State v. Asmussen, No. 23477.

CourtSupreme Court of South Dakota
Writing for the CourtGilbertson
Citation2006 SD 37,713 N.W.2d 580
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. David ASMUSSEN, Defendant and Appellant.
Decision Date12 April 2006
Docket NumberNo. 23477.,No. 23478.
713 N.W.2d 580
2006 SD 37
STATE of South Dakota, Plaintiff and Appellee,
v.
David ASMUSSEN, Defendant and Appellant.
No. 23477.
No. 23478.
Supreme Court of South Dakota.
Considered on Briefs February 13, 2006.
Decided April 12, 2006.

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Lawrence E. Long, Attorney General, Craig M. Eichstadt, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Michael B. Thompson, Sioux Falls, South Dakota, Attorney for defendant and appellant.

GILBERTSON, Chief Justice.


[¶ 1.] David J. Asmussen (Asmussen), appeals from a conviction for stalking. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Asmussen and Pamela Dunn (Dunn), were involved in a long-term romantic relationship that ended sometime in August 2000. On August 25, 2000, in Codington County, South Dakota, circuit court, a protection order against further domestic abuse was issued against Asmussen as provided under SDCL Chapter 25-10.

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The protection order prohibited Asmussen from "contact[ing], directly or indirectly, in any manner" Dunn, her daughter, Dunn's mother, any other member of Dunn's family, Dunn's employer or her co-workers. The protection order was in effect until August 25, 2003. It also prohibited Asmussen from coming within 100 feet of any vehicle owned by Dunn. The protection order was served on Asmussen, and stated at the top of the first page: "VIOLATION OF THIS PROTECTION ORDER IS A CRIMINAL OFFENSE."

[¶ 3.] On December 9, 2001, at approximately 8:00 p.m., Dunn's daughter, Stacey Benson, telephoned Dunn asking if she had a telephone number for an acquaintance. Dunn replied that she did not, but that Asmussen would know it. Dunn then had a conversation with Asmussen in the background. Dunn explained to Benson that Asmussen was retrieving the last of his personal possessions from Dunn's home. At approximately 11:00 p.m. that same evening, Dunn telephoned her mother, Loretta Hallquist, and stated she had received a telephone call from Asmussen in which he sounded upset and possibly like he was crying.

[¶ 4.] Dunn was scheduled to work on December 10, 2001. However, she never arrived at her place of employment, nor has she ever been heard from since her last contact with her mother on December 9, 2001. An investigation was begun into her disappearance by the Watertown, South Dakota, police department.

[¶ 5.] In the course of the investigation concerning Dunn's disappearance, Asmussen admitted being at Dunn's residence and to speaking with her by telephone on December 8 and 9, 2001. Telephone records revealed that Asmussen had initiated seventeen calls to Dunn's home telephone between the dates of November 25, 2001, and December 9, 2001, all in violation of the protection order. Three threatening and abusive messages left by a male who did not identify himself were recovered from Dunn's digital voice messaging system, which indicated that the messages had been listened to and saved prior to Dunn's disappearance.

[¶ 6.] As a result of the violation of the protection order, Asmussen was charged with three counts of stalking. The first count was charged under SDCL 22-19A-1, SDCL 22-19A-21 and 22-6-1(8), and was based on the alleged violation of the protection order. The second count of stalking was charged under SDCL 22-19A-1(3) and 22-6-2(1).2 The third count was charged under SDCL 22-19A-1(2) and 22-6-2(1), but was eventually merged with the first count. A Part II habitual offender information was also filed, alleging Asmussen had prior felony convictions for odometer rollback, conspiracy to commit odometer rollback, and mail fraud in United States District Court, District of South

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Dakota. The matter was scheduled for a jury trial.

[¶ 7.] On August 20, 2004, at a motions hearing, Asmussen addressed the court and indicated his desire to discharge his attorneys and represent himself at trial. The circuit court informed Asmussen of the perils of self-representation, and Asmussen maintained he still wanted to represent himself. After his attorneys were permitted to withdraw, Asmussen launched into irrelevant statements concerning the Uniform Commercial Code and requested that papers concerning the statements be filed with the circuit court.

[¶ 8.] On August 23, 2004, a jury trial was held in Huron, South Dakota. At trial, portions of the telephone messages left on Dunn's digital answering service on December 5 and 6, 2001, by a caller identified by the State as Asmussen were played for the jury. A videotape of Asmussen's interview with police was also admitted at trial and played for the jury, in which he admitted to knowing that the protection order had been issued against him. Jon Bierne, an Agent with the Division of Criminal Investigation (DCI), testified at trial that in his opinion the voice on the telephone messages was that of Asmussen.

