State v. Wedemann

im- court argue next Landlords attorney’s of excluded the issue

properly were fees jury. Attorney’s

fees from the which, besides under 21-3-8

sought period for the damages double

providing “compensation party allows a

withholding, hereby.” This the detriment occasioned the question

court need not address awarding language

whether this allows verdict, its attorney’s By fees. with- that there was no willful

determined Therefore, of dam-

holding. question irrelevant. attorney’s fees is

ages from is affirmed. judgment appealed the Justices concur.

All

TICE, for MOR- Judge, sitting Circuit

GAN, J., disqualified. Dakota, Plaintiff of South

STATE Appellee, WEDEMANN,

Hubert Lawson Appellant.

Defendant and

No. 13964. Dakota.

Supreme Court South May on Briefs

Considered 12, 1983.

Decided Oct. Hanson, Gen., Pierre,

Mikal Atty. Asst. plaintiff appellee; Mark V. Meier- Gen., Pierre, henry, Atty. on brief. Bowen, George J. Rice of Rice & Aber- deen, for appellant. defendant and FOSPIEIM, (on Chief Justice reassign- ment).

Defendant Hubert Lawson Wedemann was convicted of arson in the second de- We gree.1 affirm. (1)

Defendant claims: the evidence was verdict; (2) insufficient support to trial court should not have admitted evi- fires; dence of with his association earlier (3) refusing the trial court erred in to presence instruct that mere at the scene enough crime is not evidence to convict. determining sufficiency in criminal appeals

evidence the test on cases is whether there is evidence which, if is jury, record believed finding guilty sufficient to sustain a review, beyond a reasonable In our doubt. accept supports we the evidence which verdict and the most favorable inferences that can therefrom. fairly drawn Jorgensen, (S.D.1983); 333 N.W.2d 725 Dietz, (S.D.1978). light following emerge. In this facts A divorce was initiated defend- action Although ant’s wife. Mrs. Wedemann had possession been awarded of a temporary home, jointly-owned mobile her husband oc- cupied it with her consent. degree

1. SDCL 22-33-2 first reads: not amount to arson guilty degree. Any person intentionally of arson in the second Arson who sets fire to or felony. any degree occupied burns or in the second is a Class causes to be burned structure under circumstances which would trial, to fire, At the court the State day permitted the Wedemanns On in Aberdeen. introduce of three earlier fires marriage counseling met for evidence that she property, namely: Mrs. Wedemann told her husband defendant’s Mr. going through with the divorce. on November occurring A fire to the mobile briefly Wedemann returned a.m., 6:00 to a approximately home at or 7:00 and then went p.m. 6:30 building owned defend- residential a local as “The Club.” bar known adjacent to his wife on a lot ant and Mellette; par- at her in staying Mrs. Wedemann was the mobile home ents’ from The home across the street Club. 11, 1976, at occurring July A fire on Mr. called her and told her she Wedemann 12:50 in a mobile p.m., approximately big was in trouble. A few minutes later at owned the defendant home inquire