*1 Dakota, Plaintiff of South STATE Appellee, McGILL,
Michael Defendant Appellant.
No. 18802.
Supreme of South Dakota. Court 10, 1995. on Briefs Jan.
Considered Aug.
Decided *2 Barnett, Gen., Atty.
Mark Frank E. Gen., Pierre, Geaghan, Atty. plain- Asst. for appellee. tiff and Haeder, Huron, Gary D. Blue of Blue and for appellant. defendant and AMUNDSON, Justice. (McGill) appeals
Michael McGill his convic- for tion in violation of 22- 19A-1. affirm. We
FACTS (Vic- McGill introduced himself to Lisa W. tim) in developed 1978. He soon romantic her, feelings stating “appealed that she anybody me point.” more than at that Vic- reciprocate feelings, tim did not these nor did encourage any relationship. she met, immediately Almost after the two calling parents’ McGill started Victim’s home trying to contact her. She did live with parents her phone her number was un- listed. Unable to personally, talk her professed his love for Victim her parents proclaimed that he would make good husband. He became obsessed with fantasy. parents up When hung Victim’s McGill, immediately on he would call back. they phone, If refused to answer the ring. phone would let it calls occurred day all night. times — telephone calls became more fre- quent when Victim moved back with her parents September, 1979. Victim tried to stop by hanging up McGill’sbehavior on him demanding stop calling. that he persisted. behavior Victim again out on her moved own in June of and requested an unlisted tele- phone obstacle, To number. overcome this sending McGill started her love letters. Vic- frightened tim became from the tone of the letters. going McGill wrote that he was kidnap addition, her and kill fiancé. her McGill came to workplace Victim’s order talk to her. When co-workers told him Victim, that he could not see McGill became aggressive police and the had to remove him premises. from the judgment mar- trial court entered a of conviction Victim was On December May 26, appeals. marriage. about the ried. McGill bitter leg “losing a he was felt He testified .he ISSUES terrible, it terrible an arm and was a *3 May 16,1988, Victim received situation.” On I.WHETHER THE TRIAL McGill, threatening to from another letter COURT ERRED A MATTER AS testified that subse- kill her husband. Victim OF LAW IN ADMITTING EVI- these threats and quent letters recanted DENCE OF MCGILL’S CON- 30,1989, May On McGill
reasserted his love. TO THE DUCT PRIOR EFFEC- letter, stating yet “I’m not in sent another DATE OF THE STALK- TIVE you.” you, by with I am love obsessed ING STATUTE? observed THE Victim also testified she II.WHETHER TRIAL COURT many driving past on her IN McGill occasions ERRED DENYING daycare she took home and the center where MCGILL’S MOTION FOR AC- 12, 1993, re- July QUITTAL On THE her children. Victim ON CHARGE OF confirming letters from McGill ceived three STALKING? suspicions. wrote that he had
her
McGill
III. WHETHER MCGILL WAS DE-
and,
fact,
“spy-
in
children
was
followed her
NIED
ASSIS-
EFFECTIVE
during
out-of-
ing” on
a visit with their
them
TANCE OF COUNSEL?
grandparents.
town
He also related
IV.
PLAIN
WHETHER
ERROR
cop
jail.
spent
had killed a
time in
COMMITTED?
WAS
Frightened
safety,
for her children’s
Vic-
THE LANGUAGE
V.WHETHER
tim,
day
on the same
as she received these
22-19A-1 IS
OF SDCL
SO
letters, requested
three
the court to restrain
BE
VAGUE AS TO
UNCONSTI-
any
with
or her
McGill from
contact
her
TUTIONAL?
family. Although
trial court issued the
the
order,
ignored
He
it.
continued to
McGill
OF
STANDARD
REVIEW
by
telephone and drive
house.
Victim’s
The admission of other acts evi
governed by an
of discretion
dence is
abuse
14, 1993,
complaint
July
was filed on
Necklace,
State v.
Iron
standard.
charging
stalking
McGill with
under SDCL
(S.D.1988)
(citing
22-19A-1,
during
which
been enacted
had
(S.D.1986)).
