#25586-a-GAS

2011 S.D. 46

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                   * * * *

STATE OF SOUTH DAKOTA,                       Plaintiff and Appellee,

 v.

KENNETH DALE STARK,                          Defendant and Appellant.

                                   * * * *

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                                   * * * *

                     HONORABLE LAWRENCE E. LONG
                                Judge

                                   * * * *
MARTY J. JACKLEY
Attorney General

CRAIG M. EICHSTADT
Assistant Attorney General
Pierre, South Dakota                         Attorneys for plaintiff
                                             and appellee.

MATTHEW L. OLSON
Minnehaha County Public
 Defender’s Office
Sioux Falls, South Dakota                    Attorneys for defendant
                                             and appellant.

                                   * * * *
                                             CONSIDERED ON BRIEFS
                                             ON FEBRUARY 16, 2011

                                             OPINION FILED 08/10/11
#25586

SEVERSON, Justice

[¶1.]        Kenneth Dale Stark appeals his conviction on two counts of loitering in

a community safety zone in violation of SDCL 22-24B-24. Stark appeals, raising

four issues: (1) that the South Dakota statutes prohibiting sex offenders from

loitering in a community safety zone are unconstitutional; (2) that the trial court

erred by allowing the State to amend the Part II Information to include the correct

location of his prior felony conviction; (3) that there was insufficient evidence to

establish that his primary purpose for remaining in the community safety zone was

to observe or contact minors; and (4) that the trial court abused its discretion by

admitting evidence that an individual in a white mini-van registered to him was

seen in a community safety zone the day before the charged conduct occurred. We

affirm on all issues.

                                     Background

[¶2.]        In the afternoon and evening of April 22, 2009, a Sioux Falls mother

noticed an individual in a white mini-van “watching or following . . . children going

to swimming lessons” in the area of the School for the Deaf and Terry Redlin

Elementary School. She noted the vehicle’s license plate number and reported this

activity to law enforcement. When law enforcement checked the license plate

number, they found that the vehicle was registered to Stark, a registered sex

offender. South Dakota law prohibits registered sex offenders from loitering within

500 feet of any school, public park, public playground, or public school. SDCL 22-

24B-24.




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[¶3.]        Officers Jason Holbeck and Cullen McClure were assigned to observe

Stark the following evening. Stark left his place of employment near Fourth

Avenue and Benson Road at approximately 6:10 p.m. He briefly stopped at a gas

station at the corner of Benson Road and Cliff Avenue and then proceeded south on

Cliff Avenue. At Third Street, Stark made a right turn and drove toward Whittier

Park, which lies between Third and Fourth Streets and Cliff and Indiana Avenues.

Officers Holbeck and McClure followed Stark as he drove around Whittier Park on

Third Street, Indiana Avenue, and Fourth Street. Numerous children were present

in the area at the time. After watching Stark circle the park for approximately

twenty minutes, the officers lost contact with him. They looked for him for several

minutes but eventually left the Whittier Park area.

[¶4.]        While on break, the officers received a call from police dispatch that

Stark was in the vicinity of Meldrum Park. The officers immediately left the

McKennan Hospital cafeteria and arrived in the Meldrum Park area approximately

ten minutes later. The officers saw Stark’s van leaving the curb on Fifth Street. It

appeared he had been parked at the northeast corner of the park. The officers

followed Stark and eventually stopped the van.

