#26653-a-GAS

2014 S.D. 49

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

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

      v.

CHRIS ALLEN MILLER a/k/a
CHRIS ALLEN HUBER,                           Defendant and Appellant.

                                    ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE FIRST JUDICIAL CIRCUIT
                  BON HOMME COUNTY, SOUTH DAKOTA

                                    ****

                      THE HONORABLE GLEN W. ENG
                                Judge

                                    ****


MARTY J. JACKLEY
Attorney General

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

SCOTT J. PODHRADSKY
Wipf & Cotton Law Offices
Wagner, South Dakota                         Attorneys for defendant
                                             and appellant.


                                    ****
                                             CONSIDERED ON BRIEFS
                                             ON APRIL 28, 2014

                                             OPINION FILED 07/16/14
#26653

SEVERSON, Justice

[¶1.]        A jury convicted Chris Miller of second degree murder and aggravated

assault for the death of his son—Jacob. Miller appeals. We affirm.

                                    Background

[¶2.]        Jacob was born on October 27, 2010, to his mother—Stacy Miller

(Stacy), and father—Chris Miller (Miller). Jacob had an older sister who was born

on August 13, 2009. The family lived in Scotland, South Dakota.

[¶3.]        On March 3, 2011, Stacy was at home while Miller worked at a

construction job in Yankton, South Dakota. After work, Miller brought home a

bottle of Lord Calvert whiskey. Miller admitted he drank approximately one-and-

one-half drinks. Stacy became intoxicated, to the point where she remembers very

little about what occurred later that night. Jacob fell asleep between 6:00 p.m. and

7:00 p.m.

[¶4.]        At 11:43, Miller called 911. He reported that his wife had been

sleeping on Jacob and he was not breathing. The operator dispatched emergency

medical technicians (EMTs) who transported Jacob to the Scotland hospital.

Initially at the hospital, Jacob’s heart was not beating and he was not breathing.

Medical staff determined that Jacob needed specialized care in Sioux Falls.

[¶5.]        Jacob was flown to a Sioux Falls hospital. Stacy went by car with her

parents; Miller went separately. The treating physician—Dr. Mina Hafzalah—

found a skull fracture and intracranial bleeding, fractured ribs, increased

intracranial pressure, and retinal hemorrhages. Later, the medical staff advised

the family that Jacob would never recover and if he lived, he would be severely


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neurologically devastated. The family decided to withdraw further care—Jacob died

three hours later on March 8, 2011.

[¶6.]        On March 9, 2011, the State charged Miller with first degree murder,

second degree murder, and first degree manslaughter. On March 16, 2011, a Bon

Homme County Grand Jury indicted Miller for second degree murder, first degree

manslaughter, and aggravated assault. The State filed a Part II Information for

habitual offender on March 22, 2011. A jury trial began on January 17, 2013.

[¶7.]        At trial, the State’s theory was that Miller had become frustrated with

Jacob and physically assaulted him, causing his death. The State presented

testimony about Jacob’s injuries from treating physicians and outside experts. The

State also presented testimony from Miller’s prison cell-mate—Billy Chaffin—about

a possible admission. Miller’s trial theory was that Stacy dropped Jacob, got back

in bed, and suffocated him as she lay passed out; that subsequent oxygen given to

Jacob caused his brain to swell and resulted in his heart stopping. The defense

presented expert testimony about the injuries that result from a baby’s fall. Miller

moved for a judgment of acquittal, which the circuit court denied.

[¶8.]        On January 30, 2013, the jury found Miller guilty of second degree

murder and aggravated assault. On February 15, 2013, Miller admitted to the Part

II Information. The circuit court sentenced Miller to life imprisonment for the

second degree murder and fifty years imprisonment for the aggravated assault to be

served consecutively in the South Dakota State Penitentiary.

[¶9.]        Miller appeals, arguing the circuit court erred by (1) denying his

motion for judgment of acquittal; (2) coercing a jury verdict; and (3) allowing


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Chaffin’s testimony. We address Miller’s first and third argument. Miller waived

the second argument by failing to object. 1

                                  Standard of Review

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

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

Dowty, 2013 S.D. 72, ¶ 15, 838 N.W.2d 820, 825 (quoting State v. Roubideaux, 2008

S.D. 81, ¶ 13, 755 N.W.2d 114, 118). This Court accepts “the evidence and the most

favorable inferences that can be fairly drawn from it that support the verdict.”

