State v. Divan, 23889.

Citation724 N.W.2d 865,2006 SD 105
Decision Date21 November 2006
Docket NumberNo. 23889.,23889.
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Charles DIVAN, Defendant and Appellant.
CourtSupreme Court of South Dakota

Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General Pierre, South Dakota, Attorneys for plaintiff and appellee.

Gregory J. Sperlich of DeMersseman, Jensen, Christianson, Stanton & Huffman, LLP, Rapid City, South Dakota, Attorneys for defendant and appellant.


[¶ 1.] Charles Divan appeals an order revoking his suspended imposition of sentence contending the probation conditions were impossible to comply with and the trial court abused its discretion in concluding they were violated. We affirm.


[¶ 2.] On January 26, 2001, an information was filed charging Divan with twenty-seven counts of possessing stolen property. All the stolen property in this case consisted of cattle owned by Divan's neighbors that were discovered on his property. Divan entered into a plea agreement in which he agreed to plead nolo contendere to one count of possession of stolen property in exchange for the State dismissing all other charges. The court granted Divan a suspended imposition of sentence and placed him on probation for a period of ten years with several terms and conditions. The condition at issue here stated:

If the Defendant shall come in possession or discover any stray or unbranded cattle, he shall immediately notify the Shannon County Sheriff's Office.

[¶ 3.] On December 22, 2004, the State filed a petition seeking revocation of Divan's suspended sentence alleging that Divan failed to notify the Shannon County Sheriff of unbranded cattle on property he owned, leased, or controlled within Shannon County. At the hearing on this petition, evidence was presented that two cows branded and identified as belonging to Vern Fortune and an unbranded calf were discovered in Range Unit 38. Although this unit is owned by the Oglala Sioux Tribe and leased to Tom Ward (Ward), the court found that Divan had control over that unit based on his relationship with Ward. The court considered that a substantial number of cattle found in Range Unit 38 were double branded with both Ward's and Divan's brands. Although Ward testified that Divan did not "run" any cattle in Range Unit 38, and the cattle that were double branded were those Ward bought from Divan in 1990, testimony was also presented that the double branded cattle were not that old and could not exclusively be those purchased from Divan. Ward further testified that the Divan family was helping him out by watching Range Unit 38 during the fall of 2004. However, Divan testified that he does not own, lease or control any portion of Range Unit 38.

[¶ 4.] FBI Agent Charlie Cresalia (Cresalia) testified that Divan's father made a statement to him that Divan had an agreement with Ward. According to this agreement, Divan would use Ward's leased land to run Divan cattle and also take care of Ward's cattle. Divan did not object to this hearsay testimony. Cresalia also testified that Divan made a voluntary statement after his arrest that he had an agreement with Ward and is responsible for Ward's lease. Sheriff Jim Daggett (Daggett) also testified that Divan's father mentioned that Divan was running cattle together with Ward on the Ward lease. Divan made a motion to exclude this testimony as hearsay, but the court allowed the testimony pursuant to SDCL 19-9-14(4) (Rule 1101(b)(3)). After weighing the testimony and credibility of all the witnesses, the court concluded that Divan was in violation of the terms and conditions of his probation and sentenced Divan to eight years in the State Penitentiary with four of those years suspended.

[¶ 5.] Divan appeals, raising two issues:

1. Whether the trial court abused its discretion when it found Divan in violation of the conditions of his probation.

2. Whether it was impossible for Divan to comply with the terms and conditions of his probation.


[¶ 6.] 1. Whether the trial court abused its discretion when it found Divan in violation of the conditions of his probation.

[¶ 7.] A probation revocation proceeding is not a criminal prosecution. State v. Short Horn, 427 N.W.2d 361, 362 (S.D. 1988) (citations omitted). Thus, this Court has held:

`Proof sufficient to support a criminal conviction is not required to support a judge's discretionary order revoking probation. A judge in such proceeding need not have evidence that would establish beyond a reasonable doubt guilt of criminal offenses. All that is required is that the evidence and facts be such as to reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation.'

State v. Beck, 2000 SD 141, ¶ 7, 619 N.W.2d 247, 249 (quoting State v. Christian, 1999 SD 4, ¶ 12, 588 N.W.2d 881, 883 (citations omitted)). However, "for this Court to sustain an order which revokes probation, a factual showing must exist which justifies the exercise of the trial court's discretion." Short Horn, 427 N.W.2d at 362 (citations omitted). As long as there is adequate evidence to support this minimal level of scrutiny, the trial court's decision will be upheld. Matter of Brown, 1997 SD 133, ¶ 8, 572 N.W.2d 435, 437.

