STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. WILLIAM THOMAN, Defendant and Appellant.
#29151-a-DG
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
02/17/21
2021 S.D. 10
THE HONORABLE JEFFREY R. CONNOLLY Judge
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA. ARGUED NOVEMBER 18, 2020
JASON R. RAVNSBORG Attorney General
MATTHEW W. TEMPLAR Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
ELLERY GREY of Grey & Eisenbraun Law Rapid City, South Dakota Attorneys for defendant and appellant.
[¶1.] William Thoman requested that a friend, Kenneth Jones, acquire a gun for him so that he could kill the doctor who treated his wife. Due to this conduct, Thoman was charged and subsequently convicted of criminal solicitation of aiding and abetting first-degree murder. In pretrial and post-trial motions, Thoman argued that one cannot criminally solicit another to aid and abet an offense. The circuit
Background
[¶2.] On October 3, 2018, William Thoman (Thoman) was indicted on the counts of: (1) attempted first-degree murder of Dr. Mustafa Sahin (Dr. Sahin); and (2) criminal solicitation. The State subsequently dismissed the first count of attempted murder. At issue is the indictment‘s second count which charges, “[]he did, with the intent to promote or facilitate the commission of a crime, to wit: Aiding and Abetting First Degree Murder, command, hire, request, or solicit another person, to engage in specific conduct which would constitute the commission of such offense or an attempt to commit such offense, in violation of
[¶3.] The events leading to the charge began with Dr. Sahin‘s treatment of Thoman‘s, now-deceased wife, Kathy. Dr. Sahin‘s treatment of Kathy began in the summer of 2017 when he informed her that a prior diagnosis of glandular lung cancer was incorrect. He instead diagnosed her with small cell lung cancer and recommended six rounds of chemotherapy. After treatment, Dr. Sahin performed a scan which showed no visible evidence of cancer. However, he informed Kathy and Thoman that microscopic deposits were probably present. Around late January 2018, Thoman left Dr. Sahin a threatening message stating that Kathy was hospitalized. Dr. Sahin ordered a scan of Kathy, which revealed that the cancer had spread to her brain. During Kathy‘s hospitalization, Dr. Sahin visited with Thoman in Kathy‘s hospital room. Thoman threatened to drive his truck through the cancer center into Dr. Sahin‘s office. Dr. Sahin did not call security because Thoman was Kathy‘s only caregiver. At this point, Dr. Sahin recommended that Kathy seek hospice care or experimental treatment at the Mayo Clinic. Dr. Sahin had no further interactions with Thoman until police detectives informed him that Thoman was making threats against his life.
[¶4.] Around September 2018, after the passing of Kathy, Thoman visited his friend Kenneth Jones (Jones) at Jones‘s office. The conversation started normally, but then Thoman asked Jones, in a somber tone, if he knew anyone that could do away with somebody. Thoman was referring to a comment Jones made over fifteen years ago about knowing “this friend in New York that could [kill somebody] for a round-trip ticket and 100 bucks.” Jones explained to Thoman that his comment was a joke. Thoman went on to ask Jones if he could get him a handgun. Jones responded that the “last thing I‘m going to do is get you a gun[,] so you can off yourself.” Thoman responded that he was not going to kill himself but rather the doctor who treated Kathy because he held the doctor responsible for Kathy‘s death. Later in the conversation, Thoman expressed a desire to acquire a silencer or saw off the barrel of a gun because he wanted to see the doctor‘s eyes when he died. Jones asked Thoman if he had guns of his own. He responded, “yes,” but explained that he needed a gun that was untraceable or unmarked. Jones asked Thoman if Kathy would want him to kill the doctor to which Thoman also responded, “yes.”
