State v. Mattson, 23257.

• Decision Date: 08 June 2005
• Docket Number: No. 23257.,23257.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Henry L. MATTSON, III, Defendant and Appellant.
• Court: South Dakota Supreme Court

698 N.W.2d 538

2005 SD 71

STATE of South Dakota, Plaintiff and Appellee, v. Henry L. MATTSON, III, Defendant and Appellant.

No. 23257.

Supreme Court of South Dakota.

Argued February 16, 2005.

Decided June 8, 2005.

Lawrence E. Long, Attorney General, Frank E. Geaghan, Assistant Attorney General, Pierre, South Dakota, for plaintiff and appellee.

Jeremiah J. Davis, Pennington County Public Defender's Office, Rapid City, South Dakota, for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] Defendant, while riding as a passenger, was arrested along with the driver of the vehicle and several passengers after a drug dog sniff conducted at a routine traffic stop revealed the presence of drugs. Defendant was convicted of possession of methamphetamine. On appeal, Defendant contends the trial court erred when it allowed the State to introduce as other acts evidence, statements made by and a urine sample given by Defendant to law enforcement three months prior to his arrest for the events of September 7, 2003. Defendant alleges the drug dog sniff conducted on the vehicle in which he was a passenger was a violation of his Fourth Amendment rights. Defendant also contends the trial court erred when it allowed the State to introduce evidence at trial that Defendant refused to give a urine sample for drug testing purposes after his arrest on the possession charge.

[¶ 2.] We Affirm.

FACTS AND PROCEDURE

[¶ 3.] On September 7, 2003, Trooper Ryan Mechaley of the South Dakota Highway Patrol noted a vehicle traveling on Elk Vale Road, east of Rapid City, South Dakota, well in excess of the posted speed limit of fifty-five miles per hour. After activating his radar unit, Trooper Mechaley clocked the black Jeep Cherokee at eighty-six miles per hour. In addition to the driver Michael Neumiller (Neumiller), the vehicle had four occupants. Benjamin Inich was seated in the front passenger seat. Behind Inich in the backseat sat Shawn Mercy, and to his left in the middle of the rear passenger seat was Misty Koch. The Defendant, Henry Mattson, was seated in the rear passenger seat directly behind the driver.

[¶ 4.] Trooper Mechaley stopped the vehicle at 5:56 p.m. He asked the driver, Neumiller, to produce his driver's license, registration and proof of insurance and to accompany him to the patrol car. While reviewing Neumiller's driver's license, Trooper Mechaley thought he recognized Neumiller's name in connection with methamphetamine activity in Rapid City. Trooper Mechaley asked the driver if any of the passengers in the vehicle used illegal substance, and was told by Neumiller "I think so." At 6:00 p.m., Trooper Mechaley initiated a radio request for a driver's license check, a criminal history check on Neumiller, and a canine unit.

[¶ 5.] Trooper Oxner, a canine handler with the South Dakota Highway Patrol, was within three to four miles of Trooper Mechaley's location and arrived on the scene at 6:03 p.m. Upon arrival, Trooper Oxner engaged Neumiller in conversation, and told Neumiller how the dog would react if it detected the presence of drugs. Trooper Oxner then asked the occupants of the black Jeep Cherokee to exit the vehicle prior to beginning the drug dog sniff. Trooper Mechaley concluded writing the traffic ticket, but had yet to receive the results of Neumiller's license check and criminal history check when he exited his patrol car and asked for consent to search the occupants of the vehicle. The driver and several occupants consented to be searched. While both troopers were outside the patrol cars and engaged in their respective search activities, the results of Neumiller's driver's license check were radioed back to Trooper Mechaley.

[¶ 6.] Trooper Oxner directed his canine dog, Keya, to begin the sniff on the passenger side of the vehicle, beginning at the right rear quarter panel and running in a counterclockwise direction. Keya alerted by standing on her hind legs, and repeatedly pawing at the front passenger side door. Trooper Oxner concluded the drug dog sniff once Keya alerted, and both troopers engaged in searching the vehicle. A few seconds after Keya indicated the presence of drugs, a radio transmission was received by Trooper Mechaley with the results of Neumiller's criminal history check.

