#26559-a-DG

2013 S.D. 72

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

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

      v.

EARL DAVID DOWTY, JR.,                      Defendant and Appellant.


                                ****
                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SIXTH JUDICIAL CIRCUIT
                   MELLETTE COUNTY, SOUTH DAKOTA
                                ****

                     THE HONORABLE MARK BARNETT
                                Judge
                                ****

MARTY J. JACKLEY
Attorney General

KELLY MARNETTE
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellee.

TODD A. LOVE of
Bettmann Hogue Law Firm, Prof. LLC
Rapid City, South Dakota

      and

LARRY D. HOLLMANN of
Hollmann and Hollmann
Chamberlain, SD                             Attorneys for defendant
                                            and appellant.

                                     ****
                                            CONSIDERED ON BRIEFS
                                            ON AUGUST 27, 2013
                                            OPINION FILED 10/09/13
#26559

GILBERTSON, Chief Justice

[¶1.]         Earl Dowty and his stepson Wayne Richards were jointly charged with

13 felonies as a result of three burglaries committed in Mellette County, South

Dakota. Richards pleaded guilty to two charges stemming from one of the

burglaries. Prior to trial, Dowty filed a motion to sever charges and for relief from

prejudicial joinder. The trial court denied Dowty’s motion, and the case proceeded

to trial. At trial, Dowty moved for judgment of acquittal on all charges stemming

from two of the burglaries. This motion was also denied by the trial court. After

being convicted on 9 of the 13 felonies, Dowty was sentenced to a total of 45 years in

the South Dakota State Penitentiary. Dowty appeals, arguing the trial court erred

in denying his motion for judgment of acquittal and his motion to sever charges.

                                       FACTS

[¶2.]         During a 25-day period in October and November 2010, three homes

were burglarized in rural Mellette County. The homes were located within 20 miles

of each other. The first burglary occurred on October 30, 2010. Upon returning

home at approximately 12:30 a.m. on October 31, 2010, Peter and Marla Ferguson

realized their home had been burglarized. Several items were missing from the

Ferguson home, including two televisions, two jewelry boxes, three guns, Marla’s

work bag, 1 and all the meat from their freezer. The Fergusons reported the

burglary to the Mellette County Sheriff’s Office, which initiated an investigation.




1.      Marla was employed as a home health aide. Her work bag was made of cloth
        and had a brown buffalo skull imprinted on the side. It contained client
        information, Marla’s wallet, medical instruments, and other items.

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#26559

[¶3.]         On November 6, 2010, Jeannine Woodward and Rose West left their

home around 9:00 a.m. When Woodward and West returned home at approximately

4:00 p.m., they discovered that several items were missing from the freezer and that

seven guns had been stolen. Outside, Woodward and West noticed blood trailing

from the driveway to the front door. However, there was no blood inside their

home. During the investigation of the burglary, the Mellette County Sheriff’s

Department collected a sample of the blood from the front door for DNA testing. At

that time, no suspects were identified for either burglary.

[¶4.]         The next burglary occurred on November 24, 2010. At approximately

7:00 p.m., Michael Williams returned home after having dinner with his family at a

co-worker’s house. Williams’s wife and children had a separate vehicle, and

planned to return home sometime after Williams. Upon entering his home,

Williams immediately saw two men he did not recognize. One of the two men was

rifling through the freezer, while the other man was attempting to remove the

television from the wall. The man by the freezer turned around and pointed a

handgun at Williams. Subsequently, Williams saw the man by the television reach

into his coat pocket. Williams then saw a laser beam flash across the wall. 2

Williams closed the front door and started running away from the house. While

Williams was running, he saw the laser beam shining near him on the ground and

was then shot twice in the leg. Despite his injuries, Williams was able to access the

handgun he carried with him and fire one shot in the air. Williams then called 911



2.      Williams owned a handgun that had a laser sight, which could be activated
        while the handgun was being gripped.

                                          -2-
#26559

on his cell phone. The two men fled the scene while Williams waited for help. Once

law enforcement arrived, Williams was transported to the hospital for treatment.

