State v. Lassiter

2005 SD 8, 692 N.W.2d 171, 2005 S.D. LEXIS 6

• Court: South Dakota Supreme Court
• Decided: January 12, 2005
• Docket: None
• Status: Published

Opinions

KONENKAMP, Justice.

[¶ 1.] In this appeal, we confront the problem of when prior act evidence may be used to show modus operandi or motive in order to prove identity. A man entered the home of Scott Davis and assaulted him. At the time, Davis had a relationship with Brenda Tobin. Defendant, John Las-siter, Tobin’s former boyfriend, was charged with the assault. At trial, defendant denied involvement in the incident and offered an alibi. To prove that defendant was the assailant, the State sought to offer evidence surrounding defendant’s prior conviction for aggravated assault of another former girlfriend. Defendant moved to suppress this evidence, but the trial court ruled that the circumstances of the prior offense were admissible because they tended to prove the assailant’s identity. Defendant was convicted of aggravated assault and first degree burglary. He appeals, and we reverse because the circumstances of the prior assault were inadmissible to prove identity.

Background

[¶ 2.] On October 2, 2002, Scott Davis was staying at the apartment of his girlfriend, Brenda Tobin, in Ethan, South Dakota. After driving Tobin to work in Mitchell, Davis returned to his rural home near Mt. Vernon, South Dakota. He arrived at 6:30 a.m. Twenty minutes later, he began to leave his home to head for work at a nearby farm.

[¶ 3.] As he was leaving his house, Davis noted something peculiar. He turned to investigate and saw a man standing near the door. Davis asked the man why he was on his property. The man struck him on the head with a rock. Then the assailant pushed him back into the house, saying, “I can’t let you leave here today.” Davis responded, “What do you mean, I can’t leave here today? Are you going to kill me?” The assailant smiled. Davis interpreted the response to mean that the assailant intended to Mil him.

[¶ 4.] Rock in hand, the assailant told Davis that Tobin would eventually cheat on Davis. Not willing to risk fleeing, Davis remained in his home with the assailant for the next hour. Eventually, Davis told the assailant that if he did not arrive at work soon, his employer would come looMng for him. This revelation appeared to alarm the assailant who responded that he would leave. Davis and the assailant exited the home. As Davis was driving away, he noticed a light blue vehicle parked along the road near his residence. He wrote down the vehicle’s license plate number. He then drove to work where he contacted the sheriffs department and sought medical attention.

[¶ 5.] Defendant was Tobin’s former boyfriend. The two had lived together for a short time. After they separated, problems arose between them over a vehicle that Tobin had purchased and defendant had made payments on. In the midst of this dispute, in October 2002, Tobin had the vehicle towed from the parMng lot where defendant worked. Because he no longer had a car, defendant borrowed a light blue vehicle from one of his friends.

[¶ 6.] In making his report to a deputy sheriff, Davis named defendant as his assailant. He also described the car and gave the officer the license plate number. Later, the deputy saw defendant driving the car. Upon stopping it, the deputy placed defendant under arrest.

[¶ 7.] Defendant told the deputy that he was returning from Tyndall, South Dakota. He said that he had taken the day off from work to buy a new car. He denied that he had been present at Davis’s home, and he gave the deputy a timeline of his activities during the day leading up to his arrest.

[¶ 8.] Defendant was charged with the offenses of aggravated assault, Mdnapping, and first degree burglary. In a December 2002 trial, defendant was acquitted of Md-napping, but the jury was unable to reach a decision on the remaining counts.

[¶ 9.] In the second trial, the State called as its last witness Lori Beckmann, defendant’s former girlfriend. The sole purpose for her testimony was to introduce the facts of defendant’s prior aggravated assault conviction. Defendant had earlier moved to suppress this testimony. However, the trial court overruled the motion, concluding that

the offered evidence shows conduct that is substantially similar to that charged, and is highly probative on the issue of intent, and particularly the specific intent to commit the alleged crimes that the State must show, the issue of motive, as both the prior act and the current charge involve similar actions involving a relationship with a girlfriend, and identity.

