State v. Koenig

• Decision Date: 27 April 1983
• Docket Number: No. 13856,13856
• Citation: 333 N.W.2d 800
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Laverne KOENIG, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 800

333 N.W.2d 800

STATE of South Dakota, Plaintiff and Appellee, v. Laverne KOENIG, Defendant and Appellant.

No. 13856.

Supreme Court of South Dakota.

Argued Jan. 17, 1983.

Decided April 27, 1983.

Douglas E. Kludt, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

Gregory Protsch of Mumford, Protsch & Pardy, Howard, for defendant and appellant.

KEAN, Circuit Judge.

This is an appeal from a jury verdict which found LaVerne Koenig (appellant) guilty of grand theft. The appellant was sentenced to a term of six years imprisonment. We affirm.

Danny Baum (Baum) owned Larson Manufacturing Company of Huron, South Dakota. In late January, 1981, two of Baum's employees informed him that the appellant, who was then working for Baum, was stealing property from his company.

On the morning of January 30, 1981, Baum called Sheriff Mel Scheibe of Beadle County and related what had been learned from the employees. The sheriff declined to offer his personal assistance at this time, but told Baum to drive to appellant's residence, look around, and, if he found anything, to call him back. Baum immediately drove to appellant's farm which was located in Sanborn County. After he arrived he searched two outbuildings and observed many items of property taken from his company. One of these items observed was a measuring tape with the inscription "D. Baum." Baum went to appellant's residence to call the sheriff, but appellant's wife refused his request. Baum then went to a neighboring farm, made his telephone call, and reported his observations to a deputy sheriff of Beadle County.

In the early afternoon of the same day, Baum went back to appellant's farm with several law enforcement officials including Deputy Sheriff James Sheridan (Sheridan) of Beadle County. Appellant's wife declined their request to search the outbuildings stating that permission would have to come from appellant. Shortly, appellant arrived and, after some conversation with the law enforcement officials, gave permission to search these buildings.

Baum accompanied the law enforcement officials during their search. He pointed out the items which he had observed earlier and identified them as his. When the officials asked appellant to open a locked room in one of the buildings, he refused and told everyone present that his consent to their search had ended. The officials and Baum stopped the search at once.

After leaving the farm, Deputy Sheridan contacted a magistrate in Sanborn County and presented an application for a search warrant of appellant's farm. A search warrant was duly issued. Later in the afternoon of January 30, 1981, Baum, Sheridan and other officials went back to the farm and proceeded to execute the warrant and seize property. Because of the weight and number of items seized, a decision was made to transport the evidence back to the sheriff's office at Huron in Baum's pickup truck. Once the truck was loaded, Baum left the farm. Sheridan was to follow him in his car. At this time Sheridan received a radio call to assist a highway patrolman who had arrested appellant. Baum then drove to Huron alone. When he arrived, he proceeded to his residence and parked his truck and the evidence in his garage. The garage was then locked. The only other way into the garage was through Baum's house. Baum allowed his family to see the evidence, but it was not touched or disturbed by them.

The next morning Sheridan called Baum about the evidence. Baum drove his truck to the Beadle County Highway Shop where an inventory was taken and custody of the evidence was transferred to the sheriff.

Subsequent to the preliminary hearing in early February, 1981, appellant's legal counsel ¹ filed a lengthy affidavit seeking, among other matters, to suppress the evidence seized. The motion lay dormant for the next fourteen months. At the urging of the trial judge, a suppression hearing was held in May, 1982. The scope of the hearing as determined by the court was:

At this time the matter before the Court is [sic] apparently the issues that were raised in an affidavit which is some eight (8) pages in length and midway in the affidavit it is a motion for a suppression and this would be the time and place for an evidentiary hearing pursuant to that motion for suppression contained in that affidavit and the basis of the suppression motion, as I glean it from that affidavit, would be related to the items in question and the chain of evidence related to those items....

The testimony produced at the suppression hearing related to the chain of custody, the preservation of the evidence and an incorrect description of the real estate to be searched. At the close of the hearing, the trial court denied appellant's request to suppress the evidence based upon an improper chain of custody or the erroneous description of the real estate. No other rulings were made by the trial court nor were any rulings requested by the appellant on several other grounds set forth in his application to suppress.

The charge of grand theft was tried to a Beadle County jury which returned a verdict of guilty. After a sentencing hearing, the appellant was sentenced to serve six years in the South Dakota Penitentiary.

