State v. Olson

• Decision Date: 24 June 1987
• Docket Number: No. 15399,15399
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Wendy Marie OLSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 748

408 N.W.2d 748

STATE of South Dakota, Plaintiff and Appellee, v. Wendy Marie OLSON, Defendant and Appellant.

No. 15399.

Supreme Court of South Dakota.

Argued March 25, 1987.

Decided June 24, 1987.

Frank Geaghan, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

James A. Eirinberg, Sioux Falls, for defendant and appellant.

MILLER, Justice.

Wendy Marie Olson (Olson) appeals her conviction of attempted distribution of one-half ounce of cocaine. We affirm.

In late November, 1985, Troy Tordsen (Tordsen), an informant, gave the Sioux Falls Police Department information indicating Olson was involved in cocaine trafficking. Tordsen agreed to make taped telephone calls to the defendant and her roommate Jean "Sugar" Rogers (Rogers) in which cocaine trafficking was discussed. In December 1985, Ray Dunn (Dunn), a DCI agent stationed in Brookings, South Dakota, traveled to Sioux Falls, South Dakota, to assist in undercover work on the Olson case. Dunn met with Tordsen and a sergeant from the Sioux Falls Police Department, after which another telephone call was placed to Olson in which Tordsen attempted to arrange a cocaine purchase. In this call, Tordsen made arrangements with Olson for himself and Dunn to meet her that evening at her residence. The police department provided Dunn with $2,600 in buy money and a suitcase containing a scale, cocaine tester, and other drug paraphernalia.

Dunn and Tordsen arrived at the women's residence at approximately 6:20 p.m. December 6, 1985. Dunn posed as a college student from South Dakota State University in Brookings. After introductions were made, the four moved to a bedroom, apparently so that children in the house would not witness their conversations. Rogers searched Dunn to insure he was not wearing a concealed listening device. After satisfying herself that Dunn was "okay," Olson asked how much cocaine he wished to purchase. Dunn responded he could only afford one ounce. Dunn then showed Olson the scale at her request.

The women apparently then wished to discuss the buy in private and requested that Tordsen and Dunn leave the room. After a few minutes, Olson exited the bedroom and returned to the living room where the men were waiting. She stated Rogers was making some phone calls and explained how the deal would take place. She and Tordsen would take Dunn's money to Worthington, Minnesota, where Olson had previously arranged the use of a motel room. They would return to Sioux Falls with the cocaine about two and one-half hours after they left the house. Dunn indicated he was nervous about letting the money out of his sight for that length of time. When he asked whether Tordsen would be present during the transaction, Olson replied he would be allowed to sample the cocaine but not witness any money changing hands.

Although the testimony is not totally clear, Rogers apparently informed the group that she was unable to arrange a deal in Worthington. Olson then asked Dunn whether he would be willing to travel to St. Paul, Minnesota. Dunn replied he could not as he was expected back in Brookings by 10:00 p.m. Olson then called Terry LaBore (LaBore) in Sioux Falls. She told LaBore she was "looking for some" and wanted to know whether she could "make a deal on an ounce." After hanging up, Olson told Dunn that LaBore expected $3,500 for an ounce of cocaine. Dunn responded he was not willing to pay that much. She asked how much he would pay and he responded he might go as high as $1,500 for half an ounce. Olson suggested that if she dealt with LaBore face to face she could possibly make a bargain. Olson stated she and Rogers would pick up LaBore and drive him to his source of cocaine. One of the women estimated they would return to the house in one-half hour.

Prior to leaving the house, one of the women asked Dunn if they could take along his suitcase containing the drug paraphernalia. Dunn agreed and showed them how to use the cocaine tester. He also gave Olson the $1,500. After this, Olson walked over to a chest of drawers and removed a small caliber revolver. She talked briefly with Rogers regarding whether it was necessary to take the gun along on the deal. Concluding they "better take it along," Olson dropped the revolver into a purse Rogers was holding, they left the house at approximately 8:00 p.m.

After Olson and Rogers left, undercover surveillance officers witnessed their vehicle stopping at LaBore's residence, whereupon LaBore apparently got into the vehicle. The party drove to another residence and made various stops until LaBore exited the vehicle at a liquor store. The vehicle next stopped at a pay phone in front of a Sioux Falls motel.

