State v. Robertson
| Citation | 2023 S.D. 19 |
| Decision Date | 19 April 2023 |
| Docket Number | 29759-a-SPM,29759-a-PJD |
| Parties | STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. BILLY JOE ROBERTSON, Defendant and Appellant. |
| Court | Supreme Court of South Dakota |
CONSIDERED ON BRIEFS MAY 25, 2022
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE CRAIG A PFEIFLE Judge
TODD A. LOVE Rapid City, South Dakota Attorney for defendant and appellant.
MARTY J. JACKLEY Attorney General, JACOB R. DEMPSEY Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
[¶1.] Justice Myren delivers the majority opinion of the Court on Issue 1 and Issue 2. Justice DeVaney delivers the majority opinion of the Court on Issue 3.
[¶2.] MYREN, Justice, writing for the court on Issue 1 and Issue 2.
[¶3.] Billy Robertson was tried for first-degree burglary, two counts of aggravated assault (charged alternatively), and grand theft. During and after his jury trial, Robertson made motions for judgment of acquittal, which the circuit court denied. The jury convicted Robertson of first-degree burglary, aggravated assault, and grand theft. Robertson appeals. We affirm.[1]
[¶4.] On July 21, 2020, Bradley Tucker woke at 4:30 a.m. in his home in Rapid City, South Dakota, when he heard screeching tires and a smash in his driveway. He looked outside his bedroom window and saw his GMC Sierra parked partway out of his garage. Tucker told his wife to call 911 and immediately ran downstairs. When Tucker reached his driveway, he saw Robertson standing between his boat and pickup with a tackle box in his hand. Robertson stated, and Tucker said, "No. You're not taking it." Robertson responded, "This guy saved my life and I'm taking it." Robertson dropped the tackle box, ran, and entered Tucker's pickup through the driver's side door, which was already open. Tucker chased Robertson but slipped. By the time Tucker regained his balance, Robertson had put the pickup into gear.
[¶5.] Tucker reached inside the open driver's door and grabbed "ahold of something" to prevent Robertson from closing the door. Tucker was dragged alongside the moving pickup until he positioned his feet onto a step below the driver's door. He reached into the cab and placed Robertson in a headlock, at which point Robertson said "Let's go for a fucking ride." Ultimately, Tucker pulled Robertson out of the cab while the pickup was still moving. Tucker landed on the left side of his body, and Robertson landed on top of him. Robertson jumped up, ran to a red Ford pickup, and drove away. Tucker's pickup continued down the block until it ran into his neighbor's garage. Tucker backed his pickup a few feet away from the neighbor's garage and shut it off. When Tucker opened the passenger door, a whiskey bottle fell out of the pickup. Tucker eventually rode with police to a different location, where he identified Robertson as the person who attempted to take his pickup.
[¶6.] A Pennington County grand jury indicted Robertson on the charges of first-degree burglary (SDCL 22-32-1(3)); alternative counts of aggravated assault under circumstances manifesting extreme indifference to human life (SDCL 22-18-1.1(1)) or aggravated assault by attempting by physical menace with a deadly weapon to put another in fear of imminent serious bodily harm (SDCL 22-18-1.1(5)); grand theft (SDCL 22-30A-1 and SDCL 22-30A-17); and alternative counts of aggravated assault on a law enforcement officer under circumstances manifesting extreme indifference to human life (SDCL 22-18-1.1(1) and SDCL 22-18-1.05) or aggravated assault on a law enforcement officer by attempting by physical menace with a deadly weapon to put another in fear of imminent serious bodily harm (SDCL 22-18-1.1(5) and SDCL 22-18-1.05).[2] The State filed a part II information that alleged Robertson was an habitual offender.
[¶7.] Tucker was the State's first witness at the jury trial. He testified that he left the keys to his pickup on his deep freezer, about 30 feet into his garage. He described his interactions with Robertson as outlined above. Tucker described his injuries, including road rash on his left arm and leg and the loss of his big toenail from his left foot. Tucker stated that he had his wife write out his report for law enforcement because he was shaking too badly to do it himself. Tucker testified that his pickup was totaled, and his insurance paid him $28,600 for damages.