The appellant first urges the trial court erred in admitting State's Exhibits 1-9 and 29-38 for the reason that the evidence seized under the warrant was not properly preserved. These exhibits are tools and diverse metal assembly pieces used at Larson Manufacturing Company.

This precise issue has been before the court on prior occasions. In the case of State v. Christmas, 83 S.D. 506, 162 N.W.2d 125 (1968), we held:

Physical articles which are rationally probative as to issues which are in controversy are admissible in evidence if properly identified and shown to be in substantially the same condition as at the time when the crime was committed. A prima facie showing that such is the case is sufficient. 22A C.J.S. Criminal Law Sec. 709; 32 C.J.S. Evidence Sec. 607; 29 Am.Jur.2d, Evidence, Sec. 774. If it is reasonably probable that the object has not been tampered with it is admissible in evidence. State v. Garrington, 11 S.D. 178, 76 N.W. 326; Breeding v. State, 220 Md. 193, 151 A.2d 743; State v. Parker, 261 Iowa 88, 151 N.W.2d 505. The determination of this question is for the trial judge in the process of which he exercises a judicial discretion. State v. Husman, 66 S.D. 530, 287 N.W. 30. He rules on its competency, but it is still for the jury to decide its credibility.

The trial judge must be satisfied in reasonable probability that the article has not been changed in important respects. Permissible changes are such as are not likely to mislead the jury. McCormick on Evidence, page 384. In arriving at his conclusions he must consider the nature of the article, the circumstances surrounding its preservation and custody and the likelihood of intermeddlers tampering with it. United States v. S.B. Penick & Co., 2 Cir., 136 F.2d 413; Gallego v. United States, 9 Cir., 276 F.2d 914; Nixon v. State, 204 Md. 475, 105 A.2d 243. He may also give weight to the presumption that an article continues in the same condition. 2 Wigmore, Evidence, 3d Ed. Sec. 437(1).

This ruling has been consistently adhered to by this court since the Christmas decision. See, State v. Decker, 317 N.W.2d 138 (S.D.1982); State v. Moves Camp, 286 N.W.2d 333 (S.D.1979); State v. Robinette, 270 N.W.2d 573 (S.D.1978); State v. White, 269 N.W.2d 781 (S.D.1978); State v. Serl, 269 N.W.2d 785 (S.D.1978); State v. Hackney, 261 N.W.2d 419 (S.D.1978); State v. Herman, 253 N.W.2d 454 (S.D.1977); State v. Anderberg, 89 S.D. 247, 232 N.W.2d 254 (1975); State v. Watson, 89 S.D. 184, 231 N.W.2d 839 (1975); State v. Aschmeller, 87 S.D. 367, 209 N.W.2d 369 (1973).

The evidence supports the finding of the trial court. The exhibits involved were not the type subject to ready change and alteration. Most of these articles were solid, single pieces of metal shaped in a particular and unusual fashion; others were pieces of metal like door handles, hinges, and drill bits. The remaining items were power tools with serial numbers. While the preservation and custody of the exhibits is not a model of police work, Baum took due precaution to preserve their integrity. He locked them in his garage. His family was not allowed to touch them. He also testified that he helped load this evidence at the farm and was able to identify them at trial as being in the same condition as when they were seized. Sheridan testified in a similar fashion. We are compelled to conclude that the trial court was correct in its ruling and a reasonable and prima facie show of continuity was established. State v. Watson, supra.

Appellant also claims as error the failure of the trial court to enter formal findings of fact and conclusions of law after the suppression hearing. The record reveals that neither the state nor appellant proposed findings or conclusions for the trial court's consideration.

When pretrial motions are presented to the trial court which involve matters of fact and the exercise of the trial court's discretion, formal findings of fact and conclusions of law are preferred by this court. State v. Hartley, 326 N.W.2d 226 (S.D.1982); State v. Hintz, 318 N.W.2d 915 (S.D.1982); State v. Stumes, 90 S.D. 382, 241 N.W.2d 587 (1976). However, when the record shows the trial court's reasons and basis for its ruling, and when the evidence clearly demonstrates the correctness of the ruling, this court has declined to remand matters back to the trial court for further proceedings solely upon the grounds of failure to enter findings of fact and conclusions of law. State v. Lewis, 90 S.D. 615, 244 N.W.2d 307 (1976); State v. Hintz, supra. Compare, State v. Hartley, supra.

We believe the record before us, limited to this issue only, however, clearly demonstrates the correctness of the trial court's...