State v. Wolf

• Decision Date: 18 March 2020
• Docket Number: #29004
• Citation: 941 N.W.2d 216
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. Vincent WOLF, Defendant and Appellee.
• Court: South Dakota Supreme Court

941 N.W.2d 216

STATE of South Dakota, Plaintiff and Appellant,

v.Vincent WOLF, Defendant and Appellee.

#29004

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS JANUARY 13, 2020

OPINION FILED March 18, 2020

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

CHRISTOPHER MILES of Minnehaha County Public Defender’s Office, Sioux Falls, South Dakota, Attorneys for defendant and appellee.

JENSEN, Justice

[¶1.] A jury convicted Vincent Shane Wolf of aggravated assault and simple assault for attacking a Department of Corrections (DOC) employee while Wolf was an inmate at the South Dakota State Penitentiary. The circuit court denied Wolf’s motion for judgment of acquittal on both charges at the close of the State’s evidence. However, Wolf filed a renewed motion for judgment of acquittal on the aggravated assault conviction after the trial, which the court granted. The State appeals arguing that the circuit court erred in granting Wolf’s motion for judgment of acquittal on the aggravated assault conviction. We reverse and reinstate the aggravated assault conviction.

Background

[¶2.] On August 26, 2018, DOC Officer Darek Ekeren confiscated Wolf’s tablet for a violation of the DOC rules. Later, Wolf approached Officer Ekeren and told him, "[y]ou have five minutes to return my tablet." In response, Officer Ekeren told Wolf to go lock up and left the area.

[¶3.] Shortly thereafter, Wolf waited for Officer Ekeren at the entrance of the hallway area of a cellblock, referred to as Tier 2. This was a location that Wolf was not authorized to be in. Tier 2 had inmate cells along one side and a fenced railing with a metal grid on the other. Wolf asked for his tablet back as Officer Ekeren approached. Officer Ekeren refused to return it and told Wolf to walk away. Wolf did not comply. Instead, he charged at Officer Ekeren and the two began grappling. Officer Ekeren fell to the floor during the initial encounter. Officer Ekeren testified that while he remained on the floor, Wolf began to punch and knee him in the face and head for about twenty seconds. Officer Ekeren testified that Wolf punched him with a closed fist.

[¶4.] During this attack, Officer Ekeren got onto one knee and grabbed onto mesh netting above the railing. As he did this, Wolf put Officer Ekeren in a chokehold. Officer Ekeren testified that Wolf wrapped his forearm around his neck and used his other arm as leverage to put more pressure on him. Officer Ekeren testified that while in the chokehold, he was unable to breathe for a few seconds and thought to himself, "he has me locked in." Using the chokehold, Wolf attempted to lift Officer Ekeren off the floor. Officer Ekeren escaped the chokehold and separated himself from Wolf by pushing Wolf back against a cell door. Officer Ekeren then called a "Code Red" and another officer arrived to assist. Officer Ekeren sprayed Wolf with "OC spray" and the other officer handcuffed Wolf and placed him in a holding cell. A video recording that was presented to the jury showed that the entire physical altercation may have lasted approximately thirty seconds.

[¶5.] Officer Ekeren was escorted to the penitentiary’s health services to be examined. He was then referred to the Avera Emergency Room. The treating physician observed that Officer Ekeren had a one-centimeter laceration under his left eye, redness in that same eye, and bruises on his face

and eye. Officer Ekeren received treatment for the laceration under his eye. The next day, Officer Ekeren returned to the Avera Emergency Room because of knee pain. Officer Ekeren was diagnosed with a knee sprain and was placed in a knee immobilizer for four weeks.

[¶6.] Following the altercation, Lieutenant Hunter Summers, a DOC Special Investigations Unit officer, interviewed Wolf. Wolf admitted that he hit Officer Ekeren in the head over twenty times and put him in a chokehold. Wolf told Lieutenant Summers that he tried to pick up Officer Ekeren and throw him, but Officer Ekeren was holding onto the bars on the grid. Wolf admitted that he wanted to hurt Officer Ekeren at the time of his attack. When Wolf was asked his intention in using a chokehold, he answered, "I don't know man. I just—I was just gone. I was just—just raged."

[¶7.] On January 2, 2018, the Minnehaha County Grand Jury returned an indictment charging Wolf with Count 1: aggravated assault against a DOC employee (extreme indifference) in violation of SDCL 22-18-1.05 and SDCL 22-18-1.1(1) ; Count 2: aggravated assault against a DOC employee (serious bodily injury) in violation of SDCL 22-18-1.05 and SDCL 22-18-1.1(4) ; or in the alternative, Count 2A: simple assault against a DOC employee (intentionally causes bodily injury) in violation of SDCL 22-18-1.05 and SDCL 22-18-1(5) ; and Count 3: aggravated assault against a DOC employee (choking) in violation of SDCL 22-18-1.05 and SDCL 22-18-1.1(8).

