State v. Nuzum, 23850.

• Decision Date: 18 October 2006
• Docket Number: No. 23850.,23850.
• Citation: 2006 SD 89,723 N.W.2d 555
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. John C. NUZUM, Defendant and Appellant.
• Court: South Dakota Supreme Court

723 N.W.2d 555

2006 SD 89

STATE of South Dakota, Plaintiff and Appellee, v. John C. NUZUM, Defendant and Appellant.

No. 23850.

Supreme Court of South Dakota.

Considered on Briefs on August 28, 2006.

Decided October 18, 2006.

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

Donald D. Richards, Richards Law Firm, P.C., Spearfish, South Dakota, Attorney for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] John C. Nuzum was convicted by a Meade County jury of two counts of Sexual Contact With a Child Under the Age of Sixteen and was sentenced to two consecutive 12-year terms. He appeals his conviction on Count I. We affirm.

FACTS AND PROCEDURE

[¶ 2.] John C. Nuzum (Nuzum) married Marla Evans (Evans) in 1999. Nuzum had four children from two prior marriages. Evans also had four children from a prior marriage. Nuzum and Evans divorced in July 2001. Evans' youngest child from her previous marriage (herein referred to as M.V.) was 11 years old at the time.

[¶ 3.] Following the divorce, Nuzum and M.V. continued to be friends. M.V. looked up to Nuzum and thought of him like an uncle. The two stayed in contact by telephone. Nuzum was an over-the-road trucker and began inviting M.V. to accompany him on his trips.

[¶ 4.] At some point during these trips, Nuzum began to sexually molest M.V. On two separate occasions, Nuzum also invited M.V. to stay with him in Spearfish, South Dakota. Since Nuzum lived there with his mother he would take M.V. to a local motel where he would molest the boy. M.V. was still 11 years old when the molestations began. Although, he was uncomfortable with what Nuzum was doing to him, he could not grasp the full extent of the wrongfulness of these acts.

[¶ 5.] While M.V. was uncomfortable with these episodes of molestation, he still enjoyed the good times he was having with Nuzum. He enjoyed traveling and seeing the country with Nuzum on the trucking trips. M.V. also enjoyed the adult things that Nuzum would let him do like shooting guns and drinking beer. Another of M.V.'s favorite activities with Nuzum was hunting. Nuzum took M.V. to hunt prairie chickens on several occasions.

[¶ 6.] Some of these "chicken hunts" took place on the John O'Grady Ranch in Eastern Meade County near the hamlet of White Owl. Located next to his home, O'Grady had a bunkhouse used for guest quarters. It was there that Nuzum and M.V. would stay when hunting at O'Grady's. M.V. testified that on two separate occasions, once during October 2001, and again between September 1, and December 31, 2002, Nuzum molested him while they were staying in the bunkhouse.

[¶ 7.] Nuzum was ultimately charged with two counts of Sexual Contact with a Child Under the Age of 16 in Lawrence County for the molestations occurring in Spearfish, South Dakota and two counts in Meade County for the molestations on the O'Grady Ranch. In addition, Nuzum was charged in Butte County with two counts for the same offense against one of M.V.'s siblings. This appeal focuses on issues arising out of Nuzum's conduct in Meade County. On February 17, 2005, Nuzum was convicted on both counts of Sexual Contact filed in Meade County.

[¶ 8.] Nuzum raises two issues on appeal:

1. Whether an alibi defense made the date of the offense charged in Count I material such that it was reversible error for the circuit court to give a jury instruction that allowed for a finding of guilt without proof of the exact date of the offense.

2. Whether Nuzum established that it was factually impossible for him to commit the act charged in Count I such that he was entitled to a judgment of acquittal as a matter of law.

STANDARD OF REVIEW

[¶ 9.] This Court reviews the refusal of proposed jury instructions under the abuse of discretion standard. State v. St. John, 2004 SD 15, ¶ 8, 675 N.W.2d 426, 427 (citing State v. Downing, 2002 SD 148, ¶ 26, 654 N.W.2d 793, 800 (citing State v. Webster, 2001 SD 141, ¶ 7, 637 N.W.2d 392, 394)). A trial court has discretion in the wording and arrangement of its jury instructions, and therefore we generally review a trial court's decision to grant or deny a particular instruction under the abuse of discretion standard. Vetter v. Cam Wal Elec. Co-op., Inc., 2006 SD 21, ¶ 10, 711 N.W.2d 612, 615 (citations omitted). The manner in which this Court reviews a denial of a motion for judgment of acquittal is well established:

The standard of review for denial of a motion for judgment of acquittal is whether the "evidence was sufficient to sustain the convictions." "When reviewing sufficiency of the evidence, this [C]ourt, considers the evidence in a light most favorable to the verdict." "A guilty verdict will not be set aside if the state's evidence and all favorable inferences that can be drawn therefrom support a rational theory of guilt." "We do not resolve conflicts in the evidence, pass on the credibility of the witnesses, determine the plausibility of an explanation, or weigh the evidence."

