STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. DAMEN LONG SOLDIER, Defendant and Appellant.
#29955-a-JMK
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
OPINION FILED 07/26/23
2023 S.D. 37
THE
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT, PENNINGTON COUNTY, SOUTH DAKOTA; CONSIDERED ON BRIEFS APRIL 25, 2023
BRADLEY T. BORGE, Rapid City, South Dakota, Attorney for defendant and appellant.
MARTY J. JACKLEY, Attorney General, CHELSEA WENZEL, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
KERN, Justice
[¶1.] Damen Long Soldier entered a casino and held up the cashier on duty at gun point. He pulled her behind the counter and struck her on the head with a pistol, causing her to fall to the floor. After failing to open the cash register or find money in her pockets, he took her purse from a chair in the office and fled. Long Soldier was convicted of first-degree robbery and sentenced to forty years. On appeal, he argues that the circuit court erred by denying his motion for judgment of acquittal because the evidence was insufficient to meet the elements of the offense and sustain the conviction. We affirm.
Background
[¶2.] On the morning of Sunday, November 22, 2020, 76-year-old Helga Harris was working by herself as a cashier at the Happy Jacks casino at 4036 Cheyenne Boulevard in Rapid City, South Dakota.1 She arrived at the casino and started her routine at 5:40. She placed her purse on a chair in the office, completed paperwork, counted money, put money in the main and beer cash registers, cleaned, disinfected, and made coffee and popcorn. She opened the casino at 7:00, sat in a chair at the end of the cashier‘s counter, approximately ten feet from her purse in the office, and watched television.
[¶3.] At approximately 10:40, a man later identified as Damen Long Soldier entered the casino through the back entrance2 wearing a Pacman hoodie. When Harris asked to see his identification, he patted his pockets and left. Long Soldier reentered the casino through the back entrance a few minutes later with a mask over his face and his hoodie cinched tighter. He was carrying a pistol in his front pocket. He removed the pistol and pushed it into Harris‘s side, grabbing her left upper arm and shoving her from where she sat watching television to behind the bar where the cash registers were. He pointed at the beer cash register and hit Harris twice in the head with the pistol. Bleeding profusely, Harris covered her face and dropped to the ground. Long Soldier asked Harris where the money was and checked her pockets. She was not able to respond. He tried to open the beer cash register and said he was going to kill her.3 Afraid for
[¶4.] After Long Soldier left, Harris managed to stand up and call 911 to report that she had been “held up” and was “bleeding to death” before apparently losing consciousness. She briefly seemed to regain consciousness and repeated “Help me!” before she stopped responding to the dispatcher. Officer Wyatt Derr was the first to arrive to the scene. He also spoke with Harris later at the hospital. When she asked for her purse, she was surprised to learn it had been taken. Her head wounds required three staples to close, and she was treated for a dislocated hip as well. She continued to suffer from bruising and headaches at the time of trial ten months later.
[¶5.] Long Soldier was indicted by a Pennington County grand jury in December 2020 for one count of first-degree robbery in violation of
[¶6.] Long Soldier moved for a judgment of acquittal on the grounds of insufficient evidence, arguing that the State had failed to prove the statutory elements of robbery because Harris‘s purse was not taken from her person or immediate presence. Further, Long Soldier argued that because Harris was unaware that her purse was taken, under
[¶7.] Long Soldier raises a single issue on appeal, which we restate as follows: whether the circuit court erred by denying Long Soldier‘s motion for judgment of acquittal.
Standard of Review
[¶8.] “‘This Court reviews a denial of a motion for judgment of acquittal de novo.‘” State v. Peneaux, 2023 S.D. 15, ¶ 24, 988 N.W.2d 263, 269 (quoting State v. Timmons, 2022 S.D. 28, ¶ 14, 974 N.W.2d 881, 887). “[A] motion for a judgment of acquittal attacks the sufficiency of the evidence.” Id. (alterations in original) (quoting Timmons, 2022 S.D. 28, ¶ 14, 974 N.W.2d at 887). “In measuring the sufficiency of the evidence, we ask whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a
Analysis
[¶9.] Under South Dakota law, “[r]obbery is the intentional taking of personal property, regardless of value, in the possession of another from the other‘s person or immediate presence, and against the other‘s will, accomplished by means of force or fear of force, unless the property is taken pursuant to law or process of law.”
