*1
STATE Appellee, Troy HOLZER,
Rodney Defendant Appellant.
No. 21103. Dakota.
Supreme Court of South Briefs March 2000.
Considered on
Decided June *2 Barnett, General, Attorney
Mаrk Mi- Bennett, Attorney chele K. Assistant Gen- Pierre, eral, plaintiff appellee. for Carper, County Nichole Minnehaha Office, Falls, Public Defender’s Sioux appellant. defendant and GILBERTSON, Justice Rodney Troy Defendant (Holzer) appeals his conviction of first- degree attempted burglary, claiming the evidence is insufficient the con- appeals viction. He also the circuit court’s ruling admitting testimony concerning the clothing condition of his at the time of his arrest. We affirm. watehing “popped AND him. He up”
FACTS PROCEDURE front of the women and scared them while 17, 1998, December Amanda [¶2.] On looking out the small windows of the Amy young Decker and two other Spronk, front door. At this time the women could together in a сollege women lived house identify the man Falls, because his face was partic- South Dakota. On this Sioux *3 Spronk’s girlfriends, covered. Holzer wore a evening, ular four blue t-shirt over DeVries, Poppens, Rol- Jessica Sarah his face. The shirt had holes cut out for Jill Koerner, linger spending and Katie were eyes his and nose. night at her house because the Univer- Holzer [¶ 6.] went to the back door and sity Falls were of Sioux dormitories closed attempted to force open sliding glass for Christmas break. door, “slamming back and forth real [it] spending evening After at an- [¶ 3.] hard.” pull The force was sufficient to house, other Mend’s the women returned screws from the latch original “out their Spronk’s separаte house in two cars. position approximately a half inch.” about on the parked The cars were street enough There was also force exerted on of the DeVries’ front house. car was left the door to make the vertical cover- blinds front unlocked. The and back doors to the glass swing back and forth. After house were unlocked at this because time incident, the' back sliding glass door expected boyfriend stop by Decker her repaired. could not be locked until it was later. downstairs on the main floor [¶ 4.] While point, At some Decker was awak- house, Poppens noticed someone and told trying get ened about the man opening the outside scrеen door on into the house. She made another 911 Poppens
front porch. Koerner went call.1 The women remained upstairs if anyone to the front door to see was stayed Decker on the line until law en- there, running and observed Holzer across forcement arrived. They upstairs the front lawn. went to tell When Officer Dave Erickson ar- [¶8.] Spronk they and DeVries what had seen. scene, rived he observed “a shadow point, Spronk At that went outside to lock person” of a near the back door of the entry car with the remote con- DeVries’ began A dog barking house. Officer back into the trol. She came house Erickson, and Holzer ran off. Other law both the front door and the locked back sliding glass heading up- dispatched door before back enforcement the area ob- stairs. The other women remained on the running through served Holzer back- first floor. yards neighborhood. in the Holzer did not stop upon command and was tackled a later, A Poppens, short time Rol- Spronk’s short distance from house. linger Koerner noticed Holzer at- When Holzer was rolled over onto his get tempting again into the house. back, large, officers noticed a flesh colored They Spronk told about this and when she waist, nylons his dildo attached looked out the window she saw a man through extending unzipped uns- driveway. in the Holzer standing fly' of napped open pants. his “shоwing dancing himself and he was area, pants very were wet the crotch brief, admits, In around.” Holzer specifically, “around the areas and wearing masturbating, while a dildo and ” up snap.... The rest of towards provocatively danced on the sidewalk dry. Spronk’s purse were was found Spronk’s Poppens front of house. called ground t- report happening. 911 to what was on the near Holzer. blue women felt sure Holzer knew shirt was found him as well. Holzer’s elapsed elapsed time 1. The totcil duration of the two 911 ord does not indicate how much calls is 8 minutes and 26 seconds. The rec- between the first and second 911 calls. recently stated N.W.2d We found one block pickup was Dodge Larson: house. Spronk’s south of review of a denial Our standard December
