State v. Falkenberg
This text of 965 N.W.2d 580 (State v. Falkenberg) 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.
Opinion
#29287-aff in pt & rev in pt-JMK 2021 S.D. 59
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
STEPHEN ROBERT FALKENBERG, Defendant and Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT YANKTON COUNTY, SOUTH DAKOTA
THE HONORABLE CHERYLE GERING Judge
RALEIGH HANSMAN CLINT SARGENT of Meierhenry Sargent, LLP Sioux Falls, South Dakota Attorneys for defendant and appellant.
JASON R. RAVNSBORG Attorney General
CHELSEA WENZEL Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
ARGUED JANUARY 12, 2021 OPINION FILED 10/06/21 #29287
KERN, Justice
[¶1.] A Yankton County jury found Stephen Falkenberg (Falkenberg) guilty
of second-degree murder in connection with the death of Tamara LaFramboise
(Tamara). The circuit court imposed a mandatory sentence of life in prison, costs of
prosecution, and restitution. Falkenberg appeals his conviction, claiming that the
court erred by denying his motion for judgment of acquittal. He also contends the
court abused its discretion by denying his motion to exclude certain photographs
and testimony regarding the post-mortem concealment and dismemberment of
Tamara’s body. He further claims the court erred in fashioning its order of
restitution requiring him to pay future counseling costs and other expenses
incurred by the victim’s family members. We affirm the conviction but reverse the
court’s restitution order in part and remand for a new restitution hearing.
Background
[¶2.] We set forth the facts admitted into evidence in the light most
favorable to the jury’s verdict. State v. Huber, 2010 S.D. 63, ¶ 2, 789 N.W.2d 283,
286. Tamara was the only child of Mary LaFramboise and the mother of two adult
children. Tamara moved to Yankton, South Dakota, from New Mexico in 2016 to
make a fresh start after struggling with an addiction to methamphetamine. 1 After 0F
she arrived in Yankton, Tamara met Falkenberg, and they began a romantic
relationship.
1. Prior to living in New Mexico, Tamara obtained a degree in environmental biology from the University of California, Davis.
-1- #29287
[¶3.] Falkenberg, who was described by his step-daughter, Merissa Luetjen,
as a six-foot tall, “physically powerful” construction worker, 2 had suffered a severe 1F
traumatic brain injury from a car accident in 1993 when he was 19 years old. He
recovered from the accident and operated his own successful construction business.
Falkenberg did not use drugs. Tamara, however, was convicted of ingestion of
methamphetamine in 2016 and placed on probation. She was required, as a
condition of her supervision, to submit to regular and random urinalysis to ensure
her ongoing sobriety.
[¶4.] The parties’ relationship was tumultuous. Falkenberg claimed this
was the result of Tamara’s methamphetamine use, which caused her to become
irrational and violent on occasion. 3 Conversely, Falkenberg portrayed himself as 2F
passive and non-violent when reacting to Tamara’s physical assaults against him.
Falkenberg, however, had a brief encounter in 2017 with his former wife, Jennifer
Becker, which was hostile enough that a law enforcement officer had to intervene
and physically separate the two.
2. Falkenberg’s son, Sebastian, described his father as “using his hands for everything all the time” and that, for purposes of general contracting work, “instead of using hammers[,] he would just pound it in with his hand.”
3. Travis Peterson, a friend of Falkenberg, who testified that Tamara had a reputation in the community for being violent and irrational, once observed an argument between the two at Falkenberg’s shop, where Tamara “wore herself out” hitting Falkenberg while he “[j]ust smil[ed] and laugh[ed] at her a little.” On another occasion, after Tamara had been arrested, Falkenberg visited her in jail to help her secure counsel. During the visit, Falkenberg became frustrated with her and told her to “f***ing listen” and that he was “f***ing sick of her.”
-2- #29287
[¶5.] On March 1, 2019, the day of her disappearance, Tamara was
scheduled to finish her shift at work as a machine operator at a local manufacturing
company in Yankton at 2:00 a.m. Just before midnight, Tamara gave her debit card
to Javier Gonzalez, a coworker who was at the end of his shift and asked him to
purchase beer for her from Walmart before liquor sales ended for the evening.
Gonzalez ran the errand and placed the beer, the sales receipt, and Tamara’s debit
card in a male coworker’s pickup. Because her phone was inoperable, Tamara
borrowed a friend’s phone around 1:30 a.m. to call her mother in New Mexico.
Tamara and her mother were close and spoke on the phone nearly every day.
Falkenberg arrived at 2:00 a.m. in his Ford F-250 pickup to take Tamara to her
apartment across town, because her vehicle was in the shop. First, however,
Falkenberg drove to Walmart at Tamara’s request so that she could purchase an
alarm clock. Walmart’s surveillance video showed Tamara exiting the store and
Falkenberg’s pickup with an open truck bed driving by.
[¶6.] Falkenberg dropped Tamara off at her apartment during the early
morning hours and admitted to returning to her apartment several times that
morning. 4 On his first trip to her apartment, he arrived at about 6 a.m. 3F
Falkenberg later explained to law enforcement that he knocked on the door and
heard an alarm clock ringing. After receiving no answer, he left without making
contact with her. Falkenberg returned a second time at approximately 8:15 a.m.,
4. Tamara was on probation and required to report daily and submit to urinalysis testing when summoned. Because Tamara did not have a working phone, Falkenberg made calls for her to the call-in number to determine if she had been selected to test that day.
-3- #29287
and, this time, Tamara answered the door and had coffee with him in her
apartment. However, Falkenberg told law enforcement that Tamara became angry
at him and demanded that he leave, which he did. Falkenberg claimed that this
was the last time that he had contact with her. Randy Neuharth, Tamara’s
supervisor and the plant manager, testified that Tamara left work at 2:00 a.m. and
never returned. He also obtained surveillance footage from the plant at the request
of law enforcement, which showed Tamara getting into a pickup, later identified as
Falkenberg’s, at the end of her shift. Later on that same day, Friday, March 1,
Tamara did not appear at the Humane Society, where she was scheduled to work.
[¶7.] Cindy Roberts, a convenience store clerk who knew both Falkenberg
and Tamara, testified that Falkenberg filled his truck with fuel at the store on
March 1 in the early afternoon. Roberts noticed that the truck bed was covered,
which was unusual because Falkenberg normally had his dogs in the truck bed.
Roberts also noticed that Falkenberg had a swollen right hand. When Roberts
asked Falkenberg about his hand, he told her that he injured it by punching an
icicle. Roberts’s interaction with Falkenberg was recorded on a surveillance video
and introduced into evidence. Falkenberg left Yankton and started driving towards
Menominee, Michigan, where he had lived for a time. His half-brother, Paul
Bramschreiber, still lived in the area and owned a farm nearby. Falkenberg’s
mother also lived in Menominee.
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#29287-aff in pt & rev in pt-JMK 2021 S.D. 59
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
STEPHEN ROBERT FALKENBERG, Defendant and Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT YANKTON COUNTY, SOUTH DAKOTA
THE HONORABLE CHERYLE GERING Judge
RALEIGH HANSMAN CLINT SARGENT of Meierhenry Sargent, LLP Sioux Falls, South Dakota Attorneys for defendant and appellant.