Dokken,
A trial
On the convicted Our acquittal judgment He was sentenced of motion one-year Cor- set forth sufficient evidence Regional confinement at the whether State reasonably in from the could find Huron.1 trial court which rection Center guilty charged. provided portion sen- crime further that a of the (S.D. Abdo, suspended if would be attended tence 1994); Gallipo, 460 psychological treatment. alcohol and 22-19A-1, legislature Under estab- meanor. SDCL stalking lished the crime of as Class 1 misde- sufficiency In determining specifically for purposes not stated crime, conduct, evidence to constitute the Id. statute. Besides a course of question is “whether alternatively there sufficient evi- the trial court admitted the evi- which, by dence in the proof record believed dence to show of intent and absence jury, finding guilt is sufficient sustain a mistake. beyond doubt; making a reasonable law, South 22- Dakota’s determination, accept the court will the evi- 19A-1, provides part: dence, and the most fair- favorable inference Any person maliciously, willfully, who therefrom, ly will support drawn repeatedly follows or harasses another Heftel,
verdict.” State v. person or who makes a credible threat to *4 (S.D.1994) (citations omitted). 399 person place with another the intent person that fear reasonable of death or DECISION great bodily injury guilty is of the crime of I. Admission “Other Acts” Evidence. of general The rule is that “other acts” SDCL 22-19A-4 provides: prove is evidence not admissible to that a purposes chapter For the of this ‘harasses’ conformity past defendant acted in with his a knowing means and willful course of Steele, 661, conduct. State v. 667 specific person conduct at a directed which (S.D.1994) (citing Chapin, 460 seriously alarms, annoys, or harasses the 420, (S.D.1990)). N.W.2d 421 The admission person, legitimate and which serves no testimony governed by of other acts is SDCL purpose. 19-12-5, provides: “Course of conduct” SDCL 22- crimes, wrongs, Evidence of other 19A-5 as: prove acts is not admissible to the charac- pattern of composed conduct of a series person ter of a in order to show that he time, period over acts a however conformity may, acted in therewith. It short, continuity evidencing purpose. a however, purposes, be admissible for other Constitutionally protected activity is not proof motive, opportunity, such as in- meaning included within the of ‘course of tent, preparation, plan, knowledge, identi- conduct.’ ty, or absence of mistake accident. 19-12-5, reviewing admissibility In admissibility
Under SDCL type oth- this evidence, by acts two-step relevancy, proba- er evidence is a we consider its determined process: prejudicial tive value effect. 1) purpose Whether the intended for offer- A. Relevance. ing acts evidence is relevant to previously This court has stated that case, some material issue in the “ ‘[a]ny that fact tends to connect an accused 2) probative Whether the value of the evi- with the of a commission crime is relevant substantially outweighed by dence its probative and has value.’” State v. Good prejudicial effect? road, 246, (S.D.1989) (quot Steele, Sieler, (S.D. 89, State
Although 1986)); Shell, McGill’s 372, conduct under South Iron Dakota did law not constitute criminal stalk- Pennsylvania Superior ing prior Urrutia, the trial court Court in Commonwealth v. prove admitted it to a Pa.Super. “course conduct” for (1995), 653 A.2d subsequent illegal McGill's acts. In by stated that a “course of very conduct Werner, (S.D.1992), requires this showing nature of a repetitive court exceptions held that the list pattern of behavior.” The court held “where 19-12-5, SDCL for which other prior acts evidence necessary evidence acts is bad admissible, properly is not pattern, exhaustive. establish the the evidence is admissi statutory as,” language, Id.; “such People Payton, indicates ble.” also may 170, 175-77, that “other acts” evidence be admissible Misc.2d 612 N.Y.S.2d (1994) Petteys, (holding uncharged incidents were fa- Delano v. support (S.D.1994), of con-
cially sufficient to course court stated: menacing (stalking)). count of duct for one prohibition The ex forbids the facto Here, prior the trial found McGill’s Congress any and the to enact States law showing purpose relevant for the actions imposes punishment “which for an act conduct, course of which was contested punishable which was not at the time it in the case. issue committed, imposes pun- additional prescribed ishment to that then ... [0]ur Prejudice. B. Probative Value Versus prescribe decisions two critical ele- step admissibility requires This present ments must be for a criminal or weigh probative trial court to value of penal post facto; law to be ex it must be any prejudicial acts with undue retrospective, apply is it must 19-12-3, effect.' Dakota’s South ver occurring enactment, events [before] its sion of the Federal Rule of Evidence disadvantage and it must the offender af- provides: (Citations omitted.) by fected it. relevant, Although may evidence be ex- pre-July acts