State v. Johnston

• Decision Date: 18 March 1991
• Docket Number: No. 17164,17164
• Citation: 478 N.W.2d 281
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Richard JOHNSTON, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 281

478 N.W.2d 281

STATE of South Dakota, Plaintiff and Appellee, v. Richard JOHNSTON, Defendant and Appellant.

No. 17164.

Supreme Court of South Dakota.

Considered on Briefs March 18, 1991.

Decided Oct. 30, 1991.

Diane Best, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on the brief.

Mark F. Marshall, Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for defendant and appellant.

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

On September 1, 1989, Richard Johnston (Johnston) was charged with 19 counts of Grand Theft in violation of SDCL 22-30A-1 and SDCL 22-30A-17(2). The pertinent statutes are set forth in detail at the end of this opinion. He was further charged with 17 counts of Misuse or Alteration of a Brand in violation of SDCL 40-19-25.

On March 1, 1990, Johnston was convicted on each of the 19 counts of Grand Theft and the 17 counts of Misuse or Alteration of a Brand.

Johnston filed motions for a new trial on April 4 and on May 4, 1990. Both these motions were denied. On appeal, Johnston raises two issues:

(1) Did the trial court err in failing to give Johnston's theory of defense jury instructions where those instructions were properly requested, correct statements of the law, and were supported by the evidence? We hold that it did not.

(2) Did the trial court err in ruling that the conduct charged constituted nineteen separate counts of grand theft instead of one count; and seventeen separate counts of misuse or alteration of a brand instead of one count? Under the evidence in this trial, we hold there is evidence to sustain one count of grand larceny and seventeen counts of misuse or alteration of a brand. Thus, we uphold eighteen felony convictions.

We affirm in part, reverse in part.

FACTS

Johnston is a rancher in Meade County, near New Underwood, South Dakota. His ranch land covers an area both north and south of the Cheyenne River. His ranch is bordered on the west by land rented by Scott Shoun and owned by Carl Shoun.

In March 1986, Johnston's neighbor Scott Shoun entered into an agreement with a rancher from Montana, Russel Larson (Larson), to pasture Larson's cows for a share of the calf crop. Larson's cows were branded on the right rib with his brand, Lazy D over E. Additionally, each cow had a steel brucellosis tag in its right ear, along with a "Bangs" tattoo.

In addition to these identifications, Larson tattooed his own ranch identification number in each ear. He also inserted a plastic tag in the left ear of each cow. Further, Scott Shoun had also inserted his own yellow plastic identification tag in the cattle that he was keeping for Larson.

Evidence reflected that Scott Shoun's pasture also contained two cows which strayed across the Cheyenne River from his Uncle Carl Shoun's ranch during the summer of 1988. These cows were identified with a Cross A brand on the left hip.

During the fall of 1988, Scott Shoun and Larson determined that some of the cattle were missing from Scott Shoun's pasture. This was not reported to the appropriate authorities. It was also determined that Carl Shoun's two cows were also missing from his nephew's pasture. These were reported to the South Dakota Brand Board.

Eventually, the missing cattle were found on Johnston's property in August of 1989. During a routine ride near the Johnston fence line, Scott Shoun spotted cows that had the Lazy D over E brand on them. The brands had been altered or defaced. After this discovery, Scott Shoun removed three cow-calf pairs from Johnston's pasture. Each of the three cow's brand differed.

On August 24, 1989, the Sheriff's Office and two brand inspectors went to Johnston's pasture. In all, 24 animals were removed from Johnston's pasture. Of the 19 in question, ten were cows and nine were calves. Eight of the cows were rebranded. The remaining two were not rebranded but had Larson's tags; nine calves were branded with Johnston's brand.

DECISION

I. The trial court correctly denied Johnston's proposed theory of defense instructions.

Johnston argues that the trial court erred in failing to give his theory of defense jury instructions where those instructions were properly requested, correct statements of the law, and supported by evidence. Specifically, Johnston wanted instructions regarding (1) ignorance or mistake of fact and (2) intent as it relates to commission of grand theft and the defrauding of another by altering a brand.

Jury instructions are to be considered as a whole, and if the instructions when so read correctly state the law and inform the jury, they are sufficient. State v. Huber, 356 N.W.2d 468 (S.D.1984). Also, it is well settled in South Dakota that it is not error for a trial court to refuse to amplify instructions given which substantially cover the principle embodied in the requested instructions. State v. Gillespie, 445 N.W.2d 661, 664 (S.D.1989); State v. Weisenstein, 367 N.W.2d 201, 206 (S.D.1985).