Mrs. Wedemann called him back to Nebraska, which City, South Sioux argued in and why They she was trouble. being repossessed; was Club, The hung up. Upon a second call to 11,1977, at occurring on March (3) A fire to vacate Mrs. Wedemann told her husband a.m., 5:45 to the same approximately then immediately. the mobile home She as the first fire. residence Roemmich lock the had her brother John Fire concluded Department The Mellette so that her husband mobile home doors had been in- the first and third fires that could not enter. The cause of second tentionally set. Mr. Wedemann left The Club sometime determined, although officially fire was not John Roem- p.m. between 8:30 and 9:00 it, too, an arson motive. had near parked mich saw the Wedemann car fair in facts raise numerous The approximately p.m. the mobile home at 9:00 to, intended the defendant ferences after 10:00 the Mellette fire- Shortly p.m., did, fire. We will not set start men to a fire at the Wedemann responded if the evidence guilty aside a verdict residence. flowing from it sus inferences reasonable damage The fire which caused extensive theory guilt. a rational tain bedroom, where a originated in a middle Dickson, (S.D.1983). We with clothing box of had been saturated sup to the evidence was sufficient conclude cigarette lighting ignited. fluid and The verdict. port flames breaking fire smoldered before into thirty forty-five then burned for trial court Defendant contends being when, minutes before contained. Several pursuant abused its discretion the fire was not expert witnesses testified 19-12-5,2 it admitted evidence of SDCL Even the de- motive, intent, started natural causes. identity, show prior fires to in question fendant testified there was no plan. knowledge, his mind but that fire deliberately 404(b) of Rule adoption Before the set. 19-12-5), (SDCL Evidence Federal Rules of gained entry by forcing The arsonist had to whether were divided as jurisdictions guarded in the north door. This door was at it be shown that under case law could that would allow certain dog only belonging to building time a previous some defendant, to enter. persons, including Wigmore on the accused arsonist burned. 354(10) (1979); Underhill’s Evidence § defendant he first learned testified Edition, Evidence, Fifth § Criminal of the fire two after it occurred. days had occa- Dakota has never however, (1957). There was that he dis- South testimony, need not do either view. We adopt time. sion to cussed it at least twice within proof purposes, such as provides: for other admissible 2. SDCL 19-12-5 intent, motive, preparation, opportunity, crimes, wrongs, or acts Evidence of other identity, knowledge, of mis- plan, or absence prove is not the character of a admissible to person he or accident. to show that acted take order may, however, conformity therewith. so now. The relevancy fires find no the finding weakness in of relevan- can be decided under 19-12-5. The cy SDCL and no abuse of discretion in the decision many fact that held courts fires to be to admit the evidence. relevant without benefit of a Rule Although defendant was not