[¶5.] After Thoman left Jones‘s office, Jones contacted his cousin who was a law enforcement officer because he was concerned for both Thoman and the doctor. His cousin turned the case over to a detective. Jones related the details of his conversation with Thoman to the detective
[¶6.] Jones agreed, and in the recorded conversation, Jones expressed concern for Thoman. He told Thoman that he was unable to come up with a gun. Jones encouraged Thoman to get help, but Thoman told Jones that talking to him was enough. Jones asked if Thoman was still hellbent on “smoking” the doctor; to which Thoman responded, “One way or another he‘ll get taken care of, is the way I look at it; and if I can help that process along, by God I will.” Thoman later said, “As far as literally shooting the guy that‘s what I would rather do, but he comes up to maybe my rib cage in height and I could just twist his head off. You know it would be just about as easy.” Thoman later told Jones a story about going into the chemotherapy department to discuss a bill. While there, he saw Dr. Sahin and said, “There‘s that son of a bitch I‘d like to get.” Thoman explained that he has been thinking about killing Dr. Sahin since the December or January before Kathy died. He commented that if you are going to have a plan you ought to have a good plan. Jones asked if he could have Thoman‘s guns, to which Thoman responded that his guns are under lock and key, and he did not want to use his guns to kill Dr. Sahin because they have sentimental value. He further commented that shooting Dr. Sahin would be like “shooting a dog.” Thoman went on to say that he looked at the doors in the hospital‘s chemotherapy department and noted that they are just wide enough to drive his truck through, but he did not act because he did not want to hurt other people besides the doctor. Thoman later stated that, if Jones had given him a gun, he would have needed the plan to come closer to fruition before acting, but he liked the option of personally killing Dr. Sahin. Then he said that right now it is just an option, and he would call Jones before he did anything.
[¶7.] As a result of the conversation, detectives conducted surveillance on Thoman‘s house. Law enforcement eventually arrested Thoman and, upon executing a search warrant at his residence, recovered ten firearms and ammunition.
[¶8.] On October 25, 2018, Thoman filed a motion to dismiss the criminal solicitation charge for failure to describe a public offense under
[¶9.] A four-day trial commenced on August 19, 2019. Dr. Sahin testified about his
[¶10.] Multiple witnesses testified regarding Thoman‘s anger and his desire to harm Dr. Sahin. Daniel Groethe, a neighbor, testified that in July 2018, he overheard Thoman saying that he “would like to go after a doctor with a shotgun.” Garrett Leon and Kylie Kintigh, the officers who responded to Kathy‘s death, testified that Thoman expressed anger when referring to Kathy‘s treatment in Rapid City. Jones testified about his conversation with Thoman, and the State played the recording of Thoman‘s and Jones‘s conversation. On cross-examination, Jones testified that Thoman did not command, hire, or solicit him to kill the doctor. Finally, Ronaldo Sasso, a neighbor, testified that Thoman discussed with him the filing of a malpractice suit against Kathy‘s oncologist and expressed that he wanted to harm the doctor, but Sasso‘s biggest concern was Thoman committing suicide.
[¶11.] The State also presented testimony from two jail inmates, whom Thoman allegedly approached while in pretrial custody, about hiring a hitman. Inmate Dustin Eck (Eck) testified that Thoman approached him while in jail about hiring someone to take care of Judge Pfeifle and Jones. He gave Thoman the phone number of an alleged hitman. The sheriff‘s department provided and monitored the number, but Thoman never called it. Eck stated that he was not receiving anything for testifying against Thoman, including a reduction in sentence. Thoman later recalled Eck who admitted that he had, in a prior case, received a sentence reduction and, although the State did not promise him a sentence reduction, he was hoping for a reduction for coming forward with this information about Thoman. Another inmate named Jerrod James Murphy (Murphy) testified that Thoman asked him if he knew somebody who could take care of somebody. Murphy said he talked about Thoman‘s request with Eck, whom he referred to as a loyal friend, but Eck testified that he did not really know Murphy. Thoman later presented evidence that Murphy inquired about receiving a reduction in sentence for his testimony. At the close of the State‘s case-in-chief, Thoman moved for a judgment of acquittal. The circuit court held its ruling in abeyance.
[¶12.] Prior to submitting the case to the jury, Thoman moved to instruct the jury on the definition of aiding and abetting found in South Dakota Pattern Jury Instruction 3-28-5,2 which requires the underlying offense to have been committed. The circuit court denied the instruction. Instead, the court instructed the jury that the elements of criminal solicitation are that the defendant (1) acted with the “specific
[¶13.] The State advanced the following two theories of guilt: (1) Thoman solicited Jones to hire a hit man; and (2) Thoman solicited Jones to obtain a firearm so Thoman could kill Dr. Sahin. The court instructed the jury that it must unanimously agree on a theory. The jury ultimately found Thoman guilty of criminal solicitation to aid and abet first-degree murder under the second theory—asking Jones to obtain a firearm.
