State v. Rufener, No. 15039

• Court: Supreme Court of South Dakota
• Writing for the Court: FOSHEIM; MORGAN; WUEST; HENDERSON; Learned Hand; SABERS
• Citation: 392 N.W.2d 424
• Docket Number: No. 15039
• Decision Date: 17 March 1986
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Eugene RUFENER, Defendant and Appellant. . Considered on Briefs

Page 424

392 N.W.2d 424 STATE of South Dakota, Plaintiff and Appellee,
v.
Eugene RUFENER, Defendant and Appellant. No. 15039. Supreme Court of South Dakota. Considered on Briefs March 17, 1986.
Decided Aug. 13, 1986.

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

Thomas K. Wilka of Hagen & Wilka Sioux Falls, for defendant and appellant.

FOSHEIM, Chief Justice.

Eugene Rufener (Rufener) was found guilty on three counts of distributing marijuana. Each count alleged distribution of more than one pound in violation of SDCL 22-42-7. Concurrent six year sentences on each count were imposed. Rufener appeals. We affirm.

Roger Persing was arrested on October 30, 1984, after an undercover agent purchased marijuana from him. Persing entered into a plea agreement which required his cooperation with law enforcement personnel to identify his drug source. Persing testified about purchases he made from Rufener in mid and late October of 1984, prior to his arrest. Rufener was later arrested in late November after he scheduled another meeting with Persing.

Rufener argues that the trial court erred in refusing requested accomplice instructions regarding the testimony of Persing. The first proposed instruction stated in substance that conviction of a crime charged cannot be based upon the testimony of an accomplice absent independent corroboration. The second instruction offered stated that accomplice testimony should be viewed with distrust.

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It appears the trial court relied on State v. Johnson, 81 S.D. 600, 606, 139 N.W.2d 232, 236 (S.D.1965), which defines an accomplice as one who is liable to prosecution on the identical offense charged against the defendant. Since Persing was no more than a purchaser at the time of the alleged criminal acts, the trial court did not err in finding that Persing and Rufener could not be charged with the same crime arising from each transaction. See State v. Fox, 313 N.W.2d 38, 40-41 (S.D.1981). Hence, Persing was not an accomplice and no corroboration was necessary to sustain the conviction. Id. at 41. Furthermore, other witnesses corroborated Persing's "time and place" testimony far beyond what we have held meets minimum requirements. See State v. Reutter, 374 N.W.2d 617, 626 (S.D.1985); State v. Wiegers, 373 N.W.2d 1, 15-16 (S.D.1985); State v. Feyereisen, 345 N.W.2d 58, 60 (S.D.1984).

Rufener seeks reversal because he claims several specific instances of "bad acts" evidence were received contrary to SDCL 19-12-4 and -5. Specifically, this evidence included: (1) testimony by David Dietrich that he purchased several pounds of marijuana from Rufener in the summer of 1984; (2) testimony by the arresting officers that they retrieved an illegally concealed pistol, a small bag of marijuana, and a marijuana cigarette from Rufener's car; and, (3) impeaching testimony by undercover agent Duane Dahl that Nancy Pierson, Rufener's girlfriend and a State's witness, told Dahl in April of 1983 that Rufener was bringing hundreds of pounds of marijuana to the state from Arizona.

Upon review of whether the trial court abused its discretion in admitting evidence of other wrongs we must be careful not to substitute our reasoning for that of the trial court. The test is not whether judges of this court would have made an original like ruling, but whether they believe a judicial mind, in view of the law and the circumstances, could have reasonably reached that conclusion. State v. Rose, 324 N.W.2d 894, 895-96 (S.D.1982).

Rufener claims Dietrich's testimony about his purchases should not have been admitted because it did not demonstrate a common scheme, method or plan, but rather was nothing more than another in a series of marijuana related transactions that took place in a motel. It is Rufener's position that facts such as the customary use of a dufflebag or suitcase by Rufener and meeting in a motel alone are not evidence of a common scheme, method or plan as would lead to the identification or establishment of a common scheme. He contends, citing SDCL 19-12-4 and State v. Houghton, 272 N.W.2d 788 (S.D.1978), that this type of evidence must show a plan to commit the specific crime charged, not merely a plan to commit that type of crime generally.