[¶ 9.] On acquittal judgment for' motion attempted bur- by indictment with charged house) set forth sufficient evi- (the whether State first-degree glary in the jury could reason- from which the 22-4-1), dence (SDCL 22-32-1(3); SDCL ably the defendant find contact with- sexual the intent Abdo, charged. State crime consent, burglary in the out (S.D.1994); 22-32-19) car) (SDCL (the fourth-degree (S.D.1990). 739, 742 22-24-1). Gallipo, 460 N.W.2d (SDCL exposure and indecent sufficiency of determining II Habitual also filed a Part The State *4 crime, evidence to constitute the Information, as Holzer had twice Offender question is “whether there sufficient burglary of previously been convicted which, if in the record believed grand theft. third-degree and once for is sufficient to sustain exposure indecent dismissed the The State finding guilt beyond of reasonable trial, prior trial. Also charge prior to determination, doubt; making a motion in limine to restrict Holzer filed evidence, accept court will and the testimony regarding the fact Holzer’s fairly most favorable inference “wet” at the time of his arrest. pants were therefrom, which will the ver- was denied and the circuit This motion 397, Heftel, dict.” State v. 513 N.W.2d testimony the con- regarding court allowed (citations omitted). (S.D.1994) 13, 399 April pants. dition of Holzer’s On 1999, -on Holzer was convicted 15, (citing Thompson, v. 1997 SD Id. State attempted burglary. The the counts of ¶ 34, 535, (citing State 560 N.W.2d 542-43 twenty-five him to circuit court sentenced (S.D. McGill, 89, v. 536 N.W.2d 91-92 three years penitentiary in the stаte 1995))). review, In this we “will not re suspended attempted for the first- years pass solve conflicts on the years and ten with one degree burglary witnesses, credibility weigh the evi year suspended attempt- as to the count of No verdict will be set aside dence. fourth-degree burglary. ed sentences evidence, including if the circumstantial ev concurrently. Holzer are to be served idence and reasonable inferences drawn sentence appeals now his conviction and therefrom, theory sustains a reasonable attempted first-degree burglary, for rais- Buchholz, 110, guilt.” v. 1999 SD State for our consider- following issues ¶ 33, 899, (citing 598 N.W.2d 905 State ation: Knecht, ¶22, 413, 53, 1997 563 SD N.W.2d 1. the circuit court erred in Whether 421). denying judg- Holzer’s motion for The circuit court’s eviden- [¶ 11.] acquittal. ment of and we tiary rulings presumed are correct the circuit court abused its Whether an abuse of review them under discretion admitting testimony discretion ¶ Larson, 80, 10, standard. SD the condition of Holzer’s concerning Goodroad, (citing N.W.2d at 17 State v. the time of pants at his arrest. ¶ 126, 129 1997 SD 563 N.W.2d Oster, (citing State v. 495 N.W.2d
STANDARD OF REVIEW (S.D.1993))). “The test whether is not we ruling, made the but reviewing the denial of would have same [¶ 10.] mind, in judgment acquittal, judicial the whether we believe a view a motion for circumstances, could question ultimate is whether the evidence of the law and reasonably reached the same conclu was sufficient to sustain the convictions. have ¶ Goodroad, Larson, Id. (citing 1998 SD 582 sion.” SD ¶ (S.D.1987)). (citing 563 N.W.2d Statе v. “The actor’s of mind’ ‘state (S.D.1986))). 424, 426 Rufener, 392 N.W.2d the time of the offense also be acts, determined from his conduct and in AND ANALYSIS DECISION ferences are fairly which deducible from the circumstances the of surrounding 1. Whether the circuit [¶ 12.] Huber, (citing fense.” Id. State v. denying erred in Holzer’s motion (S.D.1984)); see also judgment acquittal. for (Minn. State v. Ring, 554 N.W.2d argues his motion [¶ 13.] App.1997) (stating generally intent must judgment acquittal should have been circumstances sur granted at the close of the evidence be- acts). rounding the defendant’s “[T]he cause the evidence was not sufficient to proof of intent commit a crime con prove beyond reasonable doubt he in- nection proof burglary always commit, tended to sexual contact in thе one that on a permissible must rest infer course of the burglary. We do proved.” ence from the fact Ring, 554 agree. N.W.2d at 760. unlawful Burglary entry is an ac- by an companied intent to some Rarely perpe does a sexual *5 case, process; other in the in crime this trator announce his to prior intentions at the 22- crime was sexual contact. SDCL crime. tempting such a Interest People in 32-1.2 was apprehended Holzer before he of W.Y.B., 453, (S.D.1994). 