State v. Hauge

Decision Date27 March 2013
Docket NumberNo. 26437.,26437.
Citation829 N.W.2d 145,2013 S.D. 26
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Kenneth C. HAUGE, Defendant and Appellant.
CourtSouth Dakota Supreme Court

OPINION TEXT STARTS HERE

Marty J. Jackley, Attorney General, Timothy J. Barnaud, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Douglas M. Dailey of Morgan Theeler, LLP, Mitchell, South Dakota, Attorneys for defendant and appellant.

WILBUR, Justice.

[¶ 1.] A jury convicted Kenneth Hauge of possession of one to ten pounds of marijuana in violation of SDCL 22–42–6. He appeals a number of issues including: the trial court's denial of his motion for judgment of acquittal; the denial of his proposed jury instructions; the denial of his motion to have the jury view his residence; and the trial judge's failure to recuse himself on the basis of impartiality pursuant to SDCL 15–12–37.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] On June 23, 2011, Hanson County Sheriff Randell Bartlett received a phone call from Drug Enforcement Agency Agent Richard Mulholland. Agent Mulholland had obtained information that Hauge was growing marijuana in his yard near the back door to his residence in Alexandria, South Dakota. As a result, Sheriff Bartlett went to Hauge's residence and observed what appeared to be marijuana plants “growing in a flower bed near the back deck or back patio.”

[¶ 3.] The next day, Sheriff Bartlett and Drug Task Force Agent Dean Knippling went to the alley by Hauge's residence and observed the marijuana plants growing in the backyard. The flower bed containing the marijuana plants was approximately 14 to 15 feet long and about 3 feet wide. The grass surrounding the flower bed had been mowed. It was then that Hauge came out of his house to speak with the officers.

[¶ 4.] Sheriff Bartlett questioned Hauge about the marijuana growing in his yard. Sheriff Bartlett informed Hauge that it was illegal for Hauge to grow marijuana. In addition to asking permission, Sheriff Bartlett asked that Hauge sign a permission to search form to remove the marijuana plants. In response, Hauge asked what would happen if he refused to sign the form. Sheriff Bartlett stated that he would get a warrant. At this point, Hauge said that the marijuana did not belong to him and that someone named “Brenda” had planted it. He then remarked that “it wasn't good stuff” and “that it was just plants growing.” Hauge also told the officers that he had harvested some marijuana in the past and attempted to use it. Additionally, Hauge stated that he had paperwork saying that it was legal to grow the marijuana and gave the paperwork to Sheriff Bartlett. Agent Knippling testified that the papers did not give Hauge permission to grow marijuana. Sheriff Bartlett and Agent Knippling also testified that at no time throughout the course of the investigation did they doubt that Hauge knew that the plants were marijuana.

[¶ 5.] Hauge signed the permission to search form. The officers then began to pull the plants that were growing in the flower bed. Hauge assisted the officers. The plants ranged in size from 6 inches to 36 inches tall. Sheriff Bartlett testified that they pulled over 200 plants before they “quit counting.”

[¶ 6.] The plants were then transported to the Hanson County Sheriff's Office and dried for 60 to 90 days. On September 12, 2011, Agent Knippling packed and shipped the plants to the State Health Lab for testing. The State Health Lab determined that the dried plants were marijuana and weighed 23.8 ounces.

[¶ 7.] On October 19, 2011, Hauge was charged with one count of possession of marijuana, one to ten pounds, in violation of SDCL 22–42–6. Hauge filed an affidavit for change of judge on March 30, 2012. In a letter from the presiding judge of the circuit dated April 6, 2012, Hauge's affidavit was deemed untimely pursuant to SDCL 15–12–27 and was subsequently denied.

[¶ 8.] On May 18, 2012, a jury convicted Hauge of possession of one to ten pounds of marijuana in violation of SDCL 22–42–6. Hauge was subsequently sentenced to ten years in the penitentiary with six years suspended.

[¶ 9.] Hauge appeals the following issues:

1. Whether the trial court erred in denying Hauge's motion for judgment of acquittal.

2. Whether the trial court abused its discretion in denying Hauge's proposed jury instructions.

3. Whether the trial court abused its discretion in denying Hauge's motion to allow the jury to visit Hauge's residence.

4. Whether the trial judge abused his discretion when he failed to recuse himself on his own accord pursuant to SDCL 15–12–37.

ANALYSIS AND DECISION

[¶ 10.] 1. Whether the trial court erred in denying Hauge's motion for judgment of acquittal.

