State v. Fender, 14333

• Decision Date: 19 April 1984
• Docket Number: No. 14333,14333
• Citation: State v. Fender, 358 N.W.2d 248 (S.D. 1984)
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Jack Dean FENDER, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 248

358 N.W.2d 248

STATE of South Dakota, Plaintiff and Appellee, v. Jack Dean FENDER, Defendant and Appellant.

No. 14333.

Supreme Court of South Dakota.

Considered on Briefs April 19, 1984.

Decided Nov. 21, 1984.

Richard H. Wendt, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

William A. Moore, Scotland, for defendant and appellant.

MORGAN, Justice.

On June 21, 1983, an amended complaint and information were filed against Jack Dean Fender (Fender) on three counts: (1) disorderly conduct under SDCL 22-13-1, (2) aggravated assault under SDCL 22-18-1.1, and (3) escape under SDCL 22-11A-2. A jury convicted Fender of aggravated assault and escape and acquitted him on the disorderly conduct charge in a trial held on July 22, 1983. On August 2, 1983, Fender was sentenced to three years in the State Penitentiary on each conviction; the sentences to run concurrently. The sentences were suspended on condition that Fender serve sixty days in the Bon Homme County Jail, make restitution for his legal fees within one year, obey all state laws for three years, and abide by the standard probation agreement. Notice of appeal from final judgment of conviction was filed pursuant to SDCL 23A-32-2 on August 30, 1983. We affirm.

At approximately eleven o'clock a.m. on May 14, 1983, Cliff Stainbrook (Stainbrook), the Police Chief of Tyndall, South Dakota, and a deputy sheriff went to Fender's residence in response to a call. Fender's wife asked them to take Fender out of the home so that he could not continue to beat her. At that time, Fender told Stainbrook and the deputy that he wanted nothing to do with them and he left the house. At approximately eleven o'clock p.m. that evening, Stainbrook went to the Fender house for the second time that day, again in response to a call. Stainbrook drove up to the house in uniform and alone. He parked directly in front of the house and he observed Mr. and Mrs. Fender shouting back and forth as he walked up the sidewalk. Fender wanted into the house and she refused to allow him to enter. Stainbrook twice asked Fender to accompany him to the patrol car where they could discuss the problem and Fender refused twice. At that time, Stainbrook said: "Jack, you're under arrest, let's go." Stainbrook reached and touched Fender's arm. Fender grabbed Stainbrook, said "I'm not going anywhere with you," pushed him off the steps to the porch and struck the police chief with his fists all the way down the steps. Fender continued to swing at and strike Stainbrook even after the police chief struck him with a night stick, first under the ribs and then over the top of the head. Finally, Fender pushed Stainbrook away from him and headed back to the house. After one more attempt to arrest Fender and another attack by Fender in response, Stainbrook returned to his car to call for assistance. Stainbrook was sitting in the car and talking on the radio with his feet and lower legs hanging out the door when Fender resumed his attack by slamming the car door on Stainbrook's legs twice and kicking him in the chest. The police chief pulled his revolver and ordered Fender to lie on the ground. Fender ran in order to escape. Fender was eventually found lying face down in a plowed field approximately three blocks from the Fender residence. The county sheriff and a deputy sheriff arrived to assist Stainbrook with the arrest. Fender resisted and struggled but the three men were able to take him into custody.

Fender raises five issues on this appeal: (1) Did the trial court commit prejudicial error when it used the word "attempted" in its jury instruction on aggravated assault, (2) did the trial court commit prejudicial error when it failed to instruct the jury that a conviction under SDCL 22-18-1.1 required that Fender be aware that he was assaulting a law enforcement officer, (3) did the trial court abuse its discretion and commit prejudicial error when it admitted evidence of Fender's prior conduct, specifically that he had struck and beat his wife, (4) did the trial court commit prejudicial error when it refused Fender's proposed jury instruction on the evidence that could be properly considered, and (5) did the trial court commit prejudicial error by improperly instructing the jury on Fender's self-defense theory.

Fender was convicted of aggravated assault under SDCL 22-18-1.1. The relevant portions of the statute read as follows:

Any person who:

....

(3) Attempts to cause or knowingly causes any bodily injury to a law enforcement officer or other public officer engaged in the performance of his duties;

....

is guilty of aggravated assault. Aggravated assault is a Class 4 felony.