He eventually recovered from his injuries. Items stolen from Williams’s home

included the handgun with the laser sight, a second handgun, jewelry, coins, and a

flashlight.

[¶5.]         After Williams was transported to the hospital, law enforcement began

investigating the burglary and shooting. Agent Jason Jares, a law enforcement

officer employed by the South Dakota Division of Criminal Investigations (DCI), led

the investigation. One of the items recovered from the scene was a partially smoked

cigarette butt that had been found near the deck outside of the home. The cigarette

butt was sent to the DCI forensic lab for DNA testing.

[¶6.]         As the investigation progressed, Earl Dowty and his stepson, Wayne

Richards, became the primary suspects in the burglary and shooting that took place

at Williams’s home. Specifically, Dowty was suspected of being the individual

Williams observed standing at the freezer. Richards was suspected of being the

individual Williams observed attempting to remove the television from the wall,

who shot Williams as Williams ran away from the house. Both Dowty and Richards

lived with Dowty’s wife (Richards’s mother), Rose Leading Fighter, at her home in

Parmelee, South Dakota, which is located within an Indian reservation. Because

the home was located on reservation land, Agent Jares sought assistance with the

investigation from a Federal Bureau of Investigation (FBI) agent. The FBI agent

obtained a federal search warrant for Leading Fighter’s home that permitted law

enforcement to search for items stolen from Williams’s home.


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#26559

[¶7.]        The search warrant was executed on January 8, 2011. During the

execution of the search warrant, law enforcement did not locate any of the items

that had been stolen from Williams’s home. Nevertheless, while searching the

home, law enforcement discovered a tan cloth bag with a buffalo skull imprinted on

the side. The bag contained various items including documents with the name

“Marla Ferguson” on them, a wallet, and a jewelry box. Leading Fighter consented

to law enforcement taking possession of the bag and its contents.

[¶8.]        Before executing the search warrant, Agent Jares was unaware of the

burglaries of the Ferguson and Woodward/West homes. However, Agent Jares was

informed of these two burglaries after recovering the bag containing the documents

with Marla Ferguson’s name. Upon learning of these unsolved burglaries, law

enforcement realized that some of the items they had seen in plain view while

executing the search warrant at Leading Fighter’s home were consistent with items

that had been stolen from the Ferguson home. Ultimately, Leading Fighter

consented to law enforcement taking custody of a jewelry box and a television that

had been stolen from the Ferguson home.

[¶9.]        As investigations of the three burglaries continued, law enforcement

obtained additional evidence that connected Dowty and Richards to the burglaries.

For example, law enforcement discovered Dowty and Richards had traded and

pawned various guns that had been stolen during the burglaries of the Ferguson,

Woodward/West, and Williams homes. Specifically, on November 23, 2010,

Richards pawned a rifle that had been stolen from the Woodward/West home.

Dowty was with Richards at the time, but Dowty remained outside the pawn shop


                                        -4-
#26559

in a vehicle. The next day, Dowty pawned a rifle that had also been stolen from the

Woodward/West home. Richards was in the pawn shop with Dowty at the time

Dowty pawned the rifle. Furthermore, on two separate occasions during fall 2010,

Dowty traded stolen guns to Jason Little Elk in exchange for Little Elk performing

repair work on Dowty’s vehicle. The first gun Dowty traded Little Elk was a rifle

that had been stolen from the Ferguson home. Richards was with Dowty at the

time of the trade. In fact, Richards retrieved the rifle and handed it to Little Elk.

The second gun Dowty traded Little Elk was the handgun with a laser sight that

had been used to shoot Williams.

[¶10.]         In addition, samples of both Dowty’s and Richards’s DNA were sent to

the DCI forensic lab to be compared with the blood sample collected at the

Woodward/West home and the cigarette butt collected at the Williams home. DNA

testing established that the blood sample collected from the front door of the

Woodward/West home was a match to Dowty. DNA testing of the cigarette butt

collected at the Williams home revealed the presence of DNA profiles from two

individuals. The testing established that Richards was the major contributor and

Dowty was the minor contributor to the DNA found on the cigarette butt.

