State v. Dutton
| Docket Number | 29961-a-JMK |
| Decision Date | 28 June 2023 |
| Citation | 2023 S.D. 29 |
| Parties | STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. NASTASSA L. DUTTON, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
CONSIDERED ON BRIEFS MARCH 21, 2023
APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BROOKINGS COUNTY, SOUTH DAKOTA THE HONORABLE GREGORY J STOLTENBURG Judge
MANUEL J. DE CASTRO, JR. Sioux Falls, South Dakota Attorney for defendant and appellant.
MARTY J. JACKLEY Attorney General JONATHAN K. VAN PATTEN Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
[¶1] After a bench trial, Nastassa L. Dutton was convicted as an accessory to aggravated assault for intentionally harboring or concealing a juvenile in the commission of a felony. Dutton appeals, arguing that she cannot be convicted as an accessory to a felony because the principal was a juvenile subject to a delinquency adjudication, rather than a criminal prosecution, which could result a felony conviction. Without a criminal prosecution, Dutton contends she cannot be an accessory to a felony.
[¶2] In April 2019, N.I., age 15, along with three other individuals, was captured on video assaulting another juvenile. Four days later, the Brookings County state's attorney filed a petition against N.I., alleging he was a juvenile delinquent for committing the offense of aggravated assault under SDCL 22-18-1.1(4). At the State's request the circuit court issued a warrant for his arrest. Dutton was listed on the warrant as N.I.'s guardian because law enforcement believed N.I. was living with Dutton's family at the time. Unable to immediately apprehend N.I., law enforcement personnel, including the Brookings County Sheriff's Office and Brookings school resource officers, made several unsuccessful trips to Dutton's house in an attempt to locate and arrest N.I. Additionally, Detective Joel Perry of the Brookings Police Department testified to having several encounters with David Olsen, Dutton's partner, throughout the summer of 2019, during which Detective Perry reminded Olsen about N.I.'s outstanding warrant.
[¶3] Sometime after the assault took place, but before police could arrest N.I. on the warrant, he and Dutton's seventeen-year-old daughter, N.J., ran away to Portland, Oregon, where they lived during the summer of 2019. Worried about her daughter's wellbeing, Dutton encouraged her to move back to South Dakota. Dutton promised her daughter that if she agreed to move back, Dutton and Olsen would provide her with an apartment. N.J. agreed to move home if N.I. could accompany her. Not wanting to lose her daughter, Dutton agreed but told N.I. that he would have to turn himself in and take care of his warrant upon his return. According to testimony later elicited at Dutton's trial, Dutton and N.I. agreed that he would turn himself in on Monday, September 30, 2019. Dutton explained that they chose Monday because juvenile court is held in Brookings on Tuesdays.
[¶4] On Friday, September 27, 2019, Dutton posted a video to Facebook depicting herself driving a car full of young people destined for the Brookings Bobcats' homecoming football game. The video depicts N.I. among Dutton's passengers. The next day, while at Dutton's house, N.I. and Justin Proctor, Dutton's half-brother, got into an argument that led to a physical altercation during which N.I. stabbed Justin in the stomach, mortally wounding him. [1]
[¶5] Following the altercation, law enforcement officers conducted investigative interviews with Dutton and N.I. The Brookings County Sheriff's Office interviewed Dutton on two occasions, once by Deputy Dane Larson and again by Deputy Darin Haider.[2] During the course of law enforcement's investigation, Detective Perry was informed of Dutton's Facebook video showing her driving around Brookings with N.I. the day before the deadly incident. After determining that the video was evidence of Dutton's failure to turn N.I. in on the April 2019 arrest warrant, Detective Perry provided a copy to the Brookings County State's Attorney's Office. On October 18, 2019, a Brookings County grand jury indicted Dutton for accessory to a crime in violation of SDCL 22-3-5, a class 5 felony, for harboring or concealing N.I. from arrest on the juvenile delinquency warrant.
