State v. Kwai

994 N.W.2d 712

STATE of South Dakota, Plaintiff and Appellee, v. Bol KWAI, Defendant and Appellant.

#29817

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS NOVEMBER 8, 2022

OPINION FILED AUGUST 9, 2023

EDWARD P. ANGEL, Sioux Falls, South Dakota, Attorney for defendant and appellant.

MARTY J. JACKLEY, Attorney General, ERIN E. HANDKE, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

DEVANEY, Justice

[¶1.] This appeal involves an altercation that occurred between the defendant and the driver of another vehicle after the defendant failed to stop at a red light and almost hit the other driver's vehicle. The defendant was charged with multiple offenses stemming from the events that ensued thereafter, and after a jury trial, the defendant was found guilty of aggravated assault and felony hit and run. The defendant appeals, and although his appellate counsel submitted what purports to be a Korth brief relating the issues the defendant wished to raise on appeal, counsel asserts an arguably meritorious issue in Section A, namely, whether the felony hit and run statute applies to intentional conduct. We address only the arguably meritorious issue, and we conclude that the felony hit and run statute applies regardless of whether the defendant's acts were intentional.

Factual and Procedural Background

[¶2.] In the later evening on April 25, 2020, Brian Heesch was driving with his girlfriend, Bernadette, in her van in Sioux Falls, South Dakota, when the driver of another vehicle failed to stop at a red light and almost hit the van. After Brian slammed on his breaks to avoid a collision, he yelled and made gestures at the other driver. The other driver was later identified as Bol Kwai. Brian observed that Kwai was on a cell phone and appeared to be arguing with the person on the other line.

[¶3.] At the next red light, Brian's and Kwai's vehicles were stopped next to each other, and Kwai began yelling at Brian and continued to yell at him when the two stopped at the next intersection. Brian testified that he decided to turn off the main road at the second intersection to avoid Kwai, but Kwai followed him. According to Brian, Kwai then positioned his vehicle in front of Brian's and blocked Brian's passage on the road. Kwai got out of his vehicle and walked toward Brian's. Brian testified that he decided to get out of the van because "something [was] going to happen[.]" He and Kwai began yelling at each other, and then Kwai punched Brian in the mouth, causing Brian's hat to fall off of his head. Brian testified that he told Kwai to leave and that he did not "want any problems." Brian bent over to pick up his hat, and when he stood up, Kwai was gone. Bernadette testified that she did not see Kwai punch Brian, but that Brian told her, as he was getting back into the van, that "[h]e just hit me[.]"

[¶4.] Once inside the van, Brian decided to drive in the direction the couple had originally planned to go, but he noticed Kwai's vehicle in front of him again and decided instead to follow Kwai to try to get his license plate number. Brian testified that neither he nor Bernadette could make out the license plate number because it was blocked by a covering. While Brian was following Kwai, Kwai pulled over alongside the road. When Brian drove past him, Kwai either threw something or otherwise made contact with the van, causing the windshield to shatter.

[¶5.] Brian testified that he stopped the van and got out, and while he was walking toward Kwai, he saw Kwai holding what he thought was a metal pipe in his hand. Brian testified that he continued to walk toward Kwai because he has martial arts experience and believed he would be able to grab Kwai and throw him over a nearby fence. When Brian attempted to grab Kwai by the arm, he missed, and Kwai began hitting Brian in the head with the metal pipe. Brian testified that Kwai hit him four or five times in the head, causing him to stagger backwards before he eventually fell to the ground.

[¶6.] Bernadette got out of the van and saw Kwai hitting Brian over the head with something. When she got closer to them, she observed that Kwai was using a metal bar. She then noticed that Kwai's vehicle was rolling forward slowly, and she ran toward it, got into the passenger seat, and tried to shut it off, but she was unable to do so because the vehicle was in gear. The vehicle stopped moving after it hit a fence.

[¶7.] While Bernadette was in Kwai's vehicle, Kwai entered the driver's side. Bernadette then tried to get out quickly, but as she was doing so, she felt Kwai accelerate and she "kind of fell out" of the vehicle. She heard Brian calling for help and then saw Kwai accelerate the vehicle backwards, running over Brian.