[¶ 7.] Four empty syringes were found on the floor of the vehicle underneath the back seat. One was located where the Defendant had been seated, another to passenger Koch's right, and the third immediately below and to the left of where passenger Mercy had been seated. The fourth empty syringe was located inside the vehicle, but the exact location was not reflected in the record. A fifth syringe was located in the side panel of the driver's door, and was approximately one-fourth full of a clear liquid substance later determined to be methamphetamine. The officers also recovered a small black case that contained a baggie of crystal methamphetamine, and a scale with methamphetamine residue on it. The black case was found partially tucked between the seat and backrest cushions of the back seat, and was located between where Koch and Mercy had been seated.

[¶ 8.] The items discovered in the vehicle had no "indicia of ownership," and could not be linked to a specific occupant. Trooper Oxner confronted the occupants about the drugs that had been found. All the occupants denied ownership. Trooper Oxner informed the five individuals that all of them would be arrested and taken to jail where they would have to submit to a urinalysis. Trooper Oxner informed the occupants that "if the UA's come back with the methamphetamine, it is going to show that they are using." Defendant replied that nothing would show up in his UA except possibly marijuana.

[¶ 9.] In an effort to determine which of the occupants might have recently used a syringe, each occupant was asked to show their arms to the troopers for the purpose of locating track marks or needle marks. Each occupant voluntarily complied with the request. Trooper Mechaley noted what he believed to be fresh track marks on one of the Defendant's arms, as did Trooper Oxner. Trooper Oxner, who had received special training in detecting and identifying drug usage, testified that he "noticed immediately Mr. Mattson had a large, raised, dark purple or bruised track mark on his left arm," "right on the main vein in the elbow." When asked about the marks on his arm, Defendant stated the marks were the result of a spider bite. Trooper Oxner also noticed older track marks on Defendant's right arm. Defendant repeatedly stated he had not used methamphetamine for some time and that his urine would come back negative for methamphetamine. Based on these observations and the drugs seized in the vehicle, Defendant was arrested along with three of the other four occupants of the vehicle. After his arrest, Defendant refused to provide officers with a urine sample.

[¶ 10.] Defendant was charged with the unauthorized possession of a controlled substance under SDCL 22-42-5, and entered a plea of not guilty. On March 16, 2004, a jury trial was held. At the jury trial, the State was allowed to present evidence of Defendant's prior drug use over the objections of defense counsel. Rapid City police officer Keith White testified that on May 21, 2003, almost four months prior to the traffic stop, Defendant informed the officer that he had used methamphetamine the day before and that he used methamphetamine once a week or less. Defendant also stated he was trying to stay away from people who used methamphetamine. Lastly, Defendant gave Neumiller's name as a person from whom he had previously purchased methamphetamine. The results of a urine sample collected from Defendant on May 22, 2003, indicating the presence of methamphetamine in Defendant's system, were also entered into evidence at trial.

[¶ 11.] The State offered a jury instruction modeled after the pattern jury instruction for a Driving While Intoxicated suspect who refuses to supply a blood sample for chemical analysis. Defendant objected to the instruction, and was overruled.

[¶ 12.] Defendant was convicted of the charge, and sentenced as a habitual offender to five years in the state penitentiary. Defendant filed this appeal raising the following issues:

1. Whether it was an abuse of the trial court's discretion when it allowed the State to introduce evidence of Defendant's prior use of an illegal drug to establish knowledge, intent and absence of mistake.

2. Whether a Fourth Amendment violation occurs when a vehicle is validly detained for the purpose of issuing a traffic citation, an offsite canine unit is called to the scene, arrives prior to the conclusion of the traffic stop, and initiates but does not conclude the drug dog sniff prior to the conclusion of the traffic stop.

3. Whether the trial court erred when it allowed the State to establish at trial that Defendant refused to provide a urine sample for a drug test following his arrest for possession of a controlled substance.

STANDARD OF REVIEW

[¶ 13.] We presume the evidentiary rulings made by a trial court are correct, and review those rulings under an abuse of discretion standard. State v. Goodroad, 1997 SD 46, ¶ 9, 563 N.W.2d 126, 129 (citing State v. Oster, 495 N.W.2d 305, 309 (S.D.1993)). The test for abuse of discretion "is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion." Id. (citing State v. Rufener, 392 N.W.2d 424, 426 (S.D.1986)). If error is found, it must be prejudicial in nature before this Court will overturn the trial courts evidentiary ruling. Novak v. McEldowney, 2002 SD 162, ¶ 7, 655 N.W.2d 909, 912 (citing State v. Smith, 1999 SD 83, ¶ 39, 599 N.W.2d 344, 353) (citation omitted). "Error is prejudicial when, in all probability ... it produced some effect upon the final result and affected rights of the party assigning it."...