JASON R. RAVNSBORG Attorney General
CHELSEA WENZEL Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
ARGUED JANUARY 12, 2021 OPINION FILED 10/06/21 #29287
KERN, Justice
[¶1.] A Yankton County jury found Stephen Falkenberg (Falkenberg) guilty
of second-degree murder in connection with the death of Tamara LaFramboise
(Tamara). The circuit court imposed a mandatory sentence of life in prison, costs of
prosecution, and restitution. Falkenberg appeals his conviction, claiming that the
court erred by denying his motion for judgment of acquittal. He also contends the
court abused its discretion by denying his motion to exclude certain photographs
and testimony regarding the post-mortem concealment and dismemberment of
Tamara’s body. He further claims the court erred in fashioning its order of
restitution requiring him to pay future counseling costs and other expenses
incurred by the victim’s family members. We affirm the conviction but reverse the
court’s restitution order in part and remand for a new restitution hearing.
Background
[¶2.] We set forth the facts admitted into evidence in the light most
favorable to the jury’s verdict. State v. Huber, 2010 S.D. 63, ¶ 2, 789 N.W.2d 283,
286. Tamara was the only child of Mary LaFramboise and the mother of two adult
children. Tamara moved to Yankton, South Dakota, from New Mexico in 2016 to
make a fresh start after struggling with an addiction to methamphetamine. 1 After 0F
she arrived in Yankton, Tamara met Falkenberg, and they began a romantic
relationship.
1. Prior to living in New Mexico, Tamara obtained a degree in environmental biology from the University of California, Davis.
-1- #29287
[¶3.] Falkenberg, who was described by his step-daughter, Merissa Luetjen,
as a six-foot tall, “physically powerful” construction worker, 2 had suffered a severe 1F
traumatic brain injury from a car accident in 1993 when he was 19 years old. He
recovered from the accident and operated his own successful construction business.
Falkenberg did not use drugs. Tamara, however, was convicted of ingestion of
methamphetamine in 2016 and placed on probation. She was required, as a
condition of her supervision, to submit to regular and random urinalysis to ensure
her ongoing sobriety.
[¶4.] The parties’ relationship was tumultuous. Falkenberg claimed this
was the result of Tamara’s methamphetamine use, which caused her to become
irrational and violent on occasion. 3 Conversely, Falkenberg portrayed himself as 2F
passive and non-violent when reacting to Tamara’s physical assaults against him.
Falkenberg, however, had a brief encounter in 2017 with his former wife, Jennifer
Becker, which was hostile enough that a law enforcement officer had to intervene
and physically separate the two.
2. Falkenberg’s son, Sebastian, described his father as “using his hands for everything all the time” and that, for purposes of general contracting work, “instead of using hammers[,] he would just pound it in with his hand.”
3. Travis Peterson, a friend of Falkenberg, who testified that Tamara had a reputation in the community for being violent and irrational, once observed an argument between the two at Falkenberg’s shop, where Tamara “wore herself out” hitting Falkenberg while he “[j]ust smil[ed] and laugh[ed] at her a little.” On another occasion, after Tamara had been arrested, Falkenberg visited her in jail to help her secure counsel. During the visit, Falkenberg became frustrated with her and told her to “f***ing listen” and that he was “f***ing sick of her.”
-2- #29287
[¶5.] On March 1, 2019, the day of her disappearance, Tamara was
scheduled to finish her shift at work as a machine operator at a local manufacturing
company in Yankton at 2:00 a.m. Just before midnight, Tamara gave her debit card
to Javier Gonzalez, a coworker who was at the end of his shift and asked him to
purchase beer for her from Walmart before liquor sales ended for the evening.
Gonzalez ran the errand and placed the beer, the sales receipt, and Tamara’s debit
card in a male coworker’s pickup. Because her phone was inoperable, Tamara
borrowed a friend’s phone around 1:30 a.m. to call her mother in New Mexico.
Tamara and her mother were close and spoke on the phone nearly every day.
Falkenberg arrived at 2:00 a.m. in his Ford F-250 pickup to take Tamara to her
apartment across town, because her vehicle was in the shop. First, however,
Falkenberg drove to Walmart at Tamara’s request so that she could purchase an
alarm clock. Walmart’s surveillance video showed Tamara exiting the store and
Falkenberg’s pickup with an open truck bed driving by.
[¶6.] Falkenberg dropped Tamara off at her apartment during the early
morning hours and admitted to returning to her apartment several times that
morning. 4 On his first trip to her apartment, he arrived at about 6 a.m. 3F
Falkenberg later explained to law enforcement that he knocked on the door and
heard an alarm clock ringing. After receiving no answer, he left without making
contact with her. Falkenberg returned a second time at approximately 8:15 a.m.,
4. Tamara was on probation and required to report daily and submit to urinalysis testing when summoned. Because Tamara did not have a working phone, Falkenberg made calls for her to the call-in number to determine if she had been selected to test that day.
-3- #29287
and, this time, Tamara answered the door and had coffee with him in her
apartment. However, Falkenberg told law enforcement that Tamara became angry
at him and demanded that he leave, which he did. Falkenberg claimed that this
was the last time that he had contact with her. Randy Neuharth, Tamara’s
supervisor and the plant manager, testified that Tamara left work at 2:00 a.m. and
never returned. He also obtained surveillance footage from the plant at the request
of law enforcement, which showed Tamara getting into a pickup, later identified as
Falkenberg’s, at the end of her shift. Later on that same day, Friday, March 1,
Tamara did not appear at the Humane Society, where she was scheduled to work.
[¶7.] Cindy Roberts, a convenience store clerk who knew both Falkenberg
and Tamara, testified that Falkenberg filled his truck with fuel at the store on
March 1 in the early afternoon. Roberts noticed that the truck bed was covered,
which was unusual because Falkenberg normally had his dogs in the truck bed.
Roberts also noticed that Falkenberg had a swollen right hand. When Roberts
asked Falkenberg about his hand, he told her that he injured it by punching an
icicle. Roberts’s interaction with Falkenberg was recorded on a surveillance video
and introduced into evidence. Falkenberg left Yankton and started driving towards
Menominee, Michigan, where he had lived for a time. His half-brother, Paul
Bramschreiber, still lived in the area and owned a farm nearby. Falkenberg’s
mother also lived in Menominee.
[¶8.] Later that evening, Falkenberg checked into a hotel in Tomah,
Wisconsin, which is along the direct route from Yankton to Menominee. The road
conditions were poor that night, with ice, snow, and wind. The hotel clerk who
-4- #29287
checked Falkenberg into his room noticed that Falkenberg used his left hand to sign
the paperwork because of his swollen right hand. Falkenberg had food delivered
and was in the hot tub when it arrived. 5 The following morning, March 2, 4F
Falkenberg continued from Tomah towards Michigan.
[¶9.] Later that day, after arriving in Michigan, Falkenberg sought medical
assistance for his hand injury. During his first visit, medical records indicate that
Falkenberg attributed his injury to punching an icicle. Falkenberg saw a second
medical provider on March 4. During this second appointment, Falkenberg
reported that he injured his hand when he braced for a fall on ice with a clenched
fist. Ultimately, Falkenberg was seen by two physicians and an occupational
therapist and had several x-rays taken of his hand before it was placed in a cast.
[¶10.] Meanwhile, efforts to locate Tamara proved fruitless. Mary had
unsuccessfully attempted to call Tamara on March 2. After that, she began text
messaging Falkenberg in an effort to contact her daughter because she knew
Falkenberg and Tamara were in a dating relationship. Falkenberg denied knowing
where she was but explained that he and Tamara had a verbal disagreement at her
apartment the morning of March 1 after he went to Tamara’s apartment to tell her
that “she didn’t have to test[,]” but she told him to leave. Falkenberg blamed
Tamara’s actions on her “lack of sleep.”