State v. Shaw, 2005 S.D. 105, ¶ 19, 705 N.W.2d 620, 626. “If the evidence including

circumstantial evidence and reasonable inferences drawn therefrom sustain a

reasonable theory of guilt, a guilty verdict will not be set aside.” State v. Carter,

2009 S.D. 65, ¶ 44, 771 N.W.2d 329, 342.

[¶11.]         The circuit court’s decision to admit or deny witness testimony is

reviewed under an abuse of discretion standard. State v. Fisher, 2011 S.D. 74, ¶ 32,

805 N.W.2d 571, 578 (citations omitted). An abuse of discretion “is a fundamental

error of judgment, a choice outside the range of permissible choices, a decision,




1.       Miller argues that the circuit court coerced a jury by giving the jury a choice
         to continue deliberating after 8:00 p.m. The State argues that Miller waived
         this argument by failing to object at trial and in the alternative, that there
         was no evidence of coercion. The record shows no objection from Miller as to
         the manner the judge handled jury deliberations. As such, the issue is
         waived. State v. Roach, 2012 S.D. 91, ¶ 27, 825 N.W.2d 258, 266 (“[F]ailure
         to object at trial constitutes a waiver of that issue on appeal.”) (citation
         omitted). Further, this Court sees no plain error here. See State v. Beck,
         2010 S.D. 52, ¶¶ 10-11, 785 N.W.2d 288, 292-93.


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which, on full consideration, is arbitrary or unreasonable.” Thurman v. CUNA Mut.

Ins. Soc’y, 2013 S.D. 63, ¶ 11, 836 N.W.2d 611, 616 (citations omitted).

                                         Analysis

[¶12.]        Miller’s motion for judgment of acquittal.

[¶13.]        Miller argues that the evidence at trial was insufficient to sustain a

verdict beyond a reasonable doubt—that the State could not set forth the

mechanism of injury or which parent provided the mechanism of injury. The State

argues that the trial evidence supports the jury’s verdict.

[¶14.]        The elements of second degree murder are set forth in SDCL 22-16-7:

“Homicide is murder in the second degree if perpetrated by any act imminently

dangerous to others and evincing a depraved mind, without regard for human life,

although without any premeditated design to effect the death of any particular

person, including an unborn child.” The elements of aggravated assault are set

forth in SDCL 22-18-1.1 (2011): “Any person who: . . . (7) Intentionally or recklessly

causes serious bodily injury to an infant, less than three years old, by causing any

intracranial or intraocular bleeding, or swelling of or damage to the brain, whether

caused by blows, shaking, or causing the infant’s head to impact with an object or

surface; is guilty of aggravated assault. . . .” 2

[¶15.]        To support its trial theory, the State provided testimony from Stacy,

first responders, treating physicians, and other experts. Stacy testified that Miller

would get frustrated with Jacob. She stated that around a month before March 3,




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2011, Miller, appearing frustrated, held Jacob over his head with his hands around

his ribcage and shook him. Stacy claimed Jacob was fussier with Miller after that.

[¶16.]         EMTs Tammy Rueb and Jim Maruska testified about their first

response. They stated that upon arrival, Miller was holding and performing CPR

on Jacob. When asked what happened, Rueb testified that Miller replied “she was

laying on him.” Rueb also testified that she heard Stacy screaming and hollering—

“I’m sorry, I’m so sorry, I didn’t mean to do it.” The EMTs then took Jacob to the

hospital. Later, they returned to the house to bring Stacy to the hospital. Rueb

testified the bedroom was in perfect condition: “Like no one had even sat on the

bed.”

[¶17.]         Officer Mike Hofeldt testified that he arrived at the Miller residence at

the same time as the EMTs. When he asked Miller what happened, Officer Hofeldt

testified that Miller said Stacy had taken Jacob to bed with her, and then when he

went to bed, he discovered Stacy lying on Jacob. Officer Hofeldt testified that Miller

walked out of the house and down the street, not responding to his calls to return.

Later that night, Bon Homme County Sheriff Jason Bechtold retrieved Miller from

a friend’s house. Sheriff Bechtold testified that he found Miller lying on a bed,

crying. Sheriff Bechtold took Miller to the hospital. Miller was angry. Miller then

left the hospital. Officer Hofeldt found Miller at his residence.

[¶18.]         Sheriff Bechtold and DCI Agent Todd Rodig joined Officer Hofeldt at




2.       The Legislature later deleted subdivision (7), among other changes. 2012
         S.D. Sess. Laws ch. 123, § 4.


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Miller’s residence. Agent Rodig recorded the meeting. In the recording, when asked

what happened, Miller said Jacob was lying in the vibrating chair and Stacy was in

bed. Jacob started crying so he woke Stacy up. Stacy got Jacob and took him to bed

with her. Thirty to forty-five minutes later, he went in and found Stacy lying on top

of Jacob. Sheriff Bechtold testified that Miller then demonstrated how Stacy was

lying. Sheriff Bechtold said that the bed “looked like nobody had laid in it at all.”

