State v. Wooley
461 N.W.2d 117
S.D.
1990
Check Treatment

*1 H7 Dakota, Plaintiff STATE of South Appellee, WOOLEY,

Robert John Defendant Appellant.

No. 16820. Dakota.

Supreme Court of South May

Considered on Briefs 1990. Sept.

Decided *2 Best, Gen., Pierre, Atty. Diane Asst. sitting garage. Coke machine in the plaintiff appellee; Roger and Tellinghui- Wooley, Young Friend and told her that sen, Gen., Pierre, Atty. on brief. they going were to break into the machine and Paris left a short time later. Johnson,

Craig M. Office of the Public Defender, Rapid City, for defendant and morning At 1:50 a.m. the after the dinner appellant. party, Rapid City police department the report received a that a Coke machine was

SABERS, Justice. laying in the middle of a street about two Wooley (Wooley)appeals Robert John his Friend/Young blocks from the residence. convictions and sentences for one count of dispatched Two officers were to the scene grand theft and two counts of degree first reported. who found the machine as The damage intentional property. We affirm appeared damaged machine to have in been part part. and in reverse a fall from a truck attempts and from pry open. it representatives Coca Cola FACTS pick were they called to the machine and 6, 1989, evening January On the Mike were able to determine that it had been Young Friend and Keren held a dinner nearby taken from the Executive Golf party Rapid City, at their home South Course. party Wooley, Dakota. Guests at the were investigation The damage to the Paris, Amy Liz Chambers and Van- Scott Crystal car Lounge at and the theft of and, denHoek. Liz plans Paris had other ultimately Wooley the Coke machine led to dinner, group after left the and went on and Mike Friend. jointly The two were her own approximately about business. At charged an information with one count p.m., 9:00 people remaining the five degree damage prop- of first intentional group proceeded Crystal Lounge (the car), erty (the grand one count of theft Rapid City. downtown machine), Coke and a second count of first group stayed Crystal Lounge (the degree property intentional approximately until p.m., drinking, 11:30 machine). Coke A motion for severance talking dancing. 11:30, Wooley, and At granted Wooley was and and Friend were Mike Young Friend and Keren left separately tried on the three counts. Woo- lounge. Amy Scott VandenHoek and ley during jury testified his own trial and Chambers left a few later. minutes While “walking admitted over” the car but denied crossing lounge, the street in front of the any of, involvement in the theft Wooley VandenHoek and Chambers saw to, Nevertheless, machine. Coke and top Mike Friend “walk over” the of a jury finding Wooley returned verdict parked parking car in a lot across guilty Judgment on all three counts. street, damaging the vehicle. After “walk- sentence were Wooley appeals. entered and car, ing over” the got and Friend pickup Young into Friend’s with Keren ISSUE ONE away. recognized

drove VandenHoek that damaged by Wooley the car and Friend THE WHETHER EVIDENCE IS SUFFI- belonged acquaintance to an and subse- CIENT TO SUSTAIN WOOLEY’S CON- quently reported the incident to the owner VICTIONS? police. of the vehicle and to the issue, Wooley challenges As his first midnight night Sometime after sufficiency of the evidence to sustain his party, Wooley, dinner Mike Friend and Ker- convictions. standard of Our review on Young stopped by en Liz Paris’ house. such contentions is well established: The three invited Paris back to the residence, Friend/Young telling determining sufficiency her of the evi- they pop appeal, had taken a machine from the dence on our review is limited to golf determining course. Paris followed the three to whether there is evidence in which, Friend/Young if residence where she saw the record believed the fact