State v. Running Bird, 2002 SD 86, ¶ 19, 649 N.W.2d 609, 613 (quoting State v. Verhoef, 2001 SD 58, ¶ 22, 627 N.W.2d 437, 442) (internal citations omitted).

ANALYSIS AND DECISION

[¶ 10.] 1. Whether an alibi defense made the date of the offense charged in Count I material such that it was reversible error for the circuit court to give a jury instruction that allowed for a finding of guilt without proof of the exact date of the offense.

[¶ 11.] Nuzum argues that the date on which the offense in Count I occurred became material when he raised an alibi defense. He contends that the circuit court erred with respect to Count I when it issued a jury instruction that did not require the State to establish the date of the offense with specificity. At Nuzum's trial, the following jury instruction was given:

The Indictment charges that the offense was committed "on or about" a certain date. The proof need not establish with certainty the exact date of the offense alleged. It is sufficient if the evidence establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged.

South Dakota Pattern Jury Instruction 1-11-6. As a result, Nuzum asserts that his alibi, with respect to the October 2001 offense charged in Count I, was nullified.

[¶ 12.] Nuzum cites People v. Jones, 9 Cal.3d 546, 108 Cal.Rptr. 345, 510 P.2d 705, 713 (1973), overruled on other grounds, and United States v. Goodrich, 493 F.2d 390, 393 (9th Cir.1974) in support of his argument that the assertion of an alibi defense makes the date of an offense material. However, the facts of these cases are distinguishable from Nuzum's. In Jones, the date became material to the offense charged when a witness for the prosecution testified that a drug transaction occurred on a specific date. 108 Cal. Rptr. 345, 510 P.2d at 713-714. Again in Goodrich, the date was material because the prosecution based its case on a date specific offense and the defendant relied on the date when proffering an alibi defense. 493 F.2d at 394.

[¶ 13.] Nuzum also points to People v. Suter, 292 Ill.App.3d 358, 226 Ill.Dec. 568, 685 N.E.2d 1023, 1029 (1997); State v. Infante, 157 Vt. 109, 596 A.2d 1289, 1291 (1991) and State v. Brown, 35 Wash.2d 379, 213 P.2d 305, 307-08 (1949) to bear his contention that the instruction should have restricted the jury's determination of guilt to a finding that the offense occurred on a specific date. The facts in these cases are also distinguishable from the instant case.

[¶ 14.] In Suter, the information charged that the offense occurred "on or about" July 30, 1995, but the evidence presented at trial indicated the offense occurred if at all on the afternoon of that date. 226 Ill.Dec. 568, 685 N.E.2d at 1028. Error resulted from the jury being instructed that the prosecution was not required to prove the offense occurred on the particular date. Id. at 1027. Once again in Brown, although the charging information used general wording with respect to the date of the offense, the prosecution elected to build its case on the ground that the offense occurred on a specific date. 213 P.2d at 307. A jury instruction that relieved the prosecution from showing the offense occurred on that exact date was held to be erroneous. Id. In Infante, both the charging information and evidence presented at trial specified the offense occurred on a particular date. 596 A.2d at 1291. Error occurred when the trial court refused to instruct the jury that a determination of guilt required finding that the offense occurred on the date charged. Id. at 1290.

[¶ 15.] Nuzum offered an alibi defense, largely consisting of cellular phone records, to prove that he could not have been present at the O'Grady Ranch when the offense charged in Count I was alleged to have been committed. Nuzum now postures that the State, in its indictment and evidence presented at trial, did in fact specify a date on which the Sexual Contact offense charged in Count I occurred. This is incorrect.

[¶ 16.] Count I of the December 8, 2004, indictment charges that Nuzum committed the offense "on or about October 26, 2001." The evidence presented at trial did anything but tie the date of the offense with specificity to October 26, 2001. The transcript of M.V.'s trial testimony contains in excess of 50 pages covering attempts by the State and defense counsel to help him remember with particularity dates from three years earlier when he was 11 years old. In an effort to jog his memory, M.V. was asked to review cellular phone records; he looked at school attendance records; he was asked when snow was on the ground; he was asked about people that were present at the O'Grady Ranch in relation to specific events; he was asked about the beginning and ending of grouse hunting seasons, including the best time of the season to hunt grouse and whether on a particular year it got cold in November. At no time, whether...