[¶ 10.] Before Beckmann’s testimony, the trial court read the following jury instruction:

Ladies and gentlemen, the State is going to call Lori Beckmann and the subject of her testimony is going to concern pri- or — what we call prior acts evidence. She is expected to be providing testimony concerning certain incidences that happened between her and the Defendant at another time and another county. And the attorneys let the court know when this type of evidence is proposed to be introduced so that I can determine whether I would allow it or not. And the purpose of allowing this evidence is for your consideration as to whether it tends to show that the Defendant, Mr. Lassiter, intended to commit the offense for which he is now charged. This evidence is allowed to show motive, intent, or identity of the person charged, but you must not consider this evidence as tending to show in any other respect Mr. Lassiter’s guilt with respect to the offense with which he is charged.

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[¶ 11.] Beckmann testified that she lived with defendant “on and off for about three or four years.” Eventually, she attempted to end the relationship. On August 28, 2000, shortly after her attempt, defendant held her in her vehicle against her will, assaulted her, and threatened to kill her, stating, “he could kill [her] at any time.” Defendant eventually let her go home after she promised to meet him the following day. She headed to work the next morning armed with a small caliber pistol. As she drove into town, she noticed that defendant was following her. She testified that on numerous occasions she had seen defendant with a pistol. Fearing that he would harm her if she stopped, she raced to the police station. Once there, she locked herself in a bathroom until police officers convinced her to come out. When she did, she told the officers of what had happened that day and the previous day. Defendant was later convicted of aggravated assault on Beckmann.

[¶ 12.] At the conclusion of the trial here, the jury convicted defendant of aggravated assault and first degree burglary. For the aggravated assault, he was sentenced to twenty-five years in the penitentiary, and for first degree burglary, seventy years, with thirty years suspended. On appeal, defendant asserts the following issues: (1) “Was the evidence insufficient to support the jury verdict and therefore did the trial court err in denying defendant’s motion for judgment of acquittal?” (2) “Did the trial court err in denying defendant’s motion to exclude prior bad acts evidence against defendant and allowing the introduction of said evidence by the State?” (3) “Did the trial court err in sentencing the defendant in a manner disproportionate to defendant under the totality of the circumstances in this case?”¹

Analysis and Decision

[¶ 13.] On evidentiary questions, our review is limited to whether the trial court abused its discretion. State v. Red Star, 2001 SD 54, ¶ 10, 625 N.W.2d 573, 576 (citations omitted). Evidence of other acts offered for the sole purpose of establishing a propensity to commit a crime is irrelevant, and therefore, inadmissible. State v. Wright, 1999 SD 50, ¶ 14, 593 N.W.2d 792, 799. To obtain a new trial, a defendant must prove not only that the trial court abused its discretion in admitting the evidence, but also that the admission resulted in prejudice. Red Star, 2001 SD 54, ¶ 10, 625 N.W.2d at 577 (citing SDCL 15-6-61). Erroneous admission of evidence requires reversal except where we conclude that the error was harmless. State v. Owens, 2002 SD 42, ¶ 85, 643 N.W.2d 735, 756 (citation omitted).

[¶ 14.] The State argued to the trial court and now to this Court that the facts surrounding defendant’s prior conviction of aggravated assault were relevant to prove defendant’s identity and motive.² Because defendant denied that he assaulted Davis, the State contends that the facts supporting defendant’s previous aggravated assault conviction were admissible.

[¶ 15.] In accord with SDCL 19-12-5 (Rule 404(b)), the admissibility of other acts evidence depends on a two-step analysis: (1) whether the evidence is relevant to an issue other than character, and (2) whether “the probative value of the evidence is substantially outweighed by its prejudicial effect....” State v. Ondricek, 535 N.W.2d 872, 873 (S.D.1995); see SDCL 19-12-3 (Rule 403). We focus here on the first prong of this test. Under SDCL 19-12-5 (Rule 404(b)), “[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” If, however, the evidence is offered for any purpose other than to prove a person’s character or propensity to commit an act, it is admissible. Wright, 1999 SD 50, ¶ 13, 593 N.W.2d at 798 (citations omitted). In determining whether to admit the evidence of other acts, a trial court must decide whether the proffered evidence is relevant to some material fact. State v. Dace, 333 N.W.2d 812, 816 (S.D.1983). It is the proponent of the prior act evidence who must persuade the trial court that the evidence has some permissible purpose. Wright, 1999 SD 50, ¶ 14, 593 N.W.2d at 798 (citing SDCL 19-12-1 (Rule 401)). Upon a trial court’s determination that the proffered evidence is relevant, “the balance tips emphatically in favor of admission unless the dangers set out in Rule 403 ‘substantially’ outweigh probative value.” Id. at 799 (citations omitted).

