State v. Titus
426 N.W.2d 578
S.D.
1988
Check Treatment

*1 Further, proper- I that unless the believe manner, equitable

ty is reallocated in an inadequate is an amount $500

the sum considering alimony,

for all of the fore-

going.

ATTORNEY FEES states, majority the trial court’s

As the

findings clearly address the settled do not awarding attor- considered

factors prevented from

ney fees. We been meaningful appellate

having a review. appropriate

would remand for an considera-

tion, findings ruling previ- our under guidelines.

ously established

I am authorized to state that Justice joins in this dissent.

MORGAN Dakota,

STATE South Plaintiff Appellee, TITUS,

Richard R. Appellant.

No. 15904.

Supreme Court of South Dakota. April

Considered on Briefs 1988. July

Decided 1988. Gen., Pierre, Geaghan, Atty.

Frank Asst. Roger plaintiff appellee; for A. Tellin- Pierre, Gen., ghuisen Atty. on brief. *2 LaFleur, Cory La- word that and Titus Mattson of should contact E. Catherine LaFleur, Rapid City, department for defendant police possible. as soon Fleur & appellant. and 21,1986, On Titus December went to the police department gave and a statement to SABERS, Justice. a detective. Titus stated that had he been his conviction for appeals drinking heavily evening at a bar on the first-degree burglary. did He not remember how got home from the bar. He had a Facts being recollection of inside the French evening 18,1986, of December In late home, no of anything but recollection else French to their Brian Janelle returned and morning until he awoke the next and found Rapid City to find that been in it had home in stolen items his room. Titus was win- burglarized. the back door Glass charged later arrested and with first-de- allowing burglar dow had been broken gree burglary. in and unlock the door. The to reach Cory testified at Titus’ trial that Titus television, a color Frenchs discovered that p.m. woke him about 10:30 or 11:00 recorder, compact a cassette disc a video evening of and December 18th asked him decks, box, compact tape player, cable carry help things into the house. discs, weap- two tapes, martial arts VHS accompanied Cory alley Titus to the near ons, pounds 25-30 of deer meat were family garage there where were vari- burglar missing. apparently also The equipment. He pieces ous electronic or five bottles drank the remainder four Titus carried these items to their bedroom. liquor. Cory extremely that Titus was testified weapons missing caused The martial arts drunk, slurring mumbling, his words and suspect neighborhood Brian French to ac- say gotten he had and unable where (Titus). quaintance, Several Richard Titus equipment. Evidence was earlier, the French weeks Titus visited TV had been connected VCR color expressed a keen interest home and by Titus so that he could watch some VCR martial Another weapons. these arts tapes. made Titus aware that De- conversation 18th, Thursday, Brian cember A MATERIAL ISSUE 1. INTENT WAS league night bowling and that Ja- French’s PRIOR BURGLARY AND TITUS’ usually accompanied