H9 finder, in the case of a verdict on a number finding guilt As will sustain a v. La indictment or informa- beyond a reasonable doubt. State of counts an Croix, (S.D.1988); tion, see inconsistency 423 N.W.2d in a verdict con- ... Ashker, 412 N.W.2d 97 also State v. victing acquitting other defen- some and *3 (S.D.1987). accept the most We must the convictions. dants does not invalidate can be drawn inferences that favorable Even where the evidence is the same as support of a verdict. from the evidence defendants, acquittal to all an one of Miskimins, 217 435 N.W.2d v. State acquittal does not necessitate an others, the of (S.D.1989). added). (emphasis 135, Hanson, v. 456 N.W.2d State 139 (1989) 23A C.J.S. Criminal Law 1405 § (S.D.1990). (footnotes omitted). recog court has This must be Wooley argues that the evidence principle holding nized a similar that his con insufficient to sustain considered charge conspiracy state’s dismissal of a identical presented victions because state against co-conspirator did not defendant’s jury Friend his against Mike evidence defendant/appel mandate reversal of the acquitted while he yet, Friend was conspiracy lant’s conviction. v. State Giu argu support In of his was convicted. (1978). liano, 270 N.W.2d 33 ment, People Taylor, v. Wooley relies on Supreme The Court has United States 396, (Ill.App. 323 N.E.2d 388 Ill.App.3d 25 acquittal similarly followed the view that of Ct.1974). bearing the con a co-defendant has no on that is Initially, Taylor we observe In viction of another co-defendant. United Appeals of the Illinois Court of a decision 277, Dotterweich, 320 U.S. 64 v. States Moreover, binding this court. and is not (1943), 134, corporation 88 L.Ed. 48 S.Ct. Wooley’s distinguishable is from Taylor for a president and its were both tried were Taylor, three co-defendants case. Food, Drug the and Cosmetic violation of tried, by the court and one jointly two president jury Act. The convicted the but Taylor, convicted jury. the The trial court corporation. Supreme The acquitted the jury and the acquitted one co-defendant president’s shrift to the gave Court short co-defendant. On these convicted the other appeal jury that the could not contention on facts, held that if one the Illinois Court to find the guilty find him because it failed guilty and a co-defen defendant is found observed, guilty. High The Court corporation evidence, the guilty not on identical dant “[j indulge precisely may ]uries Illinois guilty finding cannot stand. The Dotterweich, vagaries.” such motives or interpreted subsequently Tay have courts 279, 135, at 88 L.Ed. at 320 at 64 S.Ct. U.S. that, “when two defendants to mean lor likewise conclude that agree 51. We while tried and one is convicted jointly are bearing has no on Woo- acquittal Friend’s which, acquitted on evidence as the other is ley’s convictions. defendants, identical in all re to both only respect doubt exists as to in which spects, a reasonable The other People guilt insufficiency the convicted defendant.” of the evidence urges of 458, 11 Ill.App.3d testimony linking Ill.Dec. him Porterfield, 53 Liz relates to Paris’ (Ill.App.Ct.1977) 669 night 368 N.E.2d of machine late on to the Coke added). (emphasis party. Wooley Friend/Young dinner successfully attacked Paris’ asserts that he distinguishing this crucial factor state credibility prior inconsistent Wooley and Mike Taylor from is that case investigator. He gave to his ment she Therefore, it jointly tried. Friend were not Paris’ impeachment argues whether the evidence cannot determined be jury’s verdict credibility casts doubt on the Wooley’s Only against them was identical. the evidence insufficient and renders this court. record is before his convictions. sustain Furthermore, general rule on incon- that, “in law a matter of settled It is against co-defendants sistency verdicts sufficiency of the evidence determining provides: 120 conviction,