In the present case, the jury instructions as a whole, fairly presented the issue to be tried and sufficiently protected Johnston's rights. We cannot fault the trial court for, indeed, it instructed the jury on the elements of the crimes of grand theft and brand alteration. Additionally, it instructed the jury as to the requisite intent for each crime.

Further, we approve of a holding in the New Mexico Court of Appeals which determined that "whenever an intent instruction involving the defendant's mental state is given, the mistake of fact concept is automatically included and does not merit a separate instruction." State v. Griscom, 101 N.M. 377, 683 P.2d 59 (N.M.App.1984). We therefore hold that the instructions given adequately covered any mistake of fact claim.

II. Johnston's conduct constituted one act of Grand Theft and seventeen acts of Misuse or Alteration of a Brand.

Johnston's second contention on appeal is that he was improperly convicted on 19 counts of Grand Theft and 17 counts of Misuse or Alteration of a Brand. He contends the State's position may be framed as follows: that these thefts were pursuant to one intention, general plan or scheme. Therefore, he posits that his conduct amounts to only one count of grand theft. He relies on the well-established rule that in a series of takings from the same individual, there is a single theft if the takings are pursuant to one continuing impulse, intent, plan or scheme, but multiple counts if each taking is the result of a separate independent impulse or intent. Annot. 53 A.L.R.3d 398 (1973); Z.R. Anderson, Wharton's Criminal Law & Procedure Sec. 450 (1957); State v. Kieffer, 17 S.D. 67, 95 N.W. 289 (1903). We adopt this authority and readopt this reasoning holding that where the State obtains an indictment or files an information or complaint which contains multiple charges that are premised upon a series of takings from one victim, the fact finder may, upon trial of those charges, determine if the successive takings are associated with a single sustained criminal intent or if each taking is the result of a separate independent impulse or intent. Those convicted of such crimes may, on appeal, challenge the sufficiency of the evidence which supports the jury's verdict. See, State v. Pedroncelli, 100 N.M. 678, 675 P.2d 127 (1984). This is precisely the advocacy before us.

Johnston argues the only reasonable conclusion supported by the evidence is that all the takings and brandings were, at best, pursuant to one general intent or scheme. In any event, he urges there is no reasonable basis in the record for concluding that he had 19 separate schemes of Grand Theft and 17 separate schemes of Misuse or Alteration of a Brand. We find some merit in Johnston's argument. Whether there were separate independent takings or one general scheme is a question of fact for the jury, based on the particular circumstances of each case. People v. Robinson, 97 Misc.2d 47, 411 N.Y.S.2d 793 (1978); State v. Vining, 2 Wash.App. 802, 472 P.2d 564 (1970). Thus, our standard of review is whether or not there is evidence in the record, which if believed by the jury, is sufficient to sustain a finding of guilty beyond a reasonable doubt on each count. In making this determination, this Court will accept that evidence and the most favorable inferences that can fairly be drawn therefrom which will support the verdict. State v. Wilson, 297 N.W.2d 477 (S.D.1990). We must now judicially weigh the counts under consideration.

19 Counts of Grand Theft

As stated previously, determining if there were separate independent takings or one general scheme is a question of fact based on the particular circumstances of each case. In the absence of any evidence from which it could reasonably be inferred that Johnston had 19 separate intents and plans, the only reasonable conclusion supported by the record is that Johnston had a single continuing plan or scheme for stealing certain cattle from Scott Shoun. See, Annot., supra, 53 A.L.R.3d at pp. 402-403, 409-415. We believe Johnston should have been convicted of only a single grand theft. As an example, we examine State v. Akers, 106 Mont. 105, 76 P.2d 638 (1938). In Akers, the defendant was charged with the theft of two horses in two separate counts. The court submitted the question whether there was, in fact, more than one taking to the jury under instructions to this effect: if the theft of the two animals were at different times and at different places, each would be a separate offense, whereas, if the theft of both were parts of one act of stealing, they would constitute but one crime. The defendant was convicted on both counts. On appeal, the Montana Supreme Court upheld his conviction.

The Montana Supreme Court reasoned that each of the two animals was in a different group and was on a different part of the range, making it impossible for the actual control over the animals to be simultaneous. There was evidence of record that each horse was in a...