[¶5.]        When Officer McClure interviewed Stark, he smelled alcohol. The

officers searched Stark’s vehicle and found an open bottle of vodka under the

driver’s seat. Officer McClure cited Stark for driving under the influence, open

container in a motor vehicle, and failure to maintain financial responsibility. A

Minnehaha County grand jury later indicted Stark on two counts of loitering in a

community safety zone, one count of driving under the influence, and one count of


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open container in a motor vehicle. The State also filed a Part II Information. Stark

pleaded not guilty to all charges. 1

[¶6.]         The case proceeded to trial in October 2009. At trial, Stark’s version of

events was quite different from that of Officers Holbeck and McClure. Stark

testified that he left work at approximately 6:30 p.m. on April 23, 2009. After

purchasing gas and a bottle of vodka at a gas station at the corner of Benson Road

and Cliff Avenue, Stark testified that he proceeded south on Cliff Avenue,

eventually making a right turn in the area of Whittier Park. He was headed to The

Banquet, which serves free meals to those in need. When he arrived at The

Banquet, he discovered it had stopped serving. He proceeded to his home at the

Rushmore Motel at the intersection of East Tenth Street and Interstate 229. Stark

testified that he took a shower, had a few drinks, and left for Franklin Foods

Market at approximately 7:45 p.m. On the way, he pulled over briefly on Fifth

Street to let an oncoming car through a particularly narrow part of the street and to

allow a group of children to cross. Shortly thereafter, he was stopped and arrested.

[¶7.]         At the close of the State’s case and at the close of all the evidence,

Stark moved for a judgment of acquittal. He argued that the South Dakota statutes

prohibiting sex offenders from loitering in community safety zones are

unconstitutional and that the State did not present sufficient evidence to establish

that his primary purpose for remaining in a community safety zone was to observe

or contact minors. The trial court denied Stark’s motions. The jury returned a



1.      The State later dismissed the failure to maintain financial responsibility
        charge.

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verdict of guilty on two counts of loitering in a community safety zone and one count

of open container in a motor vehicle. Stark appeals.

                                Analysis and Decision

[¶8.]         1.     Whether the South Dakota statutes prohibiting sex
                     offenders from loitering in community safety zones are
                     unconstitutional.

[¶9.]         Stark argues that the South Dakota statutes prohibiting sex offenders

from loitering in community safety zones are unconstitutional. SDCL 22-24B-24

provides that “[n]o person who is required to register as a sex offender . . . may

loiter within a community safety zone[.]” SDCL 22-24B-22 defines the key terms of

SDCL 22-24B-24. “Loitering” is defined as “remain[ing] for a period of time and

under circumstances that a reasonable person would determine is for the primary

purpose of observing or contacting minors[.]” SDCL 22-24B-22. A “community

safety zone” is “the area that lies within five hundred feet from the facilities and

grounds of any school, public park, public playground, or public pool, including the

facilities and grounds itself[.]” Id.

[¶10.]        Challenges to the constitutionality of a statute are reviewed de novo.

State v. Martin, 2003 S.D. 153, ¶ 13, 674 N.W.2d 291, 296 (quoting State v. Allison,

2000 S.D. 21, ¶ 5, 607 N.W.2d 1, 2). This Court recognizes a strong presumption of

constitutionality. Id. “To be invalidated a statute must be proved a breach of

legislative power beyond a reasonable doubt.” Id. “Only when the

unconstitutionality of a statute is plainly and unmistakably shown will we declare

it repugnant to our [C]onstitution.” Id. And “[i]f a statute can be construed so as

not to violate the [C]onstitution, that construction must be adopted.” Id. “Our


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function is not to decide if a legislative act is unwise, unsound, or unnecessary, but

rather, to decide only whether it is unconstitutional.” Id.

Overbreadth

[¶11.]        Stark first argues that the South Dakota statutes prohibiting sex

offenders from loitering in community safety zones are facially unconstitutional.

