State v. Jensen

• Decision Date: 25 July 2007
• Docket Number: No. 24246.,24246.
• Citation: 737 N.W.2d 285,2007 SD 76
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Ronald JENSEN, Defendant and Appellant.
• Court: South Dakota Supreme Court

737 N.W.2d 285

2007 SD 76

STATE of South Dakota, Plaintiff and Appellee, v. Ronald JENSEN, Defendant and Appellant.

No. 24246.

Supreme Court of South Dakota.

Considered on Briefs on May 21, 2007.

Decided July 25, 2007.

Lawrence E. Long, Attorney General, Craig Eichstadt, Deputy Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Kenneth R. Dewell of Johnson Eiesland Law Firm, Rapid City, South Dakota, Attorneys for defendant and appellant.

MEIERHENRY, Justice.

[¶ 1.] Ronald Jensen appeals his conviction for three counts of misuse or alteration of a brand, contending there was insufficient evidence to sustain the jury's guilty verdict. He also claims that the State violated a pre-trial discovery order by presenting undisclosed evidence and witness testimony during rebuttal and submits that the trial court erred when it refused to incorporate his proposed jury instructions. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

[¶ 2.] On July 8, 2004, Virgil Rust noticed that one of his cows had recently been branded with a brand that he did not recognize. He reported the suspicious brand to Sheriff Jim Daggett for investigation. Daggett's investigation revealed that the fresh brand belonged to Walter Schultz, Jr., who was a partner in the cattle business with Jensen. Upon further investigation, law enforcement identified three more cows with Rust's brand in Jensen's pasture located four miles away from Rust's ranch. The differences in the brands were easily seen from a distance. One difference was that Rust's cattle had single brands as opposed to the multiple brands on Jensen's cattle. Another difference was the placement of the brand in that Rust's cattle were branded on the right hip, and Jensen's cattle were branded on the left rib.

[¶ 3.] Law enforcement eventually discovered a total of five cows with Rust's brand. Each of the Rust-branded cows was paired with a calf branded with Jensen's brand. DNA evidence confirmed that four of the five cow/calf pairs discovered were genetically cow/calf pairs. The DNA result for the other pair was "undetermined." Neither Schultz nor Jensen could explain the cow/calf mismatched branding. Jensen admitted that he knew Rust's brands but appeared mystified that he or others had not seen Rust's brand when they recently moved the cattle to a new pasture. His only explanation was that cattle frequently stray but are returned when discovered.

[¶ 4.] The State charged Jensen and co-defendant Schultz with six counts of misuse or alteration of a brand. During trial, chief brand inspector Shorty Zilverberg, who examines 75-125 cases per year, testified that he had never seen a case like Jensen's where as many as five cows had different brands than their calves had. Another brand inspector, Ned Westphal, also testified that in his thirty-plus years of brand inspecting, he had never seen five cow/calf pairs bearing different brands. He testified that while accidents do occasionally occur, having five misbranded calves in a herd of 150 was unusual. The State also presented evidence that Jensen and Schultz both participated in the 2004 brandings on Jensen's ranch when the misbrandings occurred. Rust testified during the State's case-in-chief that he was not present at any of the brandings, and that he was unaware of any specific branding dates.

[¶ 5.] Jensen's defense was that the misbrandings were simply a mistake or that Rust had set him up by branding his own cattle with Jensen's brand. In support of his defense, Jensen presented several witnesses who testified that Rust was present at the March 20, 2004 branding to ensure that Jensen and Schultz did not have any of his cattle. To refute Jensen's claim that Rust was present at the March 20, 2004 branding, the State recalled Rust and presented two corroborative witnesses who both testified that Rust was in Scottsbluff, Nebraska, 185 miles away from South Dakota on that date. The State substantiated the testimony with Rust's canceled check and receipt for a haircut in Scottsbluff on March 20, 2004, at 11:43 a.m.

[¶ 6.] The jury convicted Jensen of three counts of misuse or alteration of a brand. Jensen appeals, raising three issues:

1. Whether the trial court erred in denying Jensen's motion for judgment of acquittal based upon insufficiency of the evidence.

2. Whether the State violated a discovery order when it presented undisclosed witness testimony and evidence during rebuttal.

