State v. Schumacher

• Citation: 956 N.W.2d 427
• Decision Date: 03 March 2021
• Docket Number: #29318
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Judy K. SCHUMACHER, Defendant and Appellant.
• Court: Supreme Court of South Dakota

956 N.W.2d 427

STATE of South Dakota, Plaintiff and Appellee,

v.Judy K. SCHUMACHER, Defendant and Appellant.

#29318

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS JANUARY 11, 2021

OPINION FILED March 3, 2021

JASON R. RAVNSBORG, Attorney General, BRIGID C. HOFFMAN, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

JOHN M. FITZGERALD of Fitzgerald Law Firm, Rapid City, South Dakota, Attorneys for defendant and appellant.

SALTER, Justice

[¶1.] A jury convicted Judy Schumacher of two counts of aggravated assault under the theory that she used a deadly weapon in an attempt to put another in fear of imminent serious bodily harm. The jury also found her guilty of one count of simple assault against a law enforcement officer. Judy appeals, arguing she cannot be guilty of aggravated assault because the gun she was holding at the time of the incident giving rise to the charges was inoperable. She also contends there was insufficient evidence to support the conviction of simple assault against a law enforcement officer. She further claims that the facts supporting the simple assault charge should have been suppressed because they occurred following what she considers an unlawful entry onto her property to arrest her. We affirm.

Facts and Procedural History

[¶2.] On June 28, 2018, Fall River County Sheriff's Deputies Stephen Yenulonis and Kyle Maciejewski received a report of a domestic dispute between Judy Schumacher and her husband, Al. The Schumachers live on an acreage near the community of Provo in Fall River County, but after the two argued at their home, a friend gave Judy a ride to nearby Edgemont and called for law enforcement assistance.

[¶3.] Deputies Yenulonis and Maciejewski were dispatched to Edgemont where they spoke with Judy at her friend's house. Judy reported that there had been no physical violence during the disagreement with Al and that they had quarreled about when it was best for Judy to seek medical care to address ongoing symptoms following a recent surgery. The deputies advised Judy that they would, nevertheless, need to visit with Al in order to complete their investigation. This prompted a strong response from Judy who became angry and began using profane language, telling the deputies in no uncertain terms that they should not attempt to speak with Al.

[¶4.] Undeterred, the deputies set out from Edgemont in separate patrol vehicles for the 10-minute drive to the Schumacher acreage near Provo. Still angry, Judy set out on foot toward her house before the deputies left Edgemont. When Deputy Maciejewski overtook her en route to Provo, he offered Judy a ride. She declined and responded defiantly, telling the deputy, "If you speak to my husband, I'm gonna kick your ass."

[¶5.] The deputies continued to the Schumacher acreage where they drove through an open gate to reach the house, but they were not successful in their effort to make contact with Al. After knocking on the front door and checking other areas around the house, they left. As the deputies drove away, Judy and Al passed by them in a vehicle driving the opposite direction toward the house.¹ The deputies turned around to return to the Schumachers’ residence. When they arrived, the gate at the end of the driveway leading up to the house was closed and locked. Cameras in the patrol vehicles and the deputies’ microphones recorded the ensuing sequence of events.

[¶6.] Waiting at the gate, the deputies could see Judy walking towards them down the driveway. Deputy Maciejewski realized that Judy was carrying a gun, which was later identified as a .22 caliber revolver. Judy held the revolver so that the barrel rested on her shoulder and the handle was pointing up in the air. The deputies immediately told her to put the revolver down, drew their own weapons, and took cover behind their vehicles. Judy ignored the deputies’ orders to put the revolver down until she reached the gate. Once there, she brought the revolver forward off her shoulder in the general direction of the deputies, and placed it on top of a fence post, but ignored further instructions to step away from the revolver.

[¶7.] Al soon walked up behind Judy, and because Al had a calmer demeaner, Deputy Yenulonis asked him to take the revolver and move it away from Judy. Al complied and put the gun on a separate fence post away from Judy. Deputy Yenulonis then approached Al and retrieved the weapon. After the revolver had been secured,² both deputies climbed over the closed gate to place Judy under arrest for aggravated assault. As she was being handcuffed, Judy kicked Deputy Maciejewski and attempted to stomp on his foot.

[¶8.] It was later determined, and the parties agreed at trial, that the revolver "was incapable of discharging a projectile" at the time of the incident. Al testified that he had last fired the gun in 2002, and because of a loose barrel, small pieces of the lead bullet came back toward him and hit his arm.

