a woman named “Brenda” planted the seeds. Further, he presented the testimony of the Hanson County Weed and Pest Supervisor, who testified that marijuana grows wild in Hanson County and that it is not a noxious weed for which there is a duty to remove. Therefore, Hauge was not prejudiced by the trial court‘s denial of his proposed jury instructions.
[¶ 21.] 3. Whether the trial court abused its discretion in denying Hauge‘s motion to allow the jury to visit Hauge‘s residence.
[¶ 22.] Hauge further contends that the trial court committed prejudicial error when it denied Hauge‘s motion to аllow the jury to visit his residence pursuant to
[¶ 23.] The trial court denied Hauge‘s motion to have the jury visit Hauge‘s residence because there had been “sufficient pictures received into evidence that would depict the property and that the pictures that were presented would reflect a more accurate depiction or description of the property at that time.” The court also reasoned that a sign located near the property, which bore criticism concerning the trial judge, the sheriff of Hanson County, and the prosecuting attorney, would not be proper for the jury to view.3
[¶ 24.] The trial court is afforded broad discretion “in deciding whether to admit or exclude evidence.” Jucht, 2012 S.D. 66, ¶ 43, 821 N.W.2d at 639 (quoting Ronan v. Sanford Health, 2012 S.D. 6, ¶ 8, 809 N.W.2d 834, 836). The trial court‘s decision whеther to admit or exclude evidence is reviewed under an abuse of discretion standard. Id. “[E]ven if a trial court‘s evidentiary ruling is erroneous, the error must be prejudicial in nature before we will overturn the ruling.” Id. ¶ 47 (quoting State v. Fisher, 2011 S.D. 74, ¶ 32, 805 N.W.2d 571, 578). “Error is prejudicial when, in all probability ... it produced some effect upon the final result and affected rights of the party assigning it.” Id.
[¶ 25.] Here, the photographs placed in evidence were taken on the date of thе offense, depict the condition of the property at that time, exhibit the location of the flower bed, and show a number of marijuana plants growing in Hauge‘s yard. Hauge was not prejudiced by the court‘s denial of his motion because he was allowed to argue his theory to the jury that the marijuana was growing wild. Moreover, the jurors would have had to walk past a sign disparaging the trial judge, sheriff, and prosecuting attornеy, which could have influenced the jurors improperly. Thus, the trial court did not abuse its discretion in denying Hauge‘s motion.
[¶ 26.] 4. Whether the trial judge abused his discretion when he failed to recuse himself on his own accord pursuant to
[¶ 27.] On appeal, Hauge argues that the trial judge abused his discretion when he failed to recuse himself on his own accord pursuant to
[¶ 28.] It is settled “that decisions to recuse lie within a judge‘s discretion.” Marko v. Marko, 2012 S.D. 54, ¶ 18, 816 N.W.2d 820, 826. “A judge exercises discretion in deciding whether the facts and circumstancеs fit within the disqualifying criteria.” Id. “Once the trial judge has
[¶ 29.] In South Dakota, the Code of Judicial Conduct governs judicial disqualifications. “Canon 3E(1) provides that ‘a judge shall disqualify himself or herself in a proceeding in which the judge‘s impartiality might reasonably be questioned, including but not limited to instances’ of (a) ‘personal bias or prejudice’ or ‘personal knowledge,’ (b) prior service as a lawyer in the matter, (c) economic interest, and (d) close pеrsonal relationship of relatives or parties to a proceeding.” Id. (quoting Code of Judicial Conduct,
[¶ 30.] Indeed, Canon 3E(1) contemplates two scenarios: “(1) situations where the ‘judge‘s impartiality might reasonably be questioned,’ and (2) instances ‘including but not limited to’ when rules (a) through (d) apply.” Id. ¶ 20 (quoting Code of Judicial Conduct,
[¶ 31.] “[A] judge also has an ‘equally strong duty not to recuse when the circumstances do not require recusal.‘” Id. ¶ 21 (quoting Center for Professional Responsibility, American Bar Associatiоn, Annotated Model Code of Judicial Conduct 187 (2004)). “[U]nder South Dakota‘s Code of Judicial Conduct, a ‘judge shall hear and decide matters assigned to the judge except those in which disqualification is required.‘” Id. (quoting Code of Judicial Conduct,
[¶ 32.] Here, we examine whether the trial judge‘s “impartiality might reasonably be questioned” for either of the two reasons asserted by Hauge. Those reasons are: (1) that the trial judge presided over two prior proceedings—one proceeding involving Hauge and the other proceeding, his son, and (2) that Hauge had been associated by the community with the sign, which disparaged the trial court, sheriff, and prosecutor. Thus, we ask ourselves, “would a reasonable person knowing all of the facts conclude that the judge‘s impartiality might reasonably be questioned?” Id. ¶ 22.
[¶ 33.] First, Hauge argues that the trial judge presided over two matters related to Hauge: a contentious restraining order case between Hauge and his neighbor and Hauge‘s son‘s sentencing. However, as Hauge concedes, “even in cases where judges have had prior judicial exposure to [the] parties, without more, ap
[¶ 34.] Second, Hauge asserts that the perception among community members was that Hauge had made the disparaging sign. He contends that the trial judge likely had this perception as well, thus requiring the judge to recuse himself. The record indicates that the trial judge was aware of the presence of the sign and the wording on it. However, without more and even with the trial judge‘s knowledge of the sign, it appears Hauge was a discontented litigant who was not happy with the trial judge‘s prior rulings and wanted the judge removed from the present case. Again, we see no objective grounds to conclude that the trial judge‘s impartiаlity might be reasonably questioned.
[¶ 35.] Moreover, Hauge‘s argument that his affidavit for change of judge was improperly denied is also without merit. Hauge‘s affidavit was denied as untimely.
CONCLUSION
[¶ 36.] The trial court did not err in denying Hauge‘s motion for judgment of acquittal. In addition, Hauge‘s proposed jury instructions were properly denied. Further, the trial court did not abuse its discretion in denying Hauge‘s motion to have the jury view his residence. Lastly, the trial judge did not abuse his discretion when he did not recuse himself pursuant to
[¶ 37.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and SEVERSON, Justices, concur.
Notes
No person may knowingly possess marijuana. It is a Class 1 misdemeanоr to possess two ounces of marijuana or less. It is a Class 6 felony to possess more than two ounces of marijuana but less than one-half pound of marijuana. It is a Class 5 felony to possess one-half pound but less than one pound of marijuana. It is a Class 4 felony to possess one to ten pounds of marijuana. It is a Class 3 felony to possess more than ten pounds of marijuana. A civil penalty may be imposed, in аddition to any criminal penalty, upon a conviction of a violation of this section not to exceed ten thousand dollars.
When, in the opinion of a court, it is proper that a jury should view the place where an offense is alleged to have been committed, or where any other material fact occurred, it may order the jury to be conducted in a body, in the custody of proper officers, to the place, which must be shown to them by a person appointed by the court for that purpose. The officers must be sworn to prevent any person from speaking to or communicating with the jury, and not to do so themselves, on any subject connected with the trial, and to return them into court without unnecessary delay or at a specified time.
An affidavit for change of judge or magistrate, if against the judge or magistrate who, in the ordinary course, would preside at the hearing or trial, must be filed within the following times:
(1) If there be any motion or application to be heard upon notice, the party resisting the same may file an affidavit not less than two days before the hearing; or if the matter is returnable in a shorter time, then before the commencement of such hearing;
(2) If there is no such motion or application:
...
(b) In actions triable by a jury at least fifteen days prior to the date said action is scheduled for trial[.]