were not probative substantially cluded its value is *5 charged punished. The sole is issue outweighed by danger preju- the unfair they provide whether were admissible to dice[.] jury with evidence to determine McGill’s in- This court has held: “Other acts evidence tent course of conduct which led to the prejudicial capacity has a if it has effect 12, letters Victim received 1993. persuade by illegitimate means which re A review of the record shows the trial having sults the state’s an unfair advan weighed, required, probative court as tage. prejudicial Such evidence is not mere prior against preju- value of acts ly legitimate probative because its force dam testimony regard- dicial effect. It held that Goodroad, ages the defendant’s case.” 442 calls, telephone phys- letters and Lowther, (citing N.W.2d at 250 State v. 434 tracking family ical of Victim and her before 747, (S.D.1989); 753 N.W.2d State v. Kerk unduly prejudicial, yet was not hove, (S.D.1988)). 160, 423 N.W.2d 163 relevant to establish McGill’s course of con- prejudice, Besides undue McGill ar duct and intent.2 hold that We the trial gues admitting this evidence was an ex court did not abuse its discretion in admit- post rights violation his under the facto evidence, ting this acts nor was the United States South Dakota Constitu admissibility of evidence violation the ex completely tions. We find this claim to be post clause. facto case, In a Dept. without merit. recent Cal. — Morales, U.S. -, Corrections v. Acquittal. II. Denial Motion -, 588, 115 S.Ct. 131 L.Ed.2d (1995), Supreme argues 594 the United States Court McGill also the trial court erred in Abdo, denying held that the ex acquittal. clause is aimed at his motion for In facto “retroactively laws that acquittal alter the definition of this court held that a motion for punishment properly enough crimes or increase the for crimi denied there exists evi- (citations omitted.) reasonably nal acts.” Id. In support jury’s finding this dence to ease, Id., considering admissibility guilt. (citing we are of of 518 at N.W.2d 227 State evidence, 869, (S.D.1992)); Lykken, other acts not the al v. “retroactive 875 Heftel, teration of a or an defined crime increase 513 at 400. N.W.2d punishment.” Id. claims fact, Although the trial court instructed the that it information. lowed, such evidence is al- only you may could consider McGill’s other acts for the only consider it as to whether purpose engaged limited of whether he in a engaged in a course conduct. pro- course of conduct. Instruction number 15 may You not use this to decide evidence vided, pertinent part: physical whether the defendant carried out period alleged You have heard evidence of oc- acts involved in the time in the acts which period alleged curred to the time in the information. support III. there was insufficient evidence to Assistance Counsel. Ineffective
July’s 22- verdict that he had violated SDCL argues McGill further ineffective as Specifically, argues 19A-1. that the stat- at sistance counsel trial under both federal utory of “malicious and “re- elements intent” court has con and state constitutions. This peated actions” were not satisfied. sistently held that ineffective assistance of claims not on di counsel will be considered “having, as or done “Malicious” defined Petersen, appeal. rect State with, wicked, evil or mischievous intentions Sonen, (S.D.1994); State motives; wrongful intentionally done (S.D.1992); Wurtz, N.W.2d State v. just without cause or excuse or as result of (S.D.1989). However, (1990). Dictionary, will.” ill Black’s Law exception an at trial exists where defense “Repeated” “said, pre- as done representa was so ineffective and counsel’s again.” Collegiate sented Webster’s New “‘so represent tion casual’ a ‘manifest Diede, (1974); Dictionary, usurpation’ defendant’s] constitutional [the (S.D.1982). 818, 821 N.W.2d Mountain, rights.” State White (S.D.1991) Jett, (citing State precedent There is well-established (S.D.1991)). 742-43 may prove that indicates the all ele faets this do fall record within the crime, intent, by including ments of the cir Therefore, exception. above will issue be Davi, cumstantial evidence. State v. at later considered date. (S.D.1993); 856-57 v. Ash ker, Plain IV. Error. actor’s “state mind” the time of the argues ap should may from offense also be determined his *6 ply plain error in doctrine the event we acts, fairly conduct and inferences which are inadequate do not find of counsel. assistance dedueible from the circumstances surround provides: SDCL 23A-44-15 “Plain errors or Huber, ing the offense.” v. 356 State N.W.2d affecting rights may defects substantial be 468, (S.D.1984); Payton, 473 see also 612 although they brought noticed were not to (holding N.Y.S.2d at 818 that the defendant’s Class, the attention of court.” a Mitchell v. entirety in conduct toward victim its should (S.D.1994). 860, prece 865 Our assessing in be considered of “course con only plain dent holds that we find error “intent”). duct” and cases, exceptional where is error obvious and Moriarty, v.
