State v. Timmons
| Decision Date | 18 May 2022 |
| Docket Number | 29740-a-SRJ |
| Citation | 2022 S.D. 28 |
| Parties | STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. DAVID PAUL TIMMONS, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
CONSIDERED ON BRIEFS MARCH 21, 2022
APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES COUNTY, SOUTH DAKOTA THE HONORABLE BOBBI J. RANK Judge
BRAD SCHREIBER Pierre, South Dakota Attorney for defendant and appellant.
JASON R. RAVNSBORG Attorney General
JONATHAN K. VAN PATTEN Assistant Attorney General Pierre South Dakota Attorneys for plaintiff and appellee.
[¶1.] David P. Timmons was charged with aggravated assault arising from a physical altercation with his girlfriend, K.C., during which K.C. claimed Timmons choked her. At trial, Timmons moved for a judgment of acquittal arguing the evidence was insufficient to show that he attempted to place K.C. in fear of death or imminent serious bodily harm by choking her. The circuit court denied the motion and the jury found Timmons guilty of aggravated assault. After the trial, Timmons filed a motion for a new trial based upon a letter sent by K.C. to the court prior to sentencing stating that she felt manipulated and threatened by the prosecution to testify. The circuit court denied the motion. Timmons appeals his conviction arguing that the circuit court erred in denying his motion for judgment of acquittal and his motion for a new trial. We affirm.
[¶2.] On the morning of April 9, 2020, K.C. was at Timmons's residence. The two were dating at the time and had a child together. Timmons was 35 years old. K.C. was 19 years old.
[¶3.] Timmons was sleeping in a bedroom while K.C. was on her phone in the living room with the television on. Timmons woke up and became angry with K.C., claiming the television was too loud. Timmons was also upset because he believed that K.C was always on her phone. Timmons and K.C. began arguing and Timmons took K.C.'s phone away. K.C. grabbed her phone back and tried to walk away, but Timmons grabbed her arm. The altercation escalated, and Timmons grabbed both of K.C.'s arms. K.C. yelled at Timmons, shoved, and hit him. Timmons pulled K.C. to the floor onto her stomach and hit her face on the floor. While K.C. was on her stomach, Timmons pulled K.C.'s arms behind her back and pulled her hair. K.C. testified that Timmons then attempted to restrain her by wrapping his arm around her neck. This caused K.C. to feel like she was unable to breathe and that she was going to pass out. K.C. also bit Timmons's thumb during the altercation.
[¶4.] K.C. called 911 approximately one hour after the altercation. During the 911 call, K.C. sounded shaken up and upset while describing that Timmons had choked and hit her. Officer Jonathan Brill responded to the call and met with K.C. at her grandparents' home. Officer Brill observed that K.C. was visibly shaken and her speech was broken up. K.C. told Officer Brill that Timmons hit her face on the floor, held her down with her arms behind her back, and pulled her hair. She stated that she bit Timmons's thumb to get him off of her. She also told Officer Brill that she felt like she was unable to breathe and believed that she might pass out when Timmons's arm was wrapped around her neck. She also explained to EMS that Timmons had strangled her. Officer Brill took pictures of K.C.'s injuries, which included a cut on her lower lip, scratches on her neck, and bruises on her legs, neck, and arms.
[¶5.] Officer Brill also spoke with Timmons as part of his investigation. Timmons told Officer Brill that K.C. had attacked him and she tried to bite his thumb off. Officer Brill observed a cut on Timmons's thumb. Timmons stated that K.C. sustained her injuries from sex the night before the altercation. Timmons also reported that K.C. would ask him to choke her and pull her hair during their sexual encounters.
[¶6.] Timmons was arrested, and the court set bond and ordered that Timmons have no contact with K.C. Timmons was indicted for aggravated assault in violation of SDCL 22-18-1.1(8) and the offense was designated as one involving domestic abuse under SDCL 25-10-1(1). The State also filed a part II information alleging Timmons had a prior conviction for attempted fourth-degree rape.
