State v. Frey

440 N.W.2d 721, 1989 S.D. LEXIS 77, 1989 WL 45347

• Court: South Dakota Supreme Court
• Decided: May 3, 1989
• Docket: 16034
• Status: Published

Opinions

MILLER, Justice (on reassignment).

This is a criminal action in which appellant Dean Frey appeals his conviction on two counts of aggravated assault. In affirming the conviction, we hold (1) that appellant was not entitled to a jury instruction on the lesser offense of simple assault; (2) that appellant’s issue regarding the variance between the charging language of the indictment and the jury instruction was not properly preserved for appeal; (3) that the trial court did not err in not submitting a trespass (by law enforcement officers) issue to the jury; and (4) that appellant was not entitled to have a jury instruction on his theories of self-defense and defense of others.¹

THE PLAYERS

To follow the factual scenario, it is necessary to identify the “players” in this litigation.

Michael Schmeltzer (Schmeltzer) is a wildlife conservation officer (game warden) for the South Dakota Department of Game, Fish & Parks stationed in Lemmon, Perkins County, South Dakota. He has been a game warden since 1981 and is a certified law enforcement officer.

Nick Schaefer (Schaefer) is Chief of Police of Lemmon and a deputy sheriff for Perkins County. He has been a law enforcement officer for approximately fourteen years.

Roland Frey (Roland) is a rancher who resides on a ranch with his parents in northwestern South Dakota, three miles south of the North Dakota community of White Butte. The ranch has two sets of buildings, one occupied by his parents and another by Roland and occasionally by his brother, appellant Dean Frey.

Dean Frey (Dean or appellant) ranches with his parents and Roland. He has a home in White Butte, North Dakota, and periodically resides with Roland on the ranch three miles south of that community.

Willy and Nilly are Freys’ two tame goats who were slaughtered for meat and whose carcasses were left to hang from the front of a farmhand loader in preparation for butchering.

THE SCENE

In the early evening of September 28, 1986, Roland and Dean slaughtered and hung the carcasses of Willy and Nilly from Frey’s farmhand loader. Roland drove to his parents’ home for supper. Dean remained in Roland’s home to read and relax.

An anonymous citizen driving by Roland’s place observed from the road the carcasses of Willy and Nilly which were hanging from the farmhand.² Thinking they were possibly deer, the citizen made a TIPS call to Schmeltzer.³

Because there was no open season at that time for game animals in South Dakota (however, the North Dakota archery deer season was open), Schmeltzer decided to investigate. Because dusk was approaching, Schmeltzer (pursuant to a recommended department policy) contacted Deputy Schaefer to accompany and assist him in the investigation.

Schmeltzer and Schaefer, who were both in uniform; drove in Schmeltzer’s official, marked vehicle to Roland’s ranch. From the road they observed Willy and Nilly hanging from the farmhand on a hill approximately two to three hundred yards from the buildings. However, because dusk was approaching, they were unable to identify the species of the animals even with the aid of a 20 power spotting scope.

While making their observations, they saw a vehicle approaching the ranch and recognized it as Roland’s (both officers were acquainted with Roland and Dean). The vehicle pulled into the ranch driveway and they followed.

THE ALTERCATION

The officers followed Roland into the yard and parked behind his vehicle. Roland immediately approached Schmeltzer’s pickup, and in a manner most untypical of western South Dakota hospitality, greeted them by stating to Schmeltzer: “What the f_are you doing on my property? Who’s that a_h you have in there with you?”⁴ As Schmeltzer began exiting the vehicle, Roland stated: “What are you doing on my property? You need a warrant to come on my property you a_h_Where is your f_ing warrant? What are you doing here? ... I know who the f_you are. What I want to know is what you’re doing on my Goddamn property?” Schmeltzer explained that he had received a TIPS call concerning two deer hanging on the farmhand loader and that he had simply driven out to check on the complaint. Because of Roland’s obvious anger, Schmeltzer asked Roland to take his hands out of his pockets in case Roland had a weapon. About that time, another car appeared in the driveway and, as Schmeltzer was about to check to see who was in the car, Roland grabbed Schmeltzer by the arm with both hands and said “You’re not going anywhere you son of a bitch.” At this time, Schmeltzer “pinched” his holster with his other hand, pulled his wrist away to break Roland’s grip and told Roland to never grab him like that.

