State v. Eagle Star, 19439

Decision Date18 December 1996
Docket NumberNo. 19439,19439
Citation558 N.W.2d 70,1996 SD 143
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Thomas W. EAGLE STAR, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Mark Barnett, Attorney General, Grant Gormley and Jennifer K. Trucano, Assistant Attorneys General, Pierre, for plaintiff and appellee.

Sandy Steffen of Johnson, Eklund, Nicholson & Dougherty, Gregory, and Paul E. Jensen of Jensen and Massa, Winner, for defendant and appellant.

MILLER, Chief Justice.

¶1 Thomas William Eagle Star (Defendant) appeals his conviction of aggravated assault. We affirm.

FACTS

¶2 On the evening of June 5, 1995, people gathered at Victim's residence in Gregory, South Dakota. The group, including Victim, consumed a large amount of alcohol throughout the course of the evening. Defendant arrived at the party at approximately 10:00 p.m. and began drinking. The party continued outside until 11:00 p.m., and then moved inside the house, where Victim's three children were sleeping. When the party concluded at 1:30 a.m., Defendant, Victim, her children and Victim's grandfather remained in the house.

¶3 H.W.H., Victim's ten-year-old son, shared a bed with his mother on the first floor of the house. During the early morning hours, H.W.H. was awakened by his mother "bumping" him. He observed Defendant naked and on top of his mother. He also observed Victim trying to push Defendant off of her and heard her tell Defendant, "I'm already going with somebody else." According to the child, Defendant struck Victim in the face with his fist, causing her head to hit the bed frame. H.W.H. observed Defendant draw his fist to strike Victim again but Defendant refrained. Victim instructed H.W.H. to call the police and the boy left the house to get help. When H.W.H. left the bedroom, Victim was sitting on the bed holding the back of her head and Defendant was getting dressed.

¶4 H.W.H. ran across the street and asked the neighbors to call the police. While he waited for the police to arrive, he observed Defendant standing in Victim's yard near the kitchen door. Gregory City Police Officer Todd Christensen found Victim lying semiconscious and naked on the kitchen floor with cuts and scrapes about her head and shoulders. Victim's grandfather was asleep in the kitchen and unable to tell Officer Christensen what had happened.

¶5 Emergency personnel were summoned and Victim was transported to the emergency room. On arrival, her right eye was swollen shut, enlarged to a quarter size of a baseball and could not be opened. Her mid-forehead above her right eye was swollen. A preliminary diagnosis of a hematoma of the brain was made by Dr. Nemer. Bruises on Victim's left shoulder and right leg were also observed. The doctor concluded these injuries were recent and consistent with being assaulted.

¶6 Victim was released from the hospital to her mother's care on June 7, 1995. She was scheduled to return to the hospital for a CAT scan on June 9, 1995. Prior to the scheduled appointment, her condition worsened and she was readmitted to the hospital by Dr. Malm. Victim was confused about where she was, the date and her age, had no recollection of the assault, was unable to eat or drink and had trouble maintaining her balance. A CAT scan confirmed Victim suffered a subdural hematoma of the brain. Her condition continued to worsen and she was transferred to Sioux Valley Hospital in Sioux Falls, South Dakota. A second CAT scan which was administered on June 13, 1995, evidenced a fracture of the medial wall of the inside margin of Victim's right eye, causing an irreversible injury.

¶7 Prior to trial, Defendant offered to stipulate to the serious nature of Victim's injuries. The State declined the offer. At trial, Defendant admitted hitting Victim three times. He testified the first hit occurred on the bed when he hit Victim in the mouth with his fist. A second hit to the mouth occurred while Victim was sitting on the bed. Defendant admitted a third hit was a slap across the face as he was leaving the house. Defendant testified Victim did not appear to be seriously injured when he left the house.

¶8 During settlement of final jury instructions, Defendant proposed South Dakota Criminal Pattern Jury Instruction 1-14-1 on direct and circumstantial evidence. The trial court refused Defendant's proposed instruction, stating the proposed instruction was duplicative of preliminary instruction six and was "an awful instruction." Defendant proposed repeating preliminary instruction six as a final instruction. The trial court declined Defendant's request. 1

¶9 Following a two-day trial, the jury found Defendant guilty of aggravated assault. Defendant appeals.

¶10 I. Whether the trial court erred in refusing Defendant's proposed jury instruction on direct and circumstantial evidence.

¶11 Defendant proposed the jury be instructed pursuant to South Dakota Criminal Pattern Jury Instruction 1-14-1 as follows:

Direct evidence means evidence that directly proves a fact, without an inference, and which in itself, if true establishes that fact.

