State v. Scholten, 16317

• Decision Date: 25 May 1989
• Docket Number: No. 16317,16317
• Citation: 445 N.W.2d 30
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Brian Paul SCHOLTEN, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 30

445 N.W.2d 30

STATE of South Dakota, Plaintiff and Appellee, v. Brian Paul SCHOLTEN, Defendant and Appellant.

No. 16317.

Supreme Court of South Dakota.

Considered on Briefs May 25, 1989.

Decided Aug. 30, 1989.

Roger A. Tellinghuisen, Atty. Gen. and Frank Geaghan, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Steve Miller, Sioux Falls, for defendant and appellant.

PROCEDURAL HISTORY/ISSUES

HENDERSON, Justice.

Defendant/Appellant Brian P. Scholten (Scholten) was indicted, by the Minnehaha County Grand Jury, with two counts of aggravated assault, based on events which grew out of an altercation between Dale Larson (Larson) and Scholten, Robert C. Gillespie (Gillespie) and Ronald J. Marr (Marr) in a Sioux Falls parking lot. Scholten and Gillespie were tried together and were both convicted of one count of aggravated assault under SDCL 22-18-1.1(4). ¹ Marr was convicted, in a separate jury trial, of two counts of aggravated assault. Scholten appeals both the conviction and restitutional aspect of his sentence, alleging that the trial court erred in three regards:

1. Refusal to instruct the jury that simple assault was a lesser included offense of which Scholten could be convicted;

2. Refusal of proposed self-defense instructions; and,

3. Ordering Scholten to execute a confession of civil judgment in Larson's favor for all medical bills, dental bills, and out-of-pocket expenses.

We affirm Scholten's conviction, determining that his arguments regarding Issues I and II are unsound. However, we reverse the trial court on Issue III, as was done in defendant Gillespie's separate appeal, State v. Gillespie, 445 N.W.2d 661 (S.D.1989), handed down August 30, 1989. Marr's appeal did not raise the restitutional issue, and his conviction was affirmed by order, dated February 22, 1989, without writing, on an expedited basis.

FACTS

In the early morning hours of October 17, 1987, Dale Larson drove his car to a parking lot in the vicinity of the Pomp Room, a Sioux Falls bar. Larson became embroiled in an altercation with Scholten, Marr and Gillespie which resulted in Larson's being beaten and kicked to a point near death. At trial, Larson could not remember the assault. The accounts of the various defendants disagree as to how the fight started; Gillespie told police that he and Scholten went to help Marr, who was arguing with Larson, whereas Scholten testified that Marr came to the aid of Gillespie and himself.

According to Scholten's trial testimony, he and Gillespie left the Pomp Room at approximately 1:45 a.m., shortly before the Pomp Room closed. They entered the parking lot together, and were nearly hit by Larson's car. Gillespie made an obscene hand gesture, and Larson started his car forward, stopping just short of where they were standing. Tempers flared and Larson stepped out of his car. Larson went to the trunk of his car, and Scholten said: "Hey, man, you ain't going to the trunk and getting a weapon, man. You ain't pulling a gun." Scholten then approached Larson at the car's trunk and shoved him. Gillespie closed in, and Marr ran up from across the street. Larson started to return to the driver's door, and Scholten turned away, thinking the matter was ended. Then, per Scholten, Larson went back to the trunk, opened it, and pulled out a gun. Scholten, at trial, testified that he then ran 50 or 60 feet from Larson, who was threatening to blow someone's head off, but went back to help his friends, although he told police that the three of them returned only after they realized Larson was not going to shoot. At trial, Scholten testified that Larson pointed the gun at him and Gillespie, then "in a heartbeat," Marr punched Larson from the side, and grabbed him. Gillespie hit Larson with his hand. ² According to Scholten, he landed two running kicks in Larson's face and mouth, having approached Larson like he was kicking-off in a football game. Scholten asserted that his second kick knocked Larson out, and Larson went down, with Marr falling on top of Larson. Scholten testified that they stopped hitting or kicking Larson immediately. Scholten opined that only five to seven seconds elapsed between Marr's initial contact with Larson and the end of the fight. Scholten then sat in Larson's car, intending to wreck it. At Gillespies' urging, however, Scholten exited the car without damaging it.

Three other eyewitnesses, Pat Stauffacher, Angie Bresee and Jodi Pollman, told a sharply different account. None saw Larson brandish a gun. All three testified that Larson was beaten and kicked repeatedly while he lay unconscious on the ground. Stauffacher testified that he saw Larson's eyes rolled back in his head while Scholten and Gillespie "literally kicked the shit out of him." Bresee saw Scholten pull his leg back before each hard kick to Larson's torso, although she did not see the earlier stages of the altercation. Bresee also testified that Marr shoved the gun into Larson's mouth and kicked it. Pollman also observed Larson being knocked out and Scholten and Gillespie continuing to kick him in the chest and torso. Pollman called 911 for an ambulance.

Larson was taken to McKennan Hospital's emergency room, where he was almost dead on arrival. According to Dr. Stephen Billion, Larson later nearly died on the operating table when surgeons attempted to drain internal bleeding in the sac surrounding his heart, a condition known as cardiac tamponade. Billion opined that Larson, whose heart stopped twice during the effort to save him, would have expired without immediate assistance. He further testified that Larson's injuries were most consistent with being kicked repeatedly by a number of individuals, and that the proposition that Marr's fall on top of Larson caused his serious injuries was unlikely. In addition to cardiac tamponade, Larson's palate was shattered, his right cheekbone broken, three teeth chipped, one tooth knocked out, a fractured rib punctured a lung causing it to collapse, and a boot print was impressed on the side of his head. Five and one half months after injury, Larson was still unable to return to work.

DECISION

I. Jury Instructions (Issues 1 and 2)

Scholten argues that the trial court erred in not instructing the jury that simple assault was a lesser included offense and in rejecting proffered instructions on self-defense. We reject both arguments.

Scholten's first argument fails because there was insufficient evidence to support jury instructions on simple assault. ³ However, "[t]he trial court must instruct the jury upon a lesser included offense if the evidence presented would support a conviction on the lesser charge." State v. Rich, 417 N.W.2d 868, 870 (S.D.1988). "[T]he trial court is not required to instruct the jury even as to those offenses which might be included, but which the evidence would not warrant." State v. Feuillerat, 292 N.W.2d 326, 334 (S.D.1980). "There must be sufficient evidence, however, when read in the light most favorable to the defendant, which would justify a jury in concluding that the greater offense was not committed and that a lesser offense was, in fact, committed." Rich, at 871. "The evidence must throw doubt upon the greater offense." Id, (quoting Feuillerat, and State v. Melvin, 49 Wis.2d 246, 252, 181 N.W.2d 490, 494 (1970)). The facts of this case established that truly massive, near-fatal injury was inflicted upon Larson. Three independent eyewitnesses testified that Scholten repeatedly kicked Larson as he lay unconscious. This evidence, combined with medical testimony that Larson's injuries were most consistent with prolonged kicking by a number of assailants, removes any doubt that Scholten was guilty of aggravated assault rather than simple assault.

Because there is insufficient evidence to raise doubt that simple assault was committed rather than aggravated assault, we do not consider whether the legal test ⁴ for necessarily included offenses has been met.

We likewise disagree with Scholten's argument that the trial court erred in rejecting jury instructions concerning self-defense,...