State v. Fender

2001 SD 27, 623 N.W.2d 49, 2001 S.D. LEXIS 28
CourtSouth Dakota Supreme Court
DecidedMarch 7, 2001
DocketNone
StatusPublished
Cited by3 cases

This text of 2001 SD 27 (State v. Fender) 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. Fender, 2001 SD 27, 623 N.W.2d 49, 2001 S.D. LEXIS 28 (S.D. 2001).

Opinions

MILLER, Chief Justice.

[¶ 1.] In this appeal, we affirm Michael Fender’s grand theft conviction, and hold that the evidence was sufficient to sustain the jury verdict, the State did not improperly withhold evidence and the giving of a flight instruction was not prejudicial error.

FACTS

[¶ 2.] On Monday, March 8, 1999, Fender was a manager of the Mount Rushmore Road Taco Bell in Rapid City, South Dakota. He testified that he arrived to open the store at 7:55 a.m. and began his morning routine of paperwork and readying the store for business. Part of the process involves accessing the safe to get money for the day’s operations. The safe, which consists of an inner and outer door, must be accessed by a precise [51]*51procedure involving a ten-minute wait between the opening of the outer door and the opening of the inner door.

[¶ 3.] Fender later told law enforcement officers that he accessed the safe about 8:40 a.m. and found that the money deposits from the weekend were missing. He called Mary Parker, the manager who closed the night before, to inquire about the missing money. She had no knowledge and told him to call the security company. Before calling the security company, Fender called his district manager, Pam Hare, who was at a conference in Nashville, Tennessee. She also told Fender to call the security company, because they would know whose code was last used to enter and exit the building. Fender seemed surprised when he learned of these security precautions. Fender called the security company and then called the police. The police arrived and began investigating. Lisa Treadwell, the owner’s wife, and Parker also arrived to assist in the investigation.

[¶ 4.] The security company records indicate that Fender’s individual security code was used that morning to enter the store at 7:09 a.m. and to exit it at 7:22 a.m. Although this information was obtained the morning of the theft, Fender denied any involvement, continued working at that Taco Bell as a manager and was not initially the focus of the detective’s investigation. He even received a salary increase after the theft.

[¶ 5.] In April of 1999, the detective contacted Andrea Wessel, a former friend of Fender’s, who was on work release from the Pennington County Jail, to gain information about Fender. She had a conversation with Fender in which he told her he was planning to leave for North Carolina with his mother. He swore her to secrecy and indicated he was nervous because he believed the police were after him. She tape recorded the conversation and turned it over to the detective. Based on the tape, the detective obtained an arrest warrant for Fender. He was arrested in Custer, South Dakota while loading furniture to move to North Carolina.

[¶ 6.] The case was tried to a jury which returned a verdict finding Fender guilty of grand theft. He received a five year sentence with three years suspended on the condition he make restitution in the amount of $5,709.94.

DECISION

[¶ 7.] 1. The evidence supports the jury’s verdict.

[¶ 8.] When reviewing a challenge to the sufficiency of the evidence, the question this Court examines is “ ‘whether there is sufficient evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt....’” State v. Edelman, 1999 SD 52, ¶ 4, 593 N.W.2d 419, 421 (citations omitted). In this process, “ ‘we accept the evidence, and the most favorable inference fairly drawn therefrom, which will support the [jury’s] verdict.’ ” Id. To convict a defendant upon circumstantial evidence alone, the prosecution must show “ ‘such facts and circumstances as are consistent with each other and with [the] guilt of the party charged, and such as cannot by any reasonable theory be true and the party charged be innocent.’ ” State v. Esslinger, 357 N.W.2d 525, 530 (S.D.1984) (citations omitted). However, the evidence need not exclude all possible hypotheses of innocence, only reasonable hypotheses of innocence. State v. Robb, 303 N.W.2d 368, 371 (S.D.1981).

[¶ 9.] The jury heard evidence indicating that Fender’s individual security access code had been used to enter and leave the building early in the morning the day of the theft. They also heard evidence that although Fender alleged two others knew his access code, those individuals were not in town at the apparent time of the theft. Furthermore, the jury heard evidence of Fender’s strange behavior the morning of the incident and of his plan to [52]*52leave town without notifying his employer. Sufficient evidence exists to support the jury’s verdict.

[¶ 10.] 2. Fender did not suffer a violation of due process.

[¶ 11.] The prosecution never disclosed the tape recorded statements Fender made to Wessel and the prosecutor never disclosed the alleged taped conversations Fender had on Taco Bell work phones. Fender argues that the prosecutor’s failure to disclose these tape-recorded statements constitutes a violation of his due process rights. He correctly points out that the Brady rule applies to situations where the prosecution suppresses exculpatory evidence to the detriment of the defendant. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963). We have noted on numerous occasions that the Brady rule only applies to situations where the defendant discovers after trial that the prosecutor had material evidence that was not disclosed during the trial. State v. Knecht, 1997 SD 53, ¶ 18, 563 N.W.2d 413, 420 (citing State v. Fox, 313 N.W.2d 38, 40 (S.D.1981); State v. Moves Camp, 286 N.W.2d 333, 339 (S.D.1979); State v. Sahlie, 277 N.W.2d 591, 596 (S.D.1979)).

[¶ 12.] Fender does not contend he learned of the alleged suppressed evidence after trial. In fact, he notes that he became aware of his tape-recorded statements during the trial. Accordingly, we need not reach the four-part test for determining if a due process violation occurred. See id. ¶¶ 17-18; Ashker v. Solem, 457 N.W.2d 473, 477-78 (S.D.1990).

[¶ IS.] SDCL 23A-13-15 specifically addresses the situation Fender describes. It provides:

ly prior to or during trial, a party discovers additional evidence or material previously requested or ordered, which is subject to discovery or inspection under §§ 23A-13-1 to 23A-13-14, inclusive, he shall promptly notify the other party or his attorney or the court of the existence of the additional evidence or material.

SDCL 23A-13-15 (emphasis added). This statute initially obligated the State’s Attorney to disclose the previously requested discovery materials.

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Related

State v. Jackson
949 N.W.2d 395 (South Dakota Supreme Court, 2020)
State v. Fool Bull
2009 SD 36 (South Dakota Supreme Court, 2009)
State v. Fender
2001 SD 27 (South Dakota Supreme Court, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
2001 SD 27, 623 N.W.2d 49, 2001 S.D. LEXIS 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fender-sd-2001.