to sustain a prov it is not the up sentence of years peniten to ten ince of this court ‘to resolve tiary conflicts in the for each Wooley’s three convic evidence, Corle, pass credibility (S.D. on the tions. State v. 294 witness N.W.2d 799 ” es, 1980); weigh Coe, Hanson, (S.D. the evidence.’ State v. 286 N.W.2d 340 1979) (where N.W.2d at (quoting, charges separate information State Faehn rich, separate counts, offenses in (S.D.1984)). separate 359 N.W.2d sen Wit may imposed offense). ness tences be credibility question is a for each jury. asserts, Wilcox, As state also (S.D. the trial court 1989). State v. 441 N.W.2d was Here, suspend authorized to execution of each despite purported impeachment these sentences on the condition of Woo- testimony, of Paris’ it appears jury ley’s imprisonment in and, found her to be a credible witness *4 days to 180 or in the penitentiary state accordingly, Wooley found guilty on all days. to 60 SDCL 23A-27-18.1. Final upon three counts. Based the" foregoing ly, the trial court was authorized to direct observations, we find sufficient evidence to that the three sentences be served concur sustain his convictions. rently under SDCL 22-6-6.1: ISSUE TWO If a defendant has been convicted of two regardless or more offenses of when the WHETHER THE TRIAL EX- COURT offenses were committed when the CEEDED ITS JURISDICTION AND AU- judgment entered, or sentence was THORITY IN IMPOSING WOOLEY’S judgment may or sentence be that SENTENCES? imprisonment subsequent on the convic- Wooley argues that the trial court ex- may tion run concurrently with the im- jurisdiction ceeded authority its im- in prisonment any prior conviction or the posing agree. his sentences. We imprisonment subsequent offense gave The trial Wooley essentially court may expiration commence at the (intentional identical sentences on I Count imprisonment upon any other offense. automobile) and Count III However, there is a limitation on a sen- (intentional damage machine). to the Coke tencing authority court’s to order concur- $1,000 Both sentences were for a fine and a rent multiple service of sentences. Al- year penitentiary five term. Execution of though question a impression of first be- years four and penitentia- one-half of both court, fore this the rule is well established ry suspended terms was on certain condi- that, jurisdictions a number of “[t]wo 1 including payment tions of restitution and sentences, in order to run concurrently, day a 180 county jail. sentence As must place be sentences to the same to II (grand Count theft of the Coke ma- Smith, 169, confinement.” In re 235 N.C. chine), Wooley years was sentenced to five 174, (1952). 69 S.E.2d 176 People Accord $1,034 penitentiary plus restitution. 174, Emig, (1972); v. 177 Colo. 493 P.2d 368 Both property intentional sen- People 572, Kennay, 391 Ill. 63 N.E.2d tences were ordered to be served concur- (1945); State, 733 Ind.App. Alford rently subject with and year to the five 592, (Ind.Ct.App.1973) 294 N.E.2d 168 over- penitentiary grand sentence for theft. grounds, State, ruled on other Holland v. outset, At the 216, we note that 752; 265 Ind. 352 N.E.2d Anthony v. separate was sentenced for Kaiser, 748, three (1943); criminal 350 Mo. 169 S.W.2d 47 Nelson, offenses. Each offense is a 4 felony Class State v. 246 Or. 424 P.2d 223 subject punishment by (1967); State, a maximum Story v. 114 Tex.Crim. years imprisonment ten peni in the state (Tex.Crim.App.1930) S.W.2d 204 over- Thus, asserts, tentiary 2. as state grounds, Frank, ruled on other White v. impose court was authorized to separate 161 Tex.Crim. 279 S.W.2d 875. “A $1,583.89 (first restitution degree was ordered on Count I 2. SDCL 22-34-1 intentional dam- $1,034.00 age property), theft), (grand on Count III. SDCL 22-30A-17 22-6-1(6) (penalty felony). SDCL for Class 4 e sentence, any parole ad while on of that Woo- penitentiary in the and one sentenc ley supervision will be under the spend a man shall a certain judging that Department of Corrections or the Board of cannot be served out time Paroles, agencies Pardons and of the exec- concurrently.” at 204. Story, 27 S.W.2d government. utive branch of 24- SDCL Thus, county defendant cannot serve a “[a] 2-14, 24-15-145, SDCL SDCL 24-15-246. peni in the jail sentence while incarcerated Thus, the trial court’s sentences result in conversely, he cannot serve a