515 N.W.2d 455 actually the house and committed entered analyzed W.Y.B. concept this Court the a 22-4-1.3 crime therein. SDCL' The proof of concerning of intent prove a beyond State had to reasonable contact, crime of sexual 22-22-7.1: SDCL to сommit doubt intended sexual First, we note circumstantial evi contact or more in on one of the women dence may only way often be the to Spronk’s home.4 The determined prove North Lovejoy, intent. Dakota v. guilty attempted burglary Holzer was of N.W,2d (N.D.1990) 386, (citing 464 389 intent to commit sexual contact. Huwe, 350, v. North Dakota 413 N.W.2d (N.D.1987)). may prove 15.] The State all 355 See v. Mor Nebraska crime, intent, row, 653, including a by elements of 237 Neb. 71 N.W.2d (1991) McGill, (“[I]ndependent spe circumstantial evidence. v. State (S.D.1995) (citing required. cific not N.W.2d State intent is intent (S.D. Davi, v. 504 N.W.2d 856-57 with which act is committed is a an Ashker, 1993); v. 412 N.W.2d mental inferred process may be provides: degree burglary felony. 2.SDCL 22-32-1 First is a Class 2 Any occupied person who enters an struc- states, part: рertinent 3. SDCL 22-4-1 in ture, any with intent to commit crime other Any attempts person who commit a shoplifting than the act of retail theft or as attempt any crime act toward and in the does chapter constituting described in 22-3 0A crime, fails the commission but or is misdemeanor, occupied or an remains in prevented thereof, intercepted perpetration or forming structure after intent punishable provision where no is shoplifting or crime other than retail theft punishment at- made law for such chapter constituting as described 22-3 0A tempt, .... misdemeanor, degree burgla- of first ry when: part: 4. SDCL states in 22-22-7.1 (1) inflicts, attempts The offender or term, chapter, physical As sexual threatens inflict harm on an- used other; contact, any touching, amounting means (2) dangerous rape, breasts or the The offender is armed with female genitalia any person weapon; or the intent or anus (3) night- gratify in the to arose or the sexual desire of either offense committed party[.] time.
n fromthe words door, screen and forced the front opened acts of the defen enough hard sliding glass door sur the back the circumstances from dant and incident.”) place, screws out of pull the latch and lock (quoting Ne rounding Costanzo, blinds. He also rattle the vertical 227 Neb. 419 and v. braska admits, (1988)); wearing a dildo attached while Minnesota unzipped and uns- and his Obasi, (Minn.App his waist 427 N.W.2d masturbating, pro- he danced (“Intent .1988) subjectivе napped, state of is a in front of the vocatively the sidewalk by reasonable established and is mind front approached the door surrounding from cir house. Holzer inferences drawn cumstances.”) the small up” in front of “popped windows, the women inside scaring (citation omitted); Bustamante Spronk’s purse took house. He also (Ind. Indiana, N.E.2d 1317-18 If parked car in front of house. 1990) of offenses (stating that elements purse for purpose to steal entirely by circum may established be fled monetary logically he would have gain, inferences logical evidence and stantial proceeds. with his As the crime scene Texas, therefrom); Phillips v. remained, a reasonable inferenсe drawn (Tex.Crim.App. 597 S.W.2d purse is that Holzer from the theft of 1980) (“One’s reliable generally acts are keys to enter the house. wanted obtain intent.”) of his circumstantial evidence If intent was to continue his thefts (citation omitted). the nature Because house, college full girls a house “rarely suscep that it is of intent is such potential financial provided questionable proof, may the fact finder to direct tible compared with some of the other homes in su'ch reasonable obviously The fact it was Sioux Falls. as and deductions ferences *6 occupied greatly increased his chances also proved by evidence drawn from facts identified, caught. and thus How- being experience accordance with common ever, upon that his state of mind such Hilpipre, Iowa v. observation.” keys purse in the failing to find house (Iowa App.1986) (citing occupied to enter the attempt continued to (Iowa Serr, Iowa v. 322 N.W.2d giv- to the fact he was structure oblivious review, this court need App.1982)). On occupants more than sufficient only whether such inferences He did time to summon law enforcement. support judgment regarding intent actually until the attempt police Pot to flee beyond a of the court reasonable doubt. pres- aware of their arrived and he was Bustamante, 1318; 557 N.E.2d at Love ence. joy, 464 N.W.2d t-shirt,
Also,
Holzer wore a blue
judge
[¶ 18.]
