State v. Armstrong

• Decision Date: 29 January 2020
• Docket Number: #28722
• Citation: 939 N.W.2d 9
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Joshua John ARMSTRONG, Defendant and Appellant.
• Court: South Dakota Supreme Court

939 N.W.2d 9

STATE of South Dakota, Plaintiff and Appellee,

v.Joshua John ARMSTRONG, Defendant and Appellant.

#28722

Supreme Court of South Dakota.

ARGUED OCTOBER 2, 2019

OPINION FILED January 29, 2020

CHRISTOPHER MILES, BEAU J. BLOUIN of Minnehaha County Public Defender’s Office, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

JASON R. RAVNSBORG, Attorney General, ERIN E. HANDKE, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

DEVANEY, Justice

[¶1.] Joshua John Armstrong wrote and mailed two letters containing threats to rape and murder a mental health therapist at the prison where Armstrong was incarcerated. After a trial, the jury found Armstrong guilty of one count of threatening to commit a sexual offense in violation of SDCL 22-22-45. Armstrong appeals the circuit court’s denial of his motion for judgment of acquittal and its refusal of his requested jury instructions pertaining to the language of "directly" in SDCL 22-22-45 and specific intent. We affirm.

Factual and Procedural Background

[¶2.] Armstrong has been an inmate in the South Dakota State Penitentiary since his 2009 conviction of sexual contact with a person under sixteen. See State v. Armstrong , 2010 S.D. 94, 793 N.W.2d 6. In 2016, Armstrong prepared an envelope of letters and other documents to be sent to the Compass Center in Sioux Falls. The Compass Center is an organization that provides services for victims of domestic and sexual assault, including services to prisoners who wish to report sexual harassment or assault occurring within the prison. Armstrong addressed the envelope to "P.R.E.A."—the acronym for the federal Prison Rape Elimination Act. Under that Act, prison staff could not open Armstrong’s envelope and review the documents before mailing.

[¶3.] Armstrong’s envelope arrived at the Compass Center on August 11, 2016. Michelle Markgraf, executive director at the Center, read and reviewed the contents of the envelope. She observed that the envelope contained a three-page letter addressed to PREA, an eighteen-page letter addressed to Governor Dennis Daugaard, a completed commissary order form, documents alleging Armstrong’s sex offender treatment program was being used as a weapon against him, handwritten quotes from this Court’s 2010 opinion affirming Armstrong’s 2009 conviction, two drawings, and two stories. Only the letters to PREA and Governor Daugaard are relevant to this appeal.

[¶4.] In his letter to PREA, Armstrong introduced himself and claimed that he had sent previous, unanswered letters to the Compass Center. He then begged for help, asking that PREA "read, copy, file and forward all but this letter to Governor Daugaard[.]" He expressed concern that the Department of Corrections had been withholding his mail and asked that the Compass Center "answer this letter." He further wrote, "I want you to know that I am absolutely serious about what I said about [K.H.]. I have got nothing to lose and everything to gain by raping and killing her or a guard." "K.H." is actually "C.H."—a mental health therapist at the penitentiary. Armstrong was housed in her unit.

[¶5.] Armstrong’s letter continued: "At least I will be serving time for a crime that I actually committed and to be honest I would rather die of lethal injection than sit in this cell suffering from untreated psoriasis and thoughts that I can't seem to stop." He explained, "I know that I can not live like this much longer and fight my own conscience every day to keep me from raping [C.H.] or a guard, but if the warden and Governor are willing to sacrifice her I might as well." Finally, he wrote, "What would you do? Please let me know if or when you forward the letter to Daugaard. I want to know where I stand and what I need to do in my near future. If you don't respond by August 26, 2016 I will assume that I am on my own and might as well die embarrassing South Dakota’s government."

[¶6.] Armstrong’s letter to Governor Daugaard also referenced C.H. and explained in even greater detail that Armstrong would rape and kill her unless Governor Daugaard gives Armstrong "what [he] demand[s]." We need not restate his exact words for it is sufficient to note that Armstrong’s language concerning C.H. is disturbingly detailed, violent, graphic, and pornographic. Among the threats, Armstrong presented Governor Daugaard "with four options" "to keep [C.H.] from being raped and murdered." He later reduced the Governor’s options to two, which included the placement of several hundreds of thousands of dollars in various accounts and required that Armstrong receive a full pardon. Armstrong concluded his letter with the following statement: "If you choose to ignore this letter I hope that when you force me to rape someone like [C.H.] or a guard that my attorney will subpoena this letter ... as evidence against South Dakota[.]"

