State v. Barber, 19019

Decision Date31 July 1996
Docket NumberNo. 19019,19019
Citation1996 SD 96,552 N.W.2d 817
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Greg Allen BARBER, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Mark Barnett, Attorney General, Sherri Sundem Wald and Tony L. Portra, Assistant Attorneys General, Pierre, for plaintiff and appellee.

Michael J. Butler of Butler & Nesson, Sioux Falls, for defendant and appellant.

STEELE, Circuit Judge.

¶1 Gregory Allen Barber (Barber) appeals his conviction for possession of a controlled substance, conspiracy to distribute a controlled substance, and possession of marijuana. Judgment was entered and filed on November 7, 1994. 1

¶2 We affirm.


¶3 On February 15, 1994, an unidentified Hispanic or Native American man, using the name Tom Perez, brought a package to DHL Airways overnight delivery office in Phoenix, Arizona. The man requested that the package be delivered to "Jim Schultz" at the Quality Inn in Rapid City, South Dakota. After the unidentified man left the office, an employee who was suspicious exercised the company's right to inspect the package and opened it. She discovered a large knotted plastic trash bag inside. The police were notified and a substance identified as cocaine was discovered inside the trash bag. The Arizona police forwarded the package to Division of Criminal Investigation Agent Kevin Thom in Rapid City. Thom, dressed as a delivery person, attempted to deliver the package to "Jim Schultz" at the Quality Inn. The desk clerk informed Thom that two men had been asking about the package earlier, but that no Jim Schultz was registered at the hotel at that time. Later, one Eli Hunt arrived at the Quality Inn to pick up the package. The desk clerk immediately called Agent Thom, who brought the package to the hotel and delivered it to Hunt. Hunt, followed by close surveillance, eventually took the package to the Tee Pee Campground, where he lived with Barber.

¶4 Approximately twenty minutes later, law enforcement officers entered the residence, arrested Barber and Hunt, and found the "Schultz" package unopened in Barber's bedroom. Cocaine was discovered inside a cribbage board which belonged to Hunt; marijuana and other drug paraphernalia, including scales, baggies, and a cutting agent, were also found in the residence, along with five receipts for overnight mail to Arizona.

¶5 The police returned to the Quality Inn and showed the desk clerk a photo lineup. The clerk identified Barber as one of the men who had attempted to pick up the package before Hunt arrived.

¶6 Barber and Hunt were both charged with possession of a controlled substance, possession of a controlled substance with intent to distribute, conspiracy to distribute a controlled substance, and possession of marijuana. Both defendants were found not guilty of possession with intent to distribute; Hunt was found not guilty and Barber was found guilty of conspiracy to distribute a controlled substance; and, both defendants were found guilty on the remaining counts. Barber's request for a new trial was denied.


¶7 Barber raises the following issues on appeal:

¶8 I. Did the trial court err in admitting the following as prior bad acts evidence under SDCL 19-12-5:

A. The five (5) receipts found in Barber's residence;

B. The testimony of Ronnie Horse, who claimed to have picked up packages for Barber in the past;

C. The testimony of Joseph and Frank Boscano, two brothers who testified they had observed Barber receive a package containing cocaine in the past.

¶9 II. Did the trial court err in admitting purported expert testimony of drug enforcement Agent Larry Johnson?

¶10 III. Does the acquittal of co-defendant Hunt on the conspiracy charge require a judgment of acquittal as to Barber on the conspiracy charge?

¶11 IV. Did the trial court abuse its discretion in denying Barber's motion for a new trial?


¶12 I. Prior Bad Acts Evidence

¶13 SDCL 19-12-5 provides:

Evidence 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. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, separation, plan, knowledge, identity, or absence of mistake or accident.

¶14 Whether to admit prior bad acts into evidence is a matter within the discretion of the trial court. This Court may not overrule the trial court's decision to admit prior bad acts evidence without a clear showing of abuse of that discretion. The test is not whether we would make a similar ruling, but rather whether a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion. State v. Rufener, 392 N.W.2d 424 (S.D.1986).