[¶ 9.] Asmussen made no opening statement at trial and did not object to any of the State's evidence at trial. Asmussen also failed to participate in any in-chambers discussions, refused to propose jury instructions, made no objections to the State's proposed jury instructions, and declined to give a closing argument. The following jury instruction was used at trial on Count 1 under SDCL 22-19A-2:

The elements of the crime of stalking in violation of a protection order, each of which the state must prove beyond a reasonable doubt, are that at the time and place alleged:

1. A protection order was in effect prohibiting the defendant from willfuly, maliciously, and repeatedly harassing Pamela Dunn by means of any verbal, electronic, digital media, mechanical, telegraphic, or written communication;

2. The defendant had knowledge of the order; and

3. The defendant violated the order.

[¶ 10.] Asmussen was found guilty on the two counts of stalking. The circuit court sentenced him to forty months in the state penitentiary with credit for time served, and assessed attorneys' fees and costs. Asmussen was advised of his right to appeal the conviction, and timely filed a pro se notice of appeal. The circuit court appointed appellate counsel, who also timely filed a notice of appeal. This Court entered an order consolidating the appeals upon a motion by appellate counsel. Asmussen filed a letter with the Court asking for his appellate counsel to withdraw, which was remanded to circuit court for proceedings. The circuit court denied the motion after a hearing on the matter. Asmussen raises three issues for this Court's review:

1. Whether Asmussen's conviction under SDCL 22-19A-2 violated his right to Due Process when the protection order issued under SDCL Chapter 25-10 failed to give notice that conduct in violation of the order would subject Asmussen to the penalties for a Class 6 felony under SDCL 22-19A-2.

2. Whether the circuit court adequately advised Asmussen of the perils of self-representation such that his constitutional rights to counsel were not infringed.

3. Whether the circuit court erred when it allowed a law enforcement officer to offer his opinion in court

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that the voice on the messages left for Dunn was Asmussen's.

STANDARD OF REVIEW

[¶ 11.] Appeals asserting an infringement of a constitutional right are reviewed under the de novo standard of review. State v. Dillon, 2001 SD 97, ¶ 12, 632 N.W.2d 37, 43 (citing State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488). A direct appeal from a conviction must be afforded greater scrutiny than a collateral challenge by habeas corpus action. State v. Moeller, 511 N.W.2d 803, 809 (S.D.1994). Thus, on a direct appeal from a conviction the defendant is entitled to all presumptions and protections possible under our constitution. Id.

[¶ 12.] We also employ the de novo standard of review for issues of statutory construction. State v. Myrl & Roy's Paving, Inc., 2004 SD 98, ¶ 6, 686 N.W.2d 651, 653 (citing Zoss v. Schaefers, 1999 SD 105, ¶ 6, 598 N.W.2d 550, 552 (citing Satellite Cable Srvs. v. Northern Electric, 1998 SD 67, ¶ 5, 581 N.W.2d 478, 480)). "Statutory construction is used to discover the true intention of the law which is ascertained primarily from the language expressed in the statute." Id. (quoting Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611). We give words their plain meaning and effect and read statutes as a whole, as well as enactments relating to the same subject. Id. ¶ 6, 686 N.W.2d at 654.

[¶ 13.] The trial court's evidentiary rulings are presumed correct and will not be overturned absent an abuse of discretion. State v. Perovich, 2001 SD 96, ¶ 11, 632 N.W.2d 12, 15 (citing State v. Goodroad, 1997 SD 46, ¶ 9, 563 N.W.2d 126, 129). "An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence." State v. Henry, 1996 SD 108, ¶ 10, 554 N.W.2d 472, 473 (quoting In re A.R.P., 519 N.W.2d 56, 62 (S.D.1994) (quoting State v. Moriarty, 501 N.W.2d 352, 355 (S.D.1993); State v. Devall, 489 N.W.2d 371, 374 (SD.1992))). "In applying the abuse of discretion standard, `we do not determine whether we would have made a like decision, only whether a judicial mind, considering the law and the facts, could have reached a similar decision.'" State v. Wilkins, 536 N.W.2d 97, 99 (S.D.1995) (citing State v. Almond, 511 N.W.2d 572, 574 (S.D.1994) (citing State v. Pfaff, 456 N.W.2d 558, 560-61 (S.D.1990); State v. Bartlett, 411 N.W.2d 411, 414 (S.D.1987); Peterson v. Peterson, 434 N.W.2d 732 (S.D.1989))). With regard to the rules of evidence, abuse of discretion occurs when a trial court misapplies a rule of evidence, not when it merely allows or refuses questionable evidence. State v. Guthrie, 2001 SD 61, ¶ 30, 627 N.W.2d 401, 415 (citing Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996)).