[¶11.]         By joint information, Dowty and Richards were charged with 13

felonies as a result of the three burglaries. 3 Additionally, Dowty was accused of


3.       The joint information charged Dowty and Richards with:

               COUNT I: “FIRST DEGREE BURGLARY and AIDING AND
               ABETTING”
               COUNTS II, VIII, XI: “POSSESSION OF STOLEN PROPERTY
               (FIREARM) and AIDING AND ABETTING”
                                                            (continued . . .)
                                          -5-
#26559

being a habitual offender. Dowty was arraigned on September 22, 2011, and he

pleaded not guilty to the charges. Meanwhile, Richards entered into a plea

agreement with the State in which he pleaded guilty to two of the charges

stemming from the burglary and shooting that took place at the Williams home. 4

[¶12.]         On January 30, 2012, Dowty filed a motion to sever charges and for

relief from prejudicial joinder. Dowty sought four separate trials: one trial for each

of the three burglaries and an additional trial for the charges related to the shooting

of Williams. The trial court issued a memorandum decision denying Dowty’s motion

on May 2, 2012. The case proceeded to jury trial on September 24, 2012. Richards

did not testify at trial.

[¶13.]         At the close of the State’s case, Dowty moved for judgment of acquittal

on all charges related to the burglaries of the Ferguson and Woodward/West homes.

Dowty argued that although he was charged with aiding and abetting, the State


________________________
(. . . continued)
               COUNTS III, IX, XII: “GRAND THEFT (FIREARM) and AIDING
               AND ABETTING”
               COUNT IV: “ATTEMPTED FIRST DEGREE MURDER and AIDING
               AND ABETTING”
               COUNT V (in the alternative): “AGGRAVATED ASSAULT and
               AIDING AND ABETTING”
               COUNT VI: “COMISSION OF A FELONY WITH A FIREARM and
               AIDING AND ABETTING”
               COUNTS VII, X: “SECOND DEGREE BURGLARY and AIDING AND
               ABETTING”
               COUNT XIII: “GRAND THEFT (TV SET $1600) and AIDING AND
               ABETTING”

4.       Specifically, Richards admitted to shooting Williams and pleaded guilty to
         Counts I and V of the joint information.

                                           -6-
#26559

failed to present evidence that Dowty acted with another individual in committing

the burglaries at the Ferguson and Woodward/West homes. 5 Thus, Dowty asserted

he could not be convicted of aiding and abetting. The trial court denied his motion.

Ultimately, Dowty was convicted on 9 of the 13 felony counts, 6 and he subsequently

admitted to being a habitual offender. The trial court sentenced Dowty to a total of

45 years in the South Dakota State Penitentiary. Dowty appeals, arguing that the

trial court erred in denying his motion for judgment of acquittal on all charges

related to the burglaries of the Ferguson and Woodward/West homes, and that the

trial court erred in denying his motion to sever charges and for relief from

prejudicial joinder.

                             ANALYSIS AND DECISION

[¶14.]         1.      Whether the trial court erred in denying Dowty’s motion
                       for judgment of acquittal on all charges stemming from
                       the burglaries of the Ferguson and Woodward/West
                       homes.

[¶15.]         “In reviewing the denial of a motion for judgment of acquittal, we

determine ‘whether the evidence was sufficient to sustain the conviction.’” State v.

Roubideaux, 2008 S.D. 81, ¶ 13, 755 N.W.2d 114, 118 (quoting State v. Nuzum, 2006

S.D. 89, ¶ 9, 723 N.W.2d 555, 557). Notably, an appellate court is not required to

“ask itself whether it believes that the evidence at the trial established guilt beyond

a reasonable doubt” when reviewing the sufficiency of the evidence. State v. Plenty



5.       Dowty conceded that the State presented evidence establishing that he and
         Richards committed the burglary and shooting at the Williams home.

6.       Dowty was acquitted on the possession of stolen property charges, and the
         jury did not return a verdict on the alternative aggravated assault charge.

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#26559

Horse, 2007 S.D. 114, ¶ 5, 741 N.W.2d 763, 765 (quoting State v. Tofani, 2006 S.D.