as the exclusive
nose,
faсts,
witnesses,
eyes
cut
to
credibility of the
and the
holes
out for
ran
identity.
police
“in
cover
He
from the
weight
given
to be
acts,
Finally,
po-
when the
knowledge
stop.
and intent from
fer
when told
him,
words,
apprehend
and conduct of the
Har
lice did
the front of his
accused.”
(Tex.
State,
were “wet” around the
vey
3 S.W.3d
1999)
area,
legitimate
infer-
App.14th
(citing zipper
supporting
Dist.—Houston
(Tex.
State,
the wetness was caused
se-
Dues v.
634 S.W.2d
ence that
men,
indicating
entering
Holzer’s intent
Crim.App.1982)).
gratifica-
the house was for further sexual
Given the facts and circum
tion.
case,
stances of this
we determine there
essentially argues that his
jury
find
Holzer
was sufficient evidence
to enter the house
guilty
attempted burglаry.
Hol- conduct
However, if
Holzer’s
Spronk’s
zer admits he
house on was harmless.
six
merely
expose
himself
those
night
question.
He admits he was
night,
already
proper
women that
after he Rad
function of this [C]ourt to re-
accomplished
evidentiary
this act outside the house
solve
conflicts to determine the
many
why did he make so
strenuous and
credibility of
weigh
witnesses or
the evi-
Christensen,
attempts
violent
to enter the
He
house?
dence.” State v.
1998 SD
¶ 37,
clearly
get
had a desire to
inside the house
582 N.W.2d
682 (citing State v.
Abdo,
(S.D.1994))
upon
repeated
amount of force
based
518 N.W.2d
Battest,
pry open
sliding
he exerted to
the back
(quoting
State v.
295 N.W.2d
(S.D.1980)).
glass
frightened
door. He
the women suf- 742
weight
of the evi-
times,
ficiently
they
сalled 911 two
jury
dence is for the
to evaluate.
Id.
scene,
Ristau,
and when officers arrived on the
(citing State v.
290 N.W.2d
(S.D.1980)).
“crying, hysterical,
very
Moreover,
[and]
the jury was
obviously
up
upset
shaken
about the
given an instruction that the State must
tape
incident that occurred.” The
prove
as an element of
first
only
911 call
degree
womens’
illustrates not
how
burglary, Holzer had
were,
frightened
young
these
women
but
intent to commit the crime of sexual con-
persistent
also shows
repeated,
tact. The
was also instructed on the
house,
attempts
gain entry
into the
difference between direct and circumstan-
stopped only by police
arriving on
officers
tial
Jury
evidence.
instruction 9 states in
the scene.
part:
relevant
Where
case of
the state rests sub-
[¶ 20.] Holzer’s intent to com
stantially
entirely
or
on circumstantial
mit sexual contact on these facts is not
evidence, you
permitted
are not
to find
tenuous,
speculative
legitimate
but is a
the defendant
the crime
upon
inference based
all the facts available
charged unless
circum-
jury.