nelle French her hus- WAS ADMISSIBLE CONVICTION police investigating band. officer burgla- Titus’ 1978 to admit State moved adapter in a TV shock scene recovered under ry bad act conviction as alley home and Titus’ the French between ruled that The trial court SDCL 19-12-5. residence. evidence of the fact following burglary, morning Titus’ conviction was admissible the resi- Rapid City Police detectives visited and/or intent defense was lack by French as Titus’. dence identified Brian evidence capacity and that the diminished home, This alley and two located across ap-On highly probative. was relevant and away, the Peters houses was owned act bad peal, Titus claims that as a renter and family. Titus lived there probative and the evidence was irrelevant (Cory). Cory a room with Peters shared outweigh the substantially did not value Peters, brother, gave permis- Cory’s Steve prejudice. search the Peters’ sion the detectives to erroneously Initially, State the miss- Detectives discovered residence. (Rule 404(b))is an “in- tapes, 19-12-5 ing equipment, and mar- SDCL electronics use of permits the clusionary” which rule weapons upstairs bedroom tial arts pur all acts “for prior crimes or meat relevant Cory. deer shared prove character poses” other than in the Peters’ freezer. Detec- was located argues that a conformity thereto. and left the stolen items tives recovered 1978, eight years prior periods of time was aware when the homes; away from charged, is too remote to victims were their elec- crime now equipment tronic was stolen in both inci- of intent. Titus on the issue probative dents; and both crimes were committed holding crimes commit- cites several cases midnight. shortly before to the crime to thirteen ted five remote. v. Iron too at issue are reviewing arguments, these we be- *3 (S.D.1983); 372 Shell, United in lieve the trial court was correct deter- (8th Heater, 689 F.2d 783 Cir. States mining prior burglary that the conviction Davis, 657 F.2d 1982); States United Although eight was relevant evidence. Cir.1981); Corey, (4th United States v. 637 time, period is a considerable of the Cir.1977). (2d argues F.2d 429 prior conviction was not too remote to be is a determination based that remoteness probative when the factual similarities be- the circumstances. As totality of on the crimes, reliability tween the the of the evi- above, by the decisions noted demonstrated dence, relevancy necessity and the eight years before the a crime committed the evidence are considered. charged may be too remote to be crime argues Titus next if that even the 1978 probative issues raised at trial. How- relevant, burglary proba- conviction its was ever, remoteness must be considered with substantially outweigh value did not tive factors, reliability such as and neces- danger prejudice. the of unfair The unfair sity, determining probative The value. according Titus, prejudice, to is the belief must consider the nature of the trial jury or the inference that convicted him offenses, similarity of occasions and they perceived per- him as a “bad elapsed locations as well as the time be- propensity son” with the to commit crimes. Davis, supra at 639. tween incidents. any prejudice resulting State counters that from the admission of the correctly points out that this legit- was that which resulted “from the disputed evidence related to material is probative imate force of the evidence.” deny in this sue case—intent. Titus did not See, Shell, supra Iron at 375. State also acts, entry only the intent or points gave to the fact that the trial court commit the Titus acts. claimed was jury limiting instruction as to the suffering from an alcohol-inducedblackout proper use be made of the admitted evening of December 18th and was evidence. incapable forming intent nec essary to commit Intent is one agree We that the admission of a specific exceptions general of the to the usually will preju- conviction result against admissibility rule bad acts. However, dice to the defendant. here the Titus raised the issue of intent. It was prejudice was not unfair. trial court clearly a material issue at trial and the trial admitting did not abuse its discretion in court so found. burglary evidence of the 1978 instructing and in on the limited Titus also claims that State failed to dem- purpose for which the evidence was to be onstrate a similarity sufficient be- factual proper considered. This was a case and tween the 1978 crime and the current use of bad acts evidence. charge. In occupied Titus entered an house and took a CB radio from a closet. 2. SUFFICIENCY OF THE EVI- caught He was act. State DENCE TO ESTABLISH INTENT stronger there are even similarities scope between the two incidents: Titus appellate knew the review on a homes; victims and had been in their claim of insufficient evidence to convict is burglaries place two took within the same “whether there is evidence in the record general which, Rapid City area of jury, area where if believed is sufficient —the lived; cases, entry gained finding Titus guilt beyond both to sustain a a rea through Bartlett, facing alley a back door be- sonable doubt.” State v. Avenues; tween Haines and Wood Titus This N.W.2d court will and, impulse “if and the control after a return to “nor- the evidence the verdict sustain consciousness, drawn therefrom will little inferences mal” or no reasonable guilt....” Id. theory of thoughts during a rational of his sustain recall actions the evidence claims that Specifically, testimony blackout. Dr. Hess’ is not refut- inferences the reasonable presented and simply because State facts ed his claim that he therefrom drawn indicating in a Titus was not catatonic a blackout the time suffering from state. burglary alleged and therefore was Dr. Hess also stated he could not render forming incapable of having opinion an Titus was to whether consistency of his statement to the points alleged time of blackout at the bur- Peters; testimony Cory police; the glary, only and evaluation observation (the Dr. Hess defense his statements alleged time at the blackout would witness) long history expert about provide opinion. a foundation for such an blackouts; drug abuse and alcohol essence, testimony Hess’ Dr. *4 alcohol-dependency of diagnosis Dr. Hess’ statements, history, effect that Titus’ MMPI test upon history Titus' based evidence not inconsistent with a were results; testimony al- Dr. Hess’ about testimony Although blackout. was argues that blackouts. cohol-induced with Titus’ which was consistent produce to evidence that was unable State theory, it the to jury was for determine having during a the Titus was not blackout having whether Titus was a blackout at the time issue. and, so, if burglary, time of the whether credibility argues that the of wit State prevent forming that was sufficient weight their testi nesses and the accorded Logue, supra. specific the intent. exclusively province of the mony are the (S.D. N.W.2d 151 jury. Logue, v. 372 State OF AS 3. SUFFICIENCY EVIDENCE 1985). disregard the chose HABITUAL OFFENDER Ti support offered to testimonial evidence by testimony that claims urges defense. State that tus’ blackout expert insufficient to conclude State’s burglary, place, and method time fingerprints the same as that his were infer entry form a sufficient basis for on associated with other those the cards also ring intent to commit theft. State exception prior also felonies. He takes points to that Titus knew when evidence sufficiency of evi admissibility and Frenchs would be absent from offered other State’s witnesses. dence (the stolen items house and that two fingerprint ex- points items in out that the weapons) were which State martial arts special points of com- pert easily a as evi found numerous Titus had shown interest fingerprints impliedly refuting parison lack the sets dence between testimony gener finger- it Titus’ Dr. Hess’ that and concluded —on person that a also prints al nature of blackouts—was on all cards. State three suffering of his envi a is aware habitual offend- blackout allows that SDCL 22-7-11 to it at that time and would react proven by fingerprint ronment certification er to be For exam in a somewhat normal manner. of conviction. State and certified records person state ple, a in a blackout would be prior of Titus’ records introduced certified items of con able to discriminate between was suf- felony convictions. This evidence (i.e., a negligible value siderable versus that the determination ficient opposed paper) to tissue and would VCR person convicted of Titus was the same capable recognizing a evaluation felonies. particular (i.e., or a that he liked wanted We affirm. addition, item). person suffering capable functioning, is from a blackout WUEST, G.J., and MORGAN car, is, he drive a could a connect that MILLER, JJ., concur. to a Dr. Hess also testified that VCR TV. J., HENDERSON, specially concurs. blackout state has low person 582