63, ¶ 37, 719 N.W.2d 391, 400). “Instead, the relevant question is 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 Tofani, 2006 S.D. 63, ¶ 37, 719 N.W.2d at 400).

Consequently, the evidence is insufficient only “when no rational trier of fact could

find guilt beyond a reasonable doubt.” Id. (quoting Tofani, 2006 S.D. 63, ¶ 37, 719

N.W.2d at 400). Further, in reviewing the sufficiency of the evidence on appeal, this

Court “will not usurp the jury’s function in resolving conflicts in the evidence,

weighing credibility, and sorting out the truth.” State v. Swan, 2008 S.D. 58, ¶ 9,

753 N.W.2d 418, 420 (quoting State v. Pugh, 2002 S.D. 16, ¶ 9, 640 N.W.2d 79, 82).

[¶16.]         In arguing the trial court erred in denying his motion for judgment of

acquittal on all charges related to the Ferguson and Woodward/West burglaries,

Dowty reasserts that he was only charged as an aider and abettor with regard to

these offenses. 7 Dowty also maintains the State failed to present any evidence



7.       Dowty’s claim that he was solely charged with aiding and abetting is based
         on the language used in the joint information. For example, Counts VII and
         VIII of the information charged:

               COUNT VII: SECOND DEGREE BURGLARY (Class 3 Felony)

               That on or about the 6th day of November, 2010, in the County
               of Mellette, State of South Dakota, the Defendants did commit
               the public offense of SECOND DEGREE BURGLARY, in that
               they did enter or remain in an occupied structure belonging to
               Rose West and/or Jeannine Woodward with intent to commit
               theft therein, and did aid and abet each other in committing the
               crime of grand Theft in that they did take and execute
               unauthorized control over property (firearm) of Rose West
                                                             (continued . . .)
                                            -8-
#26559

establishing Richards’s participation in the Ferguson and Woodward/West

burglaries. Further, Dowty asserts that in order for him to be convicted of aiding

and abetting, the State was required to establish the existence of a principal and

prove the principal offender committed all elements of the underlying offense, which

Dowty claims the State failed to do.

[¶17.]       We start out by rejecting Dowty’s claim that he was solely charged

with aiding and abetting. Although each count alleges Dowty and Richards “did aid

and abet each other,” the use of this language by the State does not mean that

Dowty and Richards were each only charged with aiding and abetting. Instead,

when examining the language of each charge and viewing the joint information as a

whole, it is apparent that the State’s purpose was to jointly charge Dowty and

Richards with commission of the offenses, either as principals or as aiders and

abettors. See People v. Delgado, 297 P.3d 859, 865 (Cal. 2013) (quoting People v.

________________________
(. . . continued)
               and/or Jeannine Woodward, contrary to SDCL 22-32-3 and 22-3-
               3.

             COUNT VIII: POSSESSION OF STOLEN PROPERTY (Class 4
             Felony)

             That on or about between the 30th day of October, 2010 and
             December 15, 2010, in Mellette County, South Dakota and Todd
             County, South Dakota, the Defendants did aid and abet each
             other and commit the public offense of POSSESSION OF
             STOLEN PROPERTY (firearms) in that they did receive, retain,
             or dispose of property of another knowing that it had been stolen
             or believing that it had been stolen in that they did exercise
             unauthorized control over property of Rose West and Jeannine
             Woodward, i.e, a Smith and Wesson 0.410 58A (bolt and action)
             shotgun and a 30-06 760 Gamemaster Rifle Serial #S9161 with
             intent to deprive them of said property, contrary to SDCL 22-
             30A-1, 22-30A-7, 22-30A-17(2), and 22-3-3.

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#26559

McCoy, 24 P.3d 1210, 1215-16 (Cal. 2001) (recognizing that “[w]hen two or more

persons commit a crime together, both may act in part as the actual perpetrator and

in part as the aider and abettor of the other, who also acts in part as an actual

perpetrator”)).