[¶8.] South Dakota Highway Patrolman Chris Regan testified that he responded to an attempted vehicle theft at Tucker's residence. Patrolman Regan testified that it was 5:41 a.m. when he arrived at the scene. Patrolman Regan said he spoke with Tucker and noticed that his pickup went down a "pretty steep" hill from Tucker's house into his neighbor's garage. Robertson was detained as part of an investigation of another incident at a different residence, also reported around 4:30 a.m. Patrolman Regan testified that he took Tucker to that location to see if Tucker would identify Robertson as the individual who attempted to steal his pickup. After Tucker identified Robertson, Patrolman Regan took Tucker back to his home, where he completed the written statement that his wife wrote out for him.
[¶9.] Rapid City law enforcement officer Brendan Lenard responded to a call to look for the red Ford pickup. He testified that it was still dark outside when he found it. He testified that dawn was breaking when he began taking pictures of that vehicle.
[¶10.] Anthony Picketpin, another Rapid City law enforcement officer, was searching for the suspect who fled Tucker's residence in the red Ford pickup. After being advised that the pickup had crashed, Officer Picketpin set up a perimeter around the area where the pickup was located. He testified that he heard noises coming from the bushes around a house and saw a person standing in a driveway wearing a red and white jersey. This person was out of breath and appeared to have just finished running. Officer Picketpin detained the person, who was identified as Robertson.
[¶11.] Sergeant Philip Koch testified that he arrived at Tucker's home at 7:30 a.m., roughly two and one-half to three hours after the incident. He stated that he received a statement from Tucker and described the injuries Tucker suffered. Sergeant Koch testified that he also spoke with Robertson. The State asked Sergeant Koch if he was able to speak with Robertson about the events that occurred at Tucker's residence. He responded, "[y]es[,]" but then clarified that he "spoke with him regarding the events of the early morning[.]"[3] The State then asked:
[¶12.] Bincy Thankachan, a Rapid City Police Department forensic examiner, documented the crime scenes involving the red Ford pickup and Tucker's pickup. She took pictures of the red Ford pickup and Tucker's pickup. She described the damage to Tucker's pickup and stated she recovered an empty whiskey bottle from the driveway where Tucker's pickup was parked. Thankachan took buccal swabs from Tucker, Tucker's wife, various places on Tucker's pickup, the whiskey bottle, Tucker's garage doorknob, and Tucker's boat located in his garage.
[¶13.] Jessika Simon, a forensic scientist, testified that the DNA found on the mouth of the empty whiskey bottle came from two individuals. One DNA source matched Robertson's DNA. There was insufficient DNA material from the other contributor for Simon to make any genetic comparisons. Simon testified about the strength of the match with Robertson and explained, "I would not expect to see this DNA profile again in the world population unless if there was an identical twin."
[¶14.] After the State rested, Robertson made a general motion for a judgment of acquittal as to all charges based on the State's failure to establish the necessary elements of the offenses. Then, concerning the first-degree burglary charge, Robertson specifically argued that the State did not prove that he entered an occupied structure. As to the aggravated assault charge, Robertson contended that the State failed to prove that Tucker sustained injuries under circumstances manifesting an extreme indifference to the value of human life or that the pickup was used as a physical menace or as a deadly weapon to place Tucker in fear of imminent harm. The circuit court denied Robertson's motion for judgment of acquittal.
[¶15.] The jury found Robertson guilty of first-degree burglary in violation of SDCL 22-32-1(3), aggravated assault in violation of SDCL 22-18-1.1(5) (physical menace), and grand theft in violation of SDCL 22-30A-17. Following the jury trial, Robertson renewed his motion for judgment of acquittal. The circuit court denied it again.
[¶16.] Robertson pled no contest to the allegation in the part II information. The circuit court sentenced Robertson to 40 years imprisonment with 15 years suspended for first-degree burglary, 25 years imprisonment with five years suspended for aggravated assault, and 15 years imprisonment with five years suspended for grand theft. All the sentences were concurrent. Robertson appeals.
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