[¶11.] Still unable to contact her daughter, Mary texted Falkenberg again on
March 4 to ask if he had seen her. Falkenberg responded that he had not seen her
5. The clerks’ contacts with Falkenberg were also captured on a surveillance video which was introduced into evidence.
-5- #29287
and that he had “[b]een dealing with doctors all day. Feel [sic] the other day and
my finger hurt. It got swollen the hand so bad I had to go to the doctor. End up
breaking two fingers so now I dealt with not a surgeon but bone doctor today.”
Mary understood the word “feel” to mean “fell.” Mary subsequently asked, “[I]s she
alive?” Falkenberg replied, “She was w[he]n I left” and asked Mary to keep him
informed of where Tamara was.
[¶12.] Shortly after Tamara’s disappearance, Mary contacted Tamara’s son,
Ronald Sedillo, Jr. (Ron), to check in on Tamara as Mary was becoming increasingly
worried about Tamara’s well-being. Ron had a spare key to his mother’s apartment
and searched for her there but could not find her. Ron continued to check her
apartment twice per day and observed that a bag that Tamara routinely carried
with her when she went out was still in her apartment.
[¶13.] Michael Leverich, a manager for an automotive sales and repair
business in Menominee, testified that on March 4, Falkenberg came to his place of
work. Leverich, who knew Falkenberg because he saw him a couple of times each
year, talked to Falkenberg who said he was driving his mother’s car. Leverich
testified that Falkenberg was nervous and asked to use the business’s garbage
dumpster for a small amount of garbage that had accumulated in his mother’s car
while he had been using it for a few days. Reluctantly, Leverich allowed it, but did
not observe what Falkenberg placed in the dumpster. At some point, Leverich
contacted the Menominee County Sheriff’s department about the incident.
[¶14.] Mary reported Tamara missing to Yankton-area law enforcement on
March 5, 2019, because she had been unable to reach her by phone since March 1,
-6- #29287
2019. The following day, Deputy Darren Moser interviewed Falkenberg, who had
returned from Michigan and was working at his shop, to inquire about his last
contact with Tamara. Deputy Moser noticed that Falkenberg had a soft cast on his
right hand. He also noticed several baseball bats located in the corner of
Falkenberg’s shop that were covered in dust. 6 Deputy Moser left Falkenberg’s shop 5F
and, with other officers, entered Tamara’s apartment—which was only one block
away. Nothing seemed suspicious to him at the time. He later testified that when
he reviewed photos of the apartment that he took that day, they showed an
overturned lamp in the room. 7 6F
[¶15.] Falkenberg continued to deny any knowledge of Tamara’s
whereabouts. As the investigation continued, Deputy Wuebben obtained
surveillance video from Walmart and photographs of several people. Deputy Moser
then returned to Falkenberg’s shop and asked Falkenberg about a photograph of an
individual, Javier, who had used Tamara’s debit card to purchase beer. Falkenberg
told Deputy Moser that he did not know him but said he was suspicious that
Tamara could be involved with another man besides him and that “[m]aybe that’s
the male that she’s going to see.” Sebastian, Falkenberg’s son, asked his dad if he
had seen Tamara, to which he replied that he had “no idea” what happened to her.
6. Special Agent Josh Twedt with the South Dakota Department of Criminal Investigation testified that his department later recovered five baseball bats from Falkenberg’s shop and that he observed them in an undisturbed state covered with dust. No bats were ever found in Tamara’s apartment.
7. A few days later, on March 18, Special Agent Tyler Neuharth of the South Dakota Department of Criminal Investigation executed a search warrant of Tamara’s apartment and found a small amount of what was later determined to be Tamara’s blood on the west wall in the entryway of the apartment.
-7- #29287
Likewise, Merissa, Falkenberg’s adult step-daughter, sent Falkenberg a text after
hearing that Tamara was missing to see if he knew where Tamara might be
staying. Falkenberg responded that he could not “think about it.”
[¶16.] On March 16, Gregory Thornson-Westby discovered the nude, tattooed
torso of a small woman lying on top of the ice in the Little River (creek) near his
home outside of Menominee, Michigan, after his sons alerted him that they saw a
body down by the creek. The area is wooded and unpopulated. When Thornson-
Westby went to the spot the boys identified, he saw the body on the ice right below
the bridge over the creek. Thornson-Westby called law enforcement to report the
body. Detective Jeff Brunelle of the Menominee County Sheriff’s Office responded
and saw that the body was decapitated and missing hands and feet. Detective
Brunelle, who had received a bulletin from South Dakota mentioning a missing
person with similar tattoos, tentatively identified the body as Tamara’s. 8 Tamara’s 7F
head, hands, and feet were never recovered. The body was located 1.4 miles from
Falkenberg’s half-brother’s property.
[¶17.] The same day that Tamara’s body was found, Falkenberg called his
son Sebastian to arrange a meeting with Sebastian and Merissa at Merissa’s house
at around 10:00 p.m. During the meeting, Falkenberg explained that he needed to
go to Michigan to speak to the police, but that he wanted to talk to them first.
Sebastian testified that his father told them that he had confronted Tamara at her
8. During the timespan between March 6 and March 16, Yankton County Sheriff’s Deputy Sergeant Steve Wuebben was looking for Tamara. Knowing that Tamara had a romantic relationship with Falkenberg who had family in Michigan, Sergeant Wuebben sent a missing person report to Menominee law enforcement on the chance that Tamara had visited the area.
-8- #29287
apartment the morning of March 1. When he arrived, she was dressed up and there
were empty beer cans in the trash. He asked if she was cheating on him.
Falkenberg stated that they had argued and Tamara grabbed a bat, and then
explained how he defended himself. On direct examination, Sebastian confirmed
that his father told him that he pushed Tamara away and “[s]he hit the wall and
that was it.”
[¶18.] Merissa testified that her step-father said that he confronted Tamara
and accused her of cheating on him. Falkenberg admitted pushing her and knowing
right away that Tamara was dead. Merissa asked if it was self-defense and her
step-father told her that Tamara got a bat “that he was afraid of.” When questioned
at trial, Merissa acknowledged that when she testified at the grand jury on April 1,
she did not tell them that her step-father said he was hit with a bat. Knowing that
Tamara’s body had been found in Michigan and was dismembered, Merissa testified
that she asked her step-father, “[w]hat’s with the cutting situation?” Merissa
explained that Falkenberg said it involved Tamara’s “identity.” Merissa also asked
about the whereabouts of the tools he used in the cutting. Merissa testified that
Falkenberg left her with the impression that the tools were gone.
[¶19.] On March 18, 2019, Falkenberg was arrested, detained, and
subsequently charged by complaint with second-degree murder. South Dakota
Highway Patrol Trooper Eric Peterson, who was also a volunteer cadaver-dog
handler with the Brookings County K9 Search and Rescue and Canine Search
Solutions, had his certified dog, Ninja, perform a “free-air sniff” of Falkenberg’s
-9- #29287
truck. The dog indicated positively to the presence of human remains near the
driver’s door at the seam of the truck where the cab and bed are joined.