[¶18.]       Furthermore, SDCL 22-3-3.1 abolishes the distinction between

principals and accessories to the commission of crime. Specifically, SDCL 22-3-3.1

provides:

             The distinction between an accessory before the fact and a
             principal, and between principals in the first and second degree,
             in cases of felony, is abrogated. Any person connected with the
             commission of a felony, whether that person directly commits
             the act constituting the offense or aids and abets in its
             commission, though not present, shall be prosecuted, tried, and
             punished as a principal.

In State v. Harris, 2010 S.D. 75, ¶ 22, 789 N.W.2d 303, 311, this Court

acknowledged “[i]t is settled law that a conviction may be supported by proof that

the defendant was either an aider or abettor even though the charging instrument

charged him as a principal.” The reverse is also true. See Banther v. State, 977

A.2d 870, 886 (Del. 2009) (“It is well established that a defendant who is indicted as

a principal can be convicted as an accomplice and vice versa, if the evidence

presented at trial supports the alternative basis for criminal liability.”). Thus, even

if Dowty’s assertion that he was solely charged with aiding and abetting were true,

Dowty could still be convicted as a principal.

[¶19.]       In this case, the evidence presented at trial was sufficient to convict

Dowty of the offenses stemming from the Ferguson and Woodward/West burglaries

under either theory of liability. Although Dowty contends that the State’s theory of

the case was that Dowty acted alone in committing the Ferguson and
                                        -10-
#26559

Woodward/West burglaries, a review of the record establishes otherwise. The

State’s theory of the case was that Dowty and Richards acted together in

committing the Ferguson, Woodward/West, and Williams burglaries. 8 Throughout

the trial, the jury was presented with a variety of evidence that supported this

theory. For example, the jury heard evidence that Dowty and Richards lived in the

same residence where property stolen from the Ferguson home was recovered and

that Dowty and Richards traveled together to trade and pawn various guns stolen

during the burglaries of the Ferguson, Woodward/West, and Williams homes. 9 The

jury also heard about DNA evidence from the cigarette butt linking both Dowty and

Richards to Williams’s home and DNA evidence linking Dowty to the blood collected

at the Woodward/West home. The jury was also aware that Richards had admitted

to shooting Williams during the burglary of Williams’s home.

[¶20.]         Based on the evidence presented, the jury convicted Dowty on 9 of the

13 counts charged. Notably, in reaching its verdict, the jury did not have to


8.       Dowty bases his claim regarding the State’s theory of the case on a comment
         the State made during the sentencing hearing. Specifically, the State
         asserted: “The evidence showed that Mr. Dowty, he was convicted of three
         burglaries. Mr. Richards wasn’t along on two of them.” However, a review of
         the record indicates this was a misstatement by the State. Throughout the
         trial, the jury was told repeatedly that Dowty and Richards acted together in
         committing the Ferguson, Woodward/West, and Williams burglaries. The
         only time the State ever commented that Dowty acted alone in the Ferguson
         and Woodward/West burglaries was during the sentencing hearing, which
         was separate from the jury trial. Thus, as this statement was not even heard
         by the jury, it has no effect on our review of the sufficiency of the evidence.

9.       The jury received an instruction regarding the presumption of guilt arising
         from possession of recently stolen property. See State v. Larkin, 87 S.D. 61,
         67, 202 N.W.2d 862, 865 (1972) (“It has long been the rule in this state that
         possession of recently stolen property is, in itself, a circumstance from which
         guilt may be presumed.”).

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#26559

expressly decide whether Dowty acted as a principal or as an aider and abettor.

Instead, the jury received an instruction on aiding and abetting, which provided the

jury with an alternative theory of liability under which to convict Dowty. As

previously indicated, evidence is insufficient only “when no rational trier of fact

could find guilt beyond a reasonable doubt.” Plenty Horse, 2007 S.D. 114, ¶ 5, 741

N.W.2d at 765 (citation omitted). In this case, there was sufficient evidence from

which a rational juror could have found Dowty guilty of the offenses stemming from

the Ferguson and Woodward/West burglaries, either as a principal or as an aider

and abettor. Therefore, the trial court did not err in denying Dowty’s motion for

judgment of acquittal.

[¶21.]       2.     Whether the trial court erred in denying Dowty’s motion
                    to sever charges and for relief from prejudicial joinder.