ANALYSIS AND DECISION

[¶ 14.] 1. Whether Asmussen's conviction under SDCL 22-19A-2 violated his right...

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17 practice notes
  • State v. $1,010.00 in American Currency, No. 23878.
    • United States
    • Supreme Court of South Dakota
    • September 6, 2006
    ...[¶ 9.] Generally, we review questions concerning constitutional rights under the de novo standard of review. See State v. Asmussen, 2006 SD 37, ¶ 11, 713 N.W.2d 580, 586; State v. Williams, 2006 SD 11, 12 n. 2, 710 N.W.2d 427, 432 n. 2. However, with regard to a due process claim, the Unite......
  • State v. Bowker, No. 24502.
    • United States
    • Supreme Court of South Dakota
    • July 9, 2008
    ...SD 20, ¶ 13, 729 N.W.2d 346, 349 (citation omitted). On appeal, we review evidentiary rulings for abuse of discretion. State v. Asmussen, 2006 SD 37, ¶ 13, 713 N.W.2d 580, 586 (citations omitted). "An abuse of discretion refers to a discretion exercised to an end or purpose not justified by......
  • Wilcox v. VERMEULEN, No. 25144.
    • United States
    • Supreme Court of South Dakota
    • March 31, 2010
    ...abuse of discretion occurs when a trial court misapplies a rule of evidence, not when it merely allows or refuses questionable evidence." 2006 SD 37, ¶ 13, 713 N.W.2d 580, 586 (citing State v. Guthrie, 2001 SD 61, ¶ 30, 627 N.W.2d 401, 415 (citing Koon v. United States, 518 U.S. 81, 100, 11......
  • State v. Beckley, No. 24062.
    • United States
    • Supreme Court of South Dakota
    • December 5, 2007
    ...refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence." State v. Asmussen, 2006 SD 37, ¶ 13, 713 N.W.2d 580, 586 (citations [¶ 21.] "In deciding whether to grant a continuance, a trial court must consider: (1) whether the delay resul......
  • Request a trial to view additional results
17 cases
  • State v. $1,010.00 in American Currency, No. 23878.
    • United States
    • Supreme Court of South Dakota
    • September 6, 2006
    ...[¶ 9.] Generally, we review questions concerning constitutional rights under the de novo standard of review. See State v. Asmussen, 2006 SD 37, ¶ 11, 713 N.W.2d 580, 586; State v. Williams, 2006 SD 11, 12 n. 2, 710 N.W.2d 427, 432 n. 2. However, with regard to a due process claim, the Unite......
  • State v. Bowker, No. 24502.
    • United States
    • Supreme Court of South Dakota
    • July 9, 2008
    ...SD 20, ¶ 13, 729 N.W.2d 346, 349 (citation omitted). On appeal, we review evidentiary rulings for abuse of discretion. State v. Asmussen, 2006 SD 37, ¶ 13, 713 N.W.2d 580, 586 (citations omitted). "An abuse of discretion refers to a discretion exercised to an end or purpose not justified by......
  • Wilcox v. VERMEULEN, No. 25144.
    • United States
    • Supreme Court of South Dakota
    • March 31, 2010
    ...abuse of discretion occurs when a trial court misapplies a rule of evidence, not when it merely allows or refuses questionable evidence." 2006 SD 37, ¶ 13, 713 N.W.2d 580, 586 (citing State v. Guthrie, 2001 SD 61, ¶ 30, 627 N.W.2d 401, 415 (citing Koon v. United States, 518 U.S. 81, 100, 11......
  • State v. Beckley, No. 24062.
    • United States
    • Supreme Court of South Dakota
    • December 5, 2007
    ...refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence." State v. Asmussen, 2006 SD 37, ¶ 13, 713 N.W.2d 580, 586 (citations [¶ 21.] "In deciding whether to grant a continuance, a trial court must consider: (1) whether the delay resul......
  • Request a trial to view additional results

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