State v. Otobhiale

• Decision Date: 15 June 2022
• Docket Number: #29664
• Citation: 976 N.W.2d 759
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Destiny OTOBHIALE, Defendant and Appellant.
• Court: South Dakota Supreme Court

976 N.W.2d 759

STATE of South Dakota, Plaintiff and Appellee,

v.Destiny OTOBHIALE, Defendant and Appellant.

#29664

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS FEBRUARY 14, 2022

OPINION FILED June 15, 2022

KENNETH D. BERTSCH, Menno, South Dakota, Attorney for defendant and appellant.

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

MYREN, Justice

[¶1.] A jury convicted Destiny Otobhiale of aiding, abetting, or advising grand theft by deception. He appeals the circuit court's evidentiary rulings admitting other acts as Rule 404(b) evidence or, in the alternative, as res gestae evidence. Otobhiale also appeals the circuit court's denial of his motions for a new trial based on newly discovered evidence and for judgment of acquittal. We affirm.

Facts and Procedural History

[¶2.] On February 4, 2020, a grand jury indicted Otobhiale on two counts of aiding, abetting, or advising grand theft by deception. Both counts alleged Otobhiale aided, abetted, or advised another person in planning or committing a grand theft by deception in violation of SDCL 22-30A-1 (theft), SDCL 22-30A-17 (grand theft), and SDCL 22-3-3 (aiding, abetting, or advising). Count One alleged Otobhiale took or exercised unauthorized control over the property of another with the intent to deprive that person of the property by deception by preventing that person from acquiring information that would affect the person's judgment of a transaction. SDCL 22-30A-3(2). Count Two mirrored Count One, except that it alleged that Otobhiale's role in the deception created or reinforced a false impression of law, value, intention, or other state of mind. SDCL 22-30A-3(1).

[¶3.] The events underlying the indictment began in November 2019 when a man representing himself as William Brooks became Facebook friends with M.D., a 76-year-old widow. Brooks created the appearance that he was a 65-year-old white male serving overseas as a military physician.

[¶4.] On November 26, 2019, Brooks contacted M.D. and requested she send him $1,200 because he could not access his money in "the war zone." He promised to repay her and convinced her not to involve her family. Brooks instructed M.D. to send cash by FedEx to John Pastorek at a specific address in Irvington, New Jersey. M.D. testified that she understood that Pastorek was Brooks's contact in the United States. M.D. sent the cash as instructed on December 6, 2019. Over the next month and a half, M.D. continued receiving requests for cash from Brooks. Ultimately, M.D. sent approximately $14,000 in cash in seven packages addressed to Pastorek at the same New Jersey address.

[¶5.] When M.D. attempted to send cash an eighth time, her bank intervened and contacted the Bon Homme County Sheriff's Office. Sheriff Mark Maggs convinced M.D. to send a package containing paper, rather than money, to the same New Jersey address on January 23, 2020. Sheriff Maggs provided the package tracking information to the Irvington, New Jersey Police Department so they could apprehend the package recipient. On January 24, 2020, Irvington Police Sergeants Maurice Taylor and Brandis Puryear observed Otobhiale accept the package addressed to John Pastorek. Sergeants Taylor and Puryear arrested and searched Otobhiale. The search revealed Otobhiale possessed multiple credit/debit cards that did not belong to him.¹ Sergeants Taylor and Puryear also observed a mailbox on Otobhiale's house with a note taped to it that said "John Pastorek."

[¶6.] During an interview with law enforcement following his arrest, Otobhiale explained he was receiving money for a friend, Nelly, who resided in Africa. Otobhiale explained that he would then forward the cash to a "money guy," who transferred it to Nelly. Otobhiale said that he retained fifteen percent of the cash he received. Otobhiale explained that while living at a previous residence, he picked up mail belonging to John Pastorek and used that mail to obtain Pastorek's identifying information. Otobhiale admitted using Pastorek's name and information to apply for and receive a Chime debit card² in Pastorek's name. Otobhiale denied knowing M.D. When asked if he knew William Brooks, Otobhiale responded:

That's probably the name Nellie [sic] is using to catfish^{[3 ]} that lady. I don't know if you understand. Like, for instance, he can -- Nellie [sic] can say he is William Brooks while he's talking to the lady, so he can make her send him –

Although an officer interrupted Otobhiale before he could finish this sentence, Otobhiale continued speaking and revealed he catfished on his own, using the name John Edward. When asked if people had sent him money, Otobhiale admitted that he had just started catfishing and had been unsuccessful.