Count two of the amended complaint and the information charge Fender with attempting to cause bodily injury to a law enforcement officer, i.e., Stainbrook. The introduction to the trial court's jury instructions described Count two, the aggravated assault charge, as an "attempt to cause bodily injury to a law enforcement office" and the trial court provided the following jury instruction on the aggravated assault charge:

It is provided by a statute of this State that any person who attempts to cause or knowingly causes any bodily injury to a law enforcement officer engaged in the performance of his duties is guilty of the crime of aggravated assault.

The essential elements of the offense of aggravated assault as charged in the information, each of which the State must prove beyond a reasonable doubt, are:

1. That the defendant attempted to cause or knowingly caused bodily injury to Cliff Stainbrook.

2. That Cliff Stainbrook was a law enforcement officer engaged in the performance of his duties at that time.

A law enforcement officer is an officer or employee of the state or any of its political subdivisions, such as the city of Tyndall, S. Dak., while on duty, who is responsible for the prevention or detection of crimes and for the enforcement of the criminal or highway traffic laws of the state.

Fender objected to the instruction on grounds that the State charged Fender on the basis of a completed assault and not with attempting to assault Stainbrook and that no evidence was offered to show that Fender "attempted" to cause bodily injury to Stainbrook. The complaint and information show that Fender is mistaken as to the charge. Fender also apparently argues that the acts constituting an attempt to cause injury and the acts which actually cause injury are separate offenses and require different evidence.

When considered severally, an attempt to cause bodily injury and knowingly cause bodily injury could constitute separate offenses and require separate proofs. State v. Dennis, 294 N.W.2d 797 (S.D.1980). This court stated in Dennis, however, that when both the attempt and its completion justify conviction for aggravated assault and both are subject to the same penalty, the rule set out in State v Pirkey, 22 S.D. 550, 553, 118 N.W. 1042, 1044 (1908), applies. That rule reads:

[W]hen a penal statute mentions several acts disjunctively, and prescribes that each shall constitute the same offense and is subject to the same punishment, an information may charge any and all of such acts conjunctively as constituting a single offense.

Fender's contention that an attempt to cause bodily injury always requires separate proof from that showing the completed crime is not persuasive. See Dennis, supra. " 'The attempt must be manifested by acts which would end in accomplishment, but for ... circumstances occurring ... independent of the will of the defendant.' " State v. Martinez, 88 S.D. 369, 371, 220 N.W.2d 530, 531 (1974). An attempt involves direct movement toward commission of an offense. Id. Evidence of a direct act, however slight, toward consumation of the intended crime is required to show that the defendant's conduct is unequivocal. Martinez, supra; State v. Judge, 81 S.D. 128, 131 N.W.2d 573 (1964). When the evidence demonstrates that the defendant's conduct is unequivocal and the acts would result in commission of the offense unless frustrated by extraneous circumstances, the defendant's intent is irrelevant. Intent may be shown by conduct and acts. Id. In this case, evidence was presented that Fender did everything he possibly could under the circumstances to cause bodily injury to Stainbrook. He kicked him, hit him, pushed him, and slammed a car door on his legs. See Martinez, supra; Judge, supra. The trial court must instruct the jury as the evidence presented warrants. State v. Curtis, 298 N.W.2d 807 (S.D.1980). In this case, the evidence warranted an instruction on each of the relevant disjunctively stated acts which constitute aggravated assault. See Pirkey, supra. Any and all such acts may be charged as a single offense. Id. It follows that the various acts which may constitute the crime must be stated in the instructions to the jury.

Fender's second issue on this appeal questions whether the trial court committed prejudicial error when it failed to instruct the jury that a conviction under SDCL 22-18-1.1(3) requires that the defendant know of the victim's status as a law enforcement officer. This issue was recently raised in State v. Feyereisen, 343 N.W.2d 384 (S.D.1984), and this court specifically stated that:

[W]e are unwilling to read an additional knowledge requirement into SDCL 22-18-1.1(3). The legislature did not intend to include knowledge of the victim's identity as an element of the offense.

343 N.W.2d at 386. The Feyereisen decision followed State v. Cook, 319 N.W.2d 809 (S.D.1982), in which we held that:

Aggravated assault under SDCL 22-18-1.1(3) requires the showing of: 1) an attempt to cause or the knowing causation of any bodily injury, 2) to a law enforcement officer, 3) while the officer is engaged in the performance of his duties. See State v. Corle, 294 N.W.2d 799 (S.D.1980).

343 N.W.2d at 386. The only knowledge requirement in this...