404(b) does, however, prompt apply us to prosecuted fires, previous they were 19-12-5 with some measure of lati- relevant to the trial. issues Defendant it tude as relates to of arson. collected insurance two Reposses on fires. In ruling on the admissibility of sion was avoided in the other. mys These crimes, evidence of other wrongs, or acts terious, involving beneficial fires the de the trial court must first determine its rele fendant’s property suggest identity, motive, vancy and then decide whether its proba knowledge, plan. intent and SDCL 19- substantially tive value is outweighed by 12-5 does not require other acts to be danger prejudice. unfair State v. criminal wrongful. Dace, or even Brown, (S.D.1979); 285 N.W.2d 843 See supra. Johnson, In State v. supra, 654, at Balancing probative SDCL 19-12-3.3 value we said fact tends “[a]ny to connect an against the risk of prejudice unfair is a accused with the commission of a crime is delicate judge function of the trial in the relevant probative and has value.” Johnson, exercise of discretion. State v. Johnson, In State v. supra, and (S.D.1982); 316 N.W.2d 652 Brown, State v. Pedde, v. (S.D.1983), State 334 N.W.2d 41 supra; State v. 272 Houghton, N.W.2d 788 we admissibility sanctioned the of recent (S.D .1978). f similar jurisdictions acts. Other eem to be an After conducting extensive pre acts, in remote, accord that the if prior too hearing testified, trial in people which nine See, lose e.g., their relevancy. State v. the trial court properly entered findings of Maestas, (Iowa 224 1974). N.W.2d 248 We fact and conclusions of law. State v. Holi have not required before been to define or day, 335 (S.D.1983); N.W.2d 332 v. State vintage measure the limitations which ren Volk, 331 (S.D.1983); N.W.2d 67 State v. der prior acts Whether prior too remote. Hartley, 326 (S.D.1982). N.W.2d 226 The acts are realistically too remote must de court concluded that evidence of the three pend their Cf. upon nature. Wharton’s fires was relevant under 19- Edition, Evidence, Criminal Thirteenth 12-5 and that the probative value of the (1972). burglar 260 A snatcher or purse § evidence outweighed any unfair rapid can commit similar succession. acts effect. An against arsonist who directs his crime review Our standard of is whether his own as to property frequency. is limited trial the court its discretion in abused ad He must wait embers to cool for the mitting Dace, the State v. evidence. 333 the smoke He must then rebuild to clear. (S.D.1983); N.W.2d 812 v. Houghton, for, repair likely or the look building supra. In that are review bound “[w]e secure, insurer. Finally another he rule question the the is ‘not whether must wait for an time to burn opportune judges the of this would have Court made again. Considering the nature of the of original an like ruling, but rather whether fense, we fires were not conclude the mind, believe judicial we a view of the other, from too remote from each or circumstances, law and the could reasonably motive, ” charged, identity, to show have reached that conclusion.’ State v. intent, or knowledge plan. Rose, 894, (S.D.1982) 324 895-96 N.W.2d Bushnell, (quoting F.M. Co. v. 70 Slagle disputes & Defendant trial 250, (1944)). S.D. 16 916 court’s this instruction: give N.W.2d We refusal to issues, misleading provides: 3. SDCL 19-12-3 or confusion of the delay, jury, of undue Although relevant, considerations may be ex- evidence time, presentation waste of probative substantially of or needless cluded if its value is outweighed prejudice, danger cumulative evidence. of unfair absence participa- HENDERSON, In the of evidence of (dissenting). Justice tion, a defendant be convicted on cannot I The Advisory dissent. Committee’s of his at the presence basis scene of Note under Federal Rule of Evidence the crime. 404(b), whence from the identical SDCL presence It is rule that mere at the drawn, 19-12-5 illuminating contains this scene of a crime does make a person not a must be passage: “The determination made however, is, It participant. a circumstance danger prejudice whether of undue out- support finding which tends to partici of weighs value probative evidence and, pation with other facts and circum availability in view of the of other means of stances, may establish v. guilt. State Vo proof factors for appropriate and other gel, (S.D.1982); 315 N.W.2d 321 making decisions of this kind under Rule Robb, (S.D.1981); 303 N.W.2d 368 State v. 403.” (Emphasis supplied.) As revealed in Schafer, (S.D.1980). If the herein, means facts several other evidence of had guilt defendant’s consisted proof clearly were and employed available scene, his mainly presence in the unnecessary trial below. instruction would appropriate. have been overreach State to and use remote-in- case, however, In this there was not an time, factual circumstances which ma- absence or inadequacy participation evi jority “mysterious.” concludes dence. Houghton, 272 N.W.2d duty trial court’s instruct was (S.D.1978), pri- we affirmed an exclusion of Coisman, Jahnig discussed in 283 N.W.2d evidence, part: or wrongs holding in “Thus 557, (S.D.1979): 560 proceed present state should to the con- The trial court duty has a to instruct present siderable in the evidence available on jury applicable law where the the- inject case attempting prejudi- without to ory supported is by competent evi- of cial other activities of defend- testimony dence. ... Refusal a give requested to ant.” setting applicable instruction forth law is error, The Advisory