[¶6] Dutton waived her right to a jury trial, and the circuit court held a bench trial on February 17, 2022. At trial, the State called Detective Perry and former Deputy Sheriff Darin Haider. Detective Perry described his attempts to locate N.I. on the delinquency warrant. He also described his discovery of Dutton's Facebook video, a copy of which was offered and received into evidence. Deputy Haider testified about his interview with Dutton, which was also admitted into evidence.
[¶7] After the State rested its case, Dutton moved for a judgment of acquittal, arguing that the State failed to prove she had the specific intent to act as an accessory. Further, Dutton argued she could not have committed the crime because N.I. was charged as a juvenile under the rules of civil procedure and therefore did not commit the principal felony necessary to sustain the charge. The circuit court denied Dutton's motion, finding, based on Dutton's own admissions, that there was sufficient evidence to conclude she knew of N.I.'s warrant when he returned to Brookings. The court noted it was apparent that she knew of his warrant when she appeared in and posted the Facebook video showing herself driving him around town on September 27. The circuit court also rejected, as meritless, Dutton's argument that a party could not serve as an accessory to the commission of a felony if the felonious conduct was committed by a juvenile charged as such in juvenile court. The court concluded that the statute requires rendering assistance to another to prevent the detection or apprehension of one engaged in the commission of a felony, not one who has been convicted of a felony. To decide otherwise, the court stated, "would frustrate the policy and intent of the statute."
[¶8] Dutton testified on her own behalf at trial. She admitted that N.I. was in the car with her on September 27 and explained that she did not contact law enforcement because she intended to make N.I. turn himself in the following Monday. Dutton also testified that she did not conceal N.I.'s presence in Brookings from law enforcement. She stated that N.I. was not hidden away-he moved throughout the community freely. Dutton pointed to the September 27 video, which she posted publicly, as evidence of her lack of intent to obstruct law enforcement's apprehension of N.I.
[¶9] However, on cross-examination, Dutton admitted to providing N.I. with assistance and agreeing to a plan that delayed law enforcement's apprehension of him. When asked whether she agreed to N.I. waiting until Monday, September 30 to turn himself in, Dutton answered, "Correct." And when asked whether that plan delayed N.I.'s apprehension, Dutton answered that it did. Dutton also admitted to knowing that N.I. was living in the apartment provided by her and Olsen.
[¶10] At the conclusion of the trial, the circuit court found Dutton guilty as an accessory under SDCL 22-3-5 for "delay[ing] the apprehension of another person for the commission of a felony by harboring or concealing that person." The court ordered a presentence investigation and scheduled a sentencing hearing. After considering the parties' arguments, the court sentenced Dutton to serve four years in the penitentiary, all suspended on the condition that she comply with a three-year probationary term, which included a requirement that Dutton serve 20 days in the Brookings County jail. Dutton appeals from the circuit court's verdict raising a single issue-whether she could be convicted as an accessory to the commission of a felony when the principal offender is a juvenile charged as a delinquent rather than as a felon in adult court.[3]
[¶11] The crime of accessory originated under the common law. At common law, an individual or group of individuals who played a part in the commission of a crime were classified into one of four categories: "(1) principals in the first degree (2) principals in the second degree; (3) accessory before the fact; (4) and accessory after the fact." 2 Subst. Crim. L. § 13.1 (3d ed.) Westlaw (database updated Oct. 2022); see generally SDCL 22-3-3.1. Each classification depended on the party's relationship to the crime. For example, an individual who aided or encouraged the commission of a criminal act, but was absent when it was committed, fell within the "accessory before the fact" category. 2 Subst. Crim. L. § 13.1(c). Conversely, an accessory after the fact is a party who, knowing a felony has been committed, helped the principal, the individual who committed the crime, in a way that obstructs justice. See SDCL 22-3-5.
[¶12] Like most other states, South Dakota has abrogated the common-law distinction between principals in the first degree, principals in the second degree, and accessories before the fact. SDCL 22-3-3.1 (); see Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189, 127 S.Ct. 815, 820, 166 L.Ed.2d 683, 691 (2007) (). However, South Dakota continues to recognize the offense of accessory to a crime if one renders assistance to an individual involved in the commission of a felony. SDCL 22-3-5.
[¶13] Originally, successful ...
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