[¶20.] In Menominee, Detective Brunelle and other law enforcement officers
conducted a two-day search of the local landfill for the items Falkenberg placed in
Leverich’s dumpster. They recovered several pieces of clothing, including a yellow
and gray Columbia coat, a black sequined hat, white pants, and a Harley-Davidson
shirt. Tamara’s friend, Jennifer Parmelee, testified that she occasionally sold
Tamara clothing. Parmelee identified the Columbia coat and Harley-Davidson shirt
at trial as items she sold to Tamara. Sydney, Tamara’s daughter, testified that she
was with her mother when she bought the black sequined hat from a thrift store
and that the white pants were similar to a pair her mother wore.
[¶21.] The State captured two conversations on video between Falkenberg
and his visitors at the Yankton County Jail. During a visit with his ex-girlfriend,
Terri Thurman, on April 9, 2019, he mentioned that “Weird stuff uh, weird stuff
happened in Michigan the other day . . . . Not good, not good at all huh, not good at
all . . . [for] [m]e.” Similarly, on the following day, Falkenberg told two friends
during a jail visit that “they’re doing some weird stuff in Michigan . . . . Oh we don’t
talk about it . . . . But it’s uh not good.”
[¶22.] Falkenberg was indicted by a Yankton County grand jury on April 1,
2019, for second-degree murder in violation of SDCL 22-16-7 and first-degree
manslaughter in violation of SDCL 22-16-15(2). Prior to trial, Falkenberg moved to
exclude evidence of Tamara’s post-mortem dismemberment as irrelevant to his
intent at the time of the incident and to the cause of her death. Moreover, he
-10- #29287
argued the evidence was graphic and highly prejudicial. In response, the State
argued that the evidence was relevant to prove Falkenberg’s attempts to conceal the
murder and prevent identification of the body. As to Tamara’s manner of death and
Falkenberg’s intent, the State argued the evidence would be relevant to show that
Falkenberg struck Tamara, instantly killing her, and it would show Falkenberg’s
motive for removing her head in concealing the crime. Further, the State argued
that any “prejudicial effect of the evidence would not be by illegitimate means . . . .”
The circuit court denied Falkenberg’s motion.
[¶23.] The case was tried to a jury in Yankton on January 13–21, 2020.
During its case-in-chief, the State called twenty-six witnesses to the stand,
including forensic pathologist Dr. Adam Covach, orthopedic hand surgeon Dr.
Richard Curd, family members, and law enforcement officers from South Dakota
and Michigan. The State presented evidence showing Falkenberg was the last
person to have contact with Tamara on March 1 and presented evidence regarding
his actions after her disappearance.
[¶24.] An autopsy on Tamara’s body was performed by Dr. Covach, chief
medical examiner for Fond du Lac County, Wisconsin. Dr. Covach testified that his
examination revealed that Tamara’s body was frozen no more than two days after
her death and dismembered after it was frozen. He formed this conclusion because
the body, despite its missing parts, still contained blood in its vessels. After the
autopsy, a sample of Tamara’s blood was submitted for examination. The toxicology
reports revealed that at the time of her death, Tamara had methamphetamine in
her system in the approximate amount of 350 nanograms per milliliter and 41
-11- #29287
nanograms of amphetamine. Dr. Covach testified that overdose deaths usually
involve levels in excess of 1000 nanograms. After ruling out all natural causes, Dr.
Covach listed the cause of death as “homicide by unspecified means.” When asked if
the methamphetamine in Tamara’s system could result in death, he opined that
“[l]evels this low are generally not fatal” unless the person had a vulnerable heart.
Dr. Covach testified that Tamara’s “heart was incredibly healthy.”
[¶25.] The State also called Dr. Curd, an orthopedic hand and microvascular
surgeon, to testify as to his assessment of the injury to Falkenberg’s right hand. Dr.
Curd, who formed his opinion after reviewing the medical records and x-rays
gathered from the treatments Falkenberg received in Michigan, testified that the
metacarpals on Falkenberg’s middle and ring fingers 9 were fractured. Dr. Curd 8F
explained the injury was “very common in physical sports injuries[,]” and was
known as a “boxer’s fracture or a fighter’s fracture.”
[¶26.] When describing how the two middle metacarpals could fracture in
this way, Dr. Curd explained that the injury was consistent with a fist impacting a
stationary, solid object such as a jaw, cheekbone, chin, or forehead. In Dr. Curd’s
opinion, the injury was not likely caused by a strike from a bat, as that would result
in a larger area of injury. When asked if the injury could be caused by punching an
icicle, Dr. Curd agreed that it was possible but that the icicle would have to be very
narrow, one dimensional, and robust to break the hand in this way. He agreed that
9. Dr. Curd testified that the metacarpal bones make up the skeletal structure for the palm of the hand with the top of the metacarpal bone referred to as the knuckle.
-12- #29287
it was also possible to break these bones by falling on ice when bracing with a
clenched fist.
[¶27.] Following the State’s case, Falkenberg reserved the making of a
motion for judgment of acquittal, later made and denied by the court, and
Falkenberg proceeded with his defense. Although Falkenberg did not testify, he
advanced his claim of self-defense through Merissa’s testimony that Falkenberg told
her he was afraid of a baseball bat that Tamara wielded during their confrontation
on March 1. Falkenberg also countered the State’s evidence regarding Tamara’s
cause of death. Dr. Leon Kelly, a forensic pathologist, 10 testified that Tamara died 9F
while in the beginning phase of acute methamphetamine intoxication and was
under the influence of the drug at the time of her death. Because Tamara had
methamphetamine in her system, he could not rule out a cardiac arrhythmia,
stroke, or brain aneurysm as a cause of death. However, Dr. Kelly ultimately
agreed with Dr. Covach’s conclusion that the cause of Tamara’s death was likely
homicide by an unknown cause, but pointed out that not all homicides were
criminal acts, such as in the case of a killing that occurs when a person acts in self-
defense.
[¶28.] Falkenberg also advanced his theory that he panicked after Tamara’s
death, and because of his prior brain injury, he was unable to consider options to
summon aid and instead traveled to Michigan to dispose of her body. Dr. Rodney
Swenson, a clinical neuropsychologist, assessed Falkenberg’s psychological
10. Dr. Kelly was also the chief medical examiner and elected coroner for El Paso County, Colorado. He was also board certified in anatomical and clinical pathology.
-13- #29287
functions. Prior to forming his opinion, Dr. Swenson interviewed Falkenberg,
performed a number of neuropsychological tests, spoke with those who knew
Falkenberg including family members, and reviewed Falkenberg’s medical records
from the treatment he received after his car wreck. He testified that the 1993
injury caused massive trauma to Falkenberg’s frontal lobe, which impaired his
ability to “multi-task, think of alternatives, anticipate consequences,” and his
ability to problem-solve. Although Falkenberg was capable of managing his own
construction business, Dr. Swenson testified that Falkenberg’s impairment would
worsen with age and would be more pronounced when under stressful situations.
[¶29.] At the conclusion of the evidence, the jury found Falkenberg guilty of
second-degree murder, first-degree manslaughter (heat of passion), first-degree
manslaughter (unnecessary killing), and second-degree manslaughter. The court
sentenced Falkenberg on the second-degree murder conviction to life in prison
without the possibility of parole. The court also awarded costs of prosecution and
restitution to Tamara’s family for counseling and medical expenses incurred and for
prospective treatment necessary as a result of Tamara’s death.
[¶30.] On appeal, Falkenberg raises three issues which we restate as follows:
1. Whether the circuit court erred in denying Falkenberg’s motion for judgment of acquittal.
2. Whether the circuit court abused its discretion by denying Falkenberg’s motion to exclude evidence and testimony regarding dismemberment.