Normally, an individual does not have standing to facially challenge a statute

unless he was engaged in constitutionally-protected expression. State v. Asmussen,

2003 S.D. 102, ¶ 3, 668 N.W.2d 725, 729. But the overbreadth doctrine provides an

exception to this rule. Id. “[T]he overbreadth doctrine permits the facial

invalidation of laws that inhibit the exercise of First Amendment rights if the

impermissible applications of the law are substantial when ‘judged in relation to the

statute’s plainly legitimate sweep.’” City of Chicago v. Morales, 527 U.S. 41, 52, 119

S. Ct. 1849, 1857, 144 L. Ed. 2d 67 (1999) (quoting Broadrick v. Oklahoma, 413 U.S.

601, 612-15, 93 S. Ct. 2908, 2916-17, 37 L. Ed. 2d 830 (1973)). The overbreadth

doctrine allows a court to consider a statute’s effect on third parties, regardless of

its effect on the individual challenging the statute. Asmussen, 2003 S.D. 102, ¶ 3,

668 N.W.2d at 729. Courts created this “expansive remedy out of concern that the

threat of enforcement of an overbroad law may deter or ‘chill’ constitutionally

protected speech[.]” Id. (quoting Virginia v. Hicks, 539 U.S. 113, 118-19, 123 S. Ct.

2191, 2196, 156 L. Ed. 2d 148, 157 (2003)).

[¶12.]        What Stark has framed as an overbreadth challenge is not an

overbreadth challenge at all. He does not argue that the South Dakota statutes

prohibiting sex offenders from loitering in community safety zones substantially


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infringe on the constitutionally-protected expression of third parties. Rather, he

argues that the statutes unconstitutionally violated his freedom to loiter for

innocent purposes. He contends that the United States Supreme Court recognized

this right in Morales. We disagree. Only three members of the Morales Court

acknowledged the constitutional right to loiter for innocent purposes. See Morales,

527 U.S. at 53, 119 S. Ct. at 1858. And even so, that plurality invalidated the

Chicago loitering ordinance at issue because it was too vague, not because it

infringed the right to loiter. Id. at 55, 119 S. Ct. at 1858. We therefore reject

Stark’s argument that the statutes at issue violated his “right to loiter,” and

conclude that he has not properly placed the issue of facial overbreadth before this

Court.

Vagueness

[¶13.]       Stark also argues that the South Dakota statutes prohibiting sex

offenders from loitering in community safety zones are unconstitutionally vague

under the Due Process Clause of the Fourteenth Amendment. “Vagueness may

invalidate a criminal law for either of two independent reasons.” Id. at 56, 119 S.

Ct. at 1859. “First, it may fail to provide the kind of notice that will enable ordinary

people to understand what conduct it prohibits[.]” Id. (citing Kolender v. Lawson,

461 U.S. 352, 357, 103 S. Ct. 1855, 1858, 75 L. Ed. 2d 903 (1983)).

             A crime must be statutorily defined with definiteness and
             certainty. A statute [that] either forbids or requires the doing of
             an act in terms so vague that men of common intelligence must
             necessarily guess at its meaning and differ as to its application
             violates the first essential of due process. A criminal statute
             must give a person of ordinary intelligence fair notice that his
             contemplated conduct is forbidden.


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Asmussen, 2003 S.D. 102, ¶ 10, 668 N.W.2d at 731 (quoting State v. Big Head, 363

N.W.2d 556, 559 (S.D. 1985)). Second, a statute may be unconstitutionally vague if

it authorizes or even encourages “arbitrary and discriminatory enforcement.”

Morales, 527 U.S. at 56, 119 S. Ct. at 1859. A criminal law must not permit

policemen, prosecutors, and juries to conduct a standardless sweep to pursue their

personal predilections. Kolender, 461 U.S. at 358, 103 S. Ct. at 1858 (quoting Smith

v. Goguen, 415 U.S. 566, 575, 94 S. Ct. 1242, 1248, 39 L. Ed. 2d 605 (1974)). Indeed,

the most important aspect of the vagueness doctrine is “the requirement that a

legislature establish minimal guidelines to govern law enforcement.” Id. (citing

Smith, 415 U.S. at 574, 94 S. Ct. at 1247-48). In sum, the language of statutes

needs to be fair and reasonably certain. State v. McGill, 536 N.W.2d 89, 95 (S.D.

1995) (citing State v. Hoffman, 430 N.W.2d 910, 912 (S.D. 1988)).

