State v. McReynolds, 112420 SDSC, 29207-a-SRJ

Docket Nº:29207-a-SRJ
Opinion Judge:JENSEN, JUSTICE
Party Name:STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. JOSEPHINE RAE MCREYNOLDS, Defendant and Appellant.
Attorney:JASON R. RAVNSBORG Attorney General BRENT KEMPEMA Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee. MARK KADI of Minnehaha County Office of the Public Advocate Sioux Falls, South Dakota Attorneys for defendant and appellant.
Judge Panel:GILBERTSON, Chief Justice, and KERN, SALTER and DEVANEY, Justices, concur.
Case Date:November 24, 2020
Court:Supreme Court of South Dakota

2020 S.D. 65

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

JOSEPHINE RAE MCREYNOLDS, Defendant and Appellant.

No. 29207-a-SRJ

Supreme Court of South Dakota

November 24, 2020

CONSIDERED ON BRIEFS AUGUST 24, 2020

APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE SUSAN M. SABERS Judge

JASON R. RAVNSBORG Attorney General BRENT KEMPEMA Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

MARK KADI of Minnehaha County Office of the Public Advocate Sioux Falls, South Dakota Attorneys for defendant and appellant.

JENSEN, JUSTICE

[¶1.] A jury convicted Josephine Rae McReynolds of simple assault on a law enforcement officer. McReynolds appeals, arguing that the circuit court erred by denying her motion for judgment of acquittal and instructing the jury on the legality of the initial encounter between McReynolds and law enforcement. McReynolds also argues that the circuit court violated her confrontation rights under the Sixth Amendment during the subsequent habitual offender trial by admitting evidence of McReynolds's prior felony conviction without providing her an opportunity to cross-examine the custodian of the record. We affirm.

Facts and Procedural History

[¶2.] On September 14, 2018, at approximately 4:00 a.m., Sioux Falls Police Sergeant Martin Hoffman encountered a vehicle stopped in a turning lane on Minnesota Avenue with its hazard lights on. The vehicle was unoccupied; however, Sergeant Hoffman noticed an individual, later identified as McReynolds, walking away from the vehicle. Hoffman asked another officer, Logan Watson, to contact the individual while Hoffman investigated the vehicle.

[¶3.] Hoffman observed a label with the name "Josephine Rae McReynolds" inside the vehicle in plain view. Simultaneously, Officer Watson spoke with McReynolds who denied any association with the vehicle and claimed she had seen someone else associated with the vehicle. McReynolds also began recording the encounter with Watson. McReynolds then continued to walk further down the sidewalk.

[¶4.] Hoffman advised Watson of the name he found that was associated with the vehicle. Watson returned to her patrol vehicle, ran the name in the law enforcement database, and discovered McReynolds had an outstanding arrest warrant for failure to appear. Watson identified McReynolds as the person she had just encountered from a photograph in the database.

[¶5.] After Watson identified McReynolds, Watson approached her a second time. A third officer, Scott Seiner, also arrived at the scene to assist. McReynolds began recording the officers with her cell phone and began walking away from the officers. Officer Seiner commanded her to stop.

[¶6.] Instead, McReynolds ran, and Watson and Seiner gave chase. As Watson reached McReynolds, McReynolds turned around swinging her right hand toward Watson's head. McReynolds was holding her cell phone in her right hand and struck Watson in the back of the head with the device. Watson stated that as McReynolds turned, she swung her right hand downward in a "hammer motion." Seiner observed McReynolds swinging her right hand in a similar downward motion as she turned towards Watson. McReynolds was taken to the ground and placed in custody. Watson received a laceration that required medical attention.

[¶7.] McReynolds was charged with eight counts, including four alternative counts of simple assault against a law enforcement officer in violation of SDCL 22-18-1.05. Count two, the charge on which she was ultimately convicted, alleged that McReynolds committed simple assault under SDCL 22-18-1(2) by "recklessly caus[ing] bodily injury" to Watson.1 The State also filed a part II information under the habitual offender statute in SDCL 22-7-7, alleging that McReynolds had previously been convicted of a felony.

[¶8.] Prior to trial, McReynolds filed a motion in limine requesting the circuit court to exclude evidence of the outstanding arrest warrant. The court granted McReynolds's motion and cautioned that McReynolds would "open the door" to this evidence by suggesting that law enforcement did not have a basis to confront or stop McReynolds. At trial, Watson testified that she identified McReynolds as the person associated with the vehicle, without referencing the warrant. Following McReynolds's cross-examination of Watson, the circuit court denied the State's request to introduce McReynolds's failure to appear warrant, concluding that defense counsel had not "opened the door" for this evidence during cross-examination.