[¶ 8.] Divan argues that even under this relaxed burden of proof there is insufficient evidence to sustain the probation revocation. He contends the trial court's consideration of hearsay testimony was an abuse of discretion and a violation of the Confrontation Clause. Absent this hearsay evidence, Divan asserts there is insufficient evidence that he violated his probation. The State responds that Divan's hearsay objection was insufficient to preserve the confrontation issue on appeal. The State also claims Divan has not shown any prejudicial error stemming from the introduction of the disputed testimony, because substantially identical testimony was admitted without objection.

[¶ 9.] "Generally, parties must object to specific court action and state the reason underlying their objection so that the circuit court has an opportunity to correct any error." State v. McCrary, 2004 SD 18, ¶ 15, 676 N.W.2d 116, 121 (citations omitted). Further, a hearsay objection at trial is not sufficient to preserve a confrontation clause objection on appeal. Young v. Lockhart, 892 F.2d 1348, 1354 (8th Cir.1989) (citation omitted), see also State v. Howard, 509 N.W.2d 764, 769 (Iowa 1993) (stating a hearsay objection is not specific enough to raise the issue of the constitutional right to confrontation) (citing State v. Farni, 325 N.W.2d 107, 109 (Iowa 1982)). In this case, Divan objected to Daggett's testimony as "beyond the direct and it's now hearsay on an unrelated area." This objection was not sufficiently specific to inform the trial court of the confrontation claim now argued. Therefore, this issue was not properly preserved for appeal.

[¶ 10.] Moreover, "no prejudice issues from admission of evidence where substantially the same evidence is elsewhere in the record without objection." State v. Hood, 346 N.W.2d 481, 484 (Iowa 1984) (citation omitted). "Where inadmissible evidence admitted at trial is cumulative only and other admissible evidence supports the result, the cumulative evidence, though inadmissible, is non-prejudicial." State v. Tribitt, 327 N.W.2d 132, 135 (S.D. 1982) (citations omitted). Even if we assume Daggett's testimony included inadmissible hearsay, this same testimony was offered by Cresalia without objection. Thus, there is no prejudicial error resulting from its admission.

[¶ 11.] In admitting this hearsay testimony, the trial court relied upon SDCL 19-9-14(4) (Rule 1101(b)(3)), which provides:

Except as otherwise provided in this section, chapters 19-9 to 19-18, inclusive, apply to all actions and proceedings in the courts of this state. Those chapters other than those with respect to privileges do not apply in the following situations:

. . .

(4) Sentencing, or granting or revoking probation.

However, the federal courts have held that even when the federal rules of evidence do not apply, a defendant does not lose all confrontation rights. U.S. v. Reynolds, 49 F.3d 423, 426 (8th Cir. 1995). Although "Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), involving the contours of the confrontation right in criminal prosecutions, does not apply" to probation revocation proceedings, U.S. v. Martin, 382 F.3d 840, 844, n. 4 (8th Cir. 2004), there is still a limited due process right to confront and cross-examine adverse witnesses in a revocation hearing. Martin, 382 F.3d at 844. Most federal courts have agreed with this conclusion that Crawford is inapplicable in parole revocation hearings. State v. Abd-Rahmaan, 154 Wash.2d 280, 111 P.3d 1157, 1161 (2005); see e.g., U.S. v. Hall, 419 F.3d 980, 985-86 (9th Cir. 2005); U.S. v. Kirby, 418 F.3d 621, 627 (6th Cir. 2005); U.S. v. Aspinall, 389 F.3d 332, 342-43 (2d Cir. 2004); U.S. v. Rondeau, 430 F.3d 44, 48 (1st Cir. 2005); Ash v. Reilly, 431 F.3d 826, 829 (D.C.Cir. 2005).

[¶ 12.] In United States v. Bell, 785 F.2d 640 (8th Cir. 1986), the Eighth Circuit Court of Appeals "devised a balancing test to determine whether evidence has been admitted at a probation revocation hearing in violation of the applicable limited right to confront and cross-examine adverse witnesses." Martin, 382 F.3d at 844. According to this test, "the trial court must balance the defendant's constitutional right to confront a witness against any governmental explanation for `why confrontation is undesirable or impractical.'" Reynolds, 49 F.3d at 426 (quoting Bell, 785 F2d at 643 (additional citation omitted)). "It must also consider the reliability of the evidence offered in place of live testimony." Id. (citing Bell, ...

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