[¶14.]       In Morales, the Court considered whether vagueness rendered a

Chicago loitering ordinance unconstitutional. The ordinance at issue provided:

             Whenever a police officer observes a person whom he reasonably
             believes to be a criminal street gang member loitering in any
             public place with one or more other persons, he shall order all
             such persons to disperse and remove themselves from the area.
             Any person who does not promptly obey such an order is in
             violation of this section.

The ordinance further defined loitering as “remain[ing] in any one place with no

apparent purpose.” In deciding that the ordinance failed to establish minimal

guidelines to govern law enforcement, the Court found it particularly important

that the ordinance contained no intent or purpose requirement:

             [The] limitation would no doubt be sufficient if the ordinance
             only applied to loitering that had an apparently harmful
             purpose or effect, or possibly if it only applied to loitering by

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             persons reasonably believed to be criminal gang members. But
             this ordinance . . . requires no harmful purpose and applies to
             nongang members as well as suspected gang members. It
             applies to everyone in the city who may remain in one place with
             one suspected gang member as long as their purpose is not
             apparent to an officer observing them. Friends, relatives,
             teachers, counselors, or even total strangers might unwittingly
             engage in forbidden loitering if they happen to engage in idle
             conversation with a gang member.

Morales, 527 U.S. at 62-63, 119 S. Ct. at 1862. The Court ultimately held that the

Chicago loitering ordinance was unconstitutional because it did not “provide

sufficiently specific limits on the enforcement discretion of the police[.]” Id. at 64,

119 S. Ct. at 1863.

[¶15.]       Many courts emphasize the importance of a law’s ability to distinguish

between innocent and harmful conduct. A number of state courts have upheld

ordinances that criminalize loitering if they require evidence of some overt act or

criminal element. See id. at 57 n.25, 119 S. Ct. at 1859 n.25 (citing Tacoma v.

Luvene, 827 P.2d 1374 (1992) (upholding an ordinance criminalizing loitering with

the purpose to engage in drug-related activities); People v. Superior Court, 758 P.2d

1046, 1052 (1988) (upholding an ordinance criminalizing loitering for the purpose of

engaging in or soliciting lewd acts)). See also United States v. Nat’l Dairy Prod.

Corp., 372 U.S. 29, 35, 83 S. Ct. 594, 599, 9 L. Ed. 2d 561 (1963) (holding that a

provision of the Robinson-Patman Act making it a crime to sell goods at

unreasonably low prices for the purpose of destroying competition or eliminating a

competitor was not unconstitutionally vague); Screws v. United States, 325 U.S. 91,

102, 65 S. Ct. 1031, 1036, 89 L. Ed. 1495 (1945) (A requirement of intent served to

“relieve the statute of the objection that it punishes without warning an offense of


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which the accused was unaware.”). Courts have also almost uniformly invalidated

laws that do not join the term “loitering” with a second more specific element of the

crime. Morales, 527 U.S. at 58 n.26, 119 S. Ct. 1860 n.26 (citing State v. Richard,

836 P.2d 622, 623, n.2 (1992) (striking down a statute that made it unlawful “for

any person to loiter or prowl upon the property of another without lawful business

with the owner or occupant thereof”)).

[¶16.]       The South Dakota statutes at issue in this case are very different from

the Chicago loitering ordinance in Morales, and, as applied to Stark, they are not

unconstitutionally vague. First, SDCL 22-24B-24 only applies to persons required

to register as sex offenders in South Dakota, a meticulously defined class of

individuals. Compare Morales, 527 U.S. at 62-63, 119 S. Ct. at 1862. Second, by

defining the term “community safety zone,” SDCL 22-24B-22 describes the precise

area to which SDCL 22-24B-24 applies. The statute does not use amorphous terms

like “neighborhood” or “locality,” which are “elastic and dependent upon the

circumstances.” See Connally v. Gen. Constr. Co., 269 U.S. 385, 395, 46 S. Ct. 126,

129, 70 L. Ed. 322 (1926) (finding that vagueness in a criminal statute was

exacerbated by use of the terms “neighborhood” and “locality”). Finally, and

perhaps most importantly, SDCL 22-24B-24 distinguishes between innocent and

harmful conduct. By requiring that the loitering be “for the primary purpose of

observing or contacting minors,” the South Dakota Legislature limited the statute’s

application to loitering that has an “apparently harmful purpose or effect.”