Roland then advised him that “I didn’t kill any f_ing deer. Those are goats. They’re two tame f_ing goats. You come up there with me and I’ll show you those are tame goats.”

Schmeltzer testified that Roland insisted that Schmeltzer accompany him to the farmhand to observe the goats. Roland testified that Schmeltzer insisted on going up to see them and that Schmeltzer pushed Roland when Roland tried to stop him. (It should be noted that Schaefer, according to Roland, stayed at the pickup, on Roland’s direct instructions.) Regardless, once at the farmhand, it became obvious that the carcasses were domestic goats.

About this same time, Dean, who had heard the commotion iron inside Roland’s trailer, grabbed a shotgun and five shotgun shells and went to investigate. Although there was a dispute in the testimony as to what happened at this time, it is clear that almost immediately after arriving at the scene of the dispute, Dean knew specifically who Schmeltzer and Schaefer were and that they were there on official business.

There is a significant discrepancy between the parties regarding Dean’s specific conduct when he arrived on the scene:

(1) Schmeltzer’s. testimony:

Immediately after the goats were identified he heard a shot from the darkness. He heard Dean shout “What the f_is going on? What are you f_ers doing?” At this point Schmeltzer noticed Dean approaching out of the shadows with a shotgun in his hand. Dean then shouted “What the f_are you c_s_ers doing trespassing on my private property? I have every right to kill you. I have every right to blow your ass away for trespass. I think I’ll do it.” Dean then knelt down approximately seven feet from him and pointed the shotgun at his face, stating, “Don’t you move. I’ve got every right to kill you. I think I will blow your asses away.” When Schmelt-zer tried to explain to Dean why he was there, Dean yelled “You better get the f_off of my property before I kill you” and then immediately thereafter warned “Don’t you move.” Dean then inquired of Schmeltzer who the other man was that was with him, and when Schmeltzer advised him, Dean yelled for Schaefer to “Get your ass up here.” When Schaefer replied that he would prefer to stay where he was, Dean swung the shotgun towards the direction from which Schae-fer had spoken and fired it and then immediately spun back and again pointed the gun at Schmeltzer. After various other threatening statements, Schmeltzer advised them that he should leave and an argument ensued as to whether Schmelt-zer had been involved in reporting that Freys were growing marijuana in their cornfield. Things “cooled” a little bit and Schmeltzer turned around and walked down the hill to his pickup. He never looked back, but did hear another shot fired and heard Dean shouting “You better get out of here before I change my mind and come out there and kill both of you.” Dean then made another threatening statement and fired another round. After Schmeltzer entered his vehicle and was driving out of the driveway, another shotgun blast was fired. (2) Schaefer’s testimony:

Schaefer generally corroborated Schmeltzer’s statement. He specifically heard Dean say “I should blow your f_ing head off for trespassing” and saw Dean get down on his knee and point the shotgun toward Schmeltzer’s head. He heard a shotgun blast as he was approaching the pickup to radio for assistance and was fearful that Schmeltzer had been killed.

(3) Roland’s testimony:

Roland testified that Schmeltzer told him that he was going to look at the carcasses whether he liked it or not, and that despite his protestations regarding the search of his premises, Schmeltzer proceeded up the hill, but Schaefer stayed at the pickup on Roland’s directions. Schmeltzer pushed Roland as they were approaching the carcasses and Roland then heard his brother Dean approaching and inquiring “WHat the hell is going on up here.” When Schmeltzer observed that Dean had a shotgun, Schmeltzer “pulled his hand back to his left side and touched his holster.” Dean told him to “watch his hand.” Upon learning why Schmeltzer was there Dean inquired as to why Schaefer was there. Dean never shouldered his gun nor pointed it at Schmeltzer but he did fire his gun into the air because Schmeltzer “was dragging his feet” about getting off their property. As the officers were leaving the premises, Roland took the gun from Dean and fired three shots into the air, but was not aiming at the vehicle.