[¶9.] At the conclusion of the evidence, the State proposed instruction 16: At the time of this incident, the police officers lawfully came into contact with the defendant and the legality of that contact is not in dispute.

The circuit court gave the instruction over McReynolds's objection. The court also denied McReynolds's motion for a judgment of acquittal. The jury returned a verdict finding McReynolds guilty of one count of simple assault against a law enforcement officer under SDCL 22-18-1(2) and one count of obstruction.2

[¶10.] A court trial was held on the part II habitual offender information on July 10, 2019, that alleged McReynolds had previously been convicted of a simple assault against a law enforcement officer in Codington County. A jailer from Codington County testified that he fingerprinted McReynolds on July 2, 2013, when she was arrested for simple assault against a law enforcement officer. A Minnehaha County jailer testified that he fingerprinted McReynolds when she was arrested for the instant offense of simple assault against a law enforcement officer on September 14, 2018. An analyst from the South Dakota Forensic Laboratory identified McReynolds as the individual from whom both sets of fingerprints were taken. Over McReynolds's objection, the circuit court received a certified judgment of conviction from Codington County showing that McReynolds had previously been convicted of simple assault against a law enforcement officer on October 23, 2013. The circuit court sustained the habitual offender information, finding that McReynolds had a prior felony conviction from Codington County. On November 1, 2019, the circuit court sentenced McReynolds to five years in the state penitentiary, with one year suspended. McReynolds raises three issues in her appeal to this Court.

Analysis and Decision

1. Whether the circuit court erred when it denied McReynolds's motion for a judgment of acquittal.

[¶11.] A question regarding the sufficiency of the evidence to sustain a conviction is reviewed de novo. State v. Morse, 2008 S.D. 66, ¶ 10, 753 N.W.2d 915, 918. This Court considers "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Ware, 2020 S.D. 20, ¶ 12, 942 N.W.2d 269, 272. "If the evidence, including circumstantial evidence and reasonable inferences drawn therefrom sustains a reasonable theory of guilt, a guilty verdict will not be set aside." State v. Morgan, 2012 S.D. 87, ¶ 10, 824 N.W.2d 98, 101.

[¶12.] A violation of SDCL 22-18-1.05 occurs if a "[s]imple assault, as provided in § 22-18-1, i[s] committed against a law enforcement officer . . . while the officer . . . was engaged in the performance of the officer's . . . duties . . . ." A simple assault is committed under SDCL 22-18-1(2) when a person "recklessly causes bodily injury to another[.]" SDCL 22-1-2(d) defines "reckless" as importing: a conscious and unjustifiable disregard of a substantial risk that the offender's conduct may cause a certain result or may be of a certain nature. A person is reckless with respect to circumstances if that person consciously and unjustifiably disregards a substantial risk that such circumstances may exist[.]

[¶13.] McReynolds argues there is insufficient evidence to sustain a conviction for simple assault because her actions were not reckless. At most, she contends that she was negligent. McReynolds claims that when Watson approached her from behind, she panicked and reacted by immediately turning without any conscious decision to disregard a known risk to the officer.

[¶14.] This Court has previously discussed the distinction between recklessness and negligence, focusing on the state of awareness of the individual. See State v. Larson, 1998 S.D. 80, ¶ 14, 582 N.W.2d 15, 18; Janklow, 2005 S.D. 25, ¶ 19, 693 N.W.2d at 693; State v. Olsen, 462 N.W.2d 474, 476 (S.D. 1990). "The difference between reckless behavior and negligent behavior is primarily measured by the state of mind of the individual." Janklow, 2005 S.D. 25, ¶ 19, 693 N.W.2d at 693. The key question to determine whether conduct is reckless or negligent "depends upon [one's] awareness of the risk [one's] behavior creates." Larson, 1998 S.D. 80, ¶ 14, 582 N.W.2d at 18. "[F]or someone's conduct to be deemed reckless, they must consciously disregard a substantial risk." Olsen, 462 N.W.2d at 476. "Although it is not always possible for the State to directly establish that a defendant was aware of a risk, it can be done indirectly through the defendant's conduct."...

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