The trial court found McGill’s conduct substantial. State 501 to- (S.D.1993) (citations omitted). 352, ward Victim “about a 359 Al as blatant case stalk- doctrine, you though authority get.” can McGill cites on the McGill admitted his argument present any showing he does not for Victim. He her obsession called inces- record, santly, obvious substantial error this her wrote letters to and when her any. Therefore, plain nor we feelings own, do find error not his did mirror threatened applied will not be in this case. family. her her He came to her work- place by police. and had be removed He Constitutionality V. SDCL 22-19A-1. followed Victim and her children. argues 22- McGill that SDCL facts, say
Given the we cannot there unconstitutionally vague. 19A-1 is In ad jury was evidence for issue, insufficient find dressing presump a there exists guilty McGill Victim received tion that Pop the statute is constitutional. (S.D. day. Walker, three on 238, letters the same pen Those v. 241 letters, tenor, although 1994); Head, different in Big 556, showed (S.D.1985). “repeated” evidencing conduct his 559 McGill has the burden to harassment presumption beyond of Victim. The had refute this more a reasonable Heinrich, enough guilty 25, than to return evidence ver doubt. State v. 27 (S.D.1989); Neville, dict. properly 425, The trial v. denied State McGill’s motion for acquittal. 428
95 determining sufficiency “In of the Blakey, 399 N.W.2d stated: cites , notice, necessity (S.D.1987), must support proposition. statute be exam- his 317 vagueness light conduct with which void for ined Blakey held statute State, charged.” Pallas v. 636 poorly- so “the conduct is when forbidden 1358, (Fla.App.Ct.1994), approved 1360 intelli So.2d [persons] ‘that common (Fla.1995) (holding 127 Florida’s necessarily guess meaning its 654 So.2d gence must ” stalking vagueness not void for where application^]’ Id. at 318 statute differ as its Co., person” a “reasonable would have fair notice (quoting Connally v. Gen. Const. prohibited); 126, 127, the conduct described was L.Ed. 46 S.Ct. U.S. Culmo, 46, 70-72, (1926)). Conn.Supp. claims words “will also State (1993) (constitutionality ful,” “repeatedly,” A.2d “maliciously,” “follows” upheld statute because impermissibly vague. Connecticut’s and “harass” are “narrowly tailored to serve the statute of a has vagueness statute been significant government interests ... while previous considered several occasions. leaving ample open alternative channels of vague Statutory language cannot so be communication”). discriminatory selective enforcement Heilman, People Similarly, in 25 Cal. Dale, 98, 106 permitted. App.4th Cal.Rptr.2d (S.D.1989) Lawson, (citing Kolender v. (1994), Appeals the California Court of stat 357, 103 S.Ct. U.S. requirement “The of reasonable certain ed: (1983)). Dale, this court L.Ed.2d ty preclude ordinary does not the use held: express adequate find terms ideas which statutorily crime defined with A must be interpretation usage in common and under certainty. statute definiteness (citation omitted). standing.” Id. requires doing either forbids ‘Repeatedly' is a of such common word vague [people] an act in so terms understanding that meaning intelligence necessarily common must vague. simply perpetrator It means the meaning guess at its and differ as to its must the victim more than one time. follow application violates first essential of mysterious nothing ambiguous There is give process. A criminal statute must due ‘repeatedly’ term to lead an ac about the ordinary person intelligence fair notice *7 reasonably to he will not be tor believe contemplated that his conduct is forbidden. subject the penalty to the under statute 106; Dale, Big at v. see State willful, following in malicious engages (S.D.1985). Head, Id. than one on more occasion. language of needs to statutes be not ‘Repeatedly' as in this statute is used reasonably certain. fair and State Hoff danger arbi vague so as to create the man, trary discriminatory and enforcement represent criminal It is realized that laws omitted.) (Citations fact, In ‘re the law. legislative balancing many act instances. police peatedly' adds to offi the restraint conduct, attempt prohibit