[¶10.] The circuit court advised the jury of the elements of first-degree robbery in instruction 17, which stated:
The elements of the crime of robbery in the first degree, each of which the state must prove beyond a reasonable doubt, are that at the time and place alleged:
- The defendant intentionally took personal property in the possession of Helga Harris from her person or immediate presence.
- The personal property was . . . taken against the will of Helga Harris who was in possession thereof, that is, with the knowledge of Helga Harris and against her wish.
- The defendant accomplished such taking by use of force.
- The defendant used a dangerous weapon.
- The personal property was not taken pursuant to process or otherwise pursuant to law.
Long Soldier does not dispute the sufficiency of the evidence to prove the fourth and fifth elements of the charged offense as listed in jury instruction number 17 beyond a reasonable doubt. Rather, he challenges the sufficiency of the evidence on the first three elements of the offense based on his interpretation of the relevant statutes.5
1. Whether the purse was in Harris‘s possession when taken.
[¶12.] Long Soldier argues that the language “in the possession of another from the other‘s person or immediate presence” in
the office and walked away, thereby relinquishing possession and never regaining it. He further contends that “the normally used definition of immediate would mean that [the property] has to be within an arm‘s reach or very close to that. Ten to fifteen feet away, the distance from where [Harris] was sitting and where she had stored her purse in the office, would exceed her immediate presence.”
[¶13.] In framing its response, the State first notes that the jury did not receive a definition of possession and that the parties did not propose instructions defining it. Instead, the jury was instructed to consider “the evidence in light of your own observations and experience in the affairs of life” and reminded to use common sense in determining whether the elements were met. Citing State v. Schmiedt, the State argues that words in jury instructions need not be defined if they are of general use and are not technical terms. 525 N.W.2d 253, 255-56 (S.D. 1994) (upholding
[¶14.] The State, relying on Sutton v. United States, contends Long Soldier‘s construction of immediate presence is too narrow. In Sutton, the court concluded there was sufficient evidence to show a carjacking victim‘s car was within the “immediate actual possession” of the victim who was forty-five feet away from it at the time of the crime and rejected the argument that the victim relinquished possession of the car when he walked away. 988 A.2d 478, 485, 488-89 (D.C. 2010). The State urges this Court to reject an interpretation of immediate presence that would allow a defendant to avoid a robbery conviction “by luring their victim far enough away from the property to make [his or her] control more difficult or the application of force or fear more convenient.” People v. Webster, 814 P.2d 1273, 1288-89 (Cal. 1991) (en banc).
[¶15.] The State also contends that Long Soldier‘s proposed definition of immediate presence is so narrow that it becomes synonymous with “from the other‘s person[,]” thus creating redundancy contrary to the principle that words in statutes should not be regarded as surplusage. Jensen v. Turner Cnty. Bd. of Adjustment, 2007 S.D. 28, ¶ 12, 730 N.W.2d 411, 415. The State cites People v. Hayes for a definition of immediate presence: “[a] thing is in the [immediate] presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.” 802 P.2d 376, 406–07 (Cal. 1990) (alterations in original) (citations omitted). The State suggests that being close enough to the property to resist taking, had there been no force, means it was within one‘s immediate presence.
[¶16.] We agree that the plain language of
[¶17.] Next, we must resolve the questions of what constitutes possession and immediate presence.7 While “possession” is not statutorily defined in the context of
ownership[,]” and “something owned, occupied, or controlled: PROPERTY“).8 Long Soldier provides nothing but a reference to “common sense” to support his theory of relinquishment and his conclusory claim that Harris relinquished possession of her purse by setting it down on the chair in the office. We have held that commonly understood words need not be defined in jury instructions, see Schmiedt, 525 N.W.2d at 255-56, and, in any event, Long Soldier did not request an instruction defining possession.
[¶18.] Turning to immediate presence, the State has cited decisional law from other jurisdictions with robbery statutes that may or may not parallel SDCL chapter 22-30. Long Soldier, pointing to one of these cases, which held that the evidence did not establish immediate presence as a matter of law, but left a question for the jury, concludes this supports his view that “it [is] clear that there is a lot of confusion about how to define ‘immediate presence.‘” However, Long Soldier does not advance—and we cannot find—any law defining the term with mathematical precision. This is perhaps because no defined distance would be appropriate, and we conclude this is a jury question rather than a question to be determined as a matter of law. We know from the plain text of the statute that immediate presence contemplates some distance that extends beyond the person. But immediate presence does not, any more than possession, require us to adopt an abstract definition that could conceivably encompass every factual scenario a jury
may face. Rather, it must be applied by the jury in consideration of the factual circumstances and context of the individual case before it.