3. Whether the trial court abused its discretion when it denied Jensen's proposed jury instructions.

STANDARD OF REVIEW

[¶ 7.] "The denial of a motion for judgment of acquittal presents a question of law, and thus our review is de novo." State v. Berhanu, 2006 SD 94, ¶ 7, 724 N.W.2d 181, 183 (citation omitted). Accordingly, "[w]e must decide anew whether the evidence was sufficient to sustain a conviction." Id. This Court's standard of review in a challenge to the sufficiency of the evidence is well settled:

In determining the sufficiency of the evidence on appeal in a criminal case, the issue before this Court is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt. In making that determination, we accept the evidence and the most favorable inferences fairly drawn therefrom, which will support the verdict. Moreover, the jury is ... the exclusive judge of the credibility of the witnesses and the weight of the evidence. Therefore, this Court does not resolve conflicts in the evidence, or pass on the credibility of witnesses, or weigh the evidence.

State v. Lewis, 2005 SD 111, ¶ 8, 706 N.W.2d 252, 255 (quoting State v. Pasek, 2004 SD 132, ¶ 7, 691 N.W.2d 301, 305). "[O]ur standard of review for the violation of a discovery order mirrors the standard applied when reviewing both mistrial motions and evidentiary issues," and "[w]e presume the evidentiary rulings made by a trial court are correct, and review those rulings under an abuse of discretion standard." State v. Krebs, 2006 SD 43, ¶ 19, 714 N.W.2d 91, 99. Finally, "[t]his Court reviews the refusal of proposed jury instructions under the abuse of discretion standard." State v. Nuzum, 2006 SD 89, ¶ 9, 723 N.W.2d 555, 557 (citation omitted).

ANALYSIS AND DECISION

Sufficiency of the Evidence

[¶ 8.] Jensen argues that there was insufficient evidence to convict him of misuse or alteration of a brand pursuant to SDCL 40-19-25. Specifically, he argues that there was insufficient evidence presented to the jury regarding the necessary "intent to defraud" element required by SDCL 40-19-25, which provides in its entirety:

Any person who, with intent to defraud, brands or marks any cattle, horse, sheep, buffalo, or mule, not his own; intentionally brands over a previous brand or in any manner alters, defaces, or obliterates a previous brand; or cuts out or obliterates a previous brand on any cattle, horse, sheep, buffalo, or mule is guilty of a Class 5 felony.

(Emphasis added).

[¶ 9.] "All elements of a crime, including intent ..., may be established circumstantially." State v. Guthrie, 2001 SD 61, ¶ 48, 627 N.W.2d 401, 421 (citing State v. Holzer, 2000 SD 75, ¶ 15, 611 N.W.2d 647, 651). Furthermore, "[n]o guilty verdict will be set aside if the evidence, including circumstantial evidence and reasonable inferences drawn therefrom, sustains a reasonable theory of guilt." State v. Barry, 2004 SD 67, ¶ 6, 681 N.W.2d 89, 91-92 (citing State v. Knecht, 1997 SD 53, ¶ 22, 563 N.W.2d 413, 421).

[¶ 10.] A review of the record reveals that there was sufficient evidence of intent to support the jury's verdict. Initially, Jensen admitted he did not own either the double-branded cow or the five calves bearing his brand. In addition, brand-inspector Westphal testified that the person applying the fresh brand would have seen the old brand because it was placed so close to the old brand that it distorted the old brand to the extent that a brand inspector would not be able to discern the original brand. In Westphal's opinion, the old Rust brand had been altered. Sheriff Daggett also testified that branding over a previous brand is more than just carelessness.

[¶ 11.] Furthermore, the State presented testimony that five misbrandings in a herd the size of Jensen's is very unusual. Likewise, the obvious difference between Rust's brand and Jensen's brand made it likely that Jensen knew Rust's cattle were intermingled in his herd. On that point, Westphal testified that Jensen should have recognized that the cows were not his. Additionally, Daggett testified that it was unlikely the cows would wander four miles away from Rust's property. Finally, the evidence also established that Jensen was present for all of the brandings on his ranch and was in charge of the branding of cows and calves he owned.

[¶ 12.] Although Jensen submitted that these misbrandings were simply mistakes, it is well established that "the jury is ... the exclusive judge of the credibility of the witnesses and the weight of the evidence." Lewis, 2005 SD 111, ¶ 8, 706 N.W.2d at 255 (citation omitted). The jury was evidently not swayed by Jensen's testimony and evidence. Thus, based on our standard of review, there was sufficient evidence from which a jury could reasonably infer that Jensen branded the calves and/or the double-branded cow with the intent to defraud Rust.

Violation of Discovery Order

[¶ 13.] Jensen claims his case was prejudiced because the State did not disclose the witnesses and evidence regarding Rust's whereabouts on March 20, 2004, in violation of a discovery order. His claim is without merit. First, he fails to show that the State withheld evidence covered by a discovery order. The only signed discovery order in the record ordered the State to produce and allow inspection of the cattle and calves. It was not a general discovery order and did not encompass the testimony and evidence regarding Rust's whereabouts on ...