Compare Morales, 527 U.S. at 62-63, 119 S. Ct. at 1862. The statutes at issue were

sufficient to provide Stark with notice that his conduct was prohibited, and they did


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not authorize the law enforcement officers in this case to act in an arbitrary or

discriminatory manner. Stark has therefore failed to meet his burden of

establishing that the statutes, as applied to him, are unconstitutionally vague.

[¶17.]       2.     Whether the trial court erred by allowing the State
                    to amend the Part II Information to include the correct
                    location of Stark’s prior felony conviction.

[¶18.]       Stark argues that the trial court erred by allowing the State to amend

the Part II Information to include the correct location of his prior felony conviction.

A court trial was held in November 2009 on the Part II Information, which alleged

that Stark was convicted of failure to register as a sex offender in Minnehaha

County, South Dakota, in August 2007. At trial, the State offered a judgment of

conviction from a failure to register conviction in Hennepin County, Minnesota.

Stark objected to the exhibit on the grounds of relevance, and the trial court

informed the State that its proof was at variance with the pleadings. The State

then moved to amend the Part II Information to correct what it described as a

“clerical error.” Stark objected, citing SDCL 22-7-11, which requires that the

information “state the times, places, and specific crimes alleged to be prior

convictions.” The trial court allowed the amendment.

[¶19.]       This Court considered this precise issue in State v. Stuck, 434 N.W.2d

43, 48 (S.D. 1988). In that case, Stuck moved for a directed verdict of acquittal

during a habitual offender trial due to a discrepancy of dates in the information.

The trial court allowed the State to amend the information. Stuck appealed,

arguing that the amendment added a new charge to the information. On appeal,

this Court rejected Stuck’s argument, citing SDCL 23A-6-19, which permits the


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amendment of an information during trial “at any time before a verdict or finding is

made, if no additional or different offense is charged and substantial rights of the

defendant are not thereby prejudiced.” Id. We noted that the “[c]orrection of

typographical errors regarding dates at habitual offender proceedings is, at worst,

harmless error, absent a showing of prejudice.” Id. (citing Starks v. State, 517

N.E.2d 46 (Ind. 1987)). Although the issue in Stuck was whether to permit an

amendment of dates rather than location, that distinction is insignificant. Stuck

controls the disposition of this issue, and we therefore conclude that the trial court

did not err by allowing the State to amend the Part II Information to include the

correct location of Stark’s prior felony conviction.

[¶20.]       3.     Whether there was sufficient evidence to establish that
                    Stark’s primary purpose for remaining in the community
                    safety zones was to observe or contact minors.

[¶21.]       Stark argues that the State did not meet its burden of proving beyond

a reasonable doubt that his primary purpose for remaining in the community safety

zones was to observe or contact minors. “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.’” State v. Brim, 2010 S.D. 74, ¶ 6, 789 N.W.2d

80, 83 (quoting State v. Klaudt, 2009 S.D. 71, ¶ 14, 772 N.W.2d 117, 122). “We

accept the evidence and the most favorable inferences fairly drawn therefrom,

which will support the verdict.” Id. (quoting State v. Jensen, 2007 S.D. 76, ¶ 7, 737

N.W.2d 285, 288). “Moreover, the jury is the exclusive judge of the credibility of the

witnesses and the weight of the evidence.” Id. (citation omitted). “This Court will


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not resolve conflicts in the evidence, assess the credibility of witnesses, or evaluate

the weight of the evidence.” Id. (citation omitted).