¶15 At the trial level, the evidence must pass a two-prong test before it may be admitted by the trial court: (1) the intended purpose for offering the other acts evidence must be relevant to some material issue in the case, and (2) the probative value of the evidence must substantially outweigh any prejudicial effect. State v. Krebs, 504 N.W.2d 580 (S.D.1993); State v. Werner, 482 N.W.2d 286 (S.D.1992). In addition to passing the two-prong test, the trial court must identify the specific exception under which the evidence is to be admitted. State v. Chapin, 460 N.W.2d 420 (S.D.1990).

¶16 A. The receipts.

¶17 When searching Barber's residence, the police seized five (5) overnight/express mail receipts. These receipts contain different names and three different Arizona addresses; however, the return address on four of the receipts, was Barber's residence, and one was Kadoka, South Dakota. The State offered the receipts as substantative evidence to circumstantially show a connection between Barber and the State of Arizona, and alternatively as other act evidence pursuant to SDCL 19-12-5. The court found that although the receipts did not suggest any criminal act per se, they were relevant to show overnight or express mail package dealings to and from Arizona and to and from South Dakota and constituted direct evidence bearing upon the crimes charged. The court also ruled that the evidence was relevant under SDCL 19-12-5 to show a pattern, plan, or scheme that the defendants were engaged in. The court concluded that the probative value of the evidence substantially outweighed any prejudicial effect and granted the State's request to offer the evidence in its case in chief.

¶18 We agree with the trial court that the receipts constituted direct evidence concerning certain elements of the crimes charged. An element of the offense of possession of a controlled substance with intent to distribute is that the defendant specifically intended to distribute a quantity of the controlled drug by delivering it to another person. An element of the offense of conspiracy is that the defendant entered into an agreement with others to distribute a controlled substance. The receipts tended to establish a connection between Barber and the State of Arizona and also served as the foundation for an expert opinion 2 that the receipts, together with the circumstances of the mailing of the package from Arizona, indicated that drugs were being shipped from Arizona to South Dakota for resale. The receipts were therefore relevant to circumstantially establish specific intent to distribute and the existence of an agreement. The purpose of the offer in this case was not to show that Barber was a "bad man," but as evidence of which was intricately related to the facts of the case. Such evidence is admissible without reference to SDCL 19-12-5. U.S. v. Monzon, 869 F.2d 338 (7th Cir.1989); State v. Dokken, 385 N.W.2d 493 (S.D.1986); State v. Floody, 481 N.W.2d 242 (S.D.1992); State v. Olson, 408 N.W.2d 748 (S.D.1987).

¶19 The trial court properly weighed the probative value of the evidence against the danger of unfair prejudice as required by SDCL 19-12-3. 3 Prejudicial evidence is that which has the capacity to persuade the jury by illegitimate means which results in one party having an unfair advantage. Evidence is not prejudicial merely because its legitimate probative force damages the defendant's case. State v. Goodroad, 442 N.W.2d 246 (S.D.1989). The probative value of the receipts was that they tended to establish a connection between Barber and a person or persons in Arizona. The receipts had legitimate probative force, and their admission into evidence was not erroneous.

¶20 B. Testimony of Ronnie Horse.

¶21 Ronnie Horse testified in a motion hearing on June 24, 1994, that on two prior occasions Barber paid him to pick up packages, once at the "Quality Inn" Motel and again at "Ho-Jo's" in Rapid City. Horse testified that Barber's name was not on either package, and that he (Horse) was paid approximately $100 per package for his services. Horse later recanted his testimony to a defense investigator, and still later retracted his recantation in statements made to a state agent. Horse refused to testify at trial, so the trial court declared him unavailable pursuant to SDCL 19-16-29(2) 4 and a transcript of the motions hearing was read to the jury. The jury was also allowed to hear a tape recording of the conversation between Horse and the defense investigator, in which Horse originally recanted his testimony. The State investigator was called as a witness to testify as to Horse's retraction of the statements made to the defense investigator.

¶22 Barber contends that Horse's testimony was of minimal probative value because Horse was unable to identify what was in the previous packages. As a result, he asserts, the testimony provides only a "mere implication" of illegal activity. He further asserts that the recantation and later retraction of the recantation damages his credibility as a witness to such an extent that none of the testimony should have been allowed into evidence. We reject the argument.

¶23 Horse's testimony was...

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