State v. Uhing, #27473

• Decision Date: 14 December 2016
• Docket Number: #27473
• Citation: 2016 S.D. 93
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. CHRISTOPHER DAVID UHING, Defendant and Appellant.
• Court: South Dakota Supreme Court

2016 S.D. 93

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. CHRISTOPHER DAVID UHING, Defendant and Appellant.

#27473

SUPREME COURT OF THE STATE OF SOUTH DAKOTA

CONSIDERED ON BRIEFS ON AUGUST 29, 2016

December 14, 2016

#27473-a-JMK

APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA

THE HONORABLE JONI M. CUTLER Judge

MARTY J. JACKLEY

Attorney General

GRANT FLYNN

Assistant Attorney General

Pierre, South Dakota

Attorneys for plaintiff

and appellee.

WANDA HOWEY-FOX of

Harmelink, Fox & Ravnsborg

Yankton, South Dakota

Attorneys for defendant

and appellant.

KERN, Justice

[¶1.] Defendant was indicted for eight drug-related offenses in March 2014. He was convicted of seven of the eight counts, six of which were felonies. The trial court sentenced him to an aggregated total of 45 years in the penitentiary and 30 days in the county jail. The court suspended all but 6 years and 30 days of the prison sentence and ordered that the county jail sentence run concurrently. On appeal, defendant contends he is entitled to a new trial because there was insufficient evidence to convict him at trial. He also alleges that his sentence constituted cruel and unusual punishment under the Eighth Amendment. We affirm.

Background

[¶2.] Christopher Uhing resided in Sioux Falls with his girlfriend, Brooke Schrempp. The residence was located within a drug-free zone near an elementary school. Sioux Falls Area Drug Task Force Detective John Spaeth received numerous tips that the occupants of the residence were dealing drugs. Officers began surveillance on the home and observed a number of vehicles associated with drug trafficking stopping at the home for short intervals. Officers conducted a traffic stop of one vehicle after it left the residence. A search of the driver revealed nearly a gram of hashish and an ounce of marijuana. The following day, Detective Spaeth obtained a warrant for the search of the home. During the search, officers found evidence of drug use and distribution including more than one-half pound of marijuana, drug paraphernalia, pipes, a digital scale, jeweler's baggies, and a safe containing money, drugs, and another digital scale. Additionally, the officers foundequipment and supplies for a marijuana growing operation. The officers also discovered items used to manufacture hashish. Such supplies included two capped tubes with holes drilled through the caps. One was packed with compressed marijuana. The search also revealed 44 empty cans of butane and large bags with mesh bottoms used to filter marijuana to make hashish.

[¶3.] Uhing and Schrempp were indicted as codefendants and charged with eight drug-related offenses: (1) possession of one-half pound but less than one pound of marijuana, a class 5 felony, in violation of SDCL 22-42-6; (2) possession of one-half pound but less than one pound of marijuana with the intent to distribute or dispense marijuana, a class 4 felony, in violation of SDCL 22-42-7 (minimum mandatory sentence of thirty days); (3) possession of a controlled substance, to wit hashish, a class 5 felony, in violation of SDCL 22-42-5; (4) possession of a controlled substance, to wit cocaine, a class 5 felony, in violation of SDCL 22-42-5; (5) keeping or maintaining a place where controlled substances are kept, used or sold, a class 5 felony, in violation of SDCL 22-42-10; (6) possession of one-half pound but less than one pound of marijuana with the intent to distribute or dispense marijuana within one thousand feet of an elementary school, a class 4 felony, in violation of SDCL 22-42-19 (minimum mandatory sentence of five years to run consecutively to the sentence for the principal felony); (7) possession with intent to manufacture, distribute, or dispense a controlled drug or substance listed in schedule I, to wit hashish, a class 4 felony, in violation of SDCL 22-42-2 (minimum mandatory one year sentence); and (8) possession with intent to use drug paraphernalia, a class 2 misdemeanor, in violation of SDCL 22-42A-3.

[¶4.] The day prior to Uhing and Schrempp's joint trial, the State moved to amend the indictment as to Counts 3 and 7, removing the word "hashish" and replacing it with "Delta-9-tetrahydrocannibinol AKA hashish." Uhing, having previously agreed to stipulate to the amendment, did not object to the State's request.