Meanwhile, Dunn and Tordsen remained at Olson's residence. At 8:40 Tordsen received a phone call from Olson instructing the men to meet her and the others at the intersection of two streets. Upon sighting the women, Dunn pulled his car up alongside theirs. He demanded to know what was going on. Olson stated the police were watching LaBore and that she spotted one of the surveillance vehicles. Fearing he was losing control of the situation, Dunn demanded return of the money and drug paraphernalia. The women returned the money, but assured Dunn the deal could still take place. One of the women stated they should drive around awhile and attempt to lose the surveillance vehicles. The women instructed Dunn to wait about five minutes, and then return to their residence. Instead, the men drove around a few minutes, informed a police officer what had taken place, and returned to the police station.

The women were arrested at their home and taken to the station. When police officers asked Olson what her intentions were when she left her home that night, she responded that she and Rogers were going to pick up LaBore and obtain half an ounce of cocaine which they would resell to Dunn. She informed the police they would be willing to cooperate with them in attempting to purchase the cocaine from LaBore. She told the police that LaBore was supposed to call the women at their home five minutes after he was dropped off to tell them if it was "cool" for the deal to proceed. At the request of the police officers, the women agreed to place a call to LaBore to set up the transaction, but were unable to reach him.

Olson and Rogers were charged as codefendants with attempted distribution of a controlled drug. Rogers pleaded guilty. Olson was convicted by a jury and sentenced to three years imprisonment.

ISSUES

Olson asserts the trial court erred in admitting evidence of the fact she ran an escort service; of her possession of a handgun; by failing to require the State to produce Tordsen at trial; in instructing the jury; and in denying her motion for judgment of acquittal based on insufficiency of the evidence.

DECISION

EVIDENCE DEFENDANT RAN ESCORT SERVICE

Olson first challenges her conviction on the basis that the trial judge incorrectly allowed the fact that she ran an escort service to go before the jury. Olson's counsel made a motion in limine to exclude the evidence, which was denied at a pretrial motion hearing. Defense counsel renewed his objection the day of trial prior to voir dire, and the trial court again denied the motion. During opening statements, the prosecutor told the jury that Olson ran the escort service known as Pleasure One. Although the opening statements were not transcribed, the State does not deny the reference. Actual evidence of the service apparently was placed in front of the jury by playback of recordings of taped telephone conversations in which a person answered "Pleasure One" (although no mention was made of the nature of the service). These references were not objected to by Olson's counsel.

According to Olson, the prosecutorial statements and evidence of the escort service was improper character evidence, irrelevant, or if relevant, its probative value was substantially outweighed by its prejudicial effect upon the jury. (Counsel suggests the jurors would equate an escort service with prostitution and be more likely to convict Olson simply because she was a bad person.) State argues instead that Olson waived this issue by failing to object when the references were made. Olson argues her motions in limine were adequate to preserve the issue, and that objecting when the evidence was admitted would have compounded Olson's unfavorable exposure to the jury.

We agree with the State that Olson has waived the right to complain. Reversible error cannot be predicated upon the denial of a motion in limine. State v. McKee, 312 N.W.2d 907 (Iowa 1981); State v. McNeal, 699 S.W.2d 457 (Mo.App.1985); State v. Pointer, 224 Neb. 892, 402 N.W.2d 268 (1987); State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984); Woodard v. State, 696 S.W.2d 622 (Tex.App.1985). See SDCL 19-9-3. Not having specifically objected to the taped conversation in which Olson's phone was answered "Pleasure One" therefore forecloses her from complaining now. Also, since no record was made of the prosecutor's statement, we have nothing to review. State v. Koenig, 333 N.W.2d 800 (S.D.1983), cert. denied 464 U.S. 940, 104 S.Ct. 354, 78 L.Ed.2d 318 (1983); State v. O'Connor, 265 N.W.2d 709 (S.D.1978). Counsel claiming error has an obligation to assure that a record is made. In this case the issue could have been preserved by making a record at the next recess.

ADMISSION OF PISTOL EVIDENCE

Olson next argues the trial court incorrectly overruled her objection to Dunn's testimony revealing that she and Rogers took a pistol with them the night in question. The trial court denied Olson's motion in limine regarding this evidence. Unlike the escort service evidence, however, Olson also objected during trial when Dunn testified regarding the revolver. Questions of the relevance of proffered testimony are committed to the discretion of the trial court and this court will not reverse its...