[¶9.] The State charged Judy in what became a three-count information³ which included two counts of aggravated assault, alleging that Judy assaulted each of the deputies by "attempt[ing] by physical menace with a deadly weapon" to put each of them "in fear of imminent serious bodily harm[.]" See SDCL 22-18-1.1(5).⁴ Judy was also charged with simple assault against Deputy Maciejewski under the theory she had kicked him as he was attempting to arrest her. See SDCL 22-18-1(5), -1.05.

[¶10.] Relying upon the condition of the gun, Judy filed a pretrial motion to dismiss the aggravated assault charges, arguing that the two counts contained in the information did not charge a public offense. In Judy's view, her conduct was not illegal because she could not "attempt by physical menace with a deadly weapon to put another in fear" if the revolver was inoperable.⁵ (Emphasis added.) The circuit court was unpersuaded and denied her motion to dismiss.

[¶11.] Judy also filed a motion to suppress prior to trial, seeking to exclude the facts related to the simple assault charge. She argued that the deputies violated her Fourth Amendment rights when they climbed over the gate to arrest her in the driveway, and in her view, "any evidence gathered ... from the moment after the deputies jumped the gate and entered the curtilage of the property" should be excluded as "fruit of the poisonous tree." The circuit court denied the motion after receiving testimony from Deputy Maciejewski and viewing the recorded audio and video evidence of the incident.⁶

[¶12.] The case was tried to a jury on January 15 and 16, 2020. Though the .22 caliber revolver was damaged and could not be safely fired, the evidence established that Deputies Yenulonis and Maciejewski were unaware of the gun's condition. Both testified that Judy's actions caused them to fear for their lives because the revolver appeared to be a normal, working firearm as she walked toward them.

[¶13.] Judy also testified at trial, but her testimony concerning the revolver proved problematic for her. She initially claimed she was merely carrying the revolver for protection from wild animals on her property. However, she also acknowledged that she knew the gun did not function properly. On cross-examination, the prosecutor pointed to the incongruity of possessing an inoperable firearm for protection against wild animals. When he suggested that Judy had instead armed herself in an attempt to frighten the deputies, Judy answered, "Fifth Amendment. I have the right to carry a firearm on my own property." The circuit court attempted to clarify whether Judy was attempting to invoke her Fifth Amendment right to remain silent and allowed the prosecutor to repeat the question:

Q: [by the prosecutor] I said the only reason to take the gun out at that point was to intimidate law enforcement. Correct? And that's when you said, "I claim the Fifth"?

A: [by Judy] No, that's not the only reason to take a firearm out. I have the right to carry a firearm on my own property or in public according to state laws of South Dakota, Second Amendment of the United States Constitution.

[¶14.] At the conclusion of the State's case, Judy moved for a judgment of acquittal on all three charges. As to the aggravated assault charges, she argued that an inoperable firearm did not meet the definition of "deadly weapon," and for the simple assault charge, Judy claimed there was insufficient evidence that Deputy Maciejewski suffered any sort of injury during her arrest. The circuit court denied the motion in all respects.

[¶15.] As the circuit court and the parties settled final instructions, Judy proposed an instruction that included the statutory definition of "firearm:"

"Firearm," any weapon from which a projectile or projectiles may be discharged by gunpowder. As used in this subdivision, the term, gunpowder, includes any propellant that upon oxidization emits heat and light and is commonly used in firearms cartridges[.]

SDCL 22-1-2(16).

[¶16.] Judy's position remained that the revolver was so damaged that it was no longer a firearm and could not, therefore, be used as a deadly weapon under SDCL 22-18-1.1(5). The circuit court, however, denied the instruction along with efforts by Judy's counsel to argue to the jury that the non-working condition of the revolver created a valid defense. The court relied, in part, on the breadth of the definition of "deadly weapon" which includes not only firearms but also any "device, instrument, material, or substance, whether animate or inanimate, which is calculated or designed to inflict death or serious bodily harm, or by the manner in which it is used is likely to inflict death or serious bodily harm[.]" SDCL 22-1-2(10).

[¶17.] The jury returned a guilty verdict on all three counts. The court suspended concurrent ten-year prison sentences for each of the aggravated assault counts and a two-year sentence for the simple assault count. The court placed Judy on probation under conditions, including serving 90...