HENDERSON, (specially concur- evidence of acts. Accord: Justice State v. (S.D.1980), ring). Padgett, 291 796 N.W.2d 608(b). not, Fed.R.Evid. The trial court did gone since Nearly ten us, go deep in the case before into the facts appel serve left the trial bench to of another In numerous dis late bench of this state. sents, the use bad I have decried This Court has considered “remoteness” to, effect, person establish is acts Means, (S.D. 363 N.W.2d 565 that he acted in conformi “bad man” and 1985) (Henderson, J., concurring in result Nearly acts.” ty his “bad all of this writing); Wedemann, without State v. 339 Recently, vain.* how effort has been (S.D.1983)(Henderson, J., 112 N.W.2d dis ever, writings in this Court have senting); Shell, State v. Iron 336 N.W.2d glimmer hope to have a caused me (S.D.1983)(Henderson, J., dissenting); recognized, day, it would be one perhaps Pedde, (S.D. N.W.2d that evidence of crimes where acts other 1983); Johnson, and State v. than ones with which an accused is gleaned, As it can be charged, generally are inadmissible. There tunneling act worm bad for the flailing is no use the decided cases. If the act, remote, State. bad if too loses turns, someday, hooray. Today, I worm relevancy disregarded. its and should be state, again, gener simply wish to once Wedemann, However, 339 N.W.2d at 115. (as exceptions al rule and its the worm is depends upon particular each case its own turning steadfastly but burrows on its limitation, regarding vintage, facts as to a way), per 19-12-5: SDCL *5 on the remoteness. Admission of crimes, wrongs, Evidence of other realistically depend upon acts must their prove acts is not admissible the char- Wedemann, nature. 339 N.W.2d at 115. person acter of order to show that he Here, mind, judge opened the trial so conformity may, acted in therewith. It speak, record, 29, 1987, however, June pur- be admissible for parties’ for he stated he had motive, reviewed poses, proof opportu- such as intent, evidentiary briefs and the files and the