Halverson,
Compare,
to the
State v.
only
stances are not
consistent
(S.D.1986)
(ruling
N.W.2d 886
defendant,
guilt of the
but cannot be
evidence was too
tenuous
reconciled with
other rational con-
beyond
verdict
a reasonable doubt that the
clusion
fact which
each
is essential
and.
defendant intended to commit an
assault
complete
a set of circumstances nec-
residence).5
attempting to enter a
essary
guilt
to establish the defendant’s
jury had
than
more
sufficient evidence
beyond
*7
has been
a reasonable
it
reasonably
which
could
find Holzer
doubt.
charged.
of the crime
The
as
finders,
fact
all
heard
the evidence and
If all the facts and circumstances shown
credibility
the
reasonably
determined
of the witnesses
can
upon
accounted for
weighed
testimony.
and
their
“It
any theory
is not
consistent with the innocence
upon
asleep
Holzer’s reliance
Halverson is
mis-
the darkened bedroom of the
placed
authority
argument
awakened,
as
for his
trailer. As she was
hеard
she
support
there was insufficient evidence to
jump
someone
off a
block
cement
that was
jury determination that
entered
the
prowler
under the window. The
then ran
house with the intent to commit sexual con-
away. The women's trailer
two
home was
factually distinguish-
tact. The two cases are
away
trailer houses
from defendant’s. De-
pre-
able.’
evidence was
While
introduced of
suspect by
fendant was identified as a
episodes
vious
women,
between
other
Halverson and
fingerprints which were lifted off the win-
underlying
the sole facts
a claim of
dow frame.
attempted burglary by attempted entry into a
Halverson,
the defendant.
constitute
55,
Rhines,
v.
1996 SD
degree. State
these in
jury
the
followed
assume
We
¶
415,
157,
v.
States,
(citing
N.W.2d
451
548
359
West v. United
structions.
(8th Cir.1966)
(S.D.1992),
Butter,
v.
(citing Beck
N.W.2d
53
484
889
F.2d
(9th
States,
F.2d 622
Cir.
denied,
United
113 S.Ct.
cert.
U.S.
Stone,
1962));
also United States
see
(1992))
Ashker, 412
(citing
A: Not ed to enter the home two women at that’s correct. night by prying tearing on a bedroom brought fact Holzer’s counsel also out the screen window.7 He admitted that was any that the had not been tested in “window-peeper” tampered way to the cause of the wetness. improve visibility, screen to but did not Thus, this was able to all of hear gain entry intend into the trailer house. yet testimony, guilty still found attempted Halverson bur- was convicted probative value burglary. glary with the intent commit assault put of this evidence the State conviction, reversing this therein. this doubt, beyond prove, a reasonable court stated: Holzer did have intent sexual upon entering sufficiency contact house Spronk determination outweighed preju- was not unfair the evidence submit case to the fact incident, days window Ten after this Halverson was women. He- was found again peeking attempt- observed window peeking offense. Id. at 887. apartment tо break other into of three *10 college the fi- ‘may depend upon girls provided questionable finder difference legitimate pure speculation nancial potential compared between with some proven inference from facts.’ the other homes Sioux Falls.... omitted). (citations Id. at t-shirt, Holzer wore a blue with holes eyes nose, cut out for explained We that while the evi- the to cover identity. He ran clearly Halverson at- from police dence showed the that. stop. when night- Finally, to enter the home the told to when the tempted him, time, speculative police “the purely apprehend evidence is did the front in attempting defendant’s intent whether wеre ‘wet’ around area, an to do so was to commit assault....” and zipper supporting legitimate a rejected reversing, Id. In we the State’s inference that the wetness was caused semen, that would argument Halverson have indicating Holzer’s intent in likely” assault: “[t]his “most committed entering the house was sexu- for further might permit conjecture while it al gratification. speculation as to what was ‘most like- added). (emphasis occur, ly’ to support is too tenuous majority [¶ 37.] It that obvious beyond a doubt that verdict reasonable opinion incorrectly upon stacks inference intended to commit an assault [Halverson] inference to conclude that to enter the trailer.” Id. Burton, was established. See State Therefore, we held that the evidence was (1984) (stat Kan. 651-52 681 P.2d “sufficiently or compelling persuasive “presumptions that and inferences beyond support finding reasonable only be drawn facts from established and that defendant intended to commit doubt presumption may upon not rest presump an of the attempted