3. Whether the circuit court’s restitution order violated Falkenberg’s due process rights and the separation of powers doctrine.
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Analysis and Decision
1. Whether the circuit court erred in denying Falkenberg’s motion for judgment of acquittal.
[¶31.] “The denial of a motion for judgment of acquittal is a question of law
we review de novo.” State v. Rodriguez, 2020 S.D. 68, ¶ 54, 952 N.W.2d 244, 259–60
(citation omitted). “In measuring evidentiary sufficiency, 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. Patterson, 2017 S.D. 64, ¶ 27, 904 N.W.2d 43, 51
(citation and quotation marks omitted). “If the evidence including circumstantial
evidence and reasonable inferences drawn therefrom sustain a reasonable theory of
guilt, a guilty verdict will not be set aside.” State v. Miller, 2014 S.D. 49, ¶ 10, 851
N.W.2d 703, 706 (citation omitted).
[¶32.] Falkenberg was charged with and convicted of murder in the second
degree in violation of SDCL 22-16-7, which provides that:
Homicide is murder in the second degree if perpetrated by any act imminently dangerous to others and evincing a depraved mind, without regard for human life, although without any premeditated design to effect the death of any particular person, including an unborn child.
“In order to successfully prosecute a suspect for murder under this statute, the
prosecution must prove that the Defendant’s conduct established that he was acting
with a depraved mind. This mens rea requirement involves less culpability than
the element of premeditation required for first-degree murder.” State v. Harruff,
2020 S.D. 4, ¶ 39, 939 N.W.2d 20, 30 (citations omitted).
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[¶33.] Falkenberg contends that insufficient evidence exists to support the
jury’s verdict that he killed Tamara with a “depraved mind.” Falkenberg asserts
that post-mortem acts, such as dismemberment, were used to “retroactively
establish” an act evincing a depraved mind, and, therefore, the State’s theory has no
support in the record. In Falkenberg’s view, his conviction “hinged on exploiting the
dismemberment” and the jury was encouraged to conclude that “anyone who could
dismember a body—despite such an act indisputably occurring post-mortem, days
later, and without any connection to cause of death—must have had a depraved
mind . . . .” Further, Falkenberg argues the State’s theory that Falkenberg struck
Tamara in the head hard enough to kill her in one blow did not rise to the level of
an act evincing a depraved mind.
[¶34.] In State v. Hart, we reaffirmed the principle that “[i]f a person is able
to act with a lack of regard for the life of another, then that person can be convicted
of second-degree murder.” 1998 S.D. 93, ¶ 16, 584 N.W.2d 863, 866 (quotation
marks omitted). Here, the court instructed the jury that conduct “dangerous to
others” as used in the crime of second-degree murder, meant an act which was
“inherently dangerous that puts the lives of others in jeopardy.” The jury was
further informed that in evaluating the evidence of depravity, it could consider not
only the conduct itself but the circumstances of its commission.
[¶35.] In response to Falkenberg’s argument, the State relies on the direct
and circumstantial evidence that Falkenberg struck a fatal blow to Tamara’s body
without regard for her life. Falkenberg was a six-foot tall, physically powerful
construction worker with hands so strong he used them like a hammer. Tamara
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was a small, petite woman. Falkenberg admitted to his children that he “pushed”
her and knew right away that she was dead. We previously observed in Miller, a
case cited by Falkenberg, that a father’s “blows to the body or shaking, that
eventually resulted in [his child’s] death” were properly determined by a jury as
acts committed with a depraved mind. 2014 S.D. 49, ¶ 29, 851 N.W.2d at 709.
Likewise, as we recently held in Harruff, the deliberate use of force involving an
imminently dangerous act, such as striking a person “in the chest with a force of a
mule kick[,] evinces a lack of regard for [human] life . . . .” 2020 S.D. 4, ¶ 42, 939
N.W.2d at 31.
[¶36.] Because Falkenberg severed Tamara’s head and disposed of it,
purportedly to conceal her identity, the State argued that he did so to hide the
evidence of his crime and the exact mechanism of the fatal blow. To support this
theory that Tamara was killed by a punch to the head, the State presented
abundant evidence regarding the nature and timing of Falkenberg’s hand injury.
Roberts, the convenience store clerk, spotted Falkenberg with a swollen hand just
hours after his last visit with Tamara. She also noticed that he had placed a cover
on the bed of his pickup truck which was usually left open to transport his dogs. Dr.
Curd testified that the hand injury was a common injury for boxers and that a
punch with a fist to a stationary object like a jaw, cheekbone, or forehead could
cause such an injury. The jury could also consider Falkenberg’s inconsistent
explanations for his hand injury, attributing it to either a fall or a punch to an
icicle. Without question, a blow to Tamara’s face, with force sufficient to cause a
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“fighter’s fracture” on Falkenberg’s right hand, evinces an indifference to human life
and the depravity necessary to support a second-degree murder charge.
[¶37.] Although Falkenberg contends the State used his post-mortem acts to
retroactively establish that he killed Tamara with a depraved mind, his actions in
dismembering her body and disposing of her head were relevant not only to how he
killed her but also to his resulting consciousness of guilt after their fatal altercation.
The same day Tamara disappeared, Falkenberg began his 600-mile journey to
Michigan in inclement weather with dangerous road conditions. Based on its
investigation, the State argued that Falkenberg threw Tamara’s body in the truck
and drove to Michigan. A cadaver dog confirmed the scent of human remains in the
truck. Detective Brunelle, who photographed Tamara’s body after it was removed
from the frozen creek bed, testified that he observed tool markings and horizontal
striations on the bones where the head, hands and feet had been cut off. Dr. Covach
confirmed that there were tool markings on Tamara’s body, evident around the cut
surfaces of the neck and forearms. The actual tools used to dismember Tamara’s
body were never found, and Merissa testified that when she asked Falkenberg his
response led her to believe the tools used in the “cutting” were “gone.”
[¶38.] About the same time that Tamara’s clothes were discovered in the
landfill in Menominee, Falkenberg told two persons visiting him at the jail that
“weird stuff happened in Michigan” that was “not good at all” for him. The fact that
Tamara’s body was found 1.4 miles away from Falkenberg’s half-brother’s farm
demonstrates a geographical connection between Falkenberg and Tamara’s
dismembered body. Furthermore, when asked by Merissa about the “cutting
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situation” with Tamara’s body, Falkenberg explained that it involved Tamara’s
identity.
[¶39.] Falkenberg pled not guilty, and the State bore the burden of proving
every element of the crime of second-degree murder. “All elements of a crime,
including intent . . . , may be established circumstantially.” State v. Shaw, 2005
S.D. 105, ¶ 45, 705 N.W.2d 620, 633 (citation omitted). “Direct and circumstantial
evidence have equal weight. In fact, in some instances circumstantial evidence may
be more reliable than direct evidence.” State v. Riley, 2013 S.D. 95, ¶ 18, 841
N.W.2d 431, 437 (citations and quotation marks omitted). Here, the evidence
presented by the State supported their theory of how Falkenberg murdered Tamara
and the great effort he undertook to conceal his crime.
[¶40.] “[A]fter viewing the evidence in a light most favorable to the [verdict],
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” State v. Tofani, 2006 S.D. 63, ¶ 24, 719 N.W.2d 391,
398 (citation omitted). Based on our review of the record, the evidence is sufficient
to support the conviction of second-degree murder, and the circuit court did not err
by denying Falkenberg’s motion for judgment of acquittal.