[¶7.] After reading the contents of Armstrong’s letters, Markgraf notified the South Dakota Division of Criminal Investigation. An agent interviewed Armstrong who admitted that he had written the letters, but denied that C.H. was in danger. However, when asked whether his writings were an actual threat, he responded, "Actually, like I said I do not know. I mean if I have to do something stupid like that I will."

[¶8.] Ultimately, a grand jury indicted Armstrong on one count of threatening to commit a sexual offense in violation of SDCL 22-22-45. The State filed a part II information alleging Armstrong to be a habitual offender. The State also filed a notice of election to proceed on the doubling statute, which allows the court to sentence a defendant to double the maximum term allowed for the commission of the crime when the crime was committed while the person was incarcerated. See SDCL 22-6-5.1. Armstrong pled not guilty.

[¶9.] Prior to trial, Armstrong and the State stipulated that Armstrong is an inmate in the penitentiary and has been previously convicted of two felony sex offenses. The State presented the stipulation to the jury during trial. At the close of the State’s case, Armstrong moved for judgment of acquittal. He argued that the State had failed to present sufficient evidence that he directly threatened C.H. The circuit court denied Armstrong’s motion.

[¶10.] Armstrong testified at trial and denied making any direct threats to C.H. He explained that the only reason he sent the letters was to "get in front of a jury" and "to go on record" with his complaints against the Department of Corrections and against his sex offender treatment counselors who testified at his previous trial. During the settling of jury instructions, Armstrong requested an instruction that would inform the jury that "directly" as used in SDCL 22-22-45 modifies both "threatens" and "communicates." He requested another instruction on specific intent. The circuit court refused both instructions, and the jury found Armstrong guilty.

[¶11.] Armstrong appeals, asserting the circuit court erred in denying his motion for judgment of acquittal and in refusing his requested instructions.

Standard of Review

[¶12.] We review a denial of a motion for judgment of acquittal de novo. State v. Brim , 2010 S.D. 74, ¶ 6, 789 N.W.2d 80, 83. We likewise review questions of statutory interpretation de novo. State v. Johnsen , 2018 S.D. 68, ¶ 9, 918 N.W.2d 876, 878. We review the alleged error in refusing requested jury instructions under the abuse of discretion standard. State v. White Face , 2014 S.D. 85, ¶ 14 n.1, 857 N.W.2d 387, 392 n.1. Jury instructions, while generally within the circuit court’s discretion to grant or deny, must "be considered as a whole, and if the instructions so read correctly state the law and inform the jury, they are sufficient." State v. Roach , 2012 S.D. 91, ¶ 13, 825 N.W.2d 258, 263 (quoting State v. Klaudt , 2009 S.D. 71, ¶ 13, 772 N.W.2d 117, 121 ).

Analysis and Decision

[¶13.] Armstrong asserts the circuit court abused its discretion in denying his motion for judgment of acquittal because, in his view, the word "directly" as used in SDCL 22-22-45 modifies both "threatens" and "communicates," and the evidence was insufficient to support that he "directly threatened or communicated a specific intent to commit further felony sex offenses[.]" In the same vein, Armstrong contends that the circuit court erred in refusing his requested instruction informing the jury that "directly" modifies "threatens" and "communicates." Finally, Armstrong argues that the circuit court erred in refusing his requested instruction indicating that SDCL 22-22-45 requires the jury to find that he acted with specific intent.

[¶14.] Because Armstrong’s arguments raise issues of statutory interpretation, we begin our analysis by examining the text of SDCL 22-22-45, which provides in relevant part:

Any person who has been convicted of a felony sex offense as defined in § 22-24B-1 who directly threatens or communicates specific intent to commit further felony sex offenses is guilty of threatening to commit a sexual offense.

Whether "directly" modifies both "threatens" and "communicates"

[¶15.] Armstrong asserts that the word "directly" as used in SDCL 22-22-45 refers to the manner of delivery of the threat or communication and, therefore, modifies both "threatens" and "communicates."¹ He further contends that the absence of the word "indirectly" indicates legislative intent to criminalize only threats "communicated or delivered, whether orally, through a letter, email or other social medium, directly to the object of the threat."

[¶16.] We construe statutes to determine the intent of the Legislature. State v. Geise , 2002 S.D. 161, ¶ 10, 656 N.W.2d 30, 36. "The intent of the Legislature in enacting laws is ascertained primarily from the language used in the statute." State v. Bordeaux , 2006 S.D. 12, ¶ 8, 710 N.W.2d 169, 172. "We therefore defer to the text where possible." Geise , 2002 S.D. 161, ¶ 10, 656 N.W.2d at 36. "When the language in a statute is...