(4)Dean’s testimony:

Dean testified that after hearing the commotion he looked out the window and saw Roland walking backwards uphill towards the goats and that Schmeltzer was pushing him. Dean grabbed the shotgun and shells because he thought someone was beating up his brother. Upon approaching them, Dean recognized Schmeltzer and even saw the badge on his coat. When Schmeltzer saw him approaching with the gun Schmeltzer “jerked his hand down and touched his gun.” Dean never pointed the shotgun at Schmeltzer’s head, but he did tell Schmeltzer that “you’re the red-headed son of a bitch that’s telling people we’re growing • marijuana in our corn field.” As they were leaving the goats, he fired the shotgun into the air. Dean was shouting loudly and used profanity, but never aimed or shot the gun at either officer. He did fire another warning shot into the air, and then Roland took the shotgun and fired the last three shots into the air as the officers left the scene.

Dean was charged with two counts of aggravated assault under SDCL 22-18-1.-1(5).⁵ After hearing all of the evidence, the jury found him guilty on both counts. The trial court sentenced him to two concurrent twelve-year terms in the state penitentiary and this appeal followed.

ISSUES

Although not submitted in this numerical order, the issues submitted by appellant are:

I

WHETHER FREY WAS ENTITLED TO HAVE THE JURY INSTRUCTED ON THE LESSER INCLUDED OFFENSE OF SIMPLE ASSAULT.

II

WHETHER THE VARIANCE BETWEEN THE OFFENSE DESCRIBED IN THE INDICTMENT AND THE OFFENSE DESCRIBED IN THE JURY INSTRUCTIONS CONSTITUTES REVERSIBLE ERROR.

III

WHETHER FREY WAS ENTITLED TO HAVE THE ISSUE OF WHETHER A TRESPASS HAD OCCURRED JUSTIFYING FREY’S USE OF FORCE SUBMITTED TO THE JURY.

IV

WHETHER FREY WAS ENTITLED TO HAVE THE JURY INSTRUCTED ON HIS THEORIES OF SELF-DEFENSE, DEFENSE OF OTHERS AND MISTAKE OF FACT.

DECISION

1. Lesser Included Offense Instruction.

The trial court instructed the jury on aggravated assault under SDCL 22-18-1.1(5). Aggravated assault is defined as “[ajttempts by physical menace with a deadly weapon to put another in fear of imminent serious bodily harm[.j” (Emphasis added.) Frey proposed a simple assault instruction as a lesser-included offense under SDCL 22-18-1(4), as “[ajttempts by physical menace to put another in fear of imminent serious bodily harm, with or without the actual ability[.j” This instruction was denied.

The trial court must instruct the jury on the lesser-included offense if, under both a legal and a factual test, the evidence would support a conviction on the lesser charge.⁶ State v. Heumiller, 317 N.W.2d 126 (S.D.1982). The proposed instruction omitted the “with a deadly weapon” language required for aggravated assault. The record indicates that the assault charge arose solely from Frey’s use of the shotgun. There is no allegation that he physically assaulted the officers in any other manner. Although this evidence could support a conviction for simple assault, it does not throw doubt on the greater offense. As stated in State v. Rich, 417 N.W.2d 868, 871 (S.D.1988):

In this case the assault was carried out by means of a pitchfork. That was a dangerous weapon and caused serious bodily injury. Rich does not appear to contend otherwise. Rich intentionally used the pitchfork or he did nothing.... Here, Rich was either guilty as charged or not guilty of any offense.

Juries are bound by the evidence and should be limited to those included crimes which a reasonable view of the evidence will sustain and does not convince beyond a reasonable doubt the additional element of the greater crime existed. Id. In view of Rich, the factual test was not satisfied and the trial court properly denied the lesser-included instruction.

2. Re: Variance Between Indictment and Instruction.

The two-count indictment against Frey charged, in part:

... Dean Frey did commit the public offense of Aggravated Assault (SDCL 22-18-1.1(5)[)] in that Dean Frey did attempt by physical menace with a deadly weapon, to-wit: a shotgun, to put Nick Schaefer, a Perkins County Deputy Sheriff, engaged in the performance of his duties, in fear of imminent serious bodily harm[.] (Italics added.)

... Dean Frey did commit the public offense of Aggravated Assault (SDCL 22-18-1.1(5)0 ] in that Dean Frey did attempt by physical menace with a deadly weapon, to-wit: a shotgun, to put Michael L. Schmeltzer, a South Dakota Wildlife Conservation Officer, engaged in the performance of his duties, in fear of imminent serious bodily harm[.] (Italics added.)

In reciting the elements of SDCL 22-18-1.-1(5) in instruction # 5, the trial court omitted reference to the italicized portions of the indictment. Frey claims that this omission improperly eliminated elements to be proved by the State.