[¶7.] A two-day jury trial began on March 11, 2021. At trial, the State introduced the statements made by K.C. and Timmons to Officer Brill about the assault, as well as photographs of their injuries. A recording of K.C.'s 911 call was also introduced into evidence. K.C. testified that Timmons had choked her while she was pinned to the floor and that she was frightened during the altercation. K.C. admitted that the incident was a "mutual physical confrontation" and that she did not think Timmons was trying to hurt her. K.C. testified that Timmons put his arm around her neck to restrain her. She also explained that she felt like she could not breathe, but could still talk, and that she felt like she was going to pass out "a little bit." K.C. admitted that she hit and pushed Timmons during the altercation and that she could have caused his bruising by trying to push him away.
[¶8.] K.C. also admitted that she and Timmons had contact throughout the case, including just a few days before trial. Despite the no contact order, K.C. explained that Timmons had contacted her and pressured her to lie to the police by telling them that her injuries came from rough sex. K.C. stated that she and Timmons planned for her to write text messages to Timmons every other week detailing how she likes rough sex in order to get the charges dropped. K.C. also testified that she did not have sex with Timmons on the night before April 9 and that her injuries were not from a sexual encounter with him. The State called two of K.C.'s friends who testified that they heard a phone call on April 10, 2020, between Timmons and K.C. where Timmons told K.C. to lie to police and tell them it was just rough sex.
[¶9.] On cross-examination, K.C. admitted that she regretted calling the police because she loves Timmons and he is the father of their child. K.C. testified that she had been "kind of" manipulated and pressured by friends and family into testifying against Timmons, but she was ultimately told to tell the truth. Defense counsel asked K.C. about her interactions with the State as follows:
[¶10.] At the close of the State's evidence, Timmons moved for a judgment of acquittal arguing he was merely trying to restrain K.C. from attacking him, and there was no evidence that he intended to strangle K.C. or place her in fear of death or imminent bodily harm. The court denied the motion determining there was evidence from which the jury could find beyond a reasonable doubt that the elements for aggravated assault under SDCL 22-18-1.1(8) had been met. The jury found Timmons guilty of aggravated assault under SDCL 22-18-1.1(8), a class 3 felony. Timmons admitted the part II information, thereby enhancing his potential maximum punishment to the level of a class 2 felony.
[¶11.] The court ordered a presentence investigation report (PSI). As a part of the PSI, K.C. submitted a letter of support for Timmons. In K.C.'s letter, she stated that she felt like she was lied to, manipulated, and threatened by the State's prosecutor. K.C. stated that "she [threatened] to put me in prison for 30 years." K.C. wrote that she did not want to call the cops, was coming down from meth, and did not believe that Timmons deserved a heavy sentence. She believed that "[Timmons's] [intentions] were not to hurt me." On April 26, 2021, the circuit court sentenced Timmons to fifteen years in the penitentiary with three years suspended. The court entered a judgment of conviction for aggravated assault and indicated the offense involved domestic abuse as required by SDCL 25-10-34.
[¶12.] Timmons timely filed a motion for a new trial pursuant to SDCL 23A-29-1. Timmons asserted that K.C.'s letter constituted a surprise and newly discovered evidence as set forth in SDCL 15-6-59(a)(3) and (4). Timmons requested the court to conduct a hearing to allow K.C. to testify on her allegations. The State opposed the motion. The State denied it had threatened K.C. but acknowledged a discussion with K.C. that she could be charged with perjury if she testified falsely. The circuit court denied the motion for a new trial. The circuit court concluded that the letter was not surprise evidence or newly discovered evidence that justified a new trial because Timmons could have discovered the evidence before trial based upon his extensive contact with K.C. The court also determined the letter was cumulative and merely impeached K.C., and it would not have probably led to an acquittal.
[¶13.] Timmons appeals arguing (1) the circuit court erred in denying his motion for judgment of acquittal because there was insufficient evidence to support his aggravated assault conviction, and (2) the circuit court abused its discretion in denying his motion for a new trial because K.C.'s letter was a surprise and newly discovered evidence under SDCL 15-6-59(a).
[¶14.] This Court reviews "'a denial of a motion for judgment of acquittal de novo.'" State v Frias, 2021 S.D. 26, ¶ 21, 959 N.W.2d 62, 68 (citation omitted). "[A] motion for a judgment of acquittal...
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