[¶14.] At the sentencing hearing, Thoman amended his motion for judgment of acquittal to a motion to arrest judgment under
[¶15.] Thoman appeals raising the following issues:
- Whether the circuit court erred in denying Thoman‘s pretrial motion to dismiss for failure to describe a public offense and post-trial motion to arrest judgment.
- Whether the circuit court erroneously instructed the jury on the elements of aiding, abetting, or advising.
- Whether the circuit court erred in denying Thoman‘s motion for judgment of acquittal.
- Whether the circuit court erred in overruling Thoman‘s objections to Dr. Sahin‘s testimony.
Analysis
1. Whether the circuit court erred in denying Thoman‘s pretrial motion to dismiss for failure to describe a public offense and post-trial motion to arrest judgment.
[¶16.] Thoman‘s pretrial and post-trial motions both sought a ruling from the circuit court that the State did not charge him with an offense prohibited by our criminal code. In support of his pretrial motion, Thoman relies upon
[¶17.] The issue before this Court is one of statutory interpretation, which we review de novo. Reck v. S.D. Bd. of Pardons & Paroles, 2019 S.D. 42, ¶ 8, 932 N.W.2d 135, 138. This Court‘s rules of
[¶18.] A jury found Thoman guilty of criminal solicitation to aid and abet first-degree murder under
[¶19.] Thoman argues that the circuit court erred by denying his motion to dismiss the indictment and his motion to arrest judgment because he was charged and convicted of an action the Legislature did not intend to punish under
[¶20.] Thoman additionally argues the plain language of
[¶21.] This Court has not interpreted the elements of solicitation under
[¶22.] Likely in response to Disanto‘s outcome, the Legislature enacted
[¶23.] In examining
[¶24.] Here, Thoman committed the crime of solicitation when he asked Jones, with the requisite intent, to acquire a gun for him so he could kill Dr. Sahin. The “specific conduct” he asked Jones to engage in was the obtaining of a gun to kill Dr. Sahin. Had Jones acquired the gun and given it to Thoman knowing that Thoman wanted the gun to kill Dr. Sahin, and Thoman thereafter committed the murder, Jones‘s actions would have constituted the offense of aiding or abetting murder. Therefore, Thoman‘s solicitation of Jones to engage in this type of conduct fulfills the requirements of
[¶25.] This reading further comports with
[¶26.] The case of People v. Harsit, which the circuit court relied on, provides guidance. 745 N.Y.S.2d 872, 878 (N.Y. Sup. Ct. 2002). In Harsit, the defendant sought to procure a gun from two undercover agents in order to kill a judge. Id. at 878. The defendant argued that the State could not charge him with solicitation because he did not ask a third party to commit the crime but rather personally intended to use the gun. Id. New York‘s statute similarly criminalizes the solicitation of “conduct constituting a crime.” Id. The court held that the definition of solicitation clearly reaches solicitation to aid and abet the commission of a crime. Id. It found irrelevant that the solicited undercover agents had no intent to commit the murder. Id. at 879. The important fact was that the defendant requested that they commit the conduct, which if committed, would make them an aider and abettor of murder. Id.; see also Everett, 330 P.3d at 26 (individual appropriately convicted of solicitation to aid and abet murder even though the underlying murder did not occur). This same analysis applies here.
[¶27.] We further reject Thoman‘s additional argument that the State‘s reading of
He claims the Legislature enacted the solicitation statute, after Disanto, to keep aiding or abetting and solicitation as separate offenses. 2004 S.D. 112, 688 N.W.2d 201. However, the language enacted by the Legislature in
[¶28.] The crime of solicitation of aiding and abetting first-degree murder does not merge our State‘s aiding or abetting and solicitation statutes. The statutes each contain different elements that the State must prove to meet its burden. Thoman is correct that “[t]o be guilty of aiding and abetting, ‘the evidence must show the principal offender committed all the elements of the underlying offense.‘” State v. Tofani, 2006 S.D. 63, ¶ 36, 719 N.W.2d 391, 400. However, solicitation does not require the completion of the underlying offense.
[¶29.] Finally, Thoman argues that the State‘s reading will nullify
[¶30.] This Court‘s interpretation of solicitation will not nullify the renunciation statute.