certain In an a perpetra cers exercise. Not until must usually are written in a fashion to the laws than once does tor follows a victim more give application type to the broad con- the rise to a criminal level. conduct sought to be forbidden. There is duct addition, other provides the statute several nothing inherently wrong ap- with a broad discriminatory arbitrary restraints on and otherwise, there would exist plication; perpetrator must be [T]he enforcement. specific for each act. What a criminal law the found have followed harassed general laws so nature is not allowed are meaning of statute. victim within ordinary intelligence may people that Id. differently. apply them per- concluded that a reasonable The court Dale, 439 at 106. understand that son’s common sense would light of “repeatedly,” read in constitutionality of the term when Upholding the Florida’s statute, unconstitutionally statute, Supreme Court the entire stalking the Florida 428; jury may vague. Id. at Johnson v. State that it consider these acts in also decid- Dist.1995). (Ind.App. ing engaged N.E.2d “the whether of stalking course conduct.” element An. brief, argu In his McGill limits his is harassment. SDCL 22-19A-1. Under “maliciously” ment to whether the terms statutes, partially harass is unconstitutionally vague. “repeatedly” are knowing as “a and willful course conduct from Aside a limited discussion on mean specific person_” at a directed SDCL “repeatedly,” argument sole Hence, 22-19A-4. course of conduct forms regarding impropriety of the word “mali corpus part delicti for the crime of ciously” is a to the trial reference court’s specifically The trial court dis- definition of that term in instruction pre-enactment claimed McGill’s actions as certainly ten. These number terms have other acts: “adequate interpretations usage in common certainly It peri- as to the relevant time understanding” meanings and their can charged od in the information and that reading be obtained from common sense peri- there was course of conduct over a Heilman, 30 Cal.Rptr.2d the statute. See time, any od of and it doesn’t make differ- ence, think, I don’t as to whether that markedly brief absent of illegal legal prior evidence was any pertaining discussion to the other statu is, my ruling so is that the State tory alleges vague. terms which he are Peo can use evidence of contacts or actions— McMiller, 82, 82-84, ple Mich.App. alleged contacts between the victim and (1994); Myers, Defendant actions the Defendant 905, 906-908, (1994); Neb. any conduct, tend show course Scherreiks, 510, 519-21, 153 Wis.2d though even that conduct or those contacts (1989). We find McGill 1,1993. occurred That is not any argument regarding waives these terms. evidence; part act bad that is of the gestae res of the offense. Ultimately, carry McGill did not his bur- beyond in showing den a reasonable doubt The evidence was admissible for the rea- unconstitutionally 22-19A-1 gave, proof son the trial aof continu- vague. easily person reasonable can dis- al criminal scheme. The fact prohibited cern what constitutes the conduct began scheme before the enactment of the exercising when common sense. crime, declaring statute such behavior a does application not make its ex facto. “It is Affirmed. continuing such nature of crimes as con- spiracy and federal bank fraud MILLER, C.J., SABERS, which saves J., concur. though an alleges indictment even it KONENKAMP, J., in part concurs *8 before, originated scheme which was but was concurs result. after, part executed at least in the effective activity criminalization involved in exe- GILBERTSON, J., having been a cuting the scheme.” United States v. Whit- member of the Court the time this case F.Supp. 48, (D.Me.1988); ty, 688 United submitted, participate. did not Duke, States v. F.Supp. KONENKAMP, (concurring in Justice re- (M.D.Tenn.1993). I). sult on Issue I majority concur in the remainder of the majority misapplies SDCL 19-12-5 opinion. (Rule 404(b)) holding admissible as “other acts” McGill’s conduct pre-enactment conduct was admitted proof charged substantive of the crime
against him, tending not as other acts guilt
establish for his 1993 acts. specifically trial court instructed the