State v. Schrempp

• Decision Date: 22 November 2016
• Docket Number: No. 27461.,27461.
• Citation: 887 N.W.2d 744
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Brooke Allison SCHREMPP, Defendant and Appellant.
• Court: South Dakota Supreme Court

887 N.W.2d 744

STATE of South Dakota, Plaintiff and Appellee,

v.Brooke Allison SCHREMPP, Defendant and Appellant.

No. 27461.

Supreme Court of South Dakota.

Considered on Briefs Aug. 29, 2016.

Decided Nov. 22, 2016.

Marty J. Jackley, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Jason R. Adams of Tschetter & Adams Law Office, PC, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

KERN, Justice.

[¶ 1.] Defendant was indicted for eight drug-related offenses in March 2014 and convicted of seven of the eight counts. On appeal, defendant contends she is entitled to a new trial because the trial court erred by amending the indictment the day prior to trial. Defendant also argues she was prejudiced when the trial court failed to notify the parties of a jury question that arose during deliberations and then answered the question without input from the parties. We affirm.

Background

[¶ 2.] Brooke Schrempp resided in Sioux Falls with her boyfriend, Christopher Uhing. The residence was located within a drug-free zone. Sioux Falls Area Drug Task Force Detective John Spaeth obtained a warrant for the search of the home after receiving numerous tips and other information that the occupants were dealing drugs. During the search of the home, officers found evidence of drug use and distribution. The officers found more than a half pound of marijuana, drug paraphernalia, pipes, digital scales, jeweler's baggies, and other packaging materials. Additionally the officers found equipment and supplies for a marijuana growing operation. The officers also discovered items used to manufacture hashish. Such supplies included capped tubes with holes drilled in the caps. One tube was packed with marijuana. The search also produced 44 empty cans of butane and large bags used to filter marijuana to make hashish.

[¶ 3.] Later that day, Sioux Falls Police located Schrempp at her place of employment and arrested her. Schrempp received and waived her Miranda rights and told the police that she lived at the residence with her boyfriend Uhing. She stated that she liked to smoke marijuana and admitted that she was selling both marijuana and hashish. During the interview Schrempp admitted that she had also made hashish or “concentrate” and explained the process.

[¶ 4.] At trial Detective Spaeth testified that the active ingredient in marijuana is Tetrahydrocannabinol (THC). Detective Spaeth explained that one method of making hashish involved packing marijuana into tubes and flushing butane through the leaves causing a resin or wax like substance to come out of the bottom of the tube. The resin is known as hashish. Hashish is also referred to by the slang terms “honey oil,” “dab,” or “concentrate.”

[¶ 5.] The State charged both Schrempp and Uhing as codefendants with eight drug-related offenses: possession of one-half pound but under one pound of marijuana (SDCL 22–42–6 ); possession with intent to distribute or dispense more than one-half pound but less than one pound of marijuana (SDCL 22–42–7 ); possession of a controlled substance, hashish (SDCL 22–42–5 ); possession of a controlled substance, cocaine (SDCL 22–42–5 ); maintaining a place where drugs are kept, sold, or used (SDCL 22–42–10 ); possession with intent to distribute or dispense more than one-half pound but less than one pound of marijuana (SDCL 22–42–7 ) in a drug-free zone (SDCL 22–42–19 ); possession with intent to manufacture controlled substance, hashish (SDCL 22–42–2 ); and possession or use of drug paraphernalia, digital scales (SDCL 22–42A–3 ). The case was scheduled for a three-day jury trial beginning on February 4, 2015.

[¶ 6.] The day before trial, the court held a pretrial motions hearing. At this hearing, the State noted that it had corresponded with defense counsel about an amendment to the indictment. After receiving the chemist's test results, the State discovered that Counts 3 and 7 of the indictment should have referenced “Delta–9–Tetrahydrocannabinol” instead of “hashish.” The State sought an amendment to correct the language in these two counts. Schrempp did not object. With the parties consent the trial court amended the counts by crossing out the word “hashish” and adding “Delta–9–Tetrahydrocannabinol AKA Hashish” in the margins along with the court's initials and date.

[¶ 7.] The case was submitted to the jury for resolution on February 6, 2015. During deliberations, the jury submitted a written question to the court stating, “Can we get the portion of Detective Spaeth's testimony regarding [Schrempp's] initial interview after arrest?” The trial court did not notify the parties that a question had been received from the jury. Instead, the court sent the jury the preliminary jury instructions highlighting a portion of Instruction Number 4. The highlighted portion read, “At the end of the trial, you must make your decision based upon what you recall of the evidence. You will not have the written transcript to consult, and the court reporter will not be required to read back lengthy testimony. Therefore, you should pay close attention to the testimony as it is presented.” After the jury reached a verdict, the trial court informed counsel on the record of the question and the court's method of answering the question. Schrempp did not object to the action taken by the trial court.