nity, preparation, plan, knowl- Also, edge, showing. identity, weighed he stated he had or absence of mistake or added.) (Emphasis prejudicial impact against probative accident. But, importantly, value. most he stated Honor, level, Did his at the trial court that he would allow admission of the error, case, just commit in this but in nine-year-old burglary conviction because any given case, when evidence of a crime value) bearing (probative of its on the issue or act other than the one with which the capacity. intent and/or diminished Car- charged, accused is was admitted in evi- thinking: dinal to his The facts and circum- dence? rule is that we on this Court strikingly stances were similar and he was shall determine if the trial court abused its well aware that the defense would focus on admitting discretion in the evidence. There Also, many are lack intent. the trial pertaining decisions to this sub- ject, Court, judge limited the into decided this admission evidence of just so shall one, Dokken, 493, burglary cite this conviction and its date with- Thus, special attending A out the concurrence circumstances. Dokken, though appellate this author in specifi- opinion id. at the reader of this cally burglaries, cited Eagle, and decried use of obtains the facts of both as I Chief prove specific case, extrinsic evidence acts. read over this was not essence, In Honor, a court particulars. should exclude extrinsic His * typical man’; or, example Eagle, A previously would be State v. because he is a Rad he Chief J., (S.D.1985) (Henderson, given 377 N.W.2d dissenting), acted as a Rad man’ in a for, factual situation fashion, persuasion by wherein I attacked if convictions were secured in such illegitimate Berger, punished principle may only means. J. Weinstein & M. that a man Evidence, (1982). charged, Weinstein’s ¶ 608[05] for those acts with which he was Chief Eagle, I stated: “A man should not be convicted would be violated.” Id. at 147-48. im- level, prejudicial ameliorated trial

pact. Al- defense. tendered was a blackout as a was advocated blackout

cohol-induced preclusion of

defense this ruled when judge knew trial Penning- Attorney for the State’s

because Prior Bad Act County filed a Notice

ton opposition brief in appellant filed compromising Without benefit

thereto. dissents, therefore, previous

my being committed the same burglaries city the same manner same

area of the defendant, I join the ad- can

by the same

missibility Tornow, Gen., Atty. Asst. legal R. Shawn agree the other discourse Pierre, appellee; Roger for opinion. Here, plaintiff and A. the bad act majority Gen., Pierre, Tellinghuisen, Atty. on brief. statutory exception into the worm tunneled in the nest of intent. reposes Falls, Miller, Sioux for defendant Steve appellant.

MORGAN, Justice. Rome, appellant, Anthony

Defendant and (Anthony), appeals from his trial court Sr. felony nonsupport of a conviction of minor We reverse and remand. child. Dakota, Plaintiff 19, 1986, Anthony exercised STATE South On October Appellee, son, minor rights with his Antho- visitation *6 Rome, (Son), as authorized ny Jr. proceed- pursuant to a divorce order Sr., ROME, Anthony Anthony return ing. did not Son Appellant. mother, legal custody had of his who home 15924. Instead, Anthony No. care. left Anthony was South Dakota with Son. Supreme Court of South Dakota. Cleveland, Ohio, in in or near apprehended 23, 1987, May Briefs returned to South mid-January, Considered on 1988. felony child-nap- convicted of Dakota and July 1988. Decided case, Rome, companion ping. See (S.D.1988). During the time Anthony, Anthony minor child child court-ordered did make payments. herein, Anthony the matter

At trial of ordered he had not made the admitted was in support payments while Son child stipulated that he custody care and his during the South Dakota absent from including Decem- days thirty However, Anthony testified ber 1986. care and the child was that while food, clothes, school custody provided