[¶22.]       Dowty next argues the trial court erred in denying his motion to sever

charges and for relief from prejudicial joinder. Specifically, Dowty asserts that the

charges from each of the three burglaries and the shooting charges should all have

been severed into four, separate trials because none of the offenses can be properly

joined under SDCL 23A-6-23. We disagree.

[¶23.]       A trial court’s decision to join or sever charges is reviewed under an

abuse of discretion standard. State v. Thompson, 1997 S.D. 15, ¶ 14, 560 N.W.2d

535, 538. In reviewing Dowty’s claim, we first consider whether the charges were

improperly joined. SDCL 23A-6-23 specifies the standard for joining offenses. The

statute provides:

             Two or more offenses may be charged in the same indictment or
             information in separate counts for each offense, if the offenses
             charged, whether felonies or misdemeanors or both, are of the
             same or similar character or are based on the same act or
                                        -12-
#26559

               transaction or on two or more acts or transactions connected
               together or constituting parts of a common scheme or plan.

Thus, SDCL 23A-6-23 provides “three [separate] tests which permit joinder of

offenses.” State v. Waugh, 2011 S.D. 71, ¶ 12, 805 N.W.2d 480, 483 (quoting

State v. Shape, 517 N.W.2d 650, 654 (S.D. 1994)).

[¶24.]         Joinder is appropriate “where separately charged offenses are

closely related in time, location, and manner of execution.” State v. Loftus,

1997 S.D. 131, ¶ 13, 573 N.W.2d 167, 171 (citations omitted). “This test for

finding joinder appropriate where the separately charged offenses are closely

related in location and manner of execution has been broadly construed.” Id.

¶ 12, 573 N.W.2d at 170 (citing Shape, 517 N.W.2d at 654). Another

consideration in this analysis is whether the evidence as to each count tends

to overlap. See State v. Dixon, 419 N.W.2d 699, 702 (S.D. 1988); United

States v. Rodgers, 732 F.2d 625, 629 (8th Cir. 1984) (“The time period is

relative to the similarity of the offenses, and the possible overlapping of

evidence.”).

[¶25.]         Dowty argues that the Woodward/West and Ferguson burglaries are

not offenses of the same or similar character as the Williams burglary, because no

“violence of any kind was contemplated or employed” in the first two burglaries. He

asserts that the first two burglaries were strictly property crimes, while the

Williams burglary—because it is associated with the shooting—is a violent crime.

Dowty argues that the violence element distinction between first- and second-degree

burglary means the offenses charged were not “of the same or similar character,”

thus precluding joinder under SDCL 23A-6-23. We disagree.

                                          -13-
#26559

[¶26.]         Although the Williams burglary involved an additional element of

violence, 10 the three offenses charged were similar enough in character to satisfy

the requirements for joinder under the “of the same or similar character” prong.

First, it should be noted that the offenses charged are facially similar: all three are

burglary charges, albeit of different degrees. 11 Factually, the burglaries share even

more similarity. The three burglaries all involved theft at temporarily unoccupied

homes located in rural Mellette County. Similar items were stolen from each home,

including frozen food, guns, and jewelry. Guns stolen from all three homes were

pawned or traded by Richards and Dowty shortly after each burglary. Items stolen

from all of the homes were in Dowty and Richardson’s possession. The burglaries

were also closely related in location—within a 20-mile radius. Additionally, the

three burglaries happened over a relatively short, 25-day period. Lastly, as we

discuss below in our review for prejudice, the evidence from each of the burglaries

tends to overlap, as evidence of each offense would be admissible in a trial for the

other offenses. Given these factors, the burglary offenses were of a similar

character and were properly joined.

[¶27.]         Dowty also asserts that the shooting offense cannot be joined to any of

the burglary offenses because they are of a different character. However, we agree

with the trial court that the Williams shooting and the Williams burglary were


10.      Dowty was charged with first-degree burglary in the Williams burglary,
         elevated from second-degree burglary because the burglary involved a
         dangerous weapon and the infliction of physical harm on another.

