State v. Vatne

• Decision Date: 19 March 2003
• Docket Number: No. 22359.,22359.
• Citation: 2003 SD 31,659 N.W.2d 380
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Scott M. VATNE, Defendant and Appellant.
• Court: South Dakota Supreme Court

659 N.W.2d 380

2003 SD 31

STATE of South Dakota, Plaintiff and Appellee, v. Scott M. VATNE, Defendant and Appellant.

No. 22359.

Supreme Court of South Dakota.

Considered on Briefs January 13, 2003.

Decided March 19, 2003.

Lawrence E. Long, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Steven M. Christensen, Deadwood, South Dakota, Attorney for defendant and appellant. GILBERTSON, Chief Justice.

[¶ 1.] Scott Vatne (Vatne) was convicted after a jury trial of one count of possession of a controlled substance and four counts of distribution of a controlled substance. He was sentenced to one-year for the possession conviction, one-year for the first distribution charge and ten years each for the three remaining distribution convictions, pursuant to SDCL 22-42-2, which mandates a mandatory sentence for a "second or subsequent conviction." Vatne appeals his convictions and we affirm.

FACTS AND PROCEDURE

[¶ 2.] On the evening of July 14, 2001, Vatne planned with a female co-worker, L.W. and her roommate, E.M., (both who were nineteen at the time) to have a "hot tub" party at the home of Vatne and L.W.'s boss, Paul Hogan (Hogan). Hogan was out of town at the time and had given Vatne a key to his home and permission to use the hot tub.

[¶ 3.] The two young women met Vatne at his apartment around midnight. Before leaving, all three drank a beer. After leaving the apartment, they made a stop downtown at the pawn shop where Vatne worked. Once there, the girls picked out several pornographic movies to watch that night, and Vatne offered each of them a line of methamphetamine, which L.W. and E.M. consumed. After leaving the pawn shop, Vatne bought some beer at a local convenience store.

[¶ 4.] Upon arriving at the Hogan residence, Vatne made the females several mixed drinks and also offered them another line of methamphetamine, which once again, L.W. and E.M. consumed. The three of them watched the pornographic movies and then decided to get into the hot tub, all the while drinking alcoholic drinks. In the hot tub, Vatne had sexual intercourse with each of the females. After E.M. started crying and told Vatne to stop, they all got dressed and Vatne gave E.M. a ride home.

[¶ 5.] The next evening, the two women went to the police station and reported that they had been raped. During the course of their interview, they admitted snorting lines of methamphetamines, which Vatne had given them twice during the evening. During a second police interview with Vatne, he admitted giving the females the methamphetamines twice during the evening; however, he stated that the sexual intercourse was consensual.

[¶ 6.] Although Vatne was not charged with anything relating to the sexual assault allegations, he was charged with Possession of a Controlled Substance and four counts of Distribution of a Controlled Sentence. Ultimately, Vatne was found guilty on all counts and sentenced to one-year each for the possession conviction and the first distribution conviction, with ten years each for the remaining distribution convictions. The sentences are to be served concurrently.

[¶ 7.] Vatne appeals his convictions, seeking the following for this Court's review:

1. Whether the trial court properly denied Vatne's motion to dismiss the indictment.

2. Whether the trial court abused its discretion when it considered counts 3, 4, and 5 as "second or subsequent convictions," pursuant to SDCL 22-42-2, and therefore, sentenced Vatne to mandatory sentences of ten years each.

3. Whether the trial court abused its discretion when it denied Vatne's motion in limine which sought to prohibit any reference to the rape allegations.

STANDARD OF REVIEW

[¶ 8.] The decision whether to grant or deny a motion to dismiss an indictment is within the sound discretion of the trial court, subject to an abuse of discretion standard. State v. Kleinsasser, 436 N.W.2d 279, 281 (S.D.1989).

[¶ 9.] A trial court's interpretation of a statute is a question of law, reviewed by this Court de novo. Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611 (citations omitted).

[¶ 10.] A trial court's evidentiary ruling is reviewed under an abuse of discretion standard. State v. Smith, 1999 SD 83, ¶ 39, 599 N.W.2d 344, 353 (citing State v. Spiry, 1996 SD 14, ¶ 11, 543 N.W.2d 260, 263) (citations omitted). "An evidentiary ruling will not be overturned unless error is `demonstrated ... [and] shown to be prejudicial error.'" Id. (quoting Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 258 (S.D.1976)). "Error is prejudicial when, `in all probability ... [it] produced some effect upon the final result and affected rights of the party assigning it.'" Id. (quoting K & E Land and Cattle, Inc. v. Mayer, 330 N.W.2d 529, 533 (S.D.1983)).