not Committee’s Note also cites only prejudicial but error.... however, error, Vices, is Slough Knightly, not to refuse & Other Other to amplify Crimes, given (1956), instructions which substan- 41 Iowa L.Rev. 325 which tially cover the principle embodied in the begins premise: with the fundamental requested instruction.. .. Instructions among entrenched Strongly many adequate when, are considered as a concept American traditions is the that whole, they give a full and correct state- judged man not be strenuously by should applicable ment of the law.... [cita- spectre reference to awesome of his tions omitted]. past life. When one faces trial for a Owl, See also v. 295 Grey State N.W.2d 748 crime, specific he should not held to (S.D.1980). answer his scandal earlier whole, certainly produce. vices would most

Taken as a the instructions ade- has quately Though many cautioned the as he committed crimes to the burden proof of and the under would in- required evidence to con- circumstances which vict. Considered as a crease the that he has com- they gave probability whole a full and correct of the applicable charged, statement mitted the it remains an law. The trial court err did not in fact that members of the refusing unalterable the specific root, offered instruction. of will lend excessive jury, nobler weight record of crime. to a

The defendant’s of arson in conviction degree second is Knightly affirmed. article Slough & conclude their such reflecting on value of rules as WOLLMAN, MORGAN, JJ., DUNN and SDCL 19-12-5: concur. program to construct a attempting HENDERSON, J., law and justice, dissents. of authors common their adherents have fashioned a set of only factor to mean not that the' prior inci might rules which mortal men better other, dents be in close time to each but judge the misdeeds their contemporar of they charged be close in time to the ies.... in these very princi also, Imbedded offense at bar.2 See United States v. ples is the concept constitutional that one Eagle, 93, Two (8th Cir.1980) 633 F.2d 96 presumed proven innocent until guilty (for requiring federal law concept same Holmes, 104,105 338 N.W.2d closeness). [see of See generally, Garcia Aet J., (S.D.1983) (Henderson, dissenting)], Co., Surety (5th na Cas. & 657 F.2d 652 that man closely premise allied is the Cir.1981) (reversing a trial court’s admission judged light not be in should a prio%fire evidence); into Smith v. past. abominations of his Co., [See State Farm Fire & Cas. 633 F.2d 401 372, Shell, 336 Iron N.W.2d (5th Cir.1980) (employing closeness-in-time J., (S.D.1983) (Henderson, dissenting).] Here, analysis setting). an arson good, judicial are clean thoughts 1973, 1976, Such prior fires occurred in atmosphere in an detached thoughts, spun while the fire at bar occurred in 1981. Suf of courtroom deci fice spontaneity say, from the it to a factual fire setting eight years, five years, years, eight sion. and four fire, months to this is not close in time Id. charged offense at bar. It must be As we held in Houghton, finding that emphasized that appellant has never admit prior wrongs are relevant is but one step charged ted to nor been with setting any trial analysis admissibility: “[T]he three fires. The State admits in should, judge in an exercise of sound discre its brief that City, cause of the Sioux tion, exclude tending evidence to show the Hence, Nebraska fire undetermined. commission of other crimes ‘where the min the trial ruling only court’s was not errone ute peg of will be relevancy entirely ob ” receive the Nebraska ous scured dirty hung upon linen it.’ evidence, fire into but was a reckless disre v. Houghton, 272 N.W.2d at n. 11 gard for the prece rules of evidence and (quoting Kahaner, United States v. 317 F.2d dent dissenting expres thereunder. This (2nd Cir.1963), denied, cert. 375 U.S. sion the general follows rule in the United 836, 74, 84 S.Ct. 11 (1963)). L.Ed.2d 65 The minority States and not the rule as es taint that must be zealously poused by majority opinion. the An- See guarded against in considering prior wrongs not., (1963). 87 A.L.R.2d 891 (1) is that: jury might person convict a simply they perceive because him as a bad hold that prior Several cases evidence of person who prior committed unpunished generally fires inadmissible in arson crimes; (2) might the jury infer that cases:

the commission of one bad act indicates a (1) Miller, 128, People In v. 13 Ill.Dec. 55 propensity to commit ques the bad act in 421, Ill.App.3d (1977), 370 N.E.2d 1155 Comment, tion. See Other Evi Crimes prior Illinois Court limited two Illinois deci- dence at Balancing Trial: Of and Other sions which held that evidence of “other” Matters, 70 Yale L.J. 763 (1961). fires could be introduced to show that all of

One of the safeguards critical against part the fires were committed as of a con- prejudice infused into SDCL 19-12-5 via nected scheme or The Miller purpose. our case law is that the prior incidents must prior Court held that the fires must have a be close in time connection, rather than remote. close must namely they State occur Johnson, v. (S.D.1982).1 316 In N.W.2d 652 “at or about the same time and in the same Pedde, (S.D.1983), immediate area as did the arson for which Miller, we further clarified this charged.” closeness-in-time defendant was 370 Johnson, 652, Pedde, 41, prior prior 1. In 316 N.W.2d crimes In 334 N.W.2d place occurred before the crime at took within within one month a few months each other. bar. 118

N.E.2d at 1159. The on morning Miller Court went fire and evidence of the evening to hold: fire was introduced. The Alabama Court fires reversed defendant’s independently holding occurred conviction