[¶7.] Otobhiale was transported to South Dakota after being taken into custody on a South Dakota arrest warrant. Before trial, the State filed a notice of intent to offer the recording of Otobhiale's post-arrest interview with New Jersey law enforcement. Otobhiale resisted by filing a motion in limine, seeking to exclude specific portions of the interview and any statements relating to:

1. Use by Defendant of any other person's name, other than John Pastorek;

2. How Defendant came to use the name of John Pastorek;

3. That Defendant used the name of John Pastorek to acquire cash or credit cards;

4. That Defendant may have committed crimes by using names other than his own; or

5. Other crimes Defendant may have committed in the past or which he was previously or is currently charged with.

The State responded by filing a notice of intent to introduce SDCL 19-19-404(b) and res gestae evidence, seeking to admit testimony and evidence of conduct relating to:

1. Defendant's use of the name John Pastorek.

2. The victim sending packages containing money on 7 occasions to John Pastorek at [a specific address in] Irvington, New Jersey [ ].

3. The eighth mailing to John Pastorek did not contain money but was addressed to the same address. This package was sent by [FedEx] on January 23, 2020, with the assistance of the Bon Homme County Sheriff, Mark Maggs. Sheriff Maggs coordinated with the Irvington Police Department to be present when [FedEx] delivered the package. Sgt. Maurice Taylor and Sgt. Brandis Puryear were present at the address when the package was delivered. During a brief surveillance, the officers observed the Defendant accept the package from the [FedEx] employee. The Defendant was immediately detained.

4. During the search incident to the arrest at the police headquarters, the Defendant was found to be in possession of multiple credit cards/debit cards in the name of John Pastorek.

5. During the recorded interview of Defendant, the Defendant explained how he discovered and was using the name of John Pastorek to acquire cash or credit/debit cards.

6. The State intends to introduce the photo of the mailbox with a handmade name tag for John Pastorek. This mailbox was on the Defendant's home.

[¶8.] The circuit court denied Otobhiale's motion in limine and approved the State's notice of intent to offer SDCL 19-19-404(b) and res gestae evidence. The circuit court concluded that the evidence went to identity, intent, preparation, and plan and fell within the permitted uses of such evidence identified in SDCL 19-19-404(b)(2). Alternatively, the circuit court determined the evidence would be admissible as res gestae.

[¶9.] At trial, the State's case-in-chief began with M.D. testifying about her correspondence with Brooks, his requests for money, and her compliance with those requests. Sheriff Maggs testified that after M.D.’s bank contacted him, he intervened to convince M.D. to send a cashless package and arranged the involvement of the Irvington, New Jersey Police Department to help apprehend the package recipient. Before Sergeant Puryear's testimony, the circuit court read two instructions to the jury.⁴ During Sergeant Puryear's direct examination, a video of Otobhiale's entire interview was received into evidence and played for the jury. The State then sought to introduce testimony from Connor Rucktaeschel, a jail inmate with Otobhiale. Rucktaeschel claimed that the previous night, during an argument in the jail, Otobhiale had told him that "he scams people for a living and he'll scam my mom too." After balancing the potential prejudicial effect against the probative value of the evidence under SDCL 19-19-403, the circuit court excluded Rucktaeschel's testimony, a text message Rucktaeschel sent to his mother, and a video of the jail argument.

[¶10.] During his testimony, Otobhiale admitted that he had been receiving money for Nelly but asserted that he would never scam people. He reiterated that he was unaware of his involvement in a scam. Following Otobhiale's testimony, the State again asked to call Rucktaeschel. This time, the circuit court permitted Rucktaeschel's testimony, concluding that Otobhiale's testimony had opened the door and changed the SDCL 19-19-403 balancing to favor admission. During Rucktaeschel's testimony, the text message he sent to his mother was also received into evidence.⁵ In response, Otobhiale testified again and denied making those statements to Rucktaeschel. During Otobhiale's cross-examination, a video of the jail argument⁶ was received into evidence and published to the jury. After the video, both sides rested.

[¶11.] Otobhiale then made a motion for judgment of acquittal as to both counts. Otobhiale argued that the State offered no evidence that he possessed the requisite specific intent. The circuit court denied the motion, concluding "that there is sufficient evidence to present to the jury [on both counts]." The jury found Otobhiale guilty of Count Two.⁷

[¶12.] Before sentencing, Otobhiale submitted a motion for a new trial based on newly discovered evidence. Otobhiale's attorney explained that a third inmate, Trenton Kutz, indicated he was present during the jail argument and...