State v. Frias

• Decision Date: 21 April 2021
• Docket Number: #29145
• Court: South Dakota Supreme Court
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Manuel Jesus FRIAS, Defendant and Appellant.

959 N.W.2d 62

STATE of South Dakota, Plaintiff and Appellee,

v.Manuel Jesus FRIAS, Defendant and Appellant.

#29145

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS JANUARY 11, 2021

OPINION FILED April 21, 2021

JASON R. RAVNSBORG, Attorney General, CHELSEA WENZEL, JONATHAN VAN PATTEN, Assistant Attorneys General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

MARK KADI, LYNDSAY DEMATTEO of Minnehaha County Office of the Public Advocate, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

MYREN, Justice

[¶1.] The State charged Frias with robbery, second-degree murder, first-degree manslaughter, and additional offenses not at issue in this appeal. Frias objected to the circuit court's instruction on robbery's included offense of attempted robbery. After the State's case-in-chief, the circuit court denied Frias's motion for judgment of acquittal for the at-issue counts. The jury found Frias guilty of second-degree murder and first-degree manslaughter. It also found Frias not guilty of robbery. On the verdict form, the jury failed to circle any verdict regarding the charge of attempted robbery. Following the jury trial, Frias renewed his motion for judgment of acquittal and filed a motion to arrest judgment for the second-degree murder and first-degree manslaughter convictions. After a hearing, the circuit court denied both motions. Frias appeals, arguing that the circuit court erroneously overruled his objection to the inclusion of a jury instruction regarding attempted robbery and erred by denying his motion for judgment of acquittal and his motion to arrest judgment. We affirm.

Facts and Procedural History

[¶2.] In February 2018, a grand jury indicted Manuel Jesus Frias (Frias) on twelve counts. The counts relevant to this appeal include second-degree murder with a depraved mind, first-degree manslaughter with a dangerous weapon, and attempted first-degree robbery.

[¶3.] The events leading to the charges began on the evening of January 4, 2018. Corey James Zephier (Zephier), Maria LeClair (LeClair)¹ , and Jacqueline Nycole Zephier (Nycole)² were at Scarlett O'Hara’s nightclub (Scarlett's) in Sioux Falls, South Dakota. Around 11 p.m., the party left Scarlett's to pick up Frias. Frias was at his apartment with Leighlonnie Goodsell (Goodsell).³ When the party arrived, Frias showered, and they all smoked methamphetamine (meth). Frias, LeClair, and Zephier then left for Scarlett's around 1 a.m.

[¶4.] While in the shower, Frias received a text message from Crystal Habben (Habben). Habben was Frias's friend and regularly purchased drugs from him. She contacted Frias because earlier in the evening Samuel Louis Crockett (Crockett) asked her to acquire meth. Habben used drugs with and sold drugs for Crockett, but this was the first time he asked her to obtain meth.

[¶5.] Frias testified that he told Habben he would bring the meth to Lake Andes the following day, as was their usual practice. But she informed Frias that she had someone to drive her to Sioux Falls, and she would pick up the meth that evening. Frias thought the drug deal would occur at 2 a.m. He testified that the plan was for Habben to drive up, get into his car, drive around, do the transaction, and then he would drop her off. He claimed Habben told him that he needed to find a location because the person she was with wanted to weigh the meth. Habben suggested Beresford or Wild Water West, but Frias said to meet at 700 West Rice Street in Sioux Falls (Rice Street Apartments), Zephier's former residence.

[¶6.] Contrary to Frias's testimony, Habben testified that Frias told her, "[W]e should hit a lick." Several experts testified that, among other things, "lick" can mean "robbery." Habben testified that Frias's plan was for her to get into his car, and then they would drive away with Crockett's money. She claimed that they were never going to provide meth to Crockett.

[¶7.] Around 1:42 a.m., Frias, Zephier, and LeClair left Scarlett's and drove to Zephier's mother's apartment. At roughly 2:13 a.m., the trio journeyed to Walmart, where LeClair fell asleep in the car. Frias and Zephier attempted to purchase ammunition for Zephier's RAS47 at the Walmart.⁴ A Walmart employee informed them that it was against store policy to sell ammunition between 10 p.m. and 7 a.m. They spoke with an assistant manager about the store's policy but were unsuccessful in purchasing ammunition. They left Walmart around 2:57 a.m. and went to Frias's apartment.

