#25799-a-LSW

2012 S.D. 23

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   ****
STATE OF SOUTH DAKOTA,                      Plaintiff and Appellee,

      v.

SIMON P. TORRES,                            Defendant and Appellant.


                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                  PENNINGTON COUNTY, SOUTH DAKOTA

                                   ****

                  THE HONORABLE THOMAS L. TRIMBLE
                              Judge

                                   ****

MARTY J. JACKLEY
Attorney General

ANN C. MEYER
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff and
                                            appellee State of South Dakota.

KEVIN S. LEWIS
Rapid City, South Dakota                    Attorney for defendant and
                                            appellant.




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                                            ARGUED FEBRUARY 14, 2012

                                            OPINION FILED 03/28/12
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WILBUR, Justice

[¶1.]        Simon Torres appeals his conviction of attempted murder and

commission of a felony with a firearm. Torres argues that the trial court (1) abused

its discretion in admitting a video of the shooting and photographs of the gunshot

wounds inflicted on the victim and (2) violated his due process rights by failing to

advise him that he would receive mandatory consecutive sentences if convicted of

both attempted murder and commission of a felony with a firearm. We affirm.

                   FACTS AND PROCEDURAL BACKGROUND

[¶2.]        Shane Bordeaux was shot several times while waiting to enter the

Lakota Nation Invitational basketball tournament at the Rushmore Plaza Civic

Center in Rapid City, South Dakota. As a result of the gunshot wounds, Bordeaux

required extensive medical treatment to save his life.

[¶3.]        Shortly before the shooting occurred, A.F., a minor who was also

outside the Civic Center, sensed a fight brewing and began recording a video of the

scene using his cell phone. A.F. incidentally captured the shooting and later turned

his cell phone containing the video over to police. Despite the State’s efforts to

digitally enhance the video, the video remained pixilated and individual faces could

not be identified in the video. However, the State used the video several times at

trial in questioning witnesses to, according to the State, “assist the jury’s

understanding of the shooting.”

[¶4.]        To identify Torres as the shooter, the State proffered separate

evidence. Specifically, the State called two witnesses who testified that they saw

Torres shoot Bordeaux firsthand. Additionally, a third witness testified that Torres


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admitted to her that he shot Bordeaux. To show the jury the extent of Bordeaux’s

injuries, the State, in addition to other evidence, submitted photographs of

Bordeaux’s wounds taken at the hospital. The jury determined Torres fired the

shots and convicted him of attempted murder and commission of a felony with a

firearm.

[¶5.]        The trial court ordered Torres to serve two consecutive 25-year

sentences for the crimes. The trial court ordered the consecutive sentences

pursuant to SDCL 22-14-12, which provides that any person convicted of a felony

while armed with a firearm is guilty of an additional Class 2 felony. The statute

also provides that the sentence for the additional felony “shall be [served]

consecutive to any other sentences imposed for a violation of the principal felony.”

Torres appeals.

                            ANALYSIS AND DECISION

[¶6.]        1.     Whether the trial court abused its discretion in denying
                    Torres’s motion in limine to exclude a cell phone video of the
                    shooting and photographs of Bordeaux’s gunshot wounds.

[¶7.]        Torres argues that the trial court abused its discretion in denying his

motion in limine to exclude two pieces of evidence: (1) a version of the cell phone

video of the shooting that contained superimposed identifiers labeling individuals in

the video as “Shooting Victim,” “Shooter,” and “Shooter hidden behind third

person”; and (2) photographs of Bordeaux’s wounds. We review a trial court’s

decision regarding the exclusion of evidence under an abuse of discretion standard.

Estate of Holznagel v. Cutsinger, 2011 S.D. 89, ¶ 6, 808 N.W.2d 103, 105.




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[¶8.]          According to Torres, the trial court abused its discretion by admitting

the video because the addition of the labels transformed the video from evidence to

opinion by manipulating the video to fit the State’s theory of the case. However, as

the State points out, the generic identifiers used by the State in no way insinuated

that Torres was the shooter. Rather, the identifiers simply made it easier for the

jury to follow the short and pixilated video. Moreover, Torres had the opportunity

to cross-examine and impeach the testimony of all witnesses that used the video,

leaving the jury with the ultimate decision as to whether Torres was the shooter.

Thus, we reject Torres’s contention that the admission of the video was an abuse of

discretion.

[¶9.]          Torres also argues that the trial court abused its discretion by

permitting the jury to view photographs of Bordeaux’s gunshot wounds taken at the

hospital. According to Torres, the trial court should have excluded the evidence

pursuant to SDCL 19-12-3 (Rule 403)* because the probative value of the

photographs was outweighed by their prejudicial effect.

[¶10.]         In denying Torres’s motion in limine to exclude the photographs, the

trial court reasoned:

               Anything like this is prejudicial to some degree. It’s a matter of
               the State’s burden of proof to show exactly what happened. And
               for the jury to understand not only the fact that he was shot,
               where he was shot, and the wounds and such things . . . are all
               beneficial to the jury.



*        SDCL 19-12-3 (Rule 403) provides: “Although relevant, evidence may be
         excluded if its probative value is substantially outweighed by the danger of
         unfair prejudice, confusion of the issues, or misleading the jury, or by
         considerations of undue delay, waste of time, or needless presentation of
         cumulative evidence.”
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[¶11.]        We agree. This Court has previously noted that “[p]hotographs

relevant to a material issue” are not unfairly prejudicial “merely because they

incidentally tend to arouse passion or prejudice.” State v. Herrmann, 2004 S.D. 53,

¶ 13, 679 N.W.2d 503, 508 (citation omitted). Several witnesses used the

photographs to describe the injuries Bordeaux sustained from the gunshots. For

example, Bordeaux’s attending doctor used the photographs to help explain to the

jury the extent, location, and critical nature of Bordeaux’s injuries. Thus, although

the graphic nature of the photographs may have had a tendency to “arouse passion

or prejudice,” Torres has not established that the prejudice is unfair. Moreover,

Torres has not shown an abuse of discretion in the trial court’s determination that

the photographs probative value outweighed this potential prejudice.

[¶12.]        2.    Whether the trial court violated Torres’s due process
                    rights.

[¶13.]        Torres’s final argument is that the trial court violated his due process

rights during arraignment by failing to inform Torres that, pursuant to SDCL 22-

14-12, Torres would receive mandatory consecutive sentences if the jury convicted

him of both attempted murder and commission of a felony with a firearm. Torres

concedes we would be the first court to hold that due process requires this

advisement.

[¶14.]        In addition to Torres’s lack of supporting authority, we have previously

held in a similar situation involving a mandatory minimum sentence, that a

“defendant [is] not entitled by statute or by the Due Process Clause of the

Constitution to an advisement of the mandatory minimum upon a plea of not guilty



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. . . .” State v. Miller, 2006 S.D. 54, ¶ 28, 717 N.W.2d 614, 623. Thus, we reject

Torres’s argument that the trial court violated his due process rights.

                                   CONCLUSION

[¶15.]       Because the trial court did not abuse its discretion in admitting the

video and photographs, nor did it violate Torres’s due process rights, we affirm.

[¶16.]       GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

SEVERSON, Justices, concur.




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