Circumstantial evidence means evidence that proves a fact from which an inference of the existence of another fact may be drawn.

It is not necessary that facts be proven by direct evidence. They may be proved also by circumstantial evidence or by a combination of direct and circumstantial evidence. The law makes no distinction between direct evidence and circumstantial evidence as a means of proof. Neither is entitled to any greater weight than the other.

Where the case of the state rests substantially or entirely on circumstantial evidence, you are not permitted to find the defendant guilty of the crime charged against him unless the proved circumstances are not only consistent with the guilt of the defendant, but cannot be reconciled with any other rational conclusion and each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt has been proved beyond a reasonable doubt.

If all the facts and circumstances shown can be reasonably accounted for upon any theory consistent with the innocence of the defendant, the jury must acquit the defendant.

¶12 Defendant contends the trial court's refusal to give the proposed instruction at the close of evidence was error.

STANDARD OF REVIEW

¶13 We review a trial court's refusal of a proposed instruction for abuse of discretion. State v. Black, 494 N.W.2d 377, 381 (S.D.1993). "The trial court has broad discretion in instructing the jury." State v. Rhines, 1996 SD 55, p 111, 548 N.W.2d 415, 443. Jury instructions are sufficient when, considered as a whole, they correctly state the applicable law and inform the jury. State v. Fast Horse, 490 N.W.2d 496, 499 (S.D.1992) (citing State v. Grey Owl, 295 N.W.2d 748, 751 (S.D.1980)). It is not error for the trial court to refuse a requested instruction which amplifies the principle embodied in a given instruction. State v. Johnston, 478 N.W.2d 281, 283 (S.D.1991); State v. Gillespie, 445 N.W.2d 661, 664 (S.D.1989); State v. Weisenstein, 367 N.W.2d 201, 206 (S.D.1985).

¶14 Error in refusing a proposed instruction is reversible only if it is prejudicial, Gillespie, 445 N.W.2d at 664, and the defendant has the burden of proving prejudice. State v. Corder, 460 N.W.2d 733, 738 (S.D.1990). To reverse a conviction for failure to give a proposed instruction, the defendant must show the jury would have returned a different verdict if the proposed instruction was given. State v. Knoche, 515 N.W.2d 834, 838 (S.D.1994) (citing State v. Stapleton, 387 N.W.2d 28 (S.D.1986)). Absent such an error, the trial court will not be reversed. Weisenstein, 367 N.W.2d at 206.

ANALYSIS

¶15 The trial court has a duty to instruct the jury on the law applicable to the case. Black v. Gardner, 320 N.W.2d 153, 158 (S.D.1982) (citing Jahnig v. Coisman, 283 N.W.2d 557 (S.D.1979); Egan v. Sheffer, 86 S.D. 684, 201 N.W.2d 174 (1972)). Use of the criminal pattern jury instructions to accomplish this task is not mandated. 2 State v. Latham, 519 N.W.2d 68, 73 (S.D.1994). The trial court may rely on the pattern jury instructions or draft its own instructions. Id. "[A]ll that is required is that jury instructions, read as a whole, correctly state the law and inform the jury." Id. (citing State v. Schuster, 502 N.W.2d 565, 568 (S.D.1993); State v. Oster, 495 N.W.2d 305, 312 (S.D.1993); Johnston, 478 N.W.2d at 283).

¶16 When the State's case rests substantially or entirely on circumstantial evidence, the trial court must instruct the jury the defendant cannot be convicted unless "(1) the proved circumstances are not only consistent with the guilt of the accused, but cannot be reconciled with any other rational conclusion and (2) each fact which is essential to complete a set of circumstances necessary to establish the accused's guilt has been proved beyond a reasonable doubt." State v. Breed, 399 N.W.2d 311, 313 (S.D.1987) (citing Weisenstein, 367 N.W.2d at 206; State v. Hall, 353 N.W.2d 37 (S.D.1984); State v. Schafer, 297 N.W.2d 473 (S.D.1980); State v. Luna, 264 N.W.2d 485 (S.D.1978)). The charges against Defendant required that the State prove he assaulted Victim with the intent to commit bodily injury which resulted in serious bodily injury. See SDCL 22-18-1.1(4). Other than Defendant's admission that he struck Victim in the mouth, the only direct evidence linking Defendant to the irreversible injuries she sustained as a result of the hit to her right eye was H.W.H.'s observation of Defendant striking Victim "in the face." There was no direct evidence as to the exact cause of her injuries nor was there any direct evidence as to Defendant's intent at the time of the assault. The State's evidence on the required elements of aggravated assault was substantially circumstantial; therefore, the trial court was required to instruct the jury on direct and circumstantial evidence....

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