2. Whether the circuit court abused its discretion by denying Falkenberg’s motion to exclude evidence and testimony regarding dismemberment.
[¶41.] The evidentiary rulings of a circuit court are presumed to be correct.
State v. Kihega, 2017 S.D. 58, ¶ 20, 902 N.W.2d 517, 524. We review a circuit
court’s decision to admit testimony and photographs into evidence for an abuse of
discretion. State v. Quist, 2018 S.D. 30, ¶ 16, 910 N.W.2d 900, 905. An abuse of
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discretion is “a fundamental error of judgment, a choice outside the range of
permissible choices, a decision, which, on full consideration, is arbitrary or
unreasonable.” State v. Kvasnicka, 2013 S.D. 25, ¶ 17, 829 N.W.2d 123, 127–28
(citation omitted). “Under the abuse of discretion standard, not only must error be
demonstrated, but it must also be shown to be prejudicial.” Harruff, 2020 S.D. 4, ¶
14, 939 N.W.2d at 25 (citation and quotation marks omitted). “Prejudicial error is
error which in all probability had an effect upon the jury’s verdict and is harmful to
the substantial rights of the party assigning the error.” Loen v. Anderson, 2005 S.D.
9, ¶ 5, 692 N.W.2d 194, 196.
[¶42.] Falkenberg challenges the admissibility of the testimony and certain
photographs introduced at trial “showing [Tamara’s] torso with attention focused on
areas missing extremities.” In Falkenberg’s view, the evidence was irrelevant
because it occurred “post-mortem, days later, and was not related to the cause of
[Tamara’s] death” and was unfairly prejudicial. Falkenberg argues that any
relevancy was “outweighed by the danger of the jury confusing the issues” and that
the “gruesome nature of dismemberment was guaranteed to inflame the jury[’s]”
emotions. Finally, Falkenberg contends that the evidence was so cumulative that it
“contaminated the entire case”—depriving Falkenberg of his constitutional right to
a fair trial. Falkenberg also points to the State’s repetitive use of the word
“dismember” or its derivatives as evidence of its prejudicial effect.
[¶43.] Pursuant to SDCL 19-19-401, “[e]vidence is relevant if: (a) [i]t has any
tendency to make a fact more or less probable than it would be without the
evidence; and (b) [t]he fact is of consequence in determining the action.” However, a
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“court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” SDCL 19-19-403. The rule “favors the admission of evidence
in the absence of strong considerations to the contrary.” Harruff, 2020 S.D. 4, ¶ 17,
939 N.W.2d at 26 (citation omitted). “[E]vidence of flight or concealment
immediately after the events charged in the indictment[ ] may be relevant to show
consciousness of guilt.” State v. Stone, 2019 S.D. 18, ¶ 26, 925 N.W.2d 488, 498. 1110F
[¶44.] Here, the evidence of Falkenberg’s efforts to conceal Tamara’s identity
and to permanently dispose of her head, hands, and feet were highly relevant. Her
missing body parts could have provided valuable clues to the cause of her death and
Falkenberg’s role in causing it. Because neither Dr. Covach nor Dr. Kelly could
determine the exact manner in which Tamara was killed, the dismemberment
11. The Ninth Circuit addressed this issue in two criminal cases involving dismemberment. “Evidence of post-mortem decapitation and dismemberment, thus of photographs depicting it, [are] relevant to show motive, premeditation, and consciousness of guilt; it tend[s] to show that [the defendant] needed to, and tried to, obscure the identity . . . .” U.S. v. Mitchell, 502 F.3d 931, 968 (9th Cir. 2007).
In Rivers v. U.S., 270 F.2d 435, 438 (9th Cir. 1959) (citations omitted), the court explained: “It is well settled that the conduct of an accused person following the commission of an alleged crime may be circumstantially relevant to prove both the commission of the acts charged to the accused and the intent and purpose with which those acts were committed. Among such acts are flight of the accused and concealment of the results of the crime. It is plain that the jury could well infer from the evidence in this case that the dismemberment of the body and the throwing of the portions into the sea were done to conceal a murder or to avoid its detection. This would be particularly true of the acts disposing of the finger tips. Such an act would serve the purpose of avoiding identification of the body.”
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evidence was relevant to prove the State’s theory that Tamara was killed on March
1 by a blow to her now missing head. In support of this theory, the State presented
evidence of Falkenberg’s physical prowess and his broken fist, as well as testimony
from his two children that he had admitted pushing Tamara against her apartment
wall and that he knew right away that she was dead. Because Falkenberg further
claimed he pushed Tamara in self-defense, the evidence showing that he disposed of
her head supported a reasonable inference that he did so to conceal evidence that
may have revealed the nature and extent of her injuries. Such evidence was
relevant to refute Falkenberg’s self-defense claim by showing his consciousness of
guilt.
[¶45.] The dismemberment evidence was also relevant to show how the
perpetrator of the crime attempted to conceal the identity of Tamara’s body before
disposing of it. Falkenberg admitted as much when Merissa asked him, “What’s
with the cutting situation?” According to Merissa, Falkenberg told her it concerned
Tamara’s “identity[.]” Further, Dr. Covach testified that upon examination of
Tamara’s body in the areas where it had been dismembered, the cut surfaces of the
bone showed multiple parallel marks consistent with tool marks. This evidence was
relevant to show that it could have been someone familiar with power tools, such as
a contractor with Falkenberg’s experience, ability, and strength, who made such
cuts. The State also used the photos of Tamara’s frozen body to support its theory
that she was carried in the back of Falkenberg’s truck 600 miles in cold, snowy
weather before being dismembered.
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[¶46.] Falkenberg nevertheless argues that 15 of the State’s 63 exhibits
depicted dismemberment in a needlessly cumulative fashion causing unfair
prejudice. 12 However, it is well-settled that, “[i]f relevant, photographs are not 11F
rendered inadmissible merely because they incidentally tend to arouse passion or
prejudice. Autopsy photographs fall within these rules. Although disturbing and
cumulative, autopsy photographs may be admitted when they are necessary to aid
in an expert’s presentation of evidence.” State v. Hemminger, 2017 S.D. 77, ¶ 33,
904 N.W.2d 746, 757 (citations omitted).
[¶47.] Here, the photographs of Tamara’s dismembered body were presented
in conjunction with Dr. Covach’s expert testimony. He used the photographs to
support and explain his testimony regarding the time of Tamara’s death, the frozen
condition of her body, when the dismemberment occurred in relationship to her
death, the marks which resulted from the cutting tools used, and the tattoos
ultimately used to identify her body.
[¶48.] Dr. Covach referenced one photograph, Exhibit 33, while testifying
that the skin on the body had a “purplish area,” which was known as “marbling” or
“livor mortis.” He explained that the “marbling,” as depicted on the photo, was
evidence of early decomposition which is helpful in determining the time of death.
Seven other photographs involved images of the different tattoos used to
12. A review of the record shows only 14 photographs involved images of portions of Tamara’s body. The other photograph (Exhibit 32) depicted the identification tag affixed to the body bag.
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conclusively identify Tamara’s body (Exhibits 38–44). 13 Three photos (Exhibits 33– 12F
35) depicted the front and back of Tamara’s body, providing an overview of the
location of the identifying tattoos and the straight lines where her head, feet and
hands were severed. Exhibits 36–37 depicted the tool marks evident across her
neck and where one of her hands was severed.