[¶31.]
2. Whether the circuit court erroneously instructed the jury on the elements of aiding, abetting, or advising.
[¶32.] “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. However, no court has discretion to give incorrect, misleading, conflicting, or confusing instructions[.]” State v. Cottier, 2008 S.D. 79, ¶ 7, 755 N.W.2d 120, 125. “Whether the court gave incorrect or misleading instructions to a defendant‘s prejudice is a question of law reviewed de novo.” State v. Diaz, 2016 S.D. 78, ¶ 42, 887 N.W.2d 751, 763. “We, therefore, consider jury instructions ‘as a whole, and if the instructions when so read correctly state the law and inform the jury, they are sufficient.‘” State v. Waloke, 2013 S.D. 55, ¶ 28, 835 N.W.2d 105, 113.
[¶33.] Thoman argues that the circuit court failed to instruct the jury on the elements of aiding and abetting murder. He argues the court‘s instructions should have included the elements listed in Jucht, which provide that for aiding and abetting to occur, the principal must commit the underlying offense. 2012 S.D. 66, ¶ 22, 821 N.W.2d at 634. He claims the court excluded a key element of the underlying aiding and abetting offense—completion of the murder. He then concludes that this error is prejudicial because, had the circuit court instructed the jury that Thoman had to murder Dr. Sahin, the only possible verdict would have been “not guilty” as Thoman obviously did not kill Dr. Sahin. Thoman‘s argument misconstrues the application of
[¶34.] The circuit court instructed the jury that, to find Thoman guilty of criminal solicitation, the State must prove beyond a
[¶35.] As discussed above, criminal solicitation under
[¶36.] The circuit court used the language the Legislature provided in
3. Whether the circuit court erred in denying Thoman‘s motion for judgment of acquittal.
[¶37.] “We review a denial of a motion for judgment of acquittal de novo.” State v. Armstrong, 2020 S.D. 6, ¶ 12, 939 N.W.2d 9, 12. “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 reasonable doubt.‘” State v. Brim, 2010 S.D. 74, ¶ 6, 789 N.W.2d 80, 83. “[T]he jury is the exclusive judge of the credibility of the witnesses and the weight of the evidence.” Id.
[¶38.] Thoman‘s argument that the State failed to prove an element of the underlying offense of aiding and abetting—completion of the offense by the principal—fails for the reasons explained above. As to whether the State presented sufficient evidence on the elements of the crime,
- the defendant, with the specific intent to promote or facilitate the crime of murder in the first degree,
- commanded, hired, requested, or solicited another person to engage in specific conduct which would constitute the commission of aiding or abetting murder in the first degree,
- the defendant did so intentionally.
[¶39.] Jones, Dr. Sahin, two neighbors, and two law enforcement officers testified that Thoman expressed anger towards Dr. Sahin. Many of these individuals testified that Thoman threatened to harm Dr. Sahin, and multiple witnesses identified Thoman as the individual who made the threats. Jones testified that Thoman requested a gun to kill Dr. Sahin, and the State played Thoman‘s and Jones‘s recorded conversation where Thoman stated his desire to harm the doctor. Law enforcement recovered guns and ammunition from Thoman‘s house, which the State presented at trial. Two inmates testified that Thoman
[¶40.] In viewing the evidence in a light favorable to the State, it presented sufficient evidence to support each of the statute‘s elements. The jury could reasonably have found the elements of solicitation beyond a reasonable doubt.
4. Whether the circuit court erred in overruling Thoman‘s objections to Dr. Sahin‘s testimony.
[¶41.] “Our standard of review for evidentiary rulings ‘requires a two-step process: first, to determine whether the trial court abused its discretion in making an evidentiary ruling; and second, whether this error was a prejudicial error that in all probability affected the jury‘s conclusion.‘” Johnson v. United Parcel Serv., Inc., 2020 S.D. 39, ¶ 27, 946 N.W.2d 1, 8 (quoting Supreme Pork, Inc. v. Master Blaster, Inc., 2009 S.D. 20, ¶ 59, 764 N.W.2d 474, 491).