[¶19.]       The State also provided medical evidence. Dr. Hafzalah treated Jacob

when he arrived at the pediatric intensive care unit in Sioux Falls. Dr. Hafzalah

testified about the “history” conversation she had with Miller. According to Dr.

Hafzalah, Miller said he had Jacob while surfing the internet, he then took Jacob to

Stacy who was sleeping, laid Jacob next to her, then went back to surfing the

internet. About a half-hour later, he walked in and noticed Stacy had rolled over

onto Jacob. He found Jacob not breathing, so he started CPR.

[¶20.]       Dr. Hafzalah testified as to Jacob’s condition: “four-month old with

significant global ischemic injury of the frontal lobes, parietal lobes, temporale [sic]

lobes and occipital lobes as well as acute subdural hematomas, acute

intraventricular hemorrhage and areas of subarachnoid hemorrhage.” Dr. Hafzalah

opined that the hemorrhages were caused by trauma and that the skull fracture

occurred because of an impact. Dr. Hafzalah further opined that the injuries were

non-accidental in nature. Dr. Nicholas Rivera, a pediatric intensivist who also

cared for Jacob, opined that either repeated shaking or severe blows to Jacob’s head

caused Jacob’s retinal hemorrhages. Dr. Rivera further opined that Jacob’s injuries

were from non-accidental trauma. Dr. Edward Mailloux, a pediatrician with


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expertise in evaluating children for abuse and neglect, examined Jacob on March 4,

2011. Dr. Mailloux diagnosed Jacob with abusive head trauma and opined that a

two to four foot fall onto a hardwood floor could result in a skull fracture, but not

the type exhibited by Jacob.

[¶21.]       Other experts testified for the State. Dr. Susan Duffek, a pediatric

radiologist, noted fractures in Jacob’s seventh and eighth left ribs, testifying that

she had primarily seen that type of injury in child abuse cases where a significant

amount of force is used to squeeze violently a child. Also, Dr. Duffek diagnosed

Jacob’s skull fracture as mildly diastatic, indicative that more force was used than

with a simple fracture. That injury along with the magnitude of subdural

hemorrhaging found with Jacob, Dr. Duffek testified, is highly suggestive of non-

accidental trauma. Dr. Dustin Dierks, an ophthalmologist, observed Jacob’s eyes

and noted extensive retinal hemorrhages. He testified that a common cause of

retinal hemorrhages is head trauma, though conceded that CPR, among other

things, can cause retinal hemorrhaging. Dr. Geoffrey Tufty, a pediatric

ophthalmologist, opined that Jacob’s extensive retinal hemorrhages were the result

of an acceleration-deceleration episode, not accidental trauma. But like Dr. Dierks,

Dr. Tufty conceded other events can cause retinal hemorrhaging. Dr. Germano

Falcao, a pediatric neurologist, opined that one mechanism to cause Jacob’s injuries

could be a sudden acceleration-deceleration, which includes a blow to the head. He

opined that it was unlikely that a fall from two to four feet caused Jacob’s injuries.

[¶22.]       Dr. Kenneth Snell conducted Jacob’s autopsy on March 9, 2011. Dr.

Snell noted and testified to the following external injuries: (1) an aging semi-


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circular contusion on Jacob’s right side abdomen; (2) an aging small contusion on

Jacob’s right thigh; (3) a recent small contusion on Jacob’s right calf; (4) four recent

small contusions on Jacob’s left calf consistent with a fingertip grabbing pattern;

and (5) three distinct contusions on Jacob’s head. Dr. Snell opined that the external

injuries were due to a blunt object striking Jacob or Jacob striking a blunt object.

Dr. Snell noted the following internal injuries: (1) healing fractures in the seventh,

eighth, and ninth left ribs; (2) a pocket of blood under the bruised area of Jacob’s

scalp; (3) a two-and-three-fourth inches long skull fracture under the pocket of

blood; (4) swelling of the brain; (5) acute and chronic subdural bleeding; (6)

subarachnoid bleeding; (7) a bruise on the occipital lobe of the brain on the opposite

side as the skull fracture; (8) increased cranial pressure; (9) extensive retinal

hemorrhaging all the way to the ora serrata; and (10) hypoxic ischemic

encephalopathy. Dr. Snell found Jacob’s rib injuries and chronic subdural bleeding

were about two months old. Ultimately, Dr. Snell determined the cause of Jacob’s

death to be abusive trauma inflicted by another person.