[¶ 11.] Hauge argues that the trial court erred when it denied Hauge's motion for judgment of acquittal because the State failed to prove beyond a reasonable doubt that he knowingly possessed between one and ten pounds of marijuana. Hauge asserts that he did not exercise dominion or control sufficient to constitute the crime of possession of marijuana. Hauge further contends that there was nothing to suggest that the marijuana was being cultivated or controlled in anyway and the area in which the marijuana plants were growing was “nothing more than a patch of weeds and grasses with trash and junk strewn throughout.” Additionally, he argues that he did not have exclusive control of the premises because he lives in the middle of town near an alley where any person could throw seeds onto his lawn.

[¶ 12.] “The standard of review for denial of a motion for judgment of acquittal is whether the ‘evidence was sufficient to sustain the conviction [ ].’ State v. Janklow, 2005 S.D. 25, ¶ 16, 693 N.W.2d 685, 693 (quoting State v. Running Bird, 2002 S.D. 86, ¶ 19, 649 N.W.2d 609, 613). Whether the State has provided sufficient evidence to sustain the conviction is a question of law reviewed de novo. State v. Jucht, 2012 S.D. 66, ¶ 18, 821 N.W.2d 629, 633. “Claims of insufficient evidence are ‘viewed in the light most favorable to the verdict.’ State v. Morgan, 2012 S.D. 87, ¶ 10, 824 N.W.2d 98, 100 (quoting State v. Beck, 2010 S.D. 52, ¶ 7, 785 N.W.2d 288, 292). “The question is whether ‘there is evidence in the record which, if believed by the fact finder, is sufficient to sustain a finding of guilt beyond a reasonable doubt.’ Id. We will not ‘resolve conflicts in the evidence, assess the credibility of witnesses, or reevaluate the weight of the evidence.’ Id. “If the evidence, including circumstantial evidence and reasonable inferences drawn therefrom sustains a reasonable theory of guilt, a guilty verdict will not be set aside.” Id. [¶ 13.] Hauge was charged and convicted of possession of one to ten pounds of marijuana in violation of SDCL 22–42–6. 1 South Dakota law allows for possession to be either actual or constructive. State v. Overbey, 2010 S.D. 78, ¶ 28, 790 N.W.2d 35, 43. “It is sufficient for a conviction of knowing possession for the defendant to have control over the premises where the narcotics are found.” Id. Knowing possession “need not be exclusive.” Id. A defendant can be said to possess a narcotic even if the narcotic is not on his person when he made contact with law enforcement. Id.

[¶ 14.] Here, Hauge constructively possessed the marijuana plants. The record demonstrates that Hauge had control over his yard and the flower bed. The flower bed was located a few feet from Hauge's back door and was approximately 14 to 15 feet long and 3 feet wide. The area surrounding the flower bed had been mowed. Additionally, Hauge did not express any surprise that the marijuana was growing in his back yard and, at one point, said he had paperwork that said it was legal for him to grow the marijuana. Further, Hauge's explanation as to how the marijuana came to grow in his back yard changed as the investigation progressed. Initially, Hauge told the officers that a woman named “Brenda” planted the marijuana, yet later admitted that, in the past, he had harvested some and attempted to use it. From the record, the jury had sufficient evidence to sustain a finding of guilt beyond a reasonable doubt that Hauge knowingly possessed the marijuana in his yard. Therefore, the trial court correctly denied Hauge's motion for a judgment of acquittal.

[¶ 15.] 2. Whether the trial court abused its discretion in denying Hauge's proposed jury instructions.

[¶ 16.] In declining to grant Hauge's proposed jury instructions, the trial court determined that Hauge's proposed jury instructions on the law on noxious weeds in South Dakota were not relevant. Hauge asserts that this determination was an abuse of discretion. At trial, Hauge's theory of defense was that marijuana grows wild in South Dakota and is not classified as a noxious weed. Thus, according to Hauge, the property owner has no duty to eradicate the marijuana from his property. Hauge argues that his proposed jury instructions accurately stated the law, namely that marijuana grows wild and that he does not have a duty to eradicate it in his yard because it is not a noxious weed. Lastly, he contends that the jury would have come back with a different verdict had they been allowed to consider his proposed jury instructions.

[¶ 17.] “A trial court has discretion in the wording and arrangement of its jury instructions, and therefore we generally review a trial court's decision to grant or deny a particular instruction under the abuse of discretion standard.” State v. Roach, 2012 S.D. 91, ¶ 13, 825 N.W.2d 258, 263 (quoting State v. Klaudt, 2009 S.D. 71, ¶ 13, 772 N.W.2d 117, 121). [The] jury instructions are to be consideredas a whole, and if the instructions when so read correctly state the law and inform the jury, they are sufficient.” Id. “Error in declining to apply a proposed instruction is reversible only if it is prejudicial, and the defendant has the burden of proving any prejudice.” Janklow, ...

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