[¶5.] At trial, Detective Spaeth testified regarding his investigation and the various methods of manufacturing hashish. He described one method of making hashish which involves flushing a solvent, such as butane, over marijuana placed in a container. The solvent causes the concentrated marijuana to liquefy so that it can be filtered. Officers also discovered a glass jar containing a filter with fine green powder at the bottom. Detective Matia testified that this jar and filter were consistent with another method of manufacturing hashish using dry ice. The empty tube, green powder, and the bags found in the residence tested positive for Delta-9-Tetrahydrocannibinol. Detective Spaeth also testified that some of the items found in the residence were indicative of distribution including the jeweler's bags and digital scales containing marijuana residue. He told the jury that digital scales were commonly used to weigh marijuana before packaging. He estimated the street value of the .53 pounds of marijuana found in the house at $2,400. He also testified about his interview with Schrempp shortly after her arrest. Schrempp admitted to Detective Spaeth that she sold marijuana from the residence to someone who was "busted" the day before the search. Detective Spaeth also testified about finding a message on Schrempp's phone from someone who "need[ed] a bag." Schrempp did not testify at trial.

[¶6.] Uhing did testify, however, and told the jury that he smoked marijuana and hashish and knew both substances were in the residence. He testified that he previously lived in Colorado and had a license to grow marijuana for medical use and had made hashish using the "ice water" method. He explained that the items found in the house were supplies from his activities in Colorado. He denied growing marijuana, manufacturing hashish, or selling either substance in South Dakota. Uhing stated that he bought marijuana in bulk, usually in quarter pound increments, for his own personal use as he received a better price by buying larger quantities. The scales were only to verify that he received the amount of marijuana that he paid for in his drug transactions.

[¶7.] At the close of the State's case, Uhing moved for a judgment of acquittal, which the trial court denied. During jury 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 it had received a question 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. Uhing did not object to the action taken by the trial court.

[¶8.] The jury convicted Uhing on all counts except for Count 4, possession of cocaine. The court sentenced Uhing for the seven offenses to an aggregated total of 45 years in the state penitentiary and 30 days in the county jail. However, the court suspended all but 6 years and 30 days of the penitentiary sentence and ordered that Uhing's 30-day jail sentence be served concurrently.

[¶9.] Uhing appeals his conviction and sentence, arguing five issues:

1. Whether the trial court erred by denying Uhing's motion for acquittal at the close of the State's case.

2. Whether the trial court erred by allowing the State to amend the indictment the day prior to trial.

3. Whether the trial court erred by not instructing the jury as to specific intent.

4. Whether the trial court erred by failing to notify the parties of the jury question.

5. Whether Uhing's sentence violates the Eighth Amendment to the United States Constitution.

Decision

Insufficiency of the evidence

[¶10.] Uhing first argues that the State failed to present sufficient evidence to sustain a conviction and that the court erred in denying his motion for acquittal. The standard of review for denial of a motion for judgment of acquittal is de novo. State v. Doap Deng Chuol, 2014 S.D. 33, ¶ 36, 849 N.W.2d 255, 264. In reviewing this ruling, we determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Plenty Horse, 2007 S.D. 114, ¶ 5, 741 N.W.2d 763, 765; see also State v. Shaw, 2005 S.D. 105, ¶ 19, 705N.W.2d 620, 626. "If the evidence, including circumstantial evidence and reasonable inferences drawn therefrom sustains a reasonable theory of guilt, a guilty verdict will not be set aside." State v. Hauge, 2013 S.D. 26, ¶ 12, 829 N.W.2d 145, 149.

[¶11.] Uhing repeatedly asserts that there was no proof presented at trial of his intent to distribute illegal drugs, nor was there any evidence that he was engaged in manufacturing illegal drugs. However, "[t]he State may . . . prove all elements of an offense through circumstantial evidence." State v. Fischer, 2016 S.D. 1, ¶ 26, 873 N.W.2d 681, 692. This case is similar to our decision in State v. Overbey, where we upheld a conviction for possession with the intent to distribute based on the quantities of the drugs found and the presence of a digital scale....