[¶ 1.] In dеfendant’s jury trial for aggravated assault, the victim testified that defendant fired a rifle at him when he was on her boyfriend’s property. Defendant and her boyfriend, on the other hand, testified that defendant never shot at the victim, that the victim was not on the property, and that defendant did not own a rifle. Defendant appeals her conviction on several grounds. We affirm.
Background
[¶2.] Delton Hitchcock and his girlfriend, Dawn Shepard (defendant), lived on Hitchcock’s farm near the Huntersville Hutterite Colony. Hitchcock and defendant claimed that young men from the colony had been causing problems on the farm, including damaging property and killing cats. Learning of these complaints, Glenn Wipf, a young man from the colony, wеnt to Hitchcock’s farm on April 20, 2005, to tell Hitchcock and defendant that he was not the one causing the problems. While at the residence, according to Wipf, defendant fired a .22 caliber rifle in the air. He also said that defendant shot around his feet while Hitchcock stood next to her. Unharmed, Wipf walked back to his pickup and returned homе.
[¶ 4.] At some point after the shooting, Hitchcock made an appointment tо talk to Waldner. Hitchcock was late for his appointment and, according to Waldner, when Hitchcock arrived he claimed that he was late because he had to calm defendant down after the shooting. Hitchcock left the meeting with no resolution. Thereafter, defendant and Hitchcock complained to the Brown County Sheriffs Dеpartment about the young men from the colony causing problems at the farm. A sheriffs deputy, Gary Bunt, went to the Hitchcock farm to investigate. Hitchcock and defendant told Deputy Bunt about all the acts they thought the young men were committing. They did not mention to the deputy any shooting at Wipf.
[¶ 5.] After leaving the Hitchcock residence, Deputy Bunt went to the colony to inquire further. He spoke with Waldner. Waldner told Deputy Bunt about the shooting. Deputy Bunt had no prior knowledge of what Waldner was talking about and asked for additional details. While he was at the colony, the deputy then began an investigation of the shooting. He spoke with Wipf and examined Wipfs shoe. The deputy noticed some metal materiаl in the back sole of one boot and took the boots as evidence.
[¶ 6.] After speaking with Waldner and Wipf, Deputy Bunt left the colony to speak with Hitchcock and defendant about the shooting. Hitchcock denied having any knowledge of a shooting. He also would not allow Deputy Bunt to speak with defendant without a warrant. A warrant was obtainеd and a search conducted on the property. During the search, law enforcement officers found no rifle, but did find three spent .22 caliber rifle shells. Defendant told law enforcement officers that Wipf had not been there, she had not shot at him, and owned no .22 caliber rifle. Defendant was arrested and charged with aggravated assault in violatiоn of SDCL 22-18-1.1(5).
[¶ 7.] During the jury trial, Deputy Bunt, defendant, Hitchcock, Waldner, Wipf, and Wipfs father testified, among others. Over defendant’s objection, Wald-ner was permitted to testify about what Wipf said to him when Wipf returned to the colony after the shooting. Defendant also challenged the chain of custody for the metal fragments removed from Wipfs boot. Deputy David Pair hаd taken the metal fragments to the State Crime Lab in Pierre by delivering them there himself. The fragments were in three bags, all placed into a larger bag. After the State’s forensic expert, David Lindman, tested the fragments, Deputy Fair testified that he personally repackaged the fragments because of a concern about moisture damage. In order to repackage the evidence, Deputy Fair cut the evidence tape with Lind-man’s initials. He removed the evidence from the three smaller plastic bags Lind-man had placed them in and relocated them to three smaller manila envelopes. The three smaller manila envelopes were put into one larger envеlope. At trial, the deputy admitted that his repackaging was
[¶ 8.] At the close of the case, and after the court denied defendant’s motion for a judgment of acquittal, the jury returned a guilty verdict and defendant was sentenced. Defendant filed her notice of appeal on November 22, 2006. On March 5, 2007, she moved this Court for a remand, which was granted on April 17, 2007. The remand order allowed the circuit сourt to consider an assessment of costs issue and defendant’s motion for a new trial based on newly discovered evidence. On August 27, 2007, defendant moved for a new trial and for assessment of costs. Defendant claimed that certain newly discovered evidence, Lindman’s bill submitted to the State after the trial for his services as an expert, proved thаt Lindman did not examine the metal fragments in Wipfs shoe. The court denied defendant’s motion for a new trial, concluding that the evidence was merely impeaching, and therefore, not adequate grounds for a new trial.
[¶ 9.] Defendant appeals on grounds that the court abused its discretion when it (1) denied her objection to the chain of custody for the metal fragments, (2) allowed Waldner’s hearsay statements, and (3) failed to grant her motion for a new trial. Defendant further contends that there is insufficient evidence to sustain the verdict. 1
Analysis and Decision
[¶ 10.] When Deputy Fair tore open the evidence packages, sealed with Lindman’s signature, he weakened the chain of custody for those pieces of evidence. Lindman testified that he always marks evidence packaging on the seal so he knows that the evidence contained therein is the exact evidence he tested. With his signature seal being broken, and the packaging changed, Lindman could only testify that the evidence appeared to be the same. Lindman did, however, provide rеbuttal deposition testimony clarifying that, based on the explanation he received regarding Deputy Fair’s repackaging, he could state with certainty that the evidence was the same. Deputy Fair was able to locate the three smaller plastic bags from which he had taken the evidence. These bags were shown to Lindman during his depоsition. Lindman recognized the three plastic bags. Defendant, nonetheless, insists that because the chain of custody was broken, the State could not “demonstrate with reasonable probability that no tampering or substitution had occurred.”