[¶49.] The two remaining aerial photographs, Exhibits 22 and 23, depicted
the location of where the body was found under the bridge on the ice of the frozen
Little River. They were used to show that Falkenberg was likely the person who
disposed of Tamara’s body. Before the photographs were shown to the jury,
Detective Brunelle, who took the pictures, testified regarding the remote terrain
and the body’s location in relation to Falkenberg’s brother’s farm as well as how the
tattoos on Tamara’s body aided him in identifying her. The photographs allowed
the jury to infer that the body could have been easily thrown off the bridge from a
vehicle onto the ice below without being detected, due to the remote, wooded area
surrounding the creek.
[¶50.] Because the photographs at issue were admitted for distinct purposes,
they were not unfairly cumulative or prejudicial. “[T]he fact that the photographs
could arouse passion or prejudice does not compel the conclusion that the evidence
should have been excluded.” Hemminger, 2017 S.D. 77, ¶ 36, 904 N.W.2d at 758.
13. The photographic exhibits depicted unique tattoos found on different areas of the body: Exhibit 38 (the right forearm—playing cards); Exhibit 39 (the left shoulder—a cross); Exhibit 40 (the left forearm—a puma); Exhibit 41 (the upper left part of the back—an eagle on a branch); Exhibit 42 (the upper right part of the back—three hearts with wings); Exhibit 43 (the left ankle area—a spider web); and Exhibit 44 (the right calf—a banner).
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“[B]ecause virtually all relevant evidence presented at trial is harmful to the other
party,” autopsy photographs must be unduly prejudicial before being excluded from
evidence and “must persuade the jury in an unfair and illegitimate way.” Quist,
2018 S.D. 30, ¶ 18, 910 N.W.2d at 906 (citation omitted). Here, the photographs,
though gruesome, do not reflect an unfair or illegitimate presentation of the
evidence. Moreover, to ensure proper consideration of such concealment and
dismemberment evidence, the court gave a limiting instruction informing the jury
that such evidence did not create a presumption of guilt. 14 Rather, the jury was 13F
instructed that they were not required to consider the evidence but could consider it
along with all of the evidence in the case, giving to it the weight they felt it was
entitled to receive. Therefore, the circuit court did not abuse its discretion in
allowing the evidence, testimony, and arguments relating to dismemberment to be
considered by the jury.
3. Whether the circuit court’s restitution order violated Falkenberg’s due process rights and the separation of powers doctrine.
[¶51.] At the sentencing hearing, the State sought to recover from Falkenberg
$29,678.86 for costs of prosecution, restitution for expenses submitted by Tamara’s
family to the Crime Victims’ Compensation Commission (Commission), and
14. The court instructed the jury that: “Concealment by the defendant does not create a presumption of guilt. If you find that the defendant dismembered the body of Tamara LaFramboise, or disposed of tools and Tamara LaFramboise’s clothing, this evidence may be considered by you as a circumstance tending to prove the defendant’s consciousness of guilt. You are not required to do so. You should consider this evidence in connection with all the other evidence in the case and give it such weight as in your judgment it’s fairly entitled to received.”
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$2,191.65 to Sydney for medical costs stemming from her attempts at self-harm as a
result of losing her mother. 15 In support of these requests, the State provided the 14F
court with receipts for prosecution costs, and documentation from the Commission
reflecting that it had awarded compensation for expenses of $4,856.14 for funeral
costs, $720 for transportation costs for Ron contingent on submission of mileage
compensation forms, and approval for 18 “Mental Health” sessions for Sydney,
contingent upon receipt of documentation from the provider within a set deadline of
January 13, 2021. 16 The State also submitted a summary document detailing a 15F
total restitution request for the Crime Victims’ Compensation Fund of $7,625.10,
which included the $4,866.14 and $720 amounts awarded by the Commission, as
well as a $1,480.96 request for a headstone and a $586 counseling bill for Sydney.
The State did not provide receipts or documentation supporting these latter two
amounts.
[¶52.] Falkenberg objected to the State’s restitution requests, arguing that
the State was required to submit documentation in support of these amounts.
Because the documentation produced from the Commission showing what had been
awarded did not contain the underlying invoices or other documentation supporting
15. The provisions of SDCL 23A-28B establish a Crime Victims’ Compensation Commission, under the authority of the Department of Public Safety to pay, upon application, approved expenses for crime victims from a victims’ compensation fund. The maximum compensation an individual claimant may receive is $15,000.
16. The State introduced a statement of expenses submitted to the Commission reflecting approval for 18 future mental health sessions for Sydney noting that she “would like to seek mental health services; however, no bills or provider information was provided to [the Commission]. Expenses will be pending.”
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such amounts, Falkenberg claimed that the State failed to meet its burden “to prove
those costs did occur and were related to the incident in question.” The court agreed
with Falkenberg regarding the lack of documentation and ordered the State to
provide “the billing statements themselves . . . that have been paid by the
[Commission] or approved by and not yet paid before being ordered.” The court
observed that the Commission would not have authorized “payments without seeing
the invoices themselves, so the invoices exist.” The State assured the court that it
would provide the underlying billing statements for these invoices.
[¶53.] The court then denied Falkenberg’s objections and awarded costs of
prosecution and $2,195 to Sydney. 17 Although not requested by the State, the court 16F
also ordered Falkenberg to reimburse the Crime Victims’ Compensation Fund
(Fund) up to $15,000 for expenses awarded on claims submitted by the family and
additional restitution of up to $40,000 directly to Tamara’s children or mother if
they incurred counseling or medical expenses attributable to Tamara’s death.
Regarding the amounts ordered, the court stated, “[I]f there is any dispute, Mr.
Falkenberg will have the right to a hearing after review of any documentation
submitted in support of those requests either before this court or, again, more likely
before the Department of Corrections [DOC].” 1817F
17. Falkenberg does not challenge these awards on appeal.
18. The court’s written judgment of conviction and sentence provides in relevant part that: “the Defendant Stephen Robert Falkenberg shall pay restitution to the Yankton County Clerk of Court’s Office in the total amount of $29,678.86 to be paid to Yankton County for prosecutions costs; total reimbursement to Crime Victims’ Compensation Fund of up to $15,000.00 upon proof of expenditure; $2,191.65 to Sydney Sedillo for counseling and total (continued . . .) -27- #29287
[¶54.] On appeal, Falkenberg argues that the circuit court’s restitution award
to the Fund and the family was open-ended, speculative, and in contravention of
SDCL 23A-28-3 and his due process rights. Additionally, he argues that because
the sentence may result in a “reoccurring need for restitution hearings” and because
the court told him these hearings could occur before the DOC, the court’s sentence
places him under the simultaneous supervision of the judicial and executive
branches of state government, in violation of the separation of powers doctrine.
Accordingly, Falkenberg argues that the circuit court lacked jurisdiction to fashion
such a restitution order.
[¶55.] It is well established that the “[circuit] court has broad discretion in
imposing restitution.” State v. Martin, 2006 S.D. 104, ¶ 5, 724 N.W.2d 872, 874.
However, whether the sentencing court complied with statutory standards relating
to restitution involves issues of law which we review de novo. State v. Bryant, 2020
S.D. 49, ¶ 20, 948 N.W.2d 333, 338.
[¶56.] Restitution in criminal cases is governed by SDCL chapter 23A-28. “It
is the policy of this state that restitution shall be made by each violator of the
criminal laws to the victims of the violator’s criminal activities to the extent that
the violator is reasonably able to do so.” SDCL 23A-28-1. SDCL 23A-28-3 provides
________________________ (. . . continued) reimbursement for counseling costs related to Defendant’s crime up to $40,000.00 for Mary Laframboise, Sydney Sedillo and Ron Sedillo, which restitution is owed by [Stephen] Robert Falkenberg individually. If the Defendant disputes any portion of the $15,000 or $40,000 being paid, he has the right to request a restitution hearing. The $29,678.86 and $2,191.65 is not subject to further hearings as the court ordered those amounts to be paid.”