Frey did not object to this variance at trial and failed to preserve the issue for appeal. Further, the indictment sufficiently set out the elements of the crime so as to apprise Frey of the crime charged. State v. Heisinger, 252 N.W.2d 899 (S.D.1977). The jury instructions correctly stated the law and it was unnecessary to instruct the jury on the italicized language in the indictment, especially in the absence of an objection. State v. Huber, 356 N.W.2d 468 (S.D.1984). We will not take notice of the claimed error as plain error, as it clearly was not obvious and substantial. State v. Dornbusch, 384 N.W.2d 682 (S.D.1986).

3. Refusal of Trespass Instructions.

Frey proposed two instructions defining trespass and justification of force to prevent trespass under SDCL 22-18-4.⁷

The trial court in Instruction 6a advised the jury:

Ordinarily, an officer of the law who goes upon private property while investigating a crime is not a trespasser.

The general rule is that: Conduct otherwise a trespass is often justifiable by reason of authority vested in the person who does the act, as, for example, an officer of the law acting in the performance of his duty.

• The trial court’s instruction is a verbatim quote of the settled law of this state as set forth in the case of State v. Cook, 319 N.W.2d 809, 812 (S.D.1982). In Cook, we cited and relied upon United States v. Barnett, 492 F.2d 790 (5th Cir.1974); United States v. Knight, 451 F.2d 275 (5th Cir.1971), cert. denied 405 U.S. 965, 92 S.Ct. 1171, 31 L.Ed.2d 240 (1972); State v. Van Rees, 246 N.W.2d 339 (Iowa 1976); State v. Lukus, 149 Mont. 45, 423 P.2d 49 (1967); 75 Am.Jur.2d Trespass § 43 (1974).

We appreciate that this rule is not without limitation. As stated by the Van Rees court: “What we have said does not, of course, permit an officer to enter one’s home or to conduct a search or make a seizure without a warrant or other authority.” 246 N.W.2d at 343. We must observe however that the officers here did not conduct a warrantless search because Frey chose to display the carcasses in a conspicuous manner, thus eliminating any expectation of privacy.⁸ Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The constitutional protection against unlawful searches and seizures is accorded to “persons, houses, papers, and effects,” but does not extend to open fields. Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898, 900 (1924). An open field may include any unoccupied or undeveloped area outside of the curtilage of a home, and need be neither “open” nor a “field” as those terms are used in common speech. Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984):

In Oliver, the United States Supreme Court also noted that the central component in determining whether a search is within the protected curtilage of the home is whether the area harbors the “intimate activity associated with the internal ‘sanctity of a man’s home and the privacies of life.’ ” 466 U.S. at 180, 104 S.Ct. at 1742, 80 L.Ed.2d at 225 quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886). The analysis of the curtilage was furthered in United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987), wherein the Court held that the curtilage of a home could be determined with reference to four factors: (1) the proximity of the area claimed to be curtilage to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by a resident to protect the area from observation by people passing by. See also California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) (Powell, J., dissenting).

Here, the goat carcasses were hung from the raised scoop of a farmhand in an open farmyard and were clearly visible from- either of the two county roads which are appurtenant to Frey’s property. Only the officers’ distance from the animals and the increasing darkness of the evening prevented them from positively identifying the species of the animals. It is clear that an analyses and application of Dunn, Ciraolo, Oliver and our own case of State v. Vogel, 428 N.W.2d 272 (S.D.1988), leads to the conclusion that Frey had absolutely no expectation of privacy in the animals. The officers’ entry onto the property for the purposes of identifying the animals’ species thus was perfectly legal.

Further, the jury, by their verdict, obviously concluded that Roland Frey consented to show Schmeltzer the animals hanging from the farmhand, negating any assertion that the search was involuntary. This question of fact and witness credibility is clearly within the purview of the jury, and we may not disturb it on appeal where the evidence is sufficient to support their verdict. State v. LaCroix, 423 N.W.2d 169 (S.D.1988).

