State v. Abdo

• Decision Date: 25 April 2018
• Docket Number: #28250,#28251
• Citation: 2018 S.D. 34
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. JOHN ABDO, JR., Defendant and Appellant.
• Court: South Dakota Supreme Court

2018 S.D. 34

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. JOHN ABDO, JR., Defendant and Appellant.

#28250

#28251

SUPREME COURT OF THE STATE OF SOUTH DAKOTA

CONSIDERED ON BRIEFS ON MARCH 19, 2018

April 25, 2018

#28250, #28251-a-GAS

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT CHARLES MIX COUNTY, SOUTH DAKOTA

THE HONORABLE BRUCE V. ANDERSON Judge

KEITH GOEHRING

Parkston, South Dakota

Attorney for defendant

and appellant.

MARTY J. JACKLEY

Attorney General

CULLEN P. MCNEECE

Assistant Attorney General

Pierre, South Dakota

Attorneys for plaintiff

and appellee.

SEVERSON, Justice

[¶1.] In this consolidated appeal following separate convictions and sentences for aggravated assault and escape, John Abdo asserts multiple issues for our review. He challenges the circuit court's denial of the motion to suppress filed in each case. Abdo further claims the circuit court erred when it denied him a new trial after the jury found him guilty of aggravated assault and guilty of the lesser-included offense of simple assault. Additionally, Abdo asserts the circuit court abused its discretion in certain evidentiary rulings and that the evidence is insufficient to support the jury's verdict. We affirm.

Background

[¶2.] On the evening of January 7, 2016, Roseanne Weddell, Winston Houseman, John Abdo, Philomene Boneshirt, and Hazen Winckler were watching television together in a home owned by Shelly Selwyn in Wagner, South Dakota. Roseanne is Shelly's daughter. Shelly did not live in the home but allowed Roseanne and Roseanne's now-husband Winston to live there. Winston later testified that Abdo (Winston's nephew) also stayed at the home from time to time and had been staying there during the two weeks preceding January 7, 2016. Philomene was Abdo's girlfriend. Hazen was an acquaintance.

[¶3.] Around midnight on January 7, after Abdo, Winston, Philomene, and Hazen had collectively consumed at least a half-gallon of vodka, the group went outside to smoke. Roseanne was not drinking and did not join the group outside; she had retired to her bedroom. When Abdo, Winston, Philomene, and Hazen finished smoking and came back inside Abdo and Philomene went to Abdo'sbedroom located in the northwest corner of the home. A curtain separated the bedroom from the living room. Winston testified that around five or ten minutes after Abdo and Philomene retreated to the bedroom, he saw Hazen leave the home. Shortly thereafter, Winston went to the bedroom he and Roseanne shared.

[¶4.] Winston testified that 20 or 30 minutes after he went to his bedroom, he heard hollering. He went to the living room to investigate, but by the time he got there, the hollering had stopped. Winston returned to his bedroom. Shortly thereafter, Winston heard crying and screaming. He testified that he heard Philomene say, "Stop biting me!" When Winston went to investigate, he found that Philomene was in the bathroom screaming. The door to the bathroom was closed. Winston saw Abdo asleep or passed out on the floor in the bedroom adjacent to the bathroom. Winston did not want to barge into the bathroom in case Philomene was indisposed, so he asked Roseanne to check on Philomene. Roseanne found Philomene bloody with an injury to her nose and with bite marks on her body.

[¶5.] Roseanne and Winston took Philomene to the Indian Health Service hospital in Wagner, South Dakota. Hospital staff called law enforcement to investigate. Wagner Police Officer Shane Larson spoke with Winston. Winston relayed the sequence of events to Officer Larson. Officer Larson determined that Abdo was a suspect. Winston also informed Officer Larson that he and Roseanne lived in the home and that Abdo was passed out in one of the bedrooms. Winston gave Officer Larson permission to enter the home. Winston also signed a written statement consenting to law enforcement's entry into the home to remove Abdo.

[¶6.] After obtaining Winston's consent, Officer Larson, Officer Brian McGuire, and Charles Mix County Deputy Sheriff Derik Rolston entered the home to look for Abdo. They found him passed out on the bedroom floor. The officers had a difficult time waking Abdo. The officers did not observe scratches or marks on Abdo. However, the officers observed that Abdo had blood around his mouth and on his hands. The officers arrested Abdo.

[¶7.] Back at the hospital in Wagner, staff bandaged Philomene. She was transferred to Sanford Hospital in Sioux Falls, South Dakota for surgery. Once at Sanford Hospital, Dr. Bradley Coots, a board certified plastic surgeon, examined and spoke with Philomene. As he and his staff prepped her for surgery, Dr. Coots observed that the tip of Philomene's nose had been cut, torn, or bitten off. He also noticed multiple abrasions on her body. Dr. Coots asked Philomene how the injuries had occurred. She replied that her boyfriend bit her. During surgery, Dr. Coots successfully reattached the tip of Philomene's nose.