[¶8.] Goodsell received a text at 2:53 a.m. from Frias stating, "Why you leave, I went to hit this lick." Frias testified that Goodsell had taken his car's title earlier that evening, and he sent the message to encourage her to return it. Zephier and Frias left Frias's apartment to meet up with Goodsell. On their way to meet Goodsell, around 5 a.m., Habben notified Frias that she was in town. Frias changed course to meet Habben at the Rice Street Apartments.

[¶9.] When Habben exited her vehicle at the Rice Street Apartments, Crockett retrieved a handgun from the backseat and then followed her. She asked Crockett why he had a gun, and he told her to keep moving. At this time, Habben had Crockett's money in her purse. Frias was waiting inside the front door of the apartment. He opened the locked door to allow them to enter. They began to climb the first flight of stairs with Habben in the lead, followed by Frias, and then Crockett. Zephier was already in the building.

[¶10.] Habben testified that Crockett and Frias started arguing while she was at the top of the stairs. When she reached the second floor, she saw Zephier standing there with his RAS47. As Crockett and Frias were arguing, Crockett pulled out his gun. Habben testified that she saw Zephier run down the stairs with his RAS47, yelling, "Give me the money, give me the money." At some point, Habben turned to see Crockett shoot Zephier. She heard a bunch of gunshots, and then all three men were outside. When Habben went outside, she saw Zephier motionless on the ground and Crockett on the ground trying to shoot Frias. She testified that Frias kicked the gun out of Crockett's hand. Frias then turned towards her and said they needed to leave. Habben testified that Frias had no wounds and did not call 911.

[¶11.] Frias's account of the events differs. Frias testified that he did not expect Crockett to get out of the vehicle. He had told Habben that he did not want to meet anyone. He stated that he decided to go ahead with the meeting because he wanted to complete the deal. According to his version, as the three were walking up the stairs, he turned around to see Crockett pulling out a gun. He then jumped on Crockett and held the gun against Crockett's body. As a result, Frias could not grab his own weapon. They struggled down the stairs ending up outside, where Frias slipped on the steps, pushing himself away from Crockett. Frias was then able to pull out his gun. Frias testified that, at this moment, Zephier ran out of the apartment building swinging his RAS47. Zephier hit Crockett in the back with the gun. Crockett then started shooting at both Zephier and Frias. Frias saw Crockett shoot Zephier, which caused him to shoot Crockett. Frias testified that he tried to help Zephier get up, but Zephier would not move. Frias then told Habben they needed to leave. Frias claimed that he did not intend to rob Crockett. He also stated that he did not receive any of Crockett's money from Habben.

[¶12.] When police officers arrived at the scene, they discovered the bodies of Zephier and Crockett. Officers reported that Zephier was clearly deceased with the RAS47 by his body. Crockett was alive, groaning, and had his hand on his gun.

[¶13.] Zephier sustained three gunshot wounds from roughly five feet away. Crockett sustained gunshot wounds to the back-right side of his head, mid-back traveling through his body to his shoulder, and right palm. He also had an inch-long curved laceration on his scalp

inflicted from a frontal blow. None of the experts could testify with certainty about the distance between Crockett and his shooter.

[¶14.] On January 16, law enforcement apprehended Frias in South Sioux City, Nebraska. A jury trial commenced on August 5, 2019. The State requested the circuit court to include instructions on the included offense of attempted robbery. Frias objected because the State did not charge attempted robbery in the indictment. The circuit court granted the State's motion and instructed the jury that, if it found the evidence insufficient to establish robbery, it must then consider if Frias attempted to commit a robbery.

[¶15.] Among other counts, the jury returned a verdict of not guilty of robbery. However, the jury did not circle "guilty" or "not guilty" for the included offense of attempted robbery. The verdict form included an instruction after the robbery charge stating, "**Only if you find the Defendant NOT GUILTY as to Count 8 [robbery], do you need to consider the included offense of Attempted Robbery." The circuit court received the verdict form and read it out loud in open court. When the court reached the attempted robbery count, it stated, "The lesser included one is not designated." The court then continued to read the remaining counts. The jury found Frias guilty, among other counts, of second-degree murder and first-degree manslaughter with a dangerous weapon.

[¶16.] After reading the verdict, the court held a bench conference off the record. It then dismissed the jury and asked counsel if they had anything to add to the record before they adjourned. Both parties responded, "no." The parties did not make a record of the bench conference, and as a result, the parties did not place their consent to the jury's discharge on the record.

[¶17.] In August 2019, Frias filed a motion to arrest judgment, arguing that the indictment did not charge the offense of attempted robbery, and the court did not have jurisdiction to proceed to sentencing. Frias...