#26437-a-LSW

2013 S.D. 26

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

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

      v.

KENNETH C. HAUGE,                         Defendant and Appellant.


                                 ****

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

                                 ****

                    THE HONORABLE SEAN M. O’BRIEN
                            Retired Judge

                                 ****

MARTY J. JACKLEY
Attorney General

TIMOTHY J. BARNAUD
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.


DOUGLAS M. DAILEY of
Morgan Theeler, LLP
Mitchell, South Dakota                    Attorneys for defendant
                                          and appellant.

                                 ****

                                          CONSIDERED ON BRIEFS
                                          ON FEBRUARY 12, 2013

                                          OPINION FILED 03/27/13
#26437

WILBUR, Justice

[¶1.]        A jury convicted Kenneth Hauge of possession of one to ten pounds of

marijuana in violation of SDCL 22-42-6. He appeals a number of issues including:

the trial court’s denial of his motion for judgment of acquittal; the denial of his

proposed jury instructions; the denial of his motion to have the jury view his

residence; and the trial judge’s failure to recuse himself on the basis of impartiality

pursuant to SDCL 15-12-37.

                     FACTS AND PROCEDURAL HISTORY

[¶2.]        On June 23, 2011, Hanson County Sheriff Randell Bartlett received a

phone call from Drug Enforcement Agency Agent Richard Mulholland. Agent

Mulholland had obtained information that Hauge was growing marijuana in his

yard near the back door to his residence in Alexandria, South Dakota. As a result,

Sheriff Bartlett went to Hauge’s residence and observed what appeared to be

marijuana plants “growing in a flower bed near the back deck or back patio.”

[¶3.]        The next day, Sheriff Bartlett and Drug Task Force Agent Dean

Knippling went to the alley by Hauge’s residence and observed the marijuana

plants growing in the backyard. The flower bed containing the marijuana plants

was approximately 14 to 15 feet long and about 3 feet wide. The grass surrounding

the flower bed had been mowed. It was then that Hauge came out of his house to

speak with the officers.

[¶4.]        Sheriff Bartlett questioned Hauge about the marijuana growing in his

yard. Sheriff Bartlett informed Hauge that it was illegal for Hauge to grow

marijuana. In addition to asking permission, Sheriff Bartlett asked that Hauge


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sign a permission to search form to remove the marijuana plants. In response,

Hauge asked what would happen if he refused to sign the form. Sheriff Bartlett

stated that he would get a warrant. At this point, Hauge said that the marijuana

did not belong to him and that someone named “Brenda” had planted it. He then

remarked that “it wasn’t good stuff” and “that it was just plants growing.” Hauge

also told the officers that he had harvested some marijuana in the past and

attempted to use it. Additionally, Hauge stated that he had paperwork saying that

it was legal to grow the marijuana and gave the paperwork to Sheriff Bartlett.

Agent Knippling testified that the papers did not give Hauge permission to grow

marijuana. Sheriff Bartlett and Agent Knippling also testified that at no time

throughout the course of the investigation did they doubt that Hauge knew that the

plants were marijuana.

[¶5.]        Hauge signed the permission to search form. The officers then began

to pull the plants that were growing in the flower bed. Hauge assisted the officers.

The plants ranged in size from 6 inches to 36 inches tall. Sheriff Bartlett testified

that they pulled over 200 plants before they “quit counting.”

[¶6.]        The plants were then transported to the Hanson County Sheriff’s

Office and dried for 60 to 90 days. On September 12, 2011, Agent Knippling packed

and shipped the plants to the State Health Lab for testing. The State Health Lab

determined that the dried plants were marijuana and weighed 23.8 ounces.

[¶7.]        On October 19, 2011, Hauge was charged with one count of possession

of marijuana, one to ten pounds, in violation of SDCL 22-42-6. Hauge filed an

affidavit for change of judge on March 30, 2012. In a letter from the presiding judge


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of the circuit dated April 6, 2012, Hauge’s affidavit was deemed untimely pursuant

to SDCL 15-12-27 and was subsequently denied.

[¶8.]        On May 18, 2012, a jury convicted Hauge of possession of one to ten

pounds of marijuana in violation of SDCL 22-42-6. Hauge was subsequently

sentenced to ten years in the penitentiary with six years suspended.

[¶9.]        Hauge appeals the following issues:

             1.    Whether the trial court erred in denying Hauge’s motion
                   for judgment of acquittal.

             2.    Whether the trial court abused its discretion in denying
                   Hauge’s proposed jury instructions.

             3.    Whether the trial court abused its discretion in denying
                   Hauge’s motion to allow the jury to visit Hauge’s
                   residence.

             4.    Whether the trial judge abused his discretion when he
                   failed to recuse himself on his own accord pursuant to
                   SDCL 15-12-37.

                           ANALYSIS AND DECISION

[¶10.]       1.    Whether the trial court erred in denying Hauge’s motion
                   for judgment of acquittal.

[¶11.]       Hauge argues that the trial court erred when it denied Hauge’s motion

for judgment of acquittal because the State failed to prove beyond a reasonable

doubt that he knowingly possessed between one and ten pounds of marijuana.

Hauge asserts that he did not exercise dominion or control sufficient to constitute

the crime of possession of marijuana. Hauge further contends that there was

nothing to suggest that the marijuana was being cultivated or controlled in anyway

and the area in which the marijuana plants were growing was “nothing more than a

patch of weeds and grasses with trash and junk strewn throughout.” Additionally,

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he argues that he did not have exclusive control of the premises because he lives in

the middle of town near an alley where any person could throw seeds onto his lawn.