[¶ 11.] We recently addressed the issue of chain of custody in
State v. Reay,
[¶ 12.] Just as in
Reay,
defendant here has failed to show that the challenged evidence was in some way altered or tampered with.
See Reay,
[¶ 13.] Defendant next contends that thе court abused its discretion when it admitted the hearsay testimony of George Waldner. Wipf testified at trial about the shooting. During his testimony he explained that after the shooting he returned to the colony and spoke with the colony leader, Waldner. When Waldner was called to testify, the State asked him about his conversation with Wipf. Defendant objected, contending that the testimony was hearsay. After an off-the-record bench conference, the court, on the record, declared the testimony admissible. Whether the court considered the evidence hearsay or not, or admissible on some hearsay exception, is unknown. Nonetheless, we review the court’s admission of the statеments under the abuse of discretion standard.
See State v. Engesser,
[¶ 14.] Hearsay “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” SDCL 19-16-1(3). Waldner’s testimony about what Wipf told him was clearly hearsay. And we find no hearsay exception warranting admission of this testimony. Waldner’s testimony went beyond saying that he and Wipf had a conversation, or that because the conversation occurred, it proved that Wipf returned to the colony after the shooting. Waldner detailed what Wipf said to him about what happened when defendant shot at him. The statements were made by Wipf, not Waldner, and were offered to prove the truth of the matter, i.e., that defendant shot at Wipf. The court abused its discretion when it admitted this hearsay testimony.
[¶ 15.] Nonetheless, the State contends that the erroneous admission of the hearsay was harmless error because the testimony was cumulative and not prejudicial. In particular, the State relies on the fact that Deputy Bunt testified about his сonversation with Wipf after the shooting, which testimony was substantially the same as that admitted erroneously through Waldner. Defendant, on the other hand, argues that she was prejudiced because Waldner’s testimony vouched for the credibility of Wipf and invaded the province of the jury.
[¶ 16.] Based on our review of the testimony of Waldner, Deputy Bunt, and Wipf, we find that substantially the same
[¶ 17.] Defendant next argues that the court abused its discretion when it denied her motion for a new trial based on newly discovered evidence. After the trial, the State’s expert, Lindman, submitted a bill for his services. In reviewing that bill, defendant noticed that Lindman did not charge for a forensic examination of the evidence. Lindman testified at trial that he performed an examination. Therefore, the defendant argued that this newly discovered bill proved that Lindman did not examine the evidence, and without his testimony, there would have been insufficient evidence to convict defendant beyond a reasonable doubt.
[¶ 18.] The State concedes that the bill is evidence that was not discovered at the time of trial. But the State asserts that because defendant filed a notice of appeal to this Court, SDCL 15-30-1 required defendant to file her motion for a new trial within sixty days of a remand from this Court. After defendant filed a notiсe of appeal, we issued an order of remand on April 17, 2007. Defendant filed her motion for a new trial with the circuit court on August 27, 2007, clearly beyond sixty days from April 17.
[¶ 19.] SDCL 15-30-1 is a rule of civil procedure governing the disposition of appeals to the Supreme Court. The rule provides that “the Supreme Court may remand the récord to the trial court for the purpose of making [a motion for a new trial], but no such remand shall be made unless such motion can be made and hearing thereon had in the trial court within sixty days from and after the date on which the time for appeal commences.” Id. (emphasis added). The State claims the emphasized language limits the defendant’s time to file a motion for a new trial after a motion for remand is granted. On the contrary, the language only restricts the Supreme Court’s ability to issue an order of remand. There being no rule specifically restricting the time a defendant may bring a motion for a new trial after a remand order from this Court, we will consider the merits of defendant’s claim.
[¶ 20.] To succeed on a motion for а new trial based on after-discovered evidence, a defendant must prove that “(1) the evidence was undiscovered by the mov-ant at the time of trial; (2) the evidence is material, not merely cumulative or impeaching; (3) that it would probably produce an acquittal; and (4) that no lack of diligence caused the movant to fail to discover the evidence earlier.”
State v. Reyes,
[IT 21.] Lastly, defendant argues that there was insufficient evidence to support the jury’s guilty verdict. Defendant asserts that the State failed to prove that she ever possessed or shot a .22 caliber rifle. The State also failed to connect the shell casings to her, according to defendant, because no fingerprints were ever found on the casings. She believes the State did not connect the metal fragments in Wipf s boot to the shell casings found at the farm and did not test the fragments for soil or other foreign material to support the theory that shots ricocheted off the ground. Taking all the evidence as a whole, and the doubts that exist, defendant maintains thаt the evidence is insufficient.
[¶ 22.] Aggravated assault consists of “[a]ttempts by physical menace with a deadly weapon to put another in fear of imminent serious bodily harm[.]” SDCL 22-18-1.1(5). We review a claim of insufficient evidence de novo.
State v. Morse,
[¶ 23.] Affirmed.
Notes
. We review a court's chain of custody decision,
State v. Reay,
. At the hearing on the motion for a new trial, the State offered into evidence a pretrial bill from Lindman to Deputy Fair at the Brown County Sheriff's office, dated February 20, 2006. Defendant objected on hearsay grounds and the court sustained the objection, in part. The court allowed admission of the bill, not for evidence that Lindman performed the forensic examination, but as proof that Lindman billed Brown County for certain services, which included a forensic examination. Despite the fact that the bill was admitted only for purposes of proving that Lindman billed for certain services, it is reasonable to infer that the State would have offered this bill had defendant attempted to impeach Lindman at trial on whether he performed the examination.