[¶22.]       The question of Stark’s purpose for remaining in the community safety

zones was within the exclusive province of the jury. Intent and purpose are rarely

susceptible to direct proof, and the fact finder must make these determinations by

drawing reasonable inferences from the words and acts of the defendant and the

circumstances surrounding the incident. People ex rel. C.C.H., 2002 S.D. 113, ¶ 10

n.4., 651 N.W.2d 702, 705 n.4 (quoting State v. Holzer, 2000 S.D. 75, ¶ 16, 611

N.W.2d 647, 651-52). Officers Holbeck and McClure testified that they observed

Stark circle Whittier Park for approximately twenty minutes. When they arrived at

Meldrum Park, he was parked near the northeast corner of the park. Although

Stark testified at trial that his primary purpose was not to observe or contact

minors, the jury resolved this basic credibility dispute against him. Having

reviewed the record, we conclude that the State presented sufficient evidence that

Stark’s primary purpose for remaining in the community safety zones was to

observe or contact minors.

[¶23.]       4.     Whether the trial court abused its discretion by
                    admitting evidence that an individual in a white mini-
                    van registered to Stark was seen in a community safety
                    zone the day before the charged conduct occurred.

[¶24.]       Finally, Stark argues that the trial court abused its discretion by

admitting evidence that an individual in a white mini-van registered to Stark was

seen “watching or following . . . children going to swimming lessons” in the area of

the School for the Deaf and Terry Redlin Elementary School on April 22, 2009.

Although the trial court allowed the evidence only to explain why Officers Holbeck

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and McClure were following Stark, he contends that the purpose of the evidence

was to demonstrate that he had a propensity to commit the charged offenses.

[¶25.]       SDCL 19-12-5 (Federal Rule 404(b)) allows for the admission of “other

acts” evidence when it is relevant for some purpose other than proving character.

This Court has established a two-part test to be used in applying this rule. “First,

the offered evidence must be relevant to a material issue in the case. Second, the

trial court must determine ‘whether the probative value of the evidence is

substantially outweighed by its prejudicial effect.’” State v. Wright, 2009 S.D. 51, ¶

55, 768 N.W.2d 512, 531 (quoting State v. Owen, 2007 S.D. 21, ¶ 14, 729 N.W.2d

356, 362-63). “The res gestae rule is a well-recognized exception to Rule 404(b).”

State v. Goodroad, 1997 S.D. 46, ¶10, 563 N.W.2d 126, 130 (citing State v. Floody,

481 N.W.2d 242, 253 (S.D. 1992)). “The res gestae exception permits the admission

of evidence that is ‘so blended or connected’ in that it ‘explains the circumstances; or

tends logically to prove any element of the crime charged.’” Wright, 2009 S.D. 51, ¶

55, 768 N.W.2d at 531 (quoting Owen, 2007 S.D. 21, ¶ 15, 729 N.W.2d at 363).

[¶26.]       The evidence at issue clearly falls within the res gestae rule. The tip

about the suspicious individual in the white van was the reason that law

enforcement officers were watching Stark on the date of the offense. It was

necessary for the jurors to hear this information in order to give them some context

about the case and to explain why Stark was being followed. Because the evidence

helped to “explain the circumstances” of the case, it was admissible under the res

gestae rule. Stark argues that the evidence was used to prove an uncharged crime

that allegedly took place the day before the charged offense. Even assuming this is


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true, this Court has held that “[e]vidence, when a part of the res gestae, is proper if

it is related to and tends to prove the crime charged although it also proves or tends

to prove the defendant guilty of another crime.” Id. (citing Goodroad, 1997 S.D. 46,

¶ 10, 563 N.W.2d at 130). Because this evidence is part of the res gestae, the trial

court did not abuse its discretion by admitting it.

[¶27.]       Affirmed.

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

Justices, and MEIERHENRY, Retired Justice, concur.




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