[¶8.] A grand jury issued an indictment charging Abdo with aggravated assault (domestic) in violation of SDCL 22-18-1.1(4) and SDCL 25-10-1. The State filed a part II information alleging Abdo to be a habitual offender. While incarcerated, Abdo obtained a furlough to attend a job interview. Once released on furlough, Abdo did not return. Thereafter and in a separate criminal file, a grand jury indicted Abdo for second-degree escape in violation of SDCL 22-11A-2.1. The State again filed a part II information alleging Abdo to be a habitual offender.

[¶9.] Abdo filed a motion to suppress in both files. He asserted that law enforcement's entry into his bedroom in the residence without a warrant violatedhis rights under the Fourth Amendment, requiring suppression of all the evidence gathered against him including the evidence related to the escape charge. After a hearing and after considering post-hearing briefing, the circuit court issued a memorandum decision denying Abdo's motion.

[¶10.] A jury trial began on February 13, 2017. The parties stipulated to having Dr. Coots's deposition testimony read to the jury. During the deposition, Abdo objected when Dr. Coots testified that Philomene told him that "she was bit by her - - her boyfriend." During the trial, Abdo renewed the objection, asserting that the statement was inadmissible hearsay. The State responded that the statement was admissible under SDCL 19-19-803(4) because it was made for purposes of a medical diagnosis. The circuit court overruled the objection, ruling the statement admissible under SDCL 19-19-803(4).

[¶11.] At the close of the State's case, Abdo moved for a judgment of acquittal. The court denied the motion. During the settling of jury instructions, the court accepted Abdo's proposed instructions on the lesser-included offense of simple assault. After deliberating, the jury found Abdo guilty of aggravated assault (domestic) and simple assault (domestic). Abdo moved for a mistrial because the jury improperly found him guilty of both the charged offense and the lesser-included offense. In particular, Abdo asserted that the instructions informed the jury that it could not find him guilty of simple assault unless it found him not guilty of aggravated assault. Because the jury found him guilty of both offenses, Abdo averred the jury did not follow the instructions. The court requested briefing and,thereafter, denied Abdo's motion. The court concluded that the guilty verdict on the charge of simple assault (domestic) was "essentially a nullity."

[¶12.] On February 16, 2017, the circuit court held separate trials on the charge of second-degree escape and on the part II information. The court found Abdo guilty of second-degree escape and not guilty of the part II. The court sentenced Abdo to fifteen years in prison on the aggravated assault (domestic) conviction, with eight years suspended and credit for 384 days served. The court sentenced Abdo to five years in prison on the second-degree escape conviction, with four and one-half years suspended. The court ordered the sentences to run consecutive to one another and entered a judgment of conviction in each file.

[¶13.] Abdo appeals, asserting the following issues:

1. The circuit court erred in denying the motions to suppress.

2. The circuit court erred in denying the motion for a new trial.

3. The circuit court abused its discretion when it denied the motion for a judgment of acquittal.

4. The circuit court abused its discretion when it admitted into evidence inflammatory and prejudicial pictures.

5. The circuit court abused its discretion when it admitted a statement made by the victim to the surgeon identifying Abdo as the perpetrator.

Standard of Review

[¶14.] We review a denial of a motion to suppress de novo. State v. Thunder, 2010 S.D. 3, ¶ 11, 777 N.W.2d 373, 377. Likewise, we review a challenge to the sufficiency of the evidence de novo. State v. Bausch, 2017 S.D. 1, ¶ 25, 889 N.W.2d 404, 411. However, we review the circuit court's factual findings for clear error.

Thunder, 2010 S.D. 3, ¶ 11, 777 N.W.2d at 377. Evidentiary rulings are reviewed for an abuse of discretion. State v. Vargas, 2015 S.D. 72, ¶ 19, 869 N.W.2d 150, 158.

Analysis

1. Motions to Suppress

[¶15.] Abdo argues that law enforcement was required to obtain a warrant before entering the home and seizing him. He asserts that he "had very significant connections to the said house." Specifically, Abdo emphasizes that he had been staying there for approximately two weeks prior to January 7, had stayed there on and off for some time, had kept his personal belongings there, and had his own bedroom with a curtain separating the bedroom from the living room.

[¶16.] "The Fourth Amendment generally prohibits the warrantless entry of a person's home, whether to make an arrest or to search for specific objects." Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S. Ct. 2793, 2797, 111 L. Ed. 2d 148 (1990). "The prohibition does not apply, however, to situations in which voluntary consent has been obtained[.]" Id. "Consent to search a...