tentiary, and jurisdiction the exercise of simultaneous county jail.” penitentiary sentence Wooley by separate agencies sepa- over at 369. Emig, 493 P.2d government, rate branches of a result we instance, court’s In this the trial clearly condemned in Huftile: Wooley’s sentences on suspension of two of if Uncertainty, if not chaos will result spend days the condition that he satisfy super- parolee required two county concurrently serving jail while visors; sentencing court and the year penitentiary sentence results five Board of and Corrections Charities [now pro incarceration the sort of simultaneous Corrections], each Department general rule cited above. hibited a different of restrictions and set Moreover, jurisdictional it violates the Those committed to the conditions.... *5 recognized we have between boundaries confusion penitentiary would thus see suspended paroles. sentences and they exposed should to order where be certainty. and Huftile, In decisions in our State Therefore, (S.D.1985) Oban, N.W.2d at 196. we Huftile, N.W.2d 193 and State v. exceeded its (S.D.1985), conclude that the trial court emphasized we 372 N.W.2d 125 jurisdiction authority ordering and in separate jurisdictional principles proper- to Wooley’s two intentional of a sen suspending volved in execution suspended ty sentences be on the condition Solem, parole. tence and See also Turo county jail. days that he serve 180 Here, (S.D.1988). the trial 427 N.W.2d 843 Wooley’s two sen suspension of court’s Application In Adams on Be of spend that he tences on the condition (S.D.1985) Schmit, 360 N.W.2d 513 half of jail an inten days county indicates suspending an invalid order we held that by that he remain under tion court suspension voids the order of sentence judicial of supervision of the branch stands. Accord while the sentence itself duration of the sus government Wooley’s sentences but ingly, we affirm suspending execution of pended portion of the sentences. SDCL reverse the orders However, peni while in the two sentences for intentional 23A-27-18.2.3 three property. This leaves grand theft sentence or tentiary on his 3-6A, shall, ap- subject chapter employ provides: 3. SDCL 23A-27-18.2 employees may point as be such officers and person who is sentenced to as A proper supervi- necessary accomplish the suspended imposition of sen- a condition of tence, parole parolees, persons under a sion of suspended suspended suspended exe- sentence or re- sentence and inmates on work sentence, supervision under the of cution arrest. lease or house by assigned the court the court service officer person. having jurisdiction provides: 6. SDCL 24-15-24 pardons paroles and is satis- If the board of pertinent part: provides 24-2-1 4. SDCL any provision of 24-15-20 has § fied that confinement in the state All inmates under violated, parole may revoke the and been it charge custody penitentiary under the and are original of the sentence reinstate the terms warden, govern, superintend, who shall may modify or it conditions and conviction house, discipline employ them addition, parole parole and restore status. law, prescribed by and the the rules manner reduction authorized to order the the board is policies department cor- institutional good part conduct full or in of time in rections. does granted 24-5-1. If the board § under provisions of 24-15-20 § not find that provides: 24-15-14 5. SDCL violated, parolee may restore the have been it original and condi- or modified terms to the department of corrections shall exercise parole. paroled prisoners, tions of his supervision over all year concurrent peni- five sentences in the

tentiary subject only any action

Board of Pardons and Paroles. Applica- Adams, supra.

tion of part

Affirmed in part. and reversed in

WUEST, C.J., and MORGAN and

HENDERSON, JJ., concur.

MILLER, J., specially. concurs

MILLER, (concurring Justice specially). generally

I majority concur with the

opinion, especially pertains as it

unique facts of this case. that,

It quite appro- should be observed

priately, majority opinion pre- does not judge giving prisoner

vent a from “cred-

it” for being time served or served an- penal

other institution. *6 RYKEN,

Patti Rae Plaintiff Appellee,

Larry RYKEN, L. Defendant Appellant.

No. 16917.

Supreme Court of South Dakota.

Argued May 1990. Sept.

Decided 1990.

Rehearing Denied Oct.