State v. Thoman, #29151

• Court: Supreme Court of South Dakota
• Writing for the Court: GILBERTSON, Retired Chief Justice
• Citation: 955 N.W.2d 759
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. William THOMAN, Defendant and Appellant.
• Docket Number: #29151
• Decision Date: 17 February 2021

955 N.W.2d 759

STATE of South Dakota, Plaintiff and Appellee,
v.
William THOMAN, Defendant and Appellant.

#29151

Supreme Court of South Dakota.

ARGUED NOVEMBER 18, 2020
OPINION FILED February 17, 2021

JASON R. RAVNSBORG, Attorney General, MATTHEW W. TEMPLAR, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

ELLERY GREY of Grey & Eisenbraun Law, Rapid City, South Dakota, Attorneys for defendant and appellant.

GILBERTSON, Retired Chief Justice

¶1.] William Thoman requested that a friend, Kenneth Jones, acquire a gun for him so that he could kill the doctor who treated his wife. Due to this conduct, Thoman was charged and subsequently convicted of criminal solicitation of aiding and abetting first-degree murder. In pretrial and post-trial motions, Thoman argued that one cannot criminally solicit another to aid and abet an offense. The circuit

[955 N.W.2d 763

court denied both motions. Thoman appeals, arguing that the court erroneously denied his motions, erred in denying his requested jury instruction, and erred in the admission of the doctor's testimony. We affirm.

Background

¶2.] On October 3, 2018, William Thoman (Thoman) was indicted on the counts of: (1) attempted first-degree murder of Dr. Mustafa Sahin (Dr. Sahin); and (2) criminal solicitation. The State subsequently dismissed the first count of attempted murder. At issue is the indictment's second count which charges, "[ ]he did, with the intent to promote or facilitate the commission of a crime, to wit: Aiding and Abetting First Degree Murder, command, hire, request, or solicit another person, to engage in specific conduct which would constitute the commission of such offense or an attempt to commit such offense, in violation of SDCL 22-4A-1(1) [.]"

[¶3.] The events leading to the charge began with Dr. Sahin's treatment of Thoman's, now-deceased wife, Kathy. Dr. Sahin's treatment of Kathy began in the summer of 2017 when he informed her that a prior diagnosis of glandular lung cancer was incorrect. He instead diagnosed her with small cell lung cancer and recommended six rounds of chemotherapy. After treatment, Dr. Sahin performed a scan which showed no visible evidence of cancer. However, he informed Kathy and Thoman that microscopic deposits were probably present. Around late January 2018, Thoman left Dr. Sahin a threatening message stating that Kathy was hospitalized. Dr. Sahin ordered a scan of Kathy, which revealed that the cancer had spread to her brain. During Kathy's hospitalization, Dr. Sahin visited with Thoman in Kathy's hospital room. Thoman threatened to drive his truck through the cancer center into Dr. Sahin's office. Dr. Sahin did not call security because Thoman was Kathy's only caregiver. At this point, Dr. Sahin recommended that Kathy seek hospice care or experimental treatment at the Mayo Clinic. Dr. Sahin had no further interactions with Thoman until police detectives informed him that Thoman was making threats against his life.

[¶4.] Around September 2018, after the passing of Kathy, Thoman visited his friend Kenneth Jones (Jones) at Jones's office. The conversation started normally, but then Thoman asked Jones, in a somber tone, if he knew anyone that could do away with somebody. Thoman was referring to a comment Jones made over fifteen years ago about knowing "this friend in New York that could [kill somebody] for a round-trip ticket and 100 bucks." Jones explained to Thoman that his comment was a joke. Thoman went on to ask Jones if he could get him a handgun. Jones responded that the "last thing I'm going to do is get you a gun[,] so you can off yourself." Thoman responded that he was not going to kill himself but rather the doctor who treated Kathy because he held the doctor responsible for Kathy's death. Later in the conversation, Thoman expressed a desire to acquire a silencer or saw off the barrel of a gun because he wanted to see the doctor's eyes when he died. Jones asked Thoman if he had guns of his own. He responded, "yes," but explained that he needed a gun that was untraceable or unmarked. Jones asked Thoman if Kathy would want him to kill the doctor to which Thoman also responded, "yes."