[¶8.] Wolf entered a plea of not guilty to the charges and the case proceeded to a jury trial. After the close of the State’s case, Wolf moved for judgment of acquittal on all the charges. The circuit court granted the motion on Count 2 determining the State failed to present evidence that Officer Ekeren sustained serious bodily injury. The court denied the motion on the other counts, determining there was sufficient evidence to support the other charges. In denying the motion on the aggravated assault charge in Count 1, the circuit court stated, "there is sufficient evidence to send to the jury that there is an attempt to cause serious bodily injury ... under circumstances manifesting extreme indifference to the value human life."

[¶9.] The jury found Wolf guilty of aggravated assault against a correctional officer (extreme indifference) in Count 1, and simple assault against a correctional officer in Count 2A, but acquitted Wolf of aggravated assault against a correctional officer (choking) in Count 3. After the verdict, Wolf again moved for judgment of acquittal on Count 1. He argued that the State presented insufficient evidence to prove that he acted under circumstances manifesting an extreme indifference to the value of human life based upon Wolf’s conduct, the extent of Officer Ekeren’s injuries, and the jury’s acquittal of aggravated assault for choking. The circuit court granted Wolf’s post-verdict motion and entered a judgment of acquittal on Count 1.

[¶10.] Wolf was sentenced on May 15, 2019, on the conviction for simple assault against a correctional officer. Prior to sentencing, the State dismissed the part II information alleging a prior felony conviction and argued for the application of the doubling statute in SDCL 22-6-5.1.¹ The circuit court sentenced Wolf to four years in the South Dakota State Penitentiary, with two years suspended, and ordered the sentence to run consecutively to the penitentiary sentence Wolf was already serving.

[¶11.] The State timely appealed the circuit court’s entry of a judgment of acquittal on the conviction for aggravated assault in Count 1 pursuant to SDCL 23A-32-4.² The State raises one issue, arguing that the circuit court erred in granting Wolf’s motion for judgment of acquittal on Count 1 because there was sufficient evidence to support the jury’s guilty verdict.

Analysis and Decision

[¶12.] We have not previously considered the standard of review applicable to the State’s challenge of an order granting a motion for judgment of acquittal after the jury has returned a guilty verdict. However, a motion for judgment of acquittal attacks the sufficiency of the evidence, which is a question of law whether the motion is considered before or after the jury’s verdict. "Whether the State has provided sufficient evidence to sustain the conviction is a question of law reviewed de novo." State v. Hauge , 2013 S.D. 26, ¶ 12, 829 N.W.2d 145, 149 (citing State v. Jucht , 2012 S.D. 66, ¶ 18, 821 N.W.2d 629, 633 ).

[¶13.] In reviewing the sufficiency of the evidence, we consider:

[W]hether there is evidence in the record which, if believed by the fact finder, is sufficient to sustain a finding of guilt beyond a reasonable doubt.... On review, we accept the evidence and the most favorable inferences that can be fairly drawn from it that support the verdict. We do not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence on appeal. If the evidence including circumstantial evidence and reasonable inferences drawn therefrom sustain a reasonable theory of guilt, a guilty verdict will not be set aside.

State v. Carter , 2009 S.D. 65, ¶ 44, 771 N.W.2d 329, 342 (citations omitted).

[¶14.] A person commits aggravated assault under SDCL 22-18-1.1(1) if he "[a]ttempts to cause serious bodily injury to another, or causes such injury, under circumstances manifesting extreme indifference to the value of human life[.]" To sustain a conviction for aggravated assault under subsection (1) the State must prove: "(1) the person either attempted to cause or actually did cause serious bodily injury to another, and (2) the circumstances under which the act was done manifested extreme indifference to the value of human life." State v. White Mountain , 477 N.W.2d 36, 39 (S.D. 1991) (quoting State v. Rash , 294 N.W.2d 416, 418 (S.D. 1980) ).

[¶15.] Serious bodily injury "means an injury which is grave and not trivial, and which gives rise to apprehension of danger to life, health, and limb."

State v. Bogenreif , 465 N.W.2d 777, 780 (S.D. 1991) ; See also , SDCL 22-1-2(44A). Our Legislature has not declared what circumstances constitute extreme indifference to the value of human life under SDCL 22-18-1.1(1). However, it has "deemed significant the nature of the assaultive act or acts themselves." State v. Miland , 2014 S.D. 98, ¶ 18, 858 N.W.2d 328, 332. We have stated that the accused is guilty of aggravated assault for extreme indifference if the "accused’s ‘conduct was of the most threatening...