11.      Dowty does not claim error in the joinder of the possession of stolen property
         charges associated with the burglary charges, so we do not address them
         separately.

                                           -14-
#26559

joinable because they are “based on the same act or transaction.” The robbery and

the shooting were not distinct and independent incidents. The evidence reflects

that Williams was shot while Dowty and Richards were carrying out the burglary of

Williams’s home. The two offenses were so closely related in time, place, and

circumstance that the Williams burglary could not be fully understood without

relating details of the shooting, and vice versa. As the trial court noted, “[t]he

burglary supplies motive for the shooting; the shooting was done with a weapon

stolen in the burglary.” The trial court did not abuse its discretion by finding that

the shooting and the burglary were part of the same act or transaction, and were

thus properly joined under SDCL 23A-6-23.

[¶28.]       Nevertheless, even when offenses are properly joined under SDCL

23A-6-23, “SDCL 23A-11-2 provides relief from prejudicial joinder by allowing

severance of the offenses.” Shape, 517 N.W.2d at 654 (citing Dixon, 419 N.W.2d at

702). SDCL 23A-11-2 provides:

             If it appears that a defendant or the state is prejudiced by a
             joinder of offenses or of defendants in an indictment or
             information or by such joinder for trial together, the court may
             order an election or separate trials of counts, grant a severance
             of defendants or provide whatever other relief justice requires.
             In ruling on a motion by a defendant for severance the court
             may order the prosecuting attorney to deliver to the court for
             inspection in camera any statements or confessions made by the
             defendants which the state intends to introduce in evidence at
             the trial.

A trial court’s denial of a motion to sever is reviewed for an abuse of discretion.

Shape, 517 N.W.2d at 654 (citing Dixon, 419 N.W.2d at 702). In the context of a

denial of a motion to sever “an abuse of discretion arises only where the party



                                          -15-
#26559

requesting severance of joined counts can make ‘a clear showing of prejudice to

substantial rights.’” Id. (quoting Dixon, 419 N.W.2d at 702).

[¶29.]        “The quantum of prejudice that must be shown is high[,]” and

“requires more than a showing of a better chance of acquittal at a separate trial.”

Waugh, 2011 S.D. 71, ¶ 13, 805 N.W.2d at 483-84. As this Court previously

recognized:

              Any joinder of offenses is apt to involve some element of
              prejudice to the defendant, since a jury is likely to feel that a
              defendant charged with several crimes must be a bad individual
              who has done something wrong. However, if the notion of
              involuntary joinder is to retain any validity, a higher degree of
              prejudice, or certainty of prejudice, must be shown before relief
              will be in order.

Id. (quoting Dixon, 419 N.W.2d at 703). Furthermore, this Court has concluded

that “[w]hen evidence of one crime is admissible in the trial of another crime, . . .

there is no prejudice in trying the two charges at the same time.” Id. ¶ 14, 805

N.W.2d at 484 (quoting United States v. Tyndall, 263 F.3d 848, 850 (8th Cir. 2001)).

[¶30.]        In this case, Dowty argues that even if joinder of the charges were

proper under SDCL 23A-6-23, the trial court erred in denying his motion to sever

because he suffered substantial prejudice as a result of the charges being joined in a

single trial. In reviewing the trial court’s denial of Dowty’s motion to sever, Dowty

requests that this Court consider a standard utilized by the Eighth Circuit Court of

Appeals. The Eighth Circuit has stated that “[s]evere prejudice occurs when a

defendant is deprived of an appreciable chance for an acquittal, a chance that the

defendant would have had in a severed trial.” United States v. Taken Alive, 513

F.3d 899, 902 (8th Cir. 2008) (citation omitted).