[¶8.] A bystander called 911, and emergency personnel arrived at the scene. Brian was taken to the hospital by ambulance. He sustained a head injury requiring multiple staples to repair, nine broken ribs, a broken hip, and a fractured femur. He was in the hospital for approximately one month and he underwent eight surgeries. He has used a wheelchair since the incident and suffers from memory and speech issues.

[¶9.] Kwai was charged by indictment on September 9, 2020, with the following counts: aggravated assault (extreme indifference); aggravated assault (dangerous weapon; crowbar and/or metal pipe); aggravated assault (dangerous weapon; vehicle); aggravated assault (physical menace); hit and run (injury or death); and hit and run (property damage). The circuit court appointed counsel at Kwai's request and from September 14, 2020 to April 2021, the court held multiple hearings related to Kwai's concerns about procedural matters and the quality of his representation by court appointed counsel. Ultimately, during a hearing on April 14, 2021, the court appointed new counsel (who is also appellate counsel) to represent Kwai.

[¶10.] A jury trial was held on August 18–20, 2021. Among other witnesses, the State presented testimony from Brian, Bernadette, and testimony from multiple law enforcement officers establishing that Kwai was the person driving the vehicle that ran over Brian. The State also offered, and the court admitted, the video footage taken near the incident from a homeowner's outside security camera. This recording was played for the jury, and it contains audio capturing the sound of a scuffle and people yelling. The video image, however, is grainy, dark, and from a vantage point of some distance. It nevertheless depicts a vehicle slowly rolling forward until it stops after the front end hits a fence. It also shows a person entering the passenger side, leaving the door open, and then exiting. Thereafter, it shows the vehicle accelerating in reverse and backing over a person in the process, then driving forward and speeding away from the scene.

[¶11.] Kwai did not testify or call any witnesses, but he moved at the close of the evidence for a judgment of acquittal. While Kwai's motion related to all counts, he presented specific arguments regarding the aggravated assault by physical menace count as well as the felony hit and run count. With respect to the latter, he asserted that the crime encompasses only accidental acts, and by presenting evidence that the driver of the vehicle involved in this incident intentionally ran over Brian, the State failed to make a prima facie case that an accident occurred. ¹ He provided the circuit court with an out-of-state case wherein the court concluded that the term "accident" in a similar hit and run statute did not apply to an intentional attempt to murder someone with a vehicle.

[¶12.] In response, the State did not provide an alternative argument as to the meaning of the term "accident" and instead argued that it is entitled to "present alternate theories of how things happened." The State then noted the defense's view of the evidence with respect to the aggravated assault count, i.e., that Kwai "in backing up his vehicle, didn't realize [Brian] was there[;] he was just in a super hurry to leave[.]" The State further noted that because Kwai "didn't render aid upon knowing that he had, in fact, struck [Brian,]" there was evidence to support a finding of guilt on felony hit and run.

[¶13.] In ruling on Kwai's motion, the circuit court advised that it had reviewed the case law provided by Kwai and acknowledged that the incident at hand was described during trial as an intentional act. However, the court did not adopt or reject Kwai's asserted interpretation of the statute. Instead, the court noted that "there is evidence that can support the fact that the driver of the vehicle was in a hurry and didn't necessarily intend to ... cause the accident and then left the scene." The court denied Kwai's motion for judgment of acquittal in its entirety.

[¶14.]

The jury ultimately returned a guilty verdict on all counts. The circuit court sentenced Kwai on the aggravated assault (extreme indifference) count to fifteen years with five suspended and gave him credit for 409 days served. The court imposed a concurrent sentence of two years with two years suspended on the felony hit and run (injury or death) count. The court did not impose sentences on the remaining counts. Kwai appeals, and his appellate counsel submitted what purports to be a Korth brief. See State v. Korth , 2002 S.D. 101, 650 N.W.2d 528.

Analysis and Decision

Compliance with Korth briefing procedure

[¶15.] In State v. Arabie , we noted that the Korth briefing procedure is used "where court appointed counsel has identified no meritorious issues for appeal[.]" 2003 S.D. 57, ¶ 9, 663 N.W.2d 250, 254. Pursuant to Korth , counsel is to submit a brief that contains a "Section A completed by counsel to include, among other things, a statement ‘that counsel has not identified any arguably meritorious issue on appeal’ " and a Section B identifying "any claims of error requested by the client." Id. (quoting Korth , 2002 S.D. 101, ¶ 16 n.6, ...