[¶23.]       The State, over Miller’s objection, also offered the testimony of Billy

Chaffin, who conversed with Miller in the Bon Homme county jail around July 8 to

13, 2011. Chaffin claims Miller told him that “they had been fighting, he was mad,

he wouldn’t shut up, so he hit him.” Chaffin initially thought Miller was talking

about a bar fight but when he later heard about Miller’s charges, he approached

authorities with the information.

[¶24.]       Further, the State raised several inconsistencies with Miller’s story.

One inconsistency was how Jacob ended up in the bedroom—whether Stacy brought


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or Miller took him there. Another inconsistency, the State argued, was what

exactly happened in the bedroom—whether Miller heard a thump from a fall or not.

Another inconsistency raised by the State was Jacob’s computer use that night, how

according to Agent Rodig who examined Miller’s computer, it would have been

impossible for Miller to be looking at information on the computer screen, as he

claimed, during the time Miller claims Stacy was in bed.

[¶25.]       Miller’s cross-examination of the State’s expert witnesses focused on

whether a short fall can cause the type of injury Jacob presented. Several experts

conceded there is current debate amongst the field on that topic. Miller’s expert

witness, Dr. Robert Rothfeder, an emergency room physician, testified that it was

possible that a short fall caused Jacob’s skull fracture. Dr. Rothfeder also testified

about the accidental bruising that results when patients receive emergency medical

treatment. Dr. John Plunkett, a forensic pathologist, testified that a short fall with

subsequent suffocation was very plausible and consistent with the autopsy findings.

Dr. Kirk Thibault, a biomechanical engineer, opined that a short fall could cause a

skull fracture such as the one exhibited by Jacob. Dr. Gautam Ray, the State’s

biomechanical engineer expert, agreed with Dr. Thibault that if a baby was dropped

from shoulder height, there would be enough force to cause a skull fracture. Dr.

Ray testified, though, that the three bruises on Jacob’s head would not by caused by

that type of fall. He further testified that Jacob’s skull fracture could not be caused

by Stacy rolling over on Jacob or caused by Stacy sliding off the bed and falling with

Jacob on her lap.




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[¶26.]       Miller testified. He stated that he was on the computer when Jacob

started to fuss. He changed Jacob’s diaper then took Jacob to the bedroom and

woke Stacy up. According to Stacy and Miller, when Jacob fussed, only Stacy could

calm him down. Miller testified that Stacy sat on the bed’s edge and bounced Jacob

on her knee. Miller then left Stacy. Miller said he later heard a thump coming

from the bedroom. He tried to open the door, but testified that Stacy was lying in

front of the door so he ran to the bathroom to enter through the second door. Miller

said he saw Stacy lying on the floor, naked, holding Jacob, and apologizing. Miller

helped Stacy and Jacob to the bed. Miller said Jacob appeared to have not awoken

and didn’t see any blood or bruising on Jacob. Miller then prepared for bed. When

Miller returned, he testified that he saw Stacy sleeping face down and had to roll

Stacy over to reveal Jacob. He said he then grabbed Jacob to begin mouth to mouth

resuscitation. Miller then yelled at Stacy to call 911.

[¶27.]       Overall, there was conflicting testimony as to the night’s unfortunate

events. But it is the jury’s function to resolve conflicts in the evidence, weigh

credibility, and sort out the truth. State v. Swan, 2008 S.D. 58, ¶ 9, 753 N.W.2d

418, 420. There also may have been conflicting expert testimony. But “[w]hen

opposing experts give contradictory opinions on the reliability or validity of a

conclusion, the issue of reliability becomes a question for the jury.” State v. Guthrie,

2001 S.D. 61, ¶ 38, 627 N.W.2d 401, 417.

[¶28.]       “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.” Dowty, 2013 S.D. 72, ¶ 15, 838


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N.W.2d at 825 (quoting State v. Plenty Horse, 2007 S.D. 114, ¶ 5, 741 N.W.2d 763,

765). “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 Plenty

Horse, 2007 S.D. 114, ¶ 5, 741 N.W.2d at 765).

[¶29.]        In this case, Stacy testified about Miller’s frustration with Jacob and

potential previous abuse. The first responders testified that Miller was at the scene

and was later angry and belligerent. Numerous physicians testified that Jacob’s

injuries were from shaking, or blows, and were non-accidental in nature. Chaffin

testified as to possible admissions from Miller. Accepting “the evidence and the

most favorable inferences that can be fairly drawn from it that support the

verdict[,]” Shaw, 2005 S.D. 105, ¶ 19, 705 N.W.2d at 626, a rational trier of fact

could have found that Miller became frustrated with and subsequently injured

Jacob, whether by blows to the body or shaking, that eventually resulted in Jacob’s

death. Here, “the evidence including circumstantial evidence and reasonable

inferences drawn therefrom sustain a reasonable theory of guilt[.]” Carter, 2009

S.D. 65, ¶ 44, 771 N.W.2d at 342. Therefore, Miller’s “guilty verdict will not be set

aside.” Id.