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in pertinent part that if the court sentences the defendant to the penitentiary, “the
court shall set forth in the judgment the names and specific amount of restitution
owed each victim.” Thereafter, it is the role of the DOC to “establish the collection
schedule for the court-ordered restitution while the defendant is in the penitentiary
and on parole.” Id. Here, the court’s oral comments at sentencing, allowing for the
possibility of a contested restitution hearing before the DOC, were erroneous. The
DOC does not have the authority to set restitution, a function exclusively within the
province of the circuit court, but it does have the responsibility to establish the
collection schedule for court-ordered restitution. See id.
[¶57.] Defendants have a right to due process in criminal sentencing hearings
involving restitution. See State v. Tuttle, 460 N.W.2d 157, 159 (S.D. 1990). While
the rules of evidence and the civil burden of proof do not apply, the defendant
generally has the right to “confront the victim’s claims for pecuniary loss and also
an opportunity to be heard.” Id. (citation omitted). When a defendant contests the
amounts requested, the State must produce evidence that allows the court to be
“reasonably satisfied” that such restitution is proper. Martin, 2006 S.D. 104, ¶ 5,
724 N.W.2d at 874.
[¶58.] The evidence before the court here included the documentation of what
the Commission had awarded, but the State did not produce, at the sentencing
hearing, the underlying receipts, invoices, or other evidence supporting the award.
Once defense counsel objected to the amounts being sought by the State for the
counseling and other identified expenses requested by Tamara’s family members,
the circuit court should have set a restitution hearing. Although the court did
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direct the State to obtain and provide to the defense the documentation underlying
its request, it is well settled that Falkenberg had a due process right to a restitution
hearing when he contested the restitution being requested by the State at the
sentencing hearing. See Tuttle, 460 N.W.2d at 159.
[¶59.] While compensation for prospective counseling and medical costs may
be appropriate and necessary in cases involving significant harm to victims and
their families, the State’s request for reimbursement for certain identified expenses
submitted to and awarded by the Commission bore no relationship to the circuit
court’s award of up to $15,000 in reimbursement to the Fund. Even more
problematic was the circuit court’s sua sponte award of up to $40,000 for future
counseling expenses for all three of the victim’s family members—an award that
was not based on a request by the State or supported by any evidence of record.
[¶60.] This is not to say that a court is prohibited from awarding restitution
for amounts not yet incurred. On the contrary, SDCL 23A-28-2(3) defines
“pecuniary damages” as “all damages which a victim could recover against the
defendant in a civil action arising out of the same facts or events, except punitive
damages and damages for pain, suffering, mental anguish, and loss of consortium.”
(Emphasis added). Further, SDCL 23A-28-2(5) defines a “victim” to include any
person “who has by contract or by statute undertaken to indemnify another or to
pay or provide a specified or determinable amount or benefit upon determinable
contingencies.” 19 (Emphasis added). 18F
19. The Legislature amended SDCL 23A-28-2(5) in 2021, but the amendments did not change the language quoted above.
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[¶61.] In Holsing, we considered the State’s challenge to a circuit court’s
denial of the State’s request to order a defendant, who had been discharged from
parole, to pay additional restitution for a victim’s counseling costs. 2007 S.D. 72,
736 N.W.2d 883. The restitution order entered by the court at the time of
sentencing in 1998 did not identify the specific amount of restitution owed to the
victims for counseling expenses. Rather, it provided that the defendant “shall make
restitution in full to the victims for the costs of any counseling that said victims may
have incurred as a result of said offenses.” Id. ¶ 13, 736 N.W.2d at 886. When
Holsing was released on parole in 2002, the Board of Pardons and Paroles set a
restitution plan that required Holsing to pay the victim $5,709.25. Holsing paid the
entire amount due while he was on parole and was discharged from parole in July
2004. In July 2005, the State applied for an order to show cause why Holsing
should not have to pay an additional $190,768.83 in restitution to the victim. The
circuit court dismissed the State’s application, concluding that it lacked jurisdiction
to order the additional restitution. On appeal, Holsing argued that in 1998 the
court had only ordered him to pay restitution for past counseling costs, not future,
and therefore, the court could not order him to pay additional restitution. Id. ¶ 10.
We agreed, affirming the circuit court’s determination that it no longer had
jurisdiction to increase Holsing’s restitution amount. Id. ¶ 18, 736 N.W.2d at 887.
[¶62.] Relevant here is this Court’s analysis in Holsing of the circuit court’s
restitution order entered at the time of sentencing. Although the court’s order did
not identify a specific dollar amount for the counseling costs, we explained that the
trial court’s sentence complied with SDCL 23A-28-3 because “[t]he victim’s initials
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[were] set forth in the sentence and the amount of restitution was ascertainable.”
Id. ¶ 14, 736 N.W.2d at 886 (emphasis added). Importantly, therefore, under
Holsing, a sentencing court may enter a restitution order at the time of sentencing
that does not identify the specific amount of restitution owed for a victim’s
counseling, so long as such costs are ascertainable. However, here, the circuit
court’s restitution order imposed arbitrary caps without specifying timeframes or
mechanisms by which specific amounts to be reimbursed to the Fund or to Tamara’s
family could be ascertained.
[¶63.] For the reasons explained above, we reverse the portion of the circuit
court’s restitution order requiring Falkenberg to pay up to $15,000 to the Fund and
up to $40,000 to the victims for future counseling expenses and remand for an
evidentiary hearing to address Falkenberg’s objections to the State’s requests. If
the State submits adequate foundational evidence, the court may order Falkenberg
to pay restitution for expenses that had already been incurred at the time of
sentencing as well as the cost of ascertainable counseling expenses which, although
not yet incurred, had been requested by the State at the time of sentencing. 20 19F
20. The Commission’s approval of 18 mental health sessions for Sydney included a deadline of January 13, 2021, for the submission of necessary documentation from the provider. Such a directive creates a mechanism by which the specific amounts to be reimbursed to the Fund can be ascertained. Likewise, when a sentencing court orders restitution for future costs which have not yet been incurred, the restitution order should either include a projected amount based upon evidence submitted to the court, or language setting forth the parameters or contingencies that must be met so that such amounts can be ascertained by a definitive point in time. Any later disputes as to amounts owed may then be heard by the circuit court. This approach allows victims to obtain restitution as afforded under SDCL 23A-28-1 and (continued . . .) -32- #29287
Conclusion
[¶64.] The evidence presented by the State was sufficient to sustain a
conviction for second-degree murder. Further, the circuit court did not abuse its
discretion by permitting evidence of the dismemberment of Tamara’s body because
the evidence was relevant and neither cumulative nor unfairly prejudicial.
However, we remand for a restitution hearing and a corresponding restitution order
consistent with the Court’s directives herein.
[¶65.] JENSEN, Chief Justice, and SALTER, DEVANEY, and MYREN,
Justices, concur.
________________________ (. . . continued) SDCL 23A-28-2, while at the same time meeting the requirements in SDCL 23A-28-3.
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Related
Cite This Page — Counsel Stack
965 N.W.2d 580, 2021 S.D. 59, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-falkenberg-sd-2021.