4. Re: Self-Defense, Defense of Others, and Mistake of Fact Instructions.

The trial court also denied Frey’s proposed instructions on self-defense, defense of others, and mistake of fact. “[A] defendant in a criminal case is entitled to an instruction on his theory of the case if there is evidence to support it and a proper request is made.” United States ex. rel Means v. Solem, 646 F.2d 322, 328 (8th Cir.1980). “If instructions on self-defense or defense of others are supported by the evidence, they are necessary and it is error not to give them.” Huber, 356 N.W.2d at 474. Self-defense and defense of others were central theories relied upon by Frey and he made a proper request for the instructions. The question remaining is whether there is evidence to support these instructions.

The evidence certainly does not support giving of the self-defense instruction. Dean Frey himself testified that he had no reason to believe that he was in danger; rather he was concerned for his brother Roland. The evidence thus does not warrant the giving of a self-defense instruction because Frey is not entitled to any better version of the facts than he himself testifies to. See, e.g., Swier v. Norwest Bank, 409 N.W.2d 121 (S.D.1987) (Henderson, J., dissenting); Connelly v. Sherwood, 268 N.W.2d 140 (S.D.1978); accord Swee v. Myrl & Roy’s Paving, Inc. 283 N.W.2d 570 (S.D.1979); Drier v. Perfection, Inc., 259 N.W.2d 496 (S.D.1977).

Additionally, there is no testimony that Frey was verbally or physically threatened by either of the officers. Frey points to Schmeltzer’s “reaching for his gun,” but this was done only after he saw Frey approaching him with a shotgun. We have stated that “conditions brought about by one’s own conduct may not be' relied upon to invoke the excuse of self-defense.” Rich, 417 N.W.2d at 872 citing State v. Means, 276 N.W.2d 699, 701 (S.D.1979). There was insufficient evidence to support an instruction on self-defense. State v. Chamley, 310 N.W.2d 153 (S.D.1981).

The testimony does not support Frey’s proposed instruction on mistake of fact. He testified that he was able to identify Schmeltzer and Schaefer as law enforcement officers. Even assuming he did not recognize them when he first arrived at the scene, he continued to threaten them and did not voluntarily put down the gun once he ascertained their identity. In fact, the shots were fired after the identification was made. It is bizarre to suggest that there is a mistake of fact question left for the jury.

Similarly, the facts do not support giving the defense of others instruction. Frey relies upon SDCL 22-18-4,⁹ but the facts do not support application of that statute. The evidence does not support any argument that he or Roland were “about to be injured.” Further, as stated above, as a matter of law there was no “trespass or other unlawful interference with real or personal property” to be defended against. Additionally, Frey’s conduct, under the circumstances here, certainly was “more than sufficient” to prevent any claimed offense against either one of them. He knew that Schmeltzer and Schaefer were law enforcement officers and that their intentions were not hostile. Yet, he continued to threaten them with a firearm ahd even fired the gun. See, e.g., United States v. Heliczer, 373 F.2d 241 (2d Cir.1967), cert. denied 388 U.S. 917, 87 S.Ct. 2133, 18 L.Ed.2d 1359 (1967); State v. Feyereisen, 343 N.W.2d 384 (S.D.1984).

Affirmed.

WUEST, C.J., and MORGAN, J., concur. SABERS, J., concurs in part and dissents in part. HENDERSON, J., dissents.

1 . Appellant’s counsel on appeal was not his trial counsel.

2 . See pictures appended to this opinion.

3 .Under the TIPS (Turn In Poachers) program, callers may anonymously contact a game warden or the South Dakota Department of Game, Fish & Parks if they suspect that a game animal has been taken out of season.

4 . The exact expletives have been edited, but their message is still clear.

Roland denies a significant use of profane language, although he admits he was angry and loud.

5 . That statute reads as follows:

Any person who:

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(5) Attempts by physical menace with a deadly weapon to put another in fear of imminent serious bodily harm;

is guilty of aggravated assault. Aggravated assault is a Class 3 felony.

6 . SDCL 23A-26-7 does not apply because assault is not a crime divided into degrees. State v. Rich, 417 N.W.2d 868 (S.D.1988).

7 . SDCL 22-18-4 provides:

To use or attempt or offer to use force or violence upon or toward the person of another is not unlawful when committed either by the party about to be injured, or by any other person in his aid or defense, in preventing or attempting to prevent an offense against his person or any trespass or other unlawful interference with real or personal property in his lawful possession; provided the force or violence used is not more than sufficient to prevent such offense.

8 . There is no dispute that the officers were acting in the performance of their duty.

9 . See footnote 7, supra.