State v. Gehrke

474 N.W.2d 722, 1991 S.D. LEXIS 130, 1991 WL 154770
CourtSouth Dakota Supreme Court
DecidedAugust 14, 1991
Docket17194
StatusPublished
Cited by9 cases

This text of 474 N.W.2d 722 (State v. Gehrke) 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. Gehrke, 474 N.W.2d 722, 1991 S.D. LEXIS 130, 1991 WL 154770 (S.D. 1991).

Opinions

SABERS, Justice.

Defendant appeals his conviction of aggravated assault, claiming that: (1) the information charging him was insufficient; (2) the sentence was improperly enhanced under the habitual offender statute; and (3) the sentence constitutes cruel and unusual punishment.

Facts

In the fall of 1989, John Gehrke (defendant) offered a witness in a criminal trial $150 to change her testimony. He was subsequently charged with tampering with a witness in violation of SDCL 22-11-19, a felony.

On January 8, 1990, while free on bail and awaiting trial on the witness-tampering charge, defendant committed the principal offense in this appeal. On that date, a South Dakota highway patrol officer came upon defendant in a pickup parked at the side of a Clark County road. When the officer approached the pickup on foot to investigate, he observed a .22 caliber rifle under the seat and smelled alcohol in the cab. The officer ordered defendant out of the pickup and administered the preliminary breath test (PBT), which defendant failed. After being informed that he was under arrest for DWI, defendant returned to his pickup and, against the officer’s orders, started his truck and parked it in the ditch. When defendant attempted to return to the pickup a second time to retrieve his cigarettes, the officer ordered defendant into the patrol car, and defendant responded by punching the officer in the [723]*723face. The officer then radioed for assistance and other local police soon arrived on the scene. As they placed defendant in the patrol car after handcuffing him, defendant kicked the highway patrol officer in the stomach. On the way to the Watertown jail, defendant damaged the interior of the patrol car.

On January 25, 1990, a jury convicted defendant of the witness-tampering charge.

Four days later, defendant was arraigned at a preliminary hearing on the principal offense. He was charged with:

(1) driving while intoxicated in violation of SDCL 32-23-1;
(2) aggravated assault in violation of SDCL 22-18-1.1(3);
(3) possession of a loaded firearm while intoxicated in violation of SDCL 22-14-7(3); and
(4) second degree intentional damage to property in violation of SDCL 22-34-1.

In addition to these four charges, the state filed a separate Part II “habitual offender” information under SDCL 22-7-11 based on defendant’s conviction of witness-tampering four days earlier.

On February 26, 1990, defendant was sentenced on the witness-tampering conviction to five years’ imprisonment, with 2½ years conditionally suspended, and a $1,000 fine.

On May 16, 1990, a jury found defendant guilty of DWI and aggravated assault but acquitted him of possessing a loaded firearm while intoxicated and second degree intentional property damage.

At a motion hearing and sentencing held May 29, 1990, defendant moved for dismissal of the aggravated assault conviction and the habitual offender information. The circuit court denied both motions. On the DWI conviction, the court sentenced defendant to one-year revocation of his driver’s license. On the aggravated assault felony conviction, as enhanced under the habitual offender statute at SDCL 22-7-7, the court sentenced defendant to the maximum punishment of 25 years imprisonment.

Defendant appeals and claims that:

(1) The aggravated assault information was insufficient because it was not specific enough to bar a subsequent prosecution for the same offense.
(2) The sentence for aggravated assault was improperly enhanced under the habitual offender statute because there was no prior felony conviction at the time he committed the principal offense.

1. Sufficiency of Information

The information for aggravated assault states that on January 8, 1990, defendant did

intentionally attempt to cause or knowingly cause any bodily injury to a law enforcement officer, to-wit: South Dakota Highway Patrolman Frank Krumm, who was engaged in the performance of his duties, by striking [him] with defendant’s fist or hand and by striking [him] with defendant’s foot, and said defendant did thereby commit the crime of Aggravated Assault in violation of SDCL 22-18 — 1.1(3)[.]

SDCL 22-18-1.1(3) provides: “Any person who ... [attempts to cause or knowingly causes any bodily injury to a law enforcement officer or other public officer engaged in the performance of his duties ... is guilty of aggravated assault. Aggravated assault is a Class 3 felony.”

Defendant contends the information was defective because it alleges his offense in the disjunctive (“did ... intentionally attempt to cause or knowingly cause any bodily injury to a law enforcement officer” (emphasis added)). He maintains that since it is not clear whether he is being accused of injuring the officer or merely attempting to injure him, it is also not clear which of the two he was convicted of, and his conviction therefore might not serve as a bar to future prosecution on one of the two alternatives. His claim is without merit.

In the first place, the disjunctive appears in the statute itself and the information merely quotes the language of the statute. “An indictment is generally deemed adequate if it follows the language of the [724]*724criminal statute or its equivalent.” State v. Kleinsasser, 436 N.W.2d 279, 281 (S.D.1989) (citing State v. Reutter, 374 N.W.2d 617 (S.D.1985); State v. Mouttet, 372 N.W.2d 121 (S.D.1985); State v. Logue, 372 N.W.2d 151 (S.D.1985)).

Secondly, the use of the disjunctive in this case creates no uncertainty about defendant’s charge. While “[pjleading in the disjunctive has been held fatally defective,” State v. Strauser, 75 S.D. 266, 63 N.W.2d 345, 347 (1954) (citation omitted), it is fatally defective only if it leaves the defendant in doubt about which of two offenses under the same statute he is being charged with. Id.

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Related

State v. Willey
2012 S.D. 5 (South Dakota Supreme Court, 2012)
Burdge v. Belleque
290 F. App'x 73 (Ninth Circuit, 2008)
State v. Vatne
2003 SD 31 (South Dakota Supreme Court, 2003)
State v. Allison
923 P.2d 1224 (Court of Appeals of Oregon, 1996)
Gargliano v. State
639 A.2d 675 (Court of Appeals of Maryland, 1994)
State v. Gehrke
491 N.W.2d 421 (South Dakota Supreme Court, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
474 N.W.2d 722, 1991 S.D. LEXIS 130, 1991 WL 154770, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gehrke-sd-1991.