State v. McGill

• Decision Date: 10 January 1995
• Docket Number: No. 18802,18802
• Citation: 536 N.W.2d 89
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Michael McGILL, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 89

536 N.W.2d 89

STATE of South Dakota, Plaintiff and Appellee, v. Michael McGILL, Defendant and Appellant.

No. 18802.

Supreme Court of South Dakota.

Considered on Briefs Jan. 10, 1995.

Decided Aug. 16, 1995.

Mark Barnett, Atty. Gen., Frank E. Geaghan, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Gary D. Blue of Blue and Haeder, Huron, for defendant and appellant.

AMUNDSON, Justice.

Michael McGill (McGill) appeals his conviction for stalking in violation of SDCL 22-19A-1. We affirm.

FACTS

McGill introduced himself to Lisa W. (Victim) in 1978. He soon developed romantic feelings for her, stating that she "appealed to me more than anybody at that point." Victim did not reciprocate these feelings, nor did she encourage any relationship.

Almost immediately after the two met, McGill started calling Victim's parents' home trying to contact her. She did not live with her parents and her phone number was unlisted. Unable to talk to her personally, McGill professed his love for Victim to her parents and proclaimed that he would make a good husband. He became obsessed with this fantasy. When Victim's parents hung up on McGill, he would immediately call back. If they refused to answer the phone, he would let it ring. The phone calls occurred at all times--day and night.

McGill's telephone calls became more frequent when Victim moved back in with her parents in September, 1979. Victim tried to stop McGill's behavior by hanging up on him and demanding that he stop calling. McGill's behavior persisted.

Victim again moved out on her own in June of 1980, and requested an unlisted telephone number. To overcome this obstacle, McGill started sending her love letters. Victim became frightened from the tone of the letters. McGill wrote that he was going to kidnap her and kill her fiance. In addition, McGill came to Victim's workplace in order to talk to her. When co-workers told him that he could not see Victim, McGill became aggressive and the police had to remove him from the premises.

On December 20, 1985, Victim was married. McGill was bitter about the marriage. He testified that he felt he was "losing a leg or an arm and it was a terrible, terrible situation." On May 16, 1988, Victim received another letter from McGill, threatening to kill her husband. Victim testified that subsequent letters recanted these threats and reasserted his love. On May 30, 1989, McGill sent yet another letter, stating "I'm not in love with you, I am obsessed by you."

Victim also testified that she observed McGill on many occasions driving past her home and the daycare center where she took her children. On July 12, 1993, Victim received three letters from McGill confirming her suspicions. McGill wrote that he had followed her children and, in fact, was "spying" on them during a visit with their out-of-town grandparents. He also related that he had killed a cop and spent time in jail.

Frightened for her children's safety, Victim, on the same day as she received these three letters, requested the court to restrain McGill from any contact with her or her family. Although the trial court issued the order, McGill ignored it. He continued to telephone and drive by Victim's house.

A complaint was filed on July 14, 1993, charging McGill with stalking under SDCL 22-19A-1, which had been enacted during the 1993 legislative session and became law on July 1, 1993. The charge was comprised of three letters received by Victim on July 12, 1993. On February 11, 1994, the State filed a motion requesting the introduction of other acts evidence. These acts occurred prior to July 1, 1993. At a pretrial motions hearing, the trial court held that the evidence was admissible to show a course of conduct relating to the time period charged.

On April 28, 1994, the jury convicted McGill of stalking. He was sentenced to a one-year confinement at the Regional Correction Center in Huron. ¹ The trial court further provided that a portion of the sentence would be suspended if McGill attended alcohol and psychological treatment. The trial court entered a judgment of conviction on May 26, 1994. McGill appeals.

ISSUES

I. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN ADMITTING EVIDENCE OF MCGILL'S CONDUCT PRIOR TO THE EFFECTIVE DATE OF THE STALKING STATUTE?