[¶5.] After Thoman left Jones's office, Jones contacted his cousin who was a law enforcement officer because he was concerned for both Thoman and the doctor. His cousin turned the case over to a detective. Jones related the details of his conversation with Thoman to the detective

[955 N.W.2d 764

who then asked Jones to make a recorded phone call to Thoman.

¶6.] Jones agreed, and in the recorded conversation, Jones expressed concern for Thoman. He told Thoman that he was unable to come up with a gun. Jones encouraged Thoman to get help, but Thoman told Jones that talking to him was enough. Jones asked if Thoman was still hellbent on "smoking" the doctor; to which Thoman responded, "One way or another he'll get taken care of, is the way I look at it; and if I can help that process along, by God I will." Thoman later said, "As far as literally shooting the guy that's what I would rather do, but he comes up to maybe my rib cage in height and I could just twist his head off. You know it would be just about as easy." Thoman later told Jones a story about going into the chemotherapy department to discuss a bill. While there, he saw Dr. Sahin and said, "There's that son of a bitch I'd like to get." Thoman explained that he has been thinking about killing Dr. Sahin since the December or January before Kathy died. He commented that if you are going to have a plan you ought to have a good plan. Jones asked if he could have Thoman's guns, to which Thoman responded that his guns are under lock and key, and he did not want to use his guns to kill Dr. Sahin because they have sentimental value. He further commented that shooting Dr. Sahin would be like "shooting a dog." Thoman went on to say that he looked at the doors in the hospital's chemotherapy department and noted that they are just wide enough to drive his truck through, but he did not act because he did not want to hurt other people besides the doctor. Thoman later stated that, if Jones had given him a gun, he would have needed the plan to come closer to fruition before acting, but he liked the option of personally killing Dr. Sahin. Then he said that right now it is just an option, and he would call Jones before he did anything.

[¶7.] As a result of the conversation, detectives conducted surveillance on Thoman's house. Law enforcement eventually arrested Thoman and, upon executing a search warrant at his residence, recovered ten firearms and ammunition.

[¶8.] On October 25, 2018, Thoman filed a motion to dismiss the criminal solicitation charge for failure to describe a public offense under SDCL 23A-8-2(5). He claimed solicitation of aiding and abetting murder is not an offense, arguing that one cannot solicit an inchoate offense.¹ He noted that solicitation requires the defendant to solicit a person to engage in "specific conduct" that constitutes the commission of a crime, and the alleged crime solicited here was aiding and abetting first-degree murder, which, as Thoman points out, requires the completion of the underlying offense. Therefore, he argues that since the underlying offense (murder) did not occur, the alleged solicited "specific conduct" (aiding and abetting murder) was not a crime. The circuit court denied Thoman's motion, reasoning that the crime of solicitation is complete once the accused solicits another to commit the offense, therefore, the solicited individual does not have to complete the underlying crime.

[¶9.] A four-day trial commenced on August 19, 2019. Dr. Sahin testified about his

[955 N.W.2d 765

treatment of Kathy and Thoman's threats against him, including his own reactions to the threats. He explained that police detectives informed him that they had credible information that Thoman was trying to hire a hit man to kill him. After law enforcement told him to take precautions, Dr. Sahin testified that he, "immediately rushed [ ] home, collected my mother and we went out of town." He shared that he took the threat seriously and was worried about their safety because a hired hit man may be out to kill him. He further testified that the incident caused him mental strife, which resulted in him leaving Rapid City Regional Hospital. Thoman repeatedly objected to the testimony on the grounds of relevancy and prejudice under evidentiary Rules 401 and 403 and contended that the testimony was "[i]mproper 702."

¶10.] Multiple witnesses testified regarding Thoman's anger and his desire to harm Dr. Sahin. Daniel Groethe, a neighbor, testified that in July 2018, he overheard Thoman saying that he "would like to go after a doctor with a shotgun." Garrett Leon and Kylie Kintigh, the officers who responded to Kathy's death, testified that Thoman expressed anger when referring to Kathy's treatment in Rapid City. Jones testified about his conversation with Thoman, and the State played the recording of Thoman's and Jones's conversation. On cross-examination, Jones testified that Thoman did not command, hire, or solicit him to kill the doctor. Finally, Ronaldo Sasso, a neighbor, testified that Thoman discussed with him the filing of a malpractice suit against Kathy's oncologist and expressed that he wanted to harm the doctor, but Sasso's biggest concern was Thoman...