[¶ 16.] Under the State’s first theory of admissibility, it reasons that evidence of defendant’s prior aggravated assault is admissible because it tends to identify defendant as the perpetrator. Evidence of prior acts similar in nature to the charged offense may be admitted where a defendant’s identity is in issue. SDCL 19-12-5 (Rule 404(b)). Generally, evidence of prior acts is permitted when they demonstrate a particular “modus operandi.” See 1 Ed-WARD J. ImWINKELRIED, UNCHARGED MISCONDUCT Evidence § 3:10, at 49 (Rev. ed. 1999 & Supp. 2004) (citation omitted). Although in Wright we clarified SDCL 19-12-5 (Rule 404(b)), we have never strayed from the requirement that in cases where prior acts are offered to prove identity, the acts must be unusual or distinctive. 1999 SD 50, ¶ 18, 593 N.W.2d at 800 (citations omitted); see also, e.g., State v. Johnson, 316 N.W.2d 652, 655 (S.D.1982) (three burglaries within relatively short time span; same method used to commit offenses; same type of property taken in each burglary). These acts need not be identical, but they must be of such close similarity that an inference can be drawn that the same person committed the acts. McCormick On Evidence § 190, at 449 (Edward W. Cleary ed., 2nd ed. 1972). Indeed, “much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts.” Id.

[¶ 17.] In support of its theory, the State contends that because both the charged and uncharged offenses were the same type of crime, aggravated assault, evidence of defendant’s prior conviction should be permitted. The State suggests that our decision in Chamley stands for this proposition. State v. Chamley, 1997 SD 107, 568 N.W.2d 607. It does not. In Chamley, this Court held that the trial court abused its discretion in concluding that the probative value of a prior act outweighed the potential for prejudice. 1997 SD 107, ¶ 12, 568 N.W.2d at 612. In so holding, this Court did not lay down a rule allowing evidence of a prior conviction based on the mere fact that a defendant was once again charged under the same statute. Instead, the Chamley Court reasoned that the probative value of a prior act was slight where the uncharged and charged crimes did not fall under the same statute. Therefore, the Court ruled that the trial court abused its discretion in finding that the slight probative value of the evidence outweighed the prejudice it created. Id. ¶ 16.

[¶ 18.] The State also attempts to support its theory by pointing to other similarities between the attacks on Beck-mann and Davis, including the fact that testimony was given in both cases that defendant had previously followed both of them, had threatened to kill both, and had subsequently let both go. Where a court allows a prior act to be admitted to prove identity, it generally will look for common features that make it highly probable that the unknown offender and the accused are the same person. See Wright, 1999 SD 50, ¶ 18, 593 N.W.2d at 800 (“unusual or distinctive”); McCoRmick, supra § 190, at 449 (“so nearly identical in method as to earmark them as the handiwork of the accused”). See also Bassett v. State, 795 N.E.2d 1050, 1053 (Ind.2003); Bussell v. State, 113 S.W.3d 530, 541 (Tex.Ct.App., 2003) (“ ‘[T]o be admissible to show identity, an extraneous offense must be so similar to the charged offense as to mark the offenses as the defendant’s handiwork.’” (citation omitted)); State v. Shippee, 839 A.2d 566, 572 (Vt.2003) (Skoglund, J., concurring); State v. DeVincentis, 150 Wash.2d 11, 74 P.3d 119, 125 (2003) (“[Wjhen identity is at issue, the degree of similarity must be at the highest level and the commonalities must be unique[.]”). Alone, the facts presented by the State are certainly not unique, and while the pattern of both crimes demonstrates some similarities, we cannot say that a fact finder could properly use those similarities to conclude that both crimes were committed by one individual.

[¶ 19.] Proof by “modus operan-di” is only one method by which prior misconduct can prove identity. Identity can be proved indirectly by proof of motive. “In the motive cases, unlike the mo-dus cases, the courts do not insist that the motive be truly unique to the defendant.” 1 ImwinkelRied, supra § 3:15, at 79. Under the State’s second theory of admissibility, it argues that evidence of defendant’s prior conviction is admissible because it tends to identify defendant by showing that the same circumstances motivated both crimes. Specifically, the State argues that “the central connection between the two attacks is the identical motive resulting in the identical criminal charge[.]”