[¶42.] Thoman classifies Dr. Sahin‘s testimony as victim-impact evidence which is typically admitted at a sentencing hearing. He argues Dr. Sahin‘s testimony is inadmissible under
[¶43.] The State argues that the testimony was relevant to prove Thoman intentionally sought Jones‘s help to facilitate the murder of Dr. Sahin, and that Thoman had the specific intent to facilitate the murder when he solicited Jones. It argues that the testimony was necessary to show the seriousness of Thoman‘s threats and to combat Thoman‘s theory that he jokingly made the comments to Jones.
[¶44.]
[¶45.] Here, the issue is whether Dr. Sahin‘s testimony is relevant to prove that Thoman had the specific intent to request Jones‘s aid in the murder of Dr. Sahin when Thoman requested the gun. Dr. Sahin testified that, after law enforcement notified him of Thoman‘s threats, he rushed home, picked up his mother, and left town. He further stated that the threats resulted in him experiencing symptoms akin to post-traumatic stress disorder which ultimately led to him leaving Rapid City Regional Hospital.
[¶46.] “For evidence to be admitted during trial, it first must be found to be relevant.” St. John v. Peterson (St. John I), 2011 S.D. 58, ¶ 12, 804 N.W.2d 71, 75. Dr. Sahin‘s reaction may have been relevant to the seriousness of Thoman‘s threats, if Thoman had made the threat directly to Dr. Sahin. However, as law enforcement officers delivered the threat to Dr. Sahin, the State‘s line of questioning on the threat‘s emotional impact on Dr. Sahin holds no relevance. The State had to prove Thoman‘s intent at the moment he
[¶47.] As the circuit court erred by finding the evidence relevant, we next examine the prejudicial effect of its admittance. “Error is prejudicial when, in all probability it produced some effect upon the final result and affected the rights of the party assigning it.” Sedlacek v. Prussman Contracting, Inc., 2020 S.D. 18, ¶ 16, 941 N.W.2d 819, 822-23. In determining whether the error was prejudicial, the Court weighs a number of factors: “the importance of the witness‘[s] testimony in the prosecution‘s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony . . .[ ,]the extent of cross-examination otherwise permitted, and . . . the overall strength of the prosecution‘s case.” State v. Richmond, 2019 S.D. 62, ¶ 36, 935 N.W.2d 792, 802 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).
[¶48.] Thoman argues that the error was clearly prejudicial because the State failed to present concrete evidence of Thoman‘s criminal intent. He notes that the State both started its case-in-chief and its closing argument with Dr. Sahin‘s testimony which establishes its importance to the State‘s case. The State responds that the error is harmless because the State presented substantial evidence, outside of Dr. Sahin‘s testimony, to establish Thoman‘s criminal intent.
[¶49.] From our review of the record, the admission of the testimony did not, in all probability, affect the jury‘s verdict. The State presented a strong case to support its theory. To establish Thoman‘s specific intent, outside of Dr. Sahin‘s testimony, two neighbors and Jones testified about Thoman‘s various threats toward the doctor. The jury heard an audio recording of Thoman‘s and Jones‘s conversation where Thoman discusses his desire to kill the doctor and alternative methods for causing the doctor‘s death. Dr. Sahin was also permitted to testify, without objection, to Thoman‘s prior repeated threats made during Kathy‘s treatment. Moreover, the jury also heard Thoman‘s threat, which he discussed in the recorded conversation, about driving his truck through the cancer center‘s doors. Further, Thoman was able to minimize the testimony‘s impact by questioning Dr. Sahin about his reactions to Thoman‘s prior threats delivered firsthand to Dr. Sahin. The improperly admitted testimony amounted to roughly five questions in a four-day trial with a dozen witnesses. In its closing, the State briefly mentioned Dr. Sahin‘s testimony in three sentences. The court instructed the jury on the specific intent that must exist in Thoman‘s mind to commit the crime of criminal solicitation5 and that the jury must
[¶50.] The quantity and quality of evidence the State presented to show Thoman‘s intent, coupled with the limited use of Dr. Sahin‘s testimony, made the error harmless as in all probability it did not affect the jury‘s conclusion.
Conclusion
[¶51.]
[¶52.] JENSEN, Chief Justice, and KERN, SALTER, and DEVANEY, Justices, concur.
[¶53.] MYREN, Justice, not having been a member of the Court when this action was submitted to the Court, did not participate.