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[¶30.]       Chaffin’s testimony.

[¶31.]       Chaffin testified: “The note had said that – what I had remembered

Chris saying was that they had been fighting, he was mad, he wouldn’t shut up, so

he hit him.” Miller argues the circuit court abused its discretion by allowing

Chaffin’s testimony because Chaffin used an unavailable note to refresh his

recollection and his testimony was highly prejudicial and lacked any indicia of

reliability. The State argues the circuit court appropriately weighed the testimony’s

probative value before allowing it and that Miller’s argument as to refreshing

recollection is misplaced.

[¶32.]       Here, the circuit court conducted a hearing outside the jury’s presence

to determine the admissibility of Chaffin’s proposed testimony. “The process of

balancing the probative value of evidence against the possible prejudicial effect is in

the sound discretion of the trial court.” State v. Guthmiller, 2003 S.D. 83, ¶ 29, 667

N.W.2d 295, 305-06. And “[a] court’s ruling on reliability receives the same

deference as its decision on ultimate admissibility.” Guthrie, 2001 S.D. 61, ¶ 30,

627 N.W.2d at 415. The circuit court heard from Agent Rodig, Chaffin, and counsel

with their arguments. Although it did not make a specific finding as to Chaffin’s

reliability, the circuit court found Chaffin’s testimony relevant and that its

probative value was not substantially outweighed by the danger of unfair prejudice.

SDCL 19-12-3 (Rule 403). Ultimately, the circuit court allowed Chaffin’s testimony,

as its discretion allowed.




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[¶33.]         Additionally, the circuit court provided a jury instruction on

admissions before Chaffin testified.3 And, Miller had the opportunity to, and did,

vigorously cross-examine Chaffin, raising questions as to Chaffin’s credibility,

motive, and memory. On review, the circuit court did not abuse its discretion by

allowing Chaffin’s testimony.

[¶34.]         Miller also argues that Chaffin’s testimony should be stricken

pursuant to SDCL 19-14-22 (Rule 612 (b)) and SDCL 19-14-23 (Rule 612 (c)). SDCL

19-14-22 (Rule 612 (b)) states: “If, before testifying, a witness uses a writing or

object to refresh his memory for the purpose of testifying and the court in its

discretion determines that the interests of justice so require, an adverse party is

entitled to have the writing or object produced, if practicable, at the trial, hearing,



3.       The instruction:

               A statement made by a defendant other than at his trial may be
               an admission. An admission is a statement by a defendant
               admitting one or more of the facts at issue. It is not sufficient by
               itself to prove guilt of the crime charged, but it may proof [sic]
               one or more of the elements of the crime charged. You are the
               exclusive judges as to whether an admission was made by the
               defendant and if the statement is true in whole or in part. If you
               find that such statement is entirely untrue, you must reject it.
               If you find it is true in part, you may consider that part which
               you find to be true. It is for you to determine what weight, if
               any, to give to a purported admission; however, evidence of a
               claimed oral admission of the defendant ought to be viewed with
               caution and weighed with care. The guilt of the defendant may
               not be established only by an admission made outside of this
               trial. Before any person may be convicted of a criminal offense,
               there must be proof independent of the statement that the crime
               in question was committed, but it is not necessary the
               independent proof include proof as to the identity of the person
               by whom the offense was committed.


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or deposition in which the witness is testifying.” SDCL 19-14-23 (Rule 612 (c))

relates to a “party entitled to a have a writing or object produced under § 19-14-21

or 19-14-22 . . . .”

[¶35.]         Here, the writing was used to refresh Chaffin’s memory before he met

with Agent Rodig in August 2011. It was not used to refresh Chaffin’s memory at

trial where he testified one-and-a-half years later. Therefore, SDCL 19-14-22 (Rule

612 (b)) and SDCL 19-14-23 (Rule 612 (c)) do not apply to this particular writing

under these particular circumstances.

                                      Conclusion

[¶36.]         Here, the evidence, which included Miller’s alleged prior abuse of

Jacob, frustration with Jacob, behavior after Jacob’s injuries, inconsistent stories,

admission to Chaffin, and medical and other expert testimony, supports the jury’s

guilty verdict. Further the circuit court did not abuse its discretion by admitting

Chaffin’s testimony. We affirm.

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

WILBUR, Justices, concur.




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