[¶ 20.] Generally, there are three basic elements in a criminal prosecution: (1) proof of the commission of an act; (2) by a person with the necessary mens rea; and (3) accomplished by the defendant. Id. § 4:01, at 2. Evidence demonstrating motive may be relevant when used to prove that the act was committed, to prove that the actor had the requisite mens rea, or to identify the defendant as the perpetrator of the act. Under the “motive” theory, the State argues that evidence surrounding defendant’s prior aggravated assault conviction tends to identify him as the person who committed the crimes here.

[¶ 21.] Evidence of a prior crime may demonstrate a defendant’s motive to commit a crime in one of two ways. Id. § 3:15, at 79. First, the prior act Gan supply the motive for the charged act. Id. For instance, in People v. Daniels, 52 Cal.3d 815, 277 Cal.Rptr. 122, 802 P.2d 906, 925 (1991), the prosecutor was allowed to prove a defendant’s motive (and thus identify him) by showing a direct relationship between the earlier robbery where the defendant was rendered a paraplegic by a police officer and the murder of police officers in retribution. See also United States v. Jones, 559 F.2d 960, 962 (5th Cir.1977) (revenge motive for attacks on official’s home and business who issued arrest warrant used to identify defendants). Here, however, there was no relationship between the two offenses or the two victims. The girlfriend in the first incident had no connection to the girlfriend (or her new boyfriend) in the second incident. The State does not even argue that any causal connection existed between the Davis and Beckmann assaults. Thus, the first category for admitting a prior act to prove motive does not apply here.

[¶ 22.] “In the second category, the uncharged act evidences the existence of a motive, but the act does not supply the motive.” 1 ImwinkelRied, supra § 3:18, at 103. This approach is typically followed where “the motive is in the nature of hostility, antipathy, hatred, or jealousy.” Id. But as Imwinkelried warns, “[t]here must be some relationship between all the victims. Otherwise, the evidence would show only the defendant’s general violent nature .... ” Id. Here, again, there was no nexus between the two victims. Those jurisdictions allowing this theory generally limit its application to circumstances where there is some type of relationship between the victims. See, e.g., United States v. LeBaron, 156 F.3d 621, 625-26 (5th Cir.1998) (evidence of prior murders admitted where other victims were former members of the same church); Kimble v. State, 659 N.E.2d 182, 184-85 (Ind.Ct.App.1995) (evidence of defendant’s membership in racially biased group was relevant to show that defendant was motivated to choose victim based on her race); Lazcano v. State, 836 S.W.2d 654, 660 (Tex.Ct.App.1992) (“[A]s to motive, such evidence usually is required to relate ... to other acts by the accused against the victim of the crime for which the accused is presently being prosecuted.... It has, however, been previously held that extraneous offenses are admissible to illustrate an accused’s ill will toward all persons within a certain class of people.”). See also United States v. Bowman, 720 F.2d 1103, 1105 (9thCir.1983) (prior assault on relative of wife — sufficient factual relationship or nexus between two victims to render the prior conviction relevant to the issue of defendants motive for assault on wife).³

[¶ 23.] The State contends that the pri- or offense and the present offense, while not related, have the same or similar motives: being “jilted” was defendant’s motive behind the attacks on Beckmann and Davis. Reasoning that defendant was “angry at his first girlfriend and his second girlfriend,” the State suggests that defendant’s anger at Tobin, his second girlfriend, was transferred to Davis, Tobin’s new boyfriend. With respect to the second girlfriend (Tobin), there was evidence based on the assailant’s remarks to Davis that the assailant resented being rejected by Tobin. That established a motive for the assault on Davis. Certainly, defendant’s breakup with Tobin supplied evidence of a possible motive for defendant to assault her new boyfriend. That evidence was clearly admissible. But the prior assault on defendant’s former girlfriend was inadmissible because any connection between the two assaults was simply too remote. Allowing evidence about the prior assault on Beckmann only tended to prove that because defendant had done it before, he must have done it again.

