State v. Soldier

994 N.W.2d 212

STATE of South Dakota, Plaintiff and Appellee, v. Damen LONG SOLDIER, Defendant and Appellant.

#29955

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS APRIL 25, 2023

OPINION FILED July 26, 2023

BRADLEY T. BORGE, Rapid City, South Dakota, Attorney for defendant and appellant.

MARTY J. JACKLEY, Attorney General, CHELSEA WENZEL, Assistant Attorney General, Pierre, South Dakota Attorneys for plaintiff and appellee.

KERN, Justice

[¶1.] Damen Long Soldier entered a casino and held up the cashier on duty at gun point. He pulled her behind the counter and struck her on the head with a pistol, causing her to fall to the floor. After failing to open the cash register or find money in her pockets, he took her purse from a chair in the office and fled. Long Soldier was convicted of first-degree robbery and sentenced to forty years. On appeal, he argues that the circuit court erred by denying his motion for judgment of acquittal because the evidence was insufficient to meet the elements of the offense and sustain the conviction. We affirm.

Background

[¶2.] On the morning of Sunday, November 22, 2020, 76-year-old Helga Harris was working by herself as a cashier at the Happy Jacks casino at 4036 Cheyenne Boulevard in Rapid City, South Dakota. ¹ She arrived at the casino and started her routine at 5:40. She placed her purse on a chair in the office, completed paperwork, counted money, put money in the main and beer cash registers, cleaned, disinfected, and made coffee and popcorn. She opened the casino at 7:00, sat in a chair at the end of the cashier's counter, approximately ten feet from her purse in the office, and watched television.

[¶3.] At approximately 10:40, a man later identified as Damen Long Soldier entered the casino through the back entrance ² wearing a Pacman hoodie. When Harris asked to see his identification, he patted his pockets and left. Long Soldier reentered the casino through the back entrance a few minutes later with a mask over his face and his hoodie cinched tighter. He was carrying a pistol in his front pocket. He removed the pistol and pushed it into Harris's side, grabbing her left upper arm and shoving her from where she sat watching television to behind the bar where the cash registers were. He pointed at the beer cash register and hit Harris twice in the head with the pistol. Bleeding profusely, Harris covered her face and dropped to the ground. Long Soldier asked Harris where the money was and checked her pockets. She was not able to respond. He tried to open the beer cash register and said he was going to kill her. ³ Afraid for her life, Harris called out for Jesus several times. Pointing the pistol at her, Long Soldier backed away, took her purse from the office, and ran from the casino.

[¶4.] After Long Soldier left, Harris managed to stand up and call 911 to report that she had been "held up" and was "bleeding to death" before apparently losing consciousness. She briefly seemed to regain consciousness and repeated "Help me!" before she stopped responding to the dispatcher. Officer Wyatt Derr was the first to arrive to the scene. He also spoke with Harris later at the hospital. When she asked for her purse, she was surprised to learn it had been taken. Her head wounds required three staples to close, and she was treated for a dislocated hip as well. She continued to suffer from bruising and headaches at the time of trial ten months later.

[¶5.] Long Soldier was indicted by a Pennington County grand jury in December 2020 for one count of first-degree robbery in violation of SDCL 22-30-1. The State also filed a part II information, per SDCL 22-7-8.1, alleging Long Soldier had previously committed three or more non-violent felonies. He pleaded not guilty and denied the part II information. At the close of a two-day jury trial held September 29–30, 2021, the jury convicted Long Soldier of first-degree robbery.

[¶6.] Long Soldier moved for a judgment of acquittal on the grounds of insufficient evidence, arguing that the State had failed to prove the statutory elements of robbery because Harris's purse was not taken from her person or immediate presence. Further, Long Soldier argued that because Harris was unaware that her purse was taken, under SDCL 22-30-4 it could not have been taken against her will by means of fear or force. The court denied the motion, referencing two cases to support its ruling. See State v. Stecker , 79 S.D. 79, 84, 108 N.W.2d 47, 50 (1961) ("[I]f the taking of property from the person of another is accomplished by force, although the victim does not know what is being done, it is nevertheless robbery." ); State v. Larson , 60 Wash.2d 833, 376 P.2d 537 (1962) (upholding refusal of instruction that the term "will" required consciousness because taking property from someone already unconscious without violence would not be robbery, but taking property from someone rendered unconscious by use of violence would be). Long Soldier admitted to the part II information alleging he had been convicted of four prior felonies. The court imposed a sentence of forty years and ordered Long Soldier to pay court costs and restitution.