[¶ 8.] The jury convicted both Schrempp and Uhing on all counts with the exception of Count 4. The court sentenced Schrempp for the seven offenses to a combined total of 29 years in the South Dakota State Women's Prison and 30 days in the Minnehaha county jail. However, the court suspended all but 6 years and 30 days of the prison sentence and ordered that Schrempp's 30 day sentence in the county jail be served concurrently.

[¶ 9.] Schrempp appeals her conviction, arguing two issues:

1. Whether the trial court erred by amending the indictment the day prior to trial.

2. Whether the trial court committed plain error by not informing the parties of the jury's question at the time it occurred.

Decision

[¶ 10.] 1. Whether the trial court erred by amending the indictment the day prior to trial.

[¶ 11.] Schrempp contends that the trial court's amendment of the indictment constitutes reversible error. She argues that there was no evidence presented that Delta–9–Tetrahydrocannabinol and hashish are the same substance; thus, the amendment could have been confusing to the jury.¹ In response, the State contends that Schrempp not only waived the issue, but “agreed with and acquiesced to the very action she now challenges.” (Emphasis omitted.) It is undisputed that Schrempp did not object to the trial court's amendment during the motions hearing. While this failure would normally waive consideration of the issue on appeal, State v. Anderson, 1996 S.D. 46, ¶ 17, 546 N.W.2d 395, 400 (citing SDCL 23A–8–3(3) ), Schrempp argues that the issue is jurisdictional—namely that the court lacked jurisdiction to make the amendments. Accordingly, Schrempp submits review is proper as “jurisdictional defects may be raised for the first time on appeal.” State v. Sanders, 2016 S.D. 32, ¶ 3, 878 N.W.2d 105, 107 (quoting State v. Neitge, 2000 S.D. 37, ¶ 9, 607 N.W.2d 258, 260 ). Schrempp alternatively argues that the question could be reviewed under the plain error doctrine.

[¶ 12.] Schrempp mistakenly conflates a court's jurisdiction with a court's authority. The “elastic concept of jurisdiction” used by Schrempp “is not what the term ‘jurisdiction’ means today, i.e., ‘the courts' statutory or constitutional power to adjudicate the case.’ ” United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002) (quoting Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 89, 118 S.Ct. 1003, 1010, 140 L.Ed.2d 210 (1998) ). Because a defective indictment “does not affect the jurisdiction of the trial court to determine the case presented by the indictment,” the United States Supreme Court “departed from ... [the] view that indictment defects are ‘jurisdictional.’ ” Id. at 631, 122 S.Ct. at 1781. The proper question, then, is whether the court had authority to amend the indictment.

[¶ 13.] Because Schrempp failed to object to the amendment during the motions hearing, we can only review for plain error. State v. Bowker, 2008 S.D. 61, ¶ 45, 754 N.W.2d 56, 69. Plain error review must be “applied cautiously and only in exceptional circumstances.” State v. Beck, 2010 S.D. 52, ¶ 10, 785 N.W.2d 288, 293. To establish plain error, an appellant must show “(1) error, (2) that is plain, (3) affecting substantial rights; and only then may this Court exercise its discretion to notice the error if (4) it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” State v. Buchhold, 2007 S.D. 15, ¶ 22, 727 N.W.2d 816, 822 (alteration in original). To establish that an error has affected substantial rights, “the error must have been prejudicial: It must have affected the outcome of the [circuit] court proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508 (1993). Additionally, “with plain error analysis, the defendant bears the burden of showing the error was prejudicial.” Beck, 2010 S.D. 52, ¶ 10, 785 N.W.2d at 293.

[¶ 14.] Schrempp cites United States v. Sazenski in support of her argument that circuit court judges are without authority to amend an indictment even with a defendant's consent. 833 F.2d 741, 743–44 (8th Cir.1987) (citing United States v. Norris, 281 U.S. 619, 623, 50 S.Ct. 424, 425, 74 L.Ed. 1076 (1930) ). While it is true as a general rule that courts may not amend indictments, “that rule is inapplicable when the change is one of form only.” United States v. Mason, 869 F.2d 414, 417 (8th Cir.1989). Thus, the State argues that “where it was not a material change and was a clarification as to form,” there is no plain error.

[¶ 15.] We have previously addressed the...