[¶ 24.] This is the kind of propensity evidence SDCL 19-12-5 (Rule 404(b)) was designed to preclude: evidence of other crimes cannot be used to prove conduct through an inference about the defendant’s character, i.e., a general propensity to commit assaults when rejected by girlfriends. Indeed, this is what legal commentators warn against: “But where the motive evidence is offered to prove that the act was committed or that the defendant was the perpetrator, the only justification for admitting the evidence under Rule 404(b) is that it is not evidence of character; in this situation courts must be on guard to prevent the motive label from being used to smuggle forbidden evidence of propensity to the jury.” 22 Chaeles Alan Weight & Kenneth W. GRAHAM, JR., Federal Practice And Procedure § 5240, at 480 (1978) (emphasis added). See also State v. Saltarelli, 98 Wash.2d 358, 655 P.2d 697, 699-700 (1982) (rape of another woman five years earlier had no logical tendency to provide a motive for the charged rape except upon the forbidden inference of a propensity to commit rape).

[¶25.] Although the State offers no case law approving this type of prior act evidence, one of the dissenters cites as authority the case of Johnson v. State, 936 P.2d 458 (Wyo.1997). There, citing Im-winkelried, the Wyoming Supreme Court ruled that evidence of prior assaults on an ex-girlfriend were admissible in the defendant’s trial for aggravated assault of his current girlfriend to prove, among other things, identity and motive. Id. at 463-64. Like here, there was no relationship between the two victims. On that point, however, the resemblance to our case ends. The facts in Johnson are so different as to be of no use here. The Johnson court’s final comments suffice to illustrate a conspicuous distinction. The court found “substantial similarities between the two assaults” and concluded, “Although the two assaults were not identical, their commonalities created a powerful inference that Appellant had committed both assaults.” Id. at 465. No such “commonalities” existed here.

[¶ 26.] Finally, the State argues, in the alternative, that if “the prior bad acts evidence has no probative value” any error that may have occurred by its admission was harmless. This argument fails to recognize that evidence lacking probative value may still be prejudicial. ' In addition to allowing Beckmann to tell the jury of her assault, the court also allowed her to testify about inflammatory matters that had no bearing on the present offense. She testified that defendant carried a gun. She told the jury that because of her fear of defendant, she was compelled to arm herself with a like weapon. Yet there was no gun involved in this case. Considering these inflammatory matters, we conclude that the error in admitting this evidence was prejudicial. The court’s instruction to the jury on prior acts only validated for the jurors the propriety of considering these irrelevant and prejudicial facts. See State v. Moschell, 2004 SD 35, ¶ 54, 677 N.W.2d 551, 567 (recognizing where jury instructions “mislead, conflict, or confuse then reversible error results”).

[¶ 27.] In summary, the evidence of defendant’s prior assault conviction was not so similar to the charged act that it would identify defendant as the probable assailant. Nor was this prior conviction and the motive that drove him to that act relevant in identifying the actual assailant here. Thus, the only remaining use the jury could put this evidence to was to infer defendant’s propensity to commit violent offenses.⁴ We conclude that the trial court abused its discretion in admitting evidence of defendant’s prior conviction under SDCL 19-12-5 (Rule 404(b)).

[¶ 28.] Reversed.

[¶ 29.] SABERS, and MEIERHENRY, Justices, concur. [¶ 30.] GILBERTSON, Chief Justice and ZINTER, Justice, dissent.

1 . Because we reverse on the second issue, we need not address the other issues.

2 . The trial court concluded that the evidence was also relevant to show intent. At no time was the mens rea of the assailant brought into question. Clearly, the assailant intended to commit the act. Lassiter’s alibi defense only placed in controversy the identity of the assailant. Thus, the more liberal allowance of prior acts evidence to prove mens rea is inapplicable here. Cf. Red Star, 2001 SD 54, ¶ 11, 625 N.W.2d at 577. Relevancy is demonstrated where evidence is necessary to prove an element of the crime, not simply to demonstrate defendant’s character. Id. threats to kill admissible on defendant's motive for purpose of proving identity of defendant as killer).

3 . See also State v. Green, 232 Kan. 116, 652 P.2d 697, 701 (1982) (marital homicide-evidence of discordant marital relationship, of defendant’s ill treatment of spouse, and prior

4 . "The danger of prejudice is also greater when the mode of proving the motive is by other similarly motivated acts because the danger that the jury will infer propensity is somewhat greater titan when the motive is to be proved by other acts that caused it.” 22 WRIGHT & GRAHAM, supra 5240, at 484.