ANALYSIS AND DECISION

[¶ 11.] 1. Whether the trial court properly denied Vatne's motion to dismiss the indictment.

[¶ 12.] Vatne argues that the circuit court should have dismissed the indictment against him because the only witness testimony before the grand jury was based on hearsay evidence and was misleading. Specifically, DCI Agent Pat West testified in the grand jury proceeding that in his interview with L.W. and E.M., they alleged that Vatne had supplied them with methamphetamine twice and sexually assaulted them in the early hours of July 15, 2001. Agent West also testified that Vatne had admitted during an interview that he had given L.W. and E.M. methamphetamines two times during the night in question. Finally, Agent West testified that the urine of the two women revealed the presence of methamphetamines.

[¶ 13.] SDCL 23A-8-2 articulates the nine grounds for dismissing an indictment or information. This statute provides:

Upon motion of a defendant made pursuant to subdivision 23A-8-3 (1), (2) or (3), the court must dismiss an indictment or information in any of the following cases:

(1) When it is not found, endorsed, and presented or filed as prescribed by this title;

(2) When the names of the witnesses are not inserted at the foot of the indictment or information or endorsed thereon;

(3) When it does not substantially conform to the requirements of this title;

(4) When more than one offense is charged in a single count;

(5) When it does not describe a public offense;

(6) When it contains matter which, if true, would constitute a legal justification or excuse of the offense charged, or other bar to the prosecution;

(7) When the grand jury which filed the indictment had no legal authority to inquire into the offense charged because it was not within the jurisdiction of the grand jury or because the court was without jurisdiction of the offense charged;

(8) When a person was permitted to be present during the session of the grand jury while the charge embraced in the indictment was under consideration, except as provided in § 23A-5-11; or

(9) When a defendant charged by information did not have or waive a preliminary hearing before the information was filed.

[¶ 14.] These nine grounds for dismissal of an indictment are exclusive. State v. Springer-Ertl, 1997 SD 128, ¶ 7, 570 N.W.2d 39, 40-1 (holding that judge could not dismiss information on ground of lack of probable cause).¹ Therefore, although Vatne contends that the grand jury testimony was hearsay and incompetent, these are simply not grounds for dismissal. Furthermore, in State v. Hoekstra, 286 N.W.2d 127, 128 (S.D.1979), we joined the majority of courts when we held that this Court will not inquire into the "legality or sufficiency of the evidence upon which an indictment is based." See also State v. Gardner, 429 N.W.2d 60, 61 (S.D.1988); Kleinsasser, 436 N.W.2d at 281.

[¶ 15.] In Kleinsasser, the defendant argued that it was reversible error when the trial court denied his motion to dismiss the indictment against him when the indictment was based on hearsay evidence. 436 N.W.2d at 281. In that case, we rejected defendant's argument and found the Hoekstra case to be totally dispositive of that issue. Id. We, therefore, held that "neither the Fifth Amendment, nor justice and the concept of a fair trial, required indictments to be open to challenge on the grounds that there was inadequate or incompetent evidence before the grand jury." Id. (citing Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1956).)² Therefore, Vatne's arguments under this issue are rejected.

[¶ 16.] 2. Whether the trial court abused its discretion when it considered counts 3, 4, and 5 as "second or subsequent convictions," pursuant to SDCL 22-42-2, and therefore, sentenced Vatne to mandatory sentences of ten years each.

[¶ 17.] The trial court sentenced Vatne to one-year in the penitentiary for the first distribution charge and then imposed the ten-year mandatory sentence for the three remaining distribution counts. The trial court imposed this sentence pursuant to SDCL 22-42-2, which provides, in salient part:

[N]o person may manufacture, distribute or dispense a substance listed in Schedules I or II; possess with intent to manufacture, distribute or dispense, a substance listed in Schedules I or II; create or distribute a counterfeit substance listed in Schedules I or II; or possess with intent to distribute a counterfeit substance listed in Schedules I or II. A violation of this section is a Class 4 felony ... A first conviction under this section shall be punished by a mandatory sentence in the state penitentiary of at least one year, which sentence may not be suspended ... A second or subsequent conviction under this section shall be punished by a mandatory sentence in the state penitentiary of at least ten years, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence may not form the basis for reducing the mandatory time of incarceration required by this section.

(emphasis supplied). In deciding that the facts of the instant...