State v. Chavez

2002 SD 84, 649 N.W.2d 586, 2002 S.D. LEXIS 102
CourtSouth Dakota Supreme Court
DecidedJuly 17, 2002
DocketNone
StatusPublished
Cited by16 cases

This text of 2002 SD 84 (State v. Chavez) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Chavez, 2002 SD 84, 649 N.W.2d 586, 2002 S.D. LEXIS 102 (S.D. 2002).

Opinions

AMUNDSON, Justice.

[¶ 1.] Vincente Chavez, Sr., (Chavez) was convicted of six counts of aggravated assault and two counts of commission of a felony with a firearm. He appeals. We affirm in part, and remand for sentence corrections.

FACTS

[¶ 2.] During the night of November 12, 2000, Sioux Falls police were called to investigate a robbery. Victims of the crime reported that they knew the men who had robbed them as “Clown,” (later found to be Gregory Iboy (Iboy)), Sandy (later found to be Sandy Rodriguez (Rodriquez)), and “Downer” (later found to be Vincente Chavez, Jr., Appellant/Defendant Chavez’s son) (Vincent, Jr.). The victims further reported that one of the men was armed with a .25 caliber handgun and that one victim had been hit in the side of the head with the gun. The victims also stated that many items had been stolen, including a 12-gauge shotgun. They told police where Vincent, Jr. lived, which was on Franklin Avenue in Sioux Falls in Chavez’s home. Iboy was Vincent, Jr.’s, friend and he, too, was staying at the Chavez home. Vincent, Jr., however, was in jail at the time of the robbery and police were aware of this fact.

[¶ 3.] A vehicle that Rodriguez was in was stopped later that night and police found that he possessed some of the stolen items. After confirming with the victims that the items were theirs, police interviewed Rodriguez, and he gave them reason to believe that other stolen items were being stored at Chavez’s home where Iboy was staying.

[¶ 4.] That same night, police applied for and received a search warrant for the Chavez home that could be executed at any time on a no-knock basis. Sergeant Richard Miller (Miller), the Special Weapons and Tactics (SWAT) Team advisor assisted in executing the warrant because violence had been used during the robbery, and because the suspects had allegedly been involved in gang activity and narcotics. Miller determined that the SWAT Team should use a “dynamic” approach, whereby the team approaches the house without notice and secures the scene. Miller thought this was necessary because it would be less dangerous to surrounding residents and would prevent a possible hostage situation.

[¶ 5.] In the early morning hours of November 13, 2000, the SWAT Team approached Chavez’s home, and rammed open the front door. The Team then announced, “Police Department. Search warrant.” The SWAT Team split up once inside the home and one group went to search the second floor. Once upstairs, they encountered Reynala Chavez (Reyna-[590]*590la), Chavez’s wife who did not speak English. They coaxed her into getting down on the floor and lying flat while they proceeded. When Officer Chris Pearson (Pearson) and Officer Tim Hagen (Hagen) approached Chavez’s bedroom door, they discovered it was closed. Hagen tried to push it open, but felt resistance against it. Hagen pushed the door part way open and saw a gun pointed at them. Hagen called out, “gun,” and yelled for the man behind the door, Chavez, to drop it. Instead, the officers alleged, Chavez began constricting his finger on the trigger. Hagen dropped to the floor and fired his P-901 towards Chavez. Pearson, who had backed away from the door, did the same. Detective Clark Baker, who was outside of Chavez’s home during the SWAT Team’s warrant execution, claims one single shot, Chavez’s handgun, was fired before the P-90 rounds went off. After the gunfire ceased, Chavez came out from behind the door, no longer holding his gun, and the officers saw that he had been injured by the gunfire. His upper right arm and left hand had both been hit with bullets and were bleeding. Chavez, who did speak English, was ordered down on the floor and he complied. He was then taken to the hospital by ambulance.

[¶ 6.] Chavez later acknowledged that Iboy, who was involved in the robbery, was in fact staying at his home. Iboy came into Chavez’s home with some friend at about 10:30 on the night of the reported robbery; the group had two rifles and a shotgun, and were carrying property that they admitted had been robbed from someone. Chavez stated that Iboy had a .25 automatic pistol, and that he bragged about how he had hit a robbery victim in the head with it. Chavez claimed that he was very angry at Iboy, and that he told Iboy to get rid of the stolen items. He also stated that he took the handgun from Iboy and that Reynala later placed it in her bedroom closet. Chavez further asserted that when he woke up to his wife’s screams, he grabbed the handgun from the cabinet in his bedroom because he feared Iboy’s robbery victims were seeking revenge. He also claimed that he had pointed the gun out the bedroom door only to shoot at the ceiling as a means of getting the intruders’ attention. He said that once he,heard officers yell for him to drop the gun, he pulled it back, yelling “okay” and “I’m sorry.” According to Chavez, all of his actions were done before he realized the people in his home were police. He claims that he never heard the officers identifying themselves as police with a search warrant as they came through the house.2

[¶ 7.] Regardless of his assertions of innocent confusion, he was indicted on eight criminal counts for firing a gun at Officers Hagen and Pearson, who approached his bedroom door during the execution of the search warrant. The charges [591]*591included: two counts of aggravated assault for attempting to cause bodily injury with a dangerous weapon under SDCL 22-18-1.1(2); two counts of aggravated assault for attempting to cause bodily injury to the two law enforcement officers, under SDCL 22-18-1.1(3); two counts of aggravated assault for attempting, “by physical menace with a deadly weapon to put others in fear of imminent serious bodily harm” under SDCL 22-18-1.1(5); and two counts of committing or attempting to commit a felony while armed with a firearm under SDCL 22-14-12.

[¶ 8.] Before trial, Chavez made a motion to dismiss the indictment on the grounds that multiple counts were wrongfully being charged, but the trial court denied the motion. After a jury trial, Chavez was convicted of six counts of aggravated assault and two counts of commission of a felony with a firearm. The State requested that the trial court impose two fifteen-year sentences for two counts of aggravated assault against a law enforcement officer. The State also requested the mandatory minimum of five years for the first conviction of commission of a felony with a firearm, and the mandatory minimum of ten years for the second conviction of commission of a felony with a firearm. After the sentencing hearing, the trial judge imposed concurrent fifteen-year sentences for each one of the six aggravated assault convictions, and two concurrent fifteen-year sentences for the armed felony counts, to be served consecutively with the sentences for the assault.3

[¶ 9.] Chavez appeals the following issues:

1) Whether the defendant was improperly charged and convicted on multiple criminal counts.
2) Whether the evidence was sufficient to sustain the defendant’s convictions.

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State v. Chavez
2002 SD 84 (South Dakota Supreme Court, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
2002 SD 84, 649 N.W.2d 586, 2002 S.D. LEXIS 102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-chavez-sd-2002.