assault the course (citations tion or inference on inference.” Id. break-in.”8 omitted)). aside Setting the incorrect Similarly, inferences, stacking of the inferences Spronk break-in to the residence during only themselves have could if arisen nighttime by forcibly pulling on the jury, majority or opinion, engaged in con sliding glass door. Like the Halverson jecture speculation. previ We have case, this is the only legitimate inference ously regardless determined that whether However, majority that can made. circumstantial, the evidence or it is direct opinion persuade only that strains legitimate must raise a guilt. inference of legitimate inference is that Holzer intend- words, In other it must do more than ed to sexual contact on one or conjecture, speculation suspicion. create Spronk’s of the women in more home. example, majority opinion For claims: provide [¶ 38.] Holzer’s conduct does not substantial evidence his convic- purpose purse If his was to steal attempted burglary tion for with the intent monetary gain, logically he would have to commit It pure spec- sexual contact. proceeds. fled the crime scene with his ulation that remained, to conclude Holzer was satis- As reasonable inference fied the minimal amount he took from purse the theft of the is that keys purse. pure speculation It is also Holzer wanted to obtain to enter college girls nothing If conclude the house. his intent was to continue that the had house, merely his thefts a house full of of value to from their steal home majority considering opinion’s 8. The about the thir- defendant claim Halverson, juror only produce. sug- We are able to teenth nonsense. See gesting exactly (stating "[t]he thаt this what at 888 determination court do is, 'may sufficiency did in That of the evidence ... de- Halverson. speculation pend upon pure specu- the evidence between was more than difference legitimate proven remand. The lation and inference from sufficient reverse and sim- ”). ple overcharged fact facts.’ is that the State *11 summary, three are college girls. things [¶ Further- 41.] were because more, a purse that he stole does the fact clear: legitimate inference that give not rise to a 1) simply There is no evidence that this sexual contact with- he wanted to commit with physical weirdo intended contact pure speculation to out It is also consеnt. anyone; Holzer had the intent conclude 2) that he into The evidence is once contact inside commit sexual theft, and not scare shock tactics all, he not After did sexual- Spronk home. contact; physical and
ly
police
before the
ar-
gratify himself
3)
prior purse stealing excludes
rived? If the
charged
He was
intent
specific
steal, why
not his prior
intent
does
crime,
crime,
a.general
not
intent
to commit
ejaculation exclude intent
sexual
prove
did not
either.
the State
attempt
ma-
logic
contact? The
pure
All the State
as to intent is
jority
logic.
opinion defies
and,
speculation
unless we overrule Hal
Additionally,
did
not have
verson,
enough.
that is nоt
possession
in his
night.
weapons
The State’s evidence of Holzer’s
He was
enter
home where
entry
time of
“re
girls
temporarily living.
college
six
were
quired
‘to cross
bounds
college
it
that six
Is
reasonable
infer
permissible inference and enter the forbid
protect
not
women could
themselves
,territory
conjecture
specula
den
Holzer,
against
who
unarmed. Fur-
tion’
therefore
as a
was insufficient
thermore, if he
intended to
sexual
matter of
to convict
[Holzer]
law
contact, why
approach,-
did
not
touch or
burglary charge.”
Johnson v. United
grab Spronk
security
when she left the
States,
(D.C.Ct.App.
613 A.2d
to lock her friend’s car? No-
house
-
1992) (citations omitted). Therefore,
body
it
purе speculation.
knows
failing
trial
abused
its discretion in
[¶ While reasonable inferences
40.]
grant
Holzer’s
Judgment
motion
be drawn' from
facts and conditions
Acquittal on the
evi
basis
insufficient
shown, they cannot be drawn from facts
dence and
conviction should be rev
imagined
“merely
conditions
or as-
ersed.9
(citation
Burton,
sumed.”
tion an incorrect of inferences Furthermore, assumptions. cir- dissent. “it just cumstantial evidence reveals that likely, likely”
as if more that a reason- unknown
able hypothesis intent best
explains weird conduct. There-
fore, evidence cannot said to rise proof beyond level of reasonable
doubt.. reversal, speculation requiring zipper But for this I wet in the area at lime of his agree opinion's the majority de- arrest. would termination in Issue trial that the court did allowing not abuse its discretion the' State to refer to the fact that Holzer’s