[¶19.] While, in denying Long Soldier‘s motion, the circuit court made no explicit finding that the purse remained in Harris‘s possession, our review confirms that the record supports the conclusion that the purse remained in Harris‘s possession and immediate presence, based on the common usage of those terms. Viewing the evidence in the light most favorable to the verdict, Harris was the only employee on duty at the time of the incident and the only person with a legitimate reason to enter the office during her shift. There were no customers in the casino, and she was seated just ten feet away from her purse when Long Soldier attacked her. Absent the use of fear or threat of force to overcome her resistance, Harris was aware of anyone entering the casino and she was positioned to maintain control of her purse.
2. Whether the purse was taken against Harris‘s will.
[¶20.] Long Soldier next argues for a similarly narrow interpretation of taken
doesn‘t really make a difference that he knows that an item was taken if the force left him in a position where he‘s not able to [resist].” Long Soldier claims the cases do not pertain to the issue or elucidate the “straightforward statement” in
[¶21.] The State elaborates on the cases the court cited, arguing that the point of
[¶22.] In Stecker, this Court explained:
It was not necessary to a conviction to show that the victim was aware at the time that he was being robbed. Force or fear must be used to obtain possession of the property or to prevent or overcome resistance to the taking. The stealthy or secret taking of property from the person of another before the victim is aware of what is being done is not robbery. This is the intended distinction in the foregoing definition of the crime of robbery.
79 S.D. at 85, 108 N.W.2d at 50. Consistent with Stecker, jury instruction number 19 provided that “[t]he taking of property either from Helga Harris or from the immediate presence of Helga Harris is not robbery when it clearly appears that the taking was fully completed without Helga Harris’ knowledge. The essential
element of taking by force or fear is absent.” But here, Long Soldier did use force, and Harris knew he was trying to take property—any property he could obtain—from her. Long Soldier did not come upon an unconscious person and take her belongings without an act of force or fear of force. It was the force he used while trying to access money from the cash register or her pockets that left her incapacitated and unable to realize or resist what was happening at the time he took her purse. The act of taking was not “fully completed” without her knowledge. The evidence supports a determination that he was desperate to take anything and that leaving with her purse was the culmination of a continuous act of taking of which she was initially aware.
3. Whether the taking was done by means of force or fear of force.
[¶23.] Without citation to authority, Long Soldier advances his reading of
of force or fear of force because no one was in the office and no one had possession of the purse when he took it.”
[¶24.] Long Soldier has distorted the meaning of the statute, which actually states: “[t]o constitute robbery, force or fear of force must be employed either to obtain or retain possession of the property or to prevent or overcome resistance to the taking. If employed merely as a means of escape, it does not constitute robbery. The degree of force employed to constitute robbery is immaterial.”
[¶25.] In this case, the use of force or fear of force preceded the taking. The evidence supports that Harris may have been able to prevent or resist Long Soldier‘s efforts to take property from the casino if not for his use of force or fear of force that allowed him to obtain control of her purse when it was only ten feet away from her. While Long Soldier initially may have employed force in order to overcome Harris‘s resistance to taking money from the register or her pockets, that same force prevented her resistance to taking her purse because by that time, he had pistol whipped her, and she was laying under the bar counter bleeding profusely. His contention that he had “stopped using force and fear of force” by the time he took her purse is unavailing. Harris‘s testimony and the recorded 911 call support a conclusion that Harris continued to fear for her life during the time he was in the office. To reward defendants who opportunistically take property after
incapacitating a victim in the pursuit of the victim‘s other property and allow them to avoid culpability for robbery would be unjust and defeat the object of
[¶26.] After construing the relevant statutes “according to the fair import of their terms, with a view to effect their objects and promote justice[,]”
[¶27.] Affirmed.
[¶28.] JENSEN, Chief Justice, and SALTER, DEVANEY, and MYREN, Justices, concur.