State v. Weaver

• Decision Date: 02 July 2002
• Docket Number: No. 21889.,21889.
• Citation: 648 N.W.2d 355,2002 SD 76
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Mark WEAVER, Defendant and Appellant.
• Court: South Dakota Supreme Court

648 N.W.2d 355

2002 SD 76

STATE of South Dakota, Plaintiff and Appellee, v. Mark WEAVER, Defendant and Appellant.

No. 21889.

Supreme Court of South Dakota.

Considered on Briefs November 13, 2001.

Decided July 2, 2002.

Mark Barnett, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Mark S. Falk, Rapid City, South Dakota, Attorney for defendant and appellant.

PER CURIAM.

[¶ 1.] Mark S. Weaver appeals from a judgment of conviction of simple assault. He claims the trial court erred in denying his motion for a new trial and in allowing expert witness testimony, and further claims that his sentence unlawfully exceeds the maximum statutory limits. We affirm the judgment of conviction, but remand for correction of Weaver's sentence.

FACTS AND PROCEDURE

[¶ 2.] Weaver met Maria Waichler in July 1999 and they began a romantic relationship. However, on January 21, 2000, Waichler obtained a protection order in Meade County against Weaver. The following month, despite the still-valid protection order, Waichler moved back into Weaver's home.

[¶ 3.] On March 17, 2000, Waichler claimed Weaver wanted her to go out for an evening on the town with him but that she refused. Around 2:00 a.m., he returned home intoxicated, put her in handcuffs and assaulted her. She begged him to take her to the hospital in Rapid City for treatment of her injuries resulting from this assault. There she confided in a nurse who called the police. Weaver spoke with the police at the hospital, giving them a false name. He was arrested and charged with false personation and violation of the protection order.

[¶ 4.] The false personation charge was later dismissed and Weaver pled guilty in Pennington County to violation of the protection order. He was sentenced to nine months in jail, with six months suspended. He was also on probation for a previous crime at this time and his probation was revoked.

[¶ 5.] On June 16, Weaver was indicted and charged in Meade County with violation of the protection order, two alternate charges of kidnapping, and aggravated assault or, alternatively, simple assault. These charges stemmed from Weaver's March 17, 2000 assault on Waichler. Following a jury trial, Weaver was convicted of violation of the protection order and simple assault and acquitted of all other charges. He was sentenced and a judgment of conviction entered.

[¶ 6.] Weaver filed a motion for new trial. The court granted the motion for a new trial on the protection order conviction, but denied the motion regarding the assault conviction. Weaver then filed a motion to dismiss the conviction for violation of the protection order based on double jeopardy protections in the federal and state constitutions as he had earlier pled guilty to this same charge in Pennington County. The Meade County trial court dismissed the conviction for violation of the protection order and vacated the judgment. An amended judgment was entered on the simple assault conviction. Weaver was sentenced to serve one year in jail, to be served consecutively to the Pennington County sentence, with one year unsupervised probation and was ordered to pay court costs and restitution. This is the judgment from which Weaver now appeals.

ANALYSIS AND DECISION

ISSUE ONE

[¶ 7.] Whether the trial court erred in denying Weaver's motion for new trial on the simple assault conviction based on double jeopardy concerns.

[¶ 8.] Weaver claims he was prosecuted, convicted and sentenced twice, once in Pennington County and once in Meade County, for the same assault on Waichler on March 17, 2000 and that this constitutes a violation of his double jeopardy protections under the federal and state constitutions. Weaver pled guilty to violation of a protection order in one county and was convicted of simple assault in another county. These are two separate crimes, containing separate elements, albeit presumably arising from the same conduct by Weaver. "Established double jeopardy jurisprudence confirms that the Legislature may impose multiple punishments for the same conduct without violating the Double Jeopardy Clause if it clearly expresses its intent to do so." State v. Dillon, 2001 SD 97, ¶ 14, 632 N.W.2d 37, 43 (citing Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 2411, 85 L.Ed.2d 764 (1985)).

[¶ 9.] Violation of a protection order is prohibited by SDCL 25-10-13. That statute provides:

If a temporary protection order or a protection order is granted pursuant to this chapter, and the respondent or person to be restrained knows of the order, violation of the order is a Class 1 misdemeanor. If any violation of this section constitutes an assault pursuant to § 22-18-1.1 [Aggravated Assault], the violation is a Class 6 felony. Any proceeding under this chapter is in addition to other civil or criminal remedies.