[¶7.] Long Soldier raises a single issue on appeal, which we restate as follows: whether the circuit court erred by denying Long Soldier's motion for judgment of acquittal.

Standard of Review

[¶8.] "This Court reviews ‘a denial of a motion for judgment of acquittal de novo.’ " State v. Peneaux , 2023 S.D. 15, ¶ 24, 988 N.W.2d 263, 269 (quoting State v. Timmons , 2022 S.D. 28, ¶ 14, 974 N.W.2d 881, 887 ). "[A] motion for a judgment of acquittal attacks the sufficiency of the evidence[.]" Id. (alterations in original) (quoting Timmons , 2022 S.D. 28, ¶ 14, 974 N.W.2d at 887 ). "In measuring the sufficiency of the evidence, we ask 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." Id. (quoting State v. Frias , 2021 S.D. 26, ¶ 21, 959 N.W.2d 62, 68 ). " ‘[T]he jury is the exclusive judge of the credibility of the witnesses and the weight of the evidence[,]’ and ‘this Court will not resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence.’ " Id. (alterations in original) (quoting Frias , 2021 S.D. 26, ¶ 21, 959 N.W.2d at 68 ).

Analysis

[¶9.] Under South Dakota law, "[r]obbery is the intentional taking of personal property, regardless of value, in the possession of another from the other's person or immediate presence, and against the other's will, accomplished by means of force or fear of force, unless the property is taken pursuant to law or process of law." SDCL 22-30-1. ⁴ "To constitute robbery, force or fear of force must be employed either to obtain or retain possession of the property or to prevent or overcome resistance to the taking. If employed merely as a means of escape, it does not constitute robbery. The degree of force employed to constitute robbery is immaterial." SDCL 22-30-2. "The fear of force which constitutes an element of the offense of robbery may be ... fear of an injury, immediate or future, to the person or property of the person robbed[.]" SDCL 22-30-3. "The taking of property from the person of another or in the immediate presence of the person is not robbery if it clearly appears that the taking was fully completed without the person's knowledge." SDCL 22-30-4.

[¶10.] The circuit court advised the jury of the elements of first-degree robbery in instruction 17, which stated:

The elements of the crime of robbery in the first degree, each of which the state must prove beyond a reasonable doubt, are that at the time and place alleged:

1. The defendant intentionally took personal property in the possession of Helga Harris from her person or immediate presence.

2. The personal property was ... taken against the will of Helga Harris who was in possession thereof, that is, with the knowledge of Helga Harris and against her wish.

3. The defendant accomplished such taking by use of force.

4. The defendant used a dangerous weapon.

5. The personal property was not taken pursuant to process or otherwise pursuant to law.

Long Soldier does not dispute the sufficiency of the evidence to prove the fourth and fifth elements of the charged offense as listed in jury instruction number 17 beyond a reasonable doubt. Rather, he challenges the sufficiency of the evidence on the first three elements of the offense based on his interpretation of the relevant statutes. ⁵

[¶11.] We review issues of statutory interpretation de novo. State v. Bettelyoun , 2022 S.D. 14, ¶ 16, 972 N.W.2d 124, 129. "The rules of statutory interpretation are well settled." Id. ¶ 24, 972 N.W.2d at 131. "The purpose of statutory interpretation is to discover legislative intent." Id. (quoting State v. Bryant , 2020 S.D. 49, ¶ 20, 948 N.W.2d 333, 338 ). "[T]he starting point when interpreting a statute must always be the language itself." Id. (alteration in original) (quoting Bryant , 2020 S.D. 49, ¶ 20, 948 N.W.2d at 338 ). "We therefore defer to the text where possible." Id. (quoting State v. Armstrong , 2020 S.D. 6, ¶ 16, 939 N.W.2d 9, 13 ). "When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court's only function is to declare the meaning of the statute as clearly expressed." Id. (quoting Armstrong , 2020 S.D. 6, ¶ 16, 939 N.W.2d at 13 ). "In conducting statutory interpretation, we give words their plain meaning and effect, and read statutes as a whole." Id. (quoting State v. Thoman , 2021 S.D. 10, ¶ 17, 955 N.W.2d 759, 767 ). "The rule of the common law that penal statutes are to be strictly construed has no application to [SDCL Title 22]. All its criminal and penal provisions and all penal statutes shall be construed according to the fair import of their terms, with a view to effect their objects and promote...