II. WHETHER THE TRIAL COURT ERRED IN DENYING MCGILL'S MOTION FOR ACQUITTAL ON THE CHARGE OF STALKING?

III. WHETHER MCGILL WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL?

IV. WHETHER PLAIN ERROR WAS COMMITTED?

V. WHETHER THE LANGUAGE OF SDCL 22-19A-1 IS SO VAGUE AS TO BE UNCONSTITUTIONAL?

STANDARD OF REVIEW

The admission of other acts evidence is governed by an abuse of discretion standard. State v. Iron Necklace, 430 N.W.2d 66, 80 (S.D.1988) (citing State v. Dokken, 385 N.W.2d 493 (S.D.1986)). A trial court has the authority to admit evidence of other crimes, wrongs, or acts, so long as the evidence is relevant, and its probative value substantially outweighs its prejudicial effect. State v. Thomas, 381 N.W.2d 232, 235 (S.D.1986). The delicate balancing between probative versus prejudicial value is within the sound discretion of the trial court. Id. at 235.

Our standard of review of a denial of a motion for judgment of acquittal is whether State set forth sufficient evidence from which the jury could reasonably find the defendant guilty of the crime charged. State v. Abdo, 518 N.W.2d 223, 227 (S.D.1994); State v. Gallipo, 460 N.W.2d 739, 742 (S.D.1990). In determining the sufficiency of the evidence to constitute the crime, the question is "whether there is sufficient evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt; in making this determination, the court will accept the evidence, and the most favorable inference fairly drawn therefrom, which will support the verdict." State v. Heftel, 513 N.W.2d 397, 399 (S.D.1994) (citations omitted).

DECISION

I. Admission of "Other Acts" Evidence.

The general rule is that "other acts" evidence is not admissible to prove that a defendant acted in conformity with his past conduct. State v. Steele, 510 N.W.2d 661, 667 (S.D.1994) (citing State v. Chapin, 460 N.W.2d 420, 421 (S.D.1990)). The admission of other acts testimony is governed by SDCL 19-12-5, which provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Under SDCL 19-12-5, admissibility of other acts evidence is determined by a two-step process:

1) Whether the intended purpose for offering the other acts evidence is relevant to some material issue in the case, and

2) Whether the probative value of the evidence substantially is outweighed by its prejudicial effect?

Steele, 510 N.W.2d at 667.

Although McGill's conduct under South Dakota law did not constitute criminal stalking prior to July 1, 1993, the trial court admitted it to prove a "course of conduct" for McGill's subsequent illegal acts. In State v. Werner, 482 N.W.2d 286, 289 (S.D.1992), this court held that the list of exceptions in SDCL 19-12-5, for which other acts evidence is properly admissible, is not exhaustive. The statutory language, "such as," indicates that "other acts" evidence may be admissible for purposes not specifically stated in the statute. Id. Besides a course of conduct, the trial court alternatively admitted the evidence to show proof of intent and absence of mistake.

South Dakota's stalking law, SDCL 22-19A-1, provides in part:

Any person who willfully, maliciously, and repeatedly follows or harasses another person or who makes a credible threat to another person with the intent to place that person in reasonable fear of death or great bodily injury is guilty of the crime of stalking.

SDCL 22-19A-4 provides:

For the purposes of this chapter 'harasses' means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose.

"Course of conduct" is defined in SDCL 22-19A-5 as:

A pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of 'course of conduct.'

In reviewing the admissibility of this type of evidence, we consider its relevancy, probative value and prejudicial effect.

A. Relevance.

This court has previously stated that " '[a]ny fact that tends to connect an accused with the commission of a crime is relevant and has probative value.' " State v. Goodroad, 442 N.W.2d 246, 250 (S.D.1989) (quoting State v. Sieler, 397 N.W.2d 89, 92 (S.D.1986)); State v. Iron Shell, 336 N.W.2d 372, 374 (S.D.1983). The Pennsylvania Superior Court in Commonwealth v. Urrutia, 439 Pa.Super. 227, 235, 653 A.2d 706, 710 (1995), stated that a "course of conduct by its very nature requires a showing of a repetitive pattern of behavior." The court held "where evidence of prior bad acts is necessary to establish the pattern, the evidence is admissible." Id.; see also People v. Payton, 161 Misc.2d 170, 175-77, 612 N.Y.S.2d 815, 819 (1994) (holding uncharged incidents were facially sufficient to support a course of conduct for one count of menacing (stalking)). Here, the trial court found McGill's prior actions relevant for the purpose of showing a course of conduct, which was a contested issue in the case.

B. Probative Value Versus Prejudice.

This step to admissibility requires the trial court to weigh the probative value of McGill's prior acts with any undue prejudicial effect. SDCL 19-12-3, South Dakota's version of the Federal Rule of Evidence 403, provides:

Although relevant, evidence may be excluded if its probative value is substantially...