[T]he other, each evening on different dates and at dif- fire was inadmissible because evi- Therefore, ferent locations. the mere dence was unavailable it to show was de- fact that this is an arson case will neither arson; fendant who committed the second suspend general barring rule the in- Pitts, 1, (5) In v. 30 566 Or.App. crimes, troduction into evidence of other (1977), Oregon P.2d 182 Court reversed nor dispense with the foundation which an upon following arson conviction fact must be laid before an exception to that pattern: (a) after defendant and his land- rule can be made.3 defendant, frustration, argued, lord Miller, 1160; 370 N.E.2d at fires; grass (b) started several after a (2) People Vincek, 412, In 75 A.D.2d later argument between defendant and his 429 (1980), N.Y.S.2d 928 defendant’s resi- landlord, garage the landlord’s was burned. dence had burned years four earlier in 1974. The probative Court held the value of the The 1974fire started behind the freezer and grass quite fire evidence was low compared right occurred after defendant’s wife left high danger prejudice. to the of undue him. A 1978 fire in defendant’s residence evi- prior Court also noted fires started behind the refrigerator and defend- dence general was barred “the rule that ant’s wife again just had once left him. a person engaged evidence that has in cer- The New York Court ruled that admitting tain prove conduct is not admissible to evidence of the 1974 fire was reversible he engaged in similar conduct at another arson, error because “in a prosecution for 183; Pitts, time.” 566 P.2d at evidence proving tending prove prior (6) Lynch, 279 N.C. 181 arson is not admissible unless it is shown to (1971), 561 S.E.2d North Carolina Court directly be probative of the crime charged ordered a new trial where evidence Vincek, ....” of de- at N.Y.S.2d 931. The New York fendant’s involvement of other fires was Court ruled that this evidence was highly prejudicial allowed. because it could not The Court held that demonstrated that fire “was fires were highly prejudicial and irrelevant intentionally set by or at the instance to the fire for which defendant was ” Vincek, defendant .... N.Y.S.2d charged. 930; The majority opinion allows the use of State, In Allen v. 560 P.2d 1033 “mysterious” When, fires to convict a man. (Okla.Cr.App.1977), the Oklahoma Court of in the history, course of this Nation’s did Criminal Appeals general stated: “The rule law start people myste- convict on is that evidence of other fires is inadmissi- rious circumstances? rules of evidence Our arson.”; ble charge under a unreliable, evolved to prohibit unprobative from prejudicial going facts into evidence. State, In Moreland v. So.2d You cannot throw in an kitchen evidentiary (Ala.Cr.App.1979), a fire occurred de- sink to someone. will fendant’s residence convict Where Septem- at 5:08 a.m. on 16,1978. boundless, amorphous ber rule majority A fire end? inspector testified that this early morning possessed plethora probative fire was arson. Later the same day p.m., place jury; yet, at 9:35 evidence to before the in a another fire overkill, occurred prosecutorial in a different room at classic case of defendant’s residence.4 Fire successfully painted appellant officials also called this as a fire arson. firebug. Mystery, Defendant was tried for the as a basis of is not proof, Likewise, single pattern directly contrary major- 3. 19-12-5 does not out This to the ity opinion’s assumption evidentiary unsupported special arson that ar- cases relaxed years sonists must wait several between each majority opinion. treatment as does the fire. very far removed from rumor and scandal. rumor,

People should not be convicted by

scandal, blabber, mystery, suspicion. and

We must not degrade our standards of

proof simply because this is an arson case. agree

I cannot suspicion appellant’s

association with three prior spring- fires legitimate

boards a acceptance of this evi- is, effect,

dence before the jury. guilt Thus,

by association. I would hold the lim- probative

ited value of fires is

outweighed by the formidable

effect of this evidence. The trial court

abused its discretion by allowing

fires into evidence at trial.

I would reverse and remand with di-

rections appellant granted a new

trial for he did not receive a fair trial

below.

FIRST BANK NATIONAL HILLS,

BLACK Plaintiff Appellee,

and

Edward A. TREADWAY and Maxine

Treadway, Defendants and

Appellants,

Pennington County, Defendant Appellee, Service,

The Internal Revenue

Defendant.

No. 14056.

Supreme Court of Dakota. South

Considered on Sept. Briefs 1983.

Decided Oct.

J. Palmer & Palm- Crisman of Gunderson er, appellee; Rapid City, plaintiff

Case Details

Case Name: State v. Wedemann

Court Name: South Dakota Supreme Court

Date Published: Oct 12, 1983

Citation: 339 N.W.2d 112

Docket Number: 13964

Court Abbreviation: S.D.