The trial court concluded that Dietrich's testimony was relevant under SDCL 19-12-5 and properly balanced the probative value of the proffered evidence against the risk of unfair prejudice pursuant to SDCL 19-12-3. State v. Johnson, 316 N.W.2d 652, 653-55 (S.D.1982); State v. Dace, 333 N.W.2d 812, 816 (S.D.1983). The jury was then specifically instructed that "other acts" evidence was admissible solely for the limited purposes of showing that Rufener had a common scheme, design, system or plan to commit the sort of crime with which he was charged, and to identify Rufener as the person who committed the offenses charged. Dietrich clearly testified on "common elements" showing that Rufener customarily sold marijuana at motels, that the marijuana was usually wrapped in individual one pound bags and carried in a dufflebag or suitcase, and that Rufener had previously extended credit. Accordingly, we are unable to find that the trial court abused its discretion in admitting this evidence, especially since Rufener placed identity in issue by asserting alibi defenses to all three counts. See Johnson, 316 N.W.2d at 654.

Rufener argues that evidence of the marijuana and firearm found in his rented car at the time of arrest was also improperly admitted because of an absence of testimony

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that he ever used a dangerous weapon to promote the distribution of marijuana. Consequently, Rufener finds that this evidence was prejudicial because it made him appear a violent and dangerous individual and had no bearing on the sales leading to his arrest.

This would likely be Rufener's strongest argument. At trial, ¹ however, he only objected to the evidence in general terms on relevancy grounds. Since before the turn of the century we have consistently held that an objection to evidence worded in terms such as "incompetent, irrelevant and immaterial" to be too general to preserve the issue on appeal. Flathers v. Wilson & Co., 62 S.D. 548, 551, 255 N.W. 149, 151 (1934); Moberg v. Scott, 42 S.D. 372, 377, 175 N.W. 559, 561 (1919); Ellwein v. Town of Roscoe, 42 S.D. 298, 303, 174 N.W. 748, 749 (1919); Bright v. Ecker, 9 S.D. 449, 452, 69 N.W. 824, 824 (1897). That principle is now mandated by statute. SDCL 19-9-3(1). ² The reason for the rule is twofold: (1) to enable the trial judge to understand the precise question upon which he has to rule and to relieve him of the burden of searching for the basis of the objection; and (2) to afford the opposing party an opportunity to obviate the objection. Bright, 9 S.D. at 451, 69 N.W. at 824. It follows, as provided by SDCL 19-9-3, that error may not be predicated upon such an insufficient objection.

We find the plain error doctrine, established by SDCL 19-9-6 and SDCL 23A-44-15, inapplicable to the admission of the pistol and marijuana found in the car. Moreover, even assuming inadmissibility of these items, it could be no more than harmless error. Given the totality of the evidence, we are satisfied that even absent the challenged evidence, it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty. See State v. Chief Eagle, 377 N.W.2d 141, 144 (S.D.1985); High Elk v. State, 344 N.W.2d 497, 501-02 (S.D.1984).

Rufener argues that when Agent Dahl was allowed to impeach State's witness Nancy Pierson, irrelevant bad act evidence improperly came in the back door. Rufener insists that initial questions to Pierson about a 1983 conversation with Dahl, which Dahl impeached, were extremely remote and constituted reversible error, especially since Pierson was called as a State's witness for the purpose of later impeachment by Dahl. He cites State v. Kietzke, 85 S.D. 502, 507, 186 N.W.2d 551, 554 (S.D.1971) for the proposition that a party cannot cross-examine or impeach his own witness and that Pierson did not fall into any of the exceptions noted in Kietzke.

Initially, we note it is now settled that a party may impeach his own witness. SDCL 19-14-8. Moreover, Dahl's statements were properly admissible for impeachment purposes under SDCL 19-14-8 because, according to the record, the four requirements established by United States v. Rogers, 549 F.2d 490, 495-97 (8th Cir.1976), which need to be satisfied before prior inconsistent statements may be used for impeachment at trial were met: (1) inconsistency, (2) relevancy, (3) compliance with SDCL 19-14-24, & -25 on use of extrinsic evidence and affording the witness an opportunity to explain or deny a prior statement, and (4) a limiting instruction to the jury on the purpose of prior inconsistent statements. See State v. Gage, 302 N.W.2d 793, 798-99 (S.D.1981). The questions asked of Pierson ³ and Dahl's statements showed, or attempted to show, a common scheme, design, system or plan to commit the sort of crimes charged and, therefore, constituted relevant, proper "other act" evidence. Moreover, the portion of Dahl's testimony relating to Pierson's inconsistent statement was limited.

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The jury was given a cautionary instruction at the time of the impeachment and also at the close of all evidence.

Relying on SDCL 23A-6-23, Rufener next contends he should not have been tried for all three counts in the same trial, particularly since he filed a notice of alibi defenses and because State's witnesses could not pinpoint the dates for Counts I and II. He notes that the three counts did not involve the same transaction and argues that their similarity resulted in prejudice to him.

This court has held that a defendant has no absolute right to separate trials. Whether counts will be tried separately is within the discretion of the trial court. State v. Maves, 358...