                                          -16-
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[¶31.]         In support of his claim that he suffered prejudice due to joinder of the

offenses, Dowty asserts he “definitely [would have] had an appreciable chance for an

acquittal on the charges had they been severed.” According to Dowty, the various

charges were supported by little to no evidence, and “[b]y allowing the State to

combine all charges, . . . the State [wa]s allowed to paint Dowty as a . . . bad person

whom the jury was more likely to convict.” However, as we noted above, “[a]ny

joinder of offenses is apt to involve some element of prejudice to the defendant, since

a jury is likely to feel that a defendant charged with several crimes must be a bad

individual who has done something wrong.” Waugh, 2011 S.D. 71, ¶ 13, 805 N.W.2d

at 483-84. In this case, the jury was presented separate evidence linking Dowty to

each crime, including Dowty’s possession and disposal of property stolen from each

home, and DNA evidence placing him at the scene of two of the homes shortly before

each burglary. Dowty’s claim that the joinder of offenses may have caused the jury

to view Dowty as a “bad person” is not enough to establish clear prejudice.

[¶32.]         Furthermore, even if the charges had been severed as requested by

Dowty, evidence of the various offenses would have been admissible at each of the

separate trials pursuant to SDCL 19-12-5 (Rule 404(b)). 12 Although SDCL 19-12-5

(Rule 404(b)) prohibits other acts evidence used solely to prove character and


12.      SDCL 19-12-5 (Rule 404(b)) provides:

               Evidence of other crimes, wrongs, or acts is not admissible to
               prove the character of a person in order to show that he acted in
               conformity therewith. It may, however, be admissible for other
               purposes, such as proof of motive, opportunity, intent,
               preparation, plan, knowledge, identity, or absence of mistake or
               accident.


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conformity therewith, “should the evidence prove relevant in any other way[,] it is

admissible, subject only to the rarely invoked limitations of Rule 403.” State v.

Wright, 1999 S.D. 50, ¶ 16, 593 N.W.2d 792, 799 (citations omitted). The trial court

found that the evidence of each burglary would be admissible in trials for each of

the other burglaries, not as prohibited character evidence, but as evidence of a

common scheme or plan. “A plan or design can be shown circumstantially with

evidence that the defendant committed a series of similar but ‘unconnected’ acts.”

Id. ¶ 19, 593 N.W.2d at 801 (citations omitted). The plan in this case was for

Richards and Dowty to work together to burglarize temporarily unoccupied homes

in rural Mellette County, stealing guns, jewelry, and frozen food. Given the

similarity of the crimes charged and the crimes’ temporal and geographical

proximity, evidence of each would be admissible in each severed trial. We therefore

conclude that the trial court did not abuse its discretion, because Dowty suffered no

clear prejudice to substantial rights by the joinder of the burglary offenses.

[¶33.]       Evidence related to the shooting of Williams would have been

admissible in a separate burglary trial and vice versa, again not as improper

character evidence, but instead as evidence used to explain the immediate factual

circumstances or to prove an element of each crime. See State v. Floody, 481

N.W.2d 242, 253 (S.D. 1992). “This court has approved the admission of other

crimes where such evidence is ‘so blended or connected’ with the ones on trial that

proof of one incident involves the others; or explains the circumstances; or tends

logically to prove any element of the crime charged.” Id. (quoting United States v.

Tate, 821 F.2d 1328, 1331 (8th Cir. 1987)) (alterations and internal quotations


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omitted). “In such a case the evidence of the other crime is not considered extrinsic

evidence and Rule 404(b) is not implicated.” Tate, 821 F.2d at 1331. In this case,

evidence of the burglary would explain the immediate circumstances of the

shooting, as well as prove a motive for the attempted murder. Likewise, evidence of

the shooting was necessary to prove the “inflicts . . . physical harm on another”

element of first-degree burglary. See SDCL 22-32-1(1). As a result, we cannot

conclude that the trial court’s denial of Dowty’s motion to sever charges was an

abuse of discretion resulting in clear prejudice.

                                   CONCLUSION

[¶34.]       The trial court did not err in denying Dowty’s motion for judgment of

acquittal on the charges related to the burglaries of the Ferguson and

Woodward/West homes because the evidence was sufficient to support Dowty’s

convictions. Nor did the trial court err in denying Dowty’s motion to sever charges

and for relief from prejudicial joinder because the charges were properly joined

under SDCL 23A-6-23 and Dowty failed to show that the denial of his motion to

sever charges resulted in clear prejudice to his substantial rights. Therefore, we

affirm on both issues.

[¶35.]       KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.




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