(emphasis added). The plain language of this statute, emphasized here, clearly expresses the Legislature's intent to impose multiple punishments for the same conduct as it provides that a proceeding for violation of a protection order supplements other criminal or civil remedies against the perpetrator. Weaver was also convicted of violation of SDCL 22-18-1(2), prohibiting the crime of simple assault. In pertinent part, that statute provides:

Any person who:

...

(2) Recklessly causes bodily injury to another;

...

... is guilty of simple assault.

Simple assault is a Class 1 misdemeanor. However, if the defendant has been convicted of, or entered a plea of guilty to, two or more violations of § 22-18-1, 22-18-1.1, 22-18-26, or 22-18-29 within five years of committing the current offense, the defendant is guilty of a Class 6 felony for any third or subsequent offense.

[¶ 10.] This Court most recently addressed double jeopardy protections under the federal and state constitutions in Dillon, 2001 SD 97 at ¶¶ 11-22, 632 N.W.2d at 42-47. Writing for a unanimous Court, Justice Konenkamp noted these constitutional protections "shield criminal defendants from both multiple prosecutions and multiple punishments for the same criminal offense if the Legislature did not intend to authorize multiple punishments in the same prosecution." Id., 2001 SD 97 at ¶ 13, 632 N.W.2d at 43 (citing United States v. Dixon, 509 U.S. 688, 735, 113 S.Ct. 2849, 2876, 125 L.Ed.2d 556 (1993); State v. Augustine, 2000 SD 93, ¶ 11, 614 N.W.2d 796, 797) (emphasis added). We explained:

In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the Supreme Court held that `where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.' See also Dixon, 509 U.S. at 696,

113 S.Ct. at 2856,

125 L.Ed.2d 556 (1993). Still, the Blockburger test is `a rule of statutory construction to help determine legislative intent' and `is not controlling when the legislative intent is clear from the face of the statute or the legislative history.' Garrett [v. United States], 471 U.S. [773,] 778-79, 105 S.Ct. [2407,] 2411, 85 L.Ed.2d 764 [(1985)] (citations omitted). Thus, multiple charges and punishments in a single prosecution will not violate double jeopardy if the Legislature plainly intended to impose cumulative punishments. [Missouri v.] Hunter, 459 U.S. [359,] 368-69, 103 S.Ct. [673,] 679, 74 L.Ed.2d 535 [(1983)].

...

`[S]imply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes.' Id. at 359, 103 S.Ct. 673. Courts cannot impose multiple punishments for different offenses arising out of the same conduct but the Legislature can. See Whalen v. United States, 445 U.S. 684, 695, 100 S.Ct. 1432, 1439, 63 L.Ed.2d 715 (1980)

.

Id., 2001 SD 97, at ¶ 14 and n. 4, 632 N.W.2d at 43-44 and n. 4 (emphasis added). "When legislative intent to impose multiple punishments is clear, double jeopardy is not violated and further inquiry into the statutory elements is unnecessary." Id., 2001 SD 97 at ¶ 15, 632 N.W.2d at 44 (citing Hunter, 459 U.S. at 368-69, 103 S.Ct. at 679, 74 L.Ed.2d 535).

[¶ 11.] This appeal involves not only multiple punishments, but multiple prosecutions. As the Supreme Court and this Court have recognized, the constitutional protection against double jeopardy "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); State v. Cates, 2001 SD 99, ¶ 7, 632 N.W.2d 28, 33. Weaver claims violation based on the second type of government action.

[¶ 12.] In Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 2226-27, 53 L.Ed.2d 187 (1977), a case procedurally similar to the one before us, the Court reviewed a double jeopardy claim involving two prosecutions. Brown stole a vehicle in East Cleveland, Ohio and was caught driving it in Wickliffe, Ohio. He was charged with joyriding in Wickliffe, pled guilty, and was sentenced to a fine and thirty days in jail. Upon his release from jail, he returned to East Cleveland to face charges of auto theft and joyriding, resulting from the same incident. Brown objected on grounds of "former jeopardy," but pled guilty to the auto theft charge with the understanding that the trial court would consider his former jeopardy claim on a motion to withdraw his plea. Id.,432 U.S. at 163,97 S.Ct. at 2224,53 L.Ed.2d 187. Brown was not allowed to withdraw his plea and he appealed. Applying established double jeopardy analysis and examining the Ohio statutes, ...