[¶12.]        “The standard of review for denial of a motion for judgment of acquittal

is whether the ‘evidence was sufficient to sustain the conviction[ ].’” State v.

Janklow, 2005 S.D. 25, ¶ 16, 693 N.W.2d 685, 693 (quoting State v. Running Bird,

2002 S.D. 86, ¶ 19, 649 N.W.2d 609, 613). Whether the State has provided

sufficient evidence to sustain the conviction is a question of law reviewed de novo.

State v. Jucht, 2012 S.D. 66, ¶ 18, 821 N.W.2d 629, 633. “Claims of insufficient

evidence are ‘viewed in the light most favorable to the verdict.’” State v. Morgan,

2012 S.D. 87, ¶ 10, 824 N.W.2d 98, 100 (quoting State v. Beck, 2010 S.D. 52, ¶ 7, 785

N.W.2d 288, 292). “The question is whether ‘there is evidence in the record which,

if believed by the fact finder, is sufficient to sustain a finding of guilt beyond a

reasonable doubt.’” Id. “We will not ‘resolve conflicts in the evidence, assess the

credibility of witnesses, or reevaluate the weight of the evidence.’” Id. “If the

evidence, including circumstantial evidence and reasonable inferences drawn

therefrom sustains a reasonable theory of guilt, a guilty verdict will not be set

aside.” Id.

[¶13.]        Hauge was charged and convicted of possession of one to ten pounds of

marijuana in violation of SDCL 22-42-6. 1 South Dakota law allows for possession to



1.       SDCL 22-42-6 provides:

              No person may knowingly possess marijuana. It is a Class 1
              misdemeanor to possess two ounces of marijuana or less. It is a
              Class 6 felony to possess more than two ounces of marijuana but
              less than one-half pound of marijuana. It is a Class 5 felony to
                                                            (continued . . .)
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be either actual or constructive. State v. Overbey, 2010 S.D. 78, ¶ 28, 790 N.W.2d

35, 43. “It is sufficient for a conviction of knowing possession for the defendant to

have control over the premises where the narcotics are found.” Id. Knowing

possession “need not be exclusive.” Id. A defendant can be said to possess a

narcotic even if the narcotic is not on his person when he made contact with law

enforcement. Id.

[¶14.]       Here, Hauge constructively possessed the marijuana plants. The

record demonstrates that Hauge had control over his yard and the flower bed. The

flower bed was located a few feet from Hauge’s back door and was approximately 14

to 15 feet long and 3 feet wide. The area surrounding the flower bed had been

mowed. Additionally, Hauge did not express any surprise that the marijuana was

growing in his back yard and, at one point, said he had paperwork that said it was

legal for him to grow the marijuana. Further, Hauge’s explanation as to how the

marijuana came to grow in his back yard changed as the investigation progressed.

Initially, Hauge told the officers that a woman named “Brenda” planted the

marijuana, yet later admitted that, in the past, he had harvested some and

attempted to use it. From the record, the jury had sufficient evidence to sustain a

finding of guilt beyond a reasonable doubt that Hauge knowingly possessed the



________________________
(. . . continued)
               possess one-half pound but less than one pound of marijuana. It
               is a Class 4 felony to possess one to ten pounds of marijuana. It
               is a Class 3 felony to possess more than ten pounds of
               marijuana. A civil penalty may be imposed, in addition to any
               criminal penalty, upon a conviction of a violation of this section
               not to exceed ten thousand dollars.

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marijuana in his yard. Therefore, the trial court correctly denied Hauge’s motion

for a judgment of acquittal.

[¶15.]       2.     Whether the trial court abused its discretion in denying
                    Hauge’s proposed jury instructions.

[¶16.]       In declining to grant Hauge’s proposed jury instructions, the trial court

determined that Hauge’s proposed jury instructions on the law on noxious weeds in

South Dakota were not relevant. Hauge asserts that this determination was an

abuse of discretion. At trial, Hauge’s theory of defense was that marijuana grows

wild in South Dakota and is not classified as a noxious weed. Thus, according to

Hauge, the property owner has no duty to eradicate the marijuana from his

property. Hauge argues that his proposed jury instructions accurately stated the

law, namely that marijuana grows wild and that he does not have a duty to

eradicate it in his yard because it is not a noxious weed. Lastly, he contends that

the jury would have come back with a different verdict had they been allowed to

consider his proposed jury instructions.

[¶17.]       “A trial court has discretion in the wording and arrangement of its jury

instructions, and therefore we generally review a trial court’s decision to grant or

deny a particular instruction under the abuse of discretion standard.” State v.

Roach, 2012 S.D. 91, ¶ 13, 825 N.W.2d 258, 263 (quoting State v. Klaudt, 2009 S.D.

71, ¶ 13, 772 N.W.2d 117, 121). “[The] jury instructions are to be considered as a

whole, and if the instructions when so read correctly state the law and inform the

jury, they are sufficient.” Id. “Error in declining to apply a proposed instruction is

reversible only if it is prejudicial, and the defendant has the burden of proving any

prejudice.” Janklow, 2005 S.D. 25, ¶ 25, 693 N.W.2d at 695 (quoting State v.

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Martin, 2004 S.D. 82, ¶ 21, 683 N.W.2d 399, 406). In order to show prejudice, the

defendant must show that “the jury would have returned a different verdict if the

proposed jury instruction had been given.” State v. Engesser, 2003 S.D. 47, ¶ 43,

661 N.W.2d 739, 753.

[¶18.]       Generally, “an accused must be afforded a meaningful opportunity to

present a complete defense.” Roach, 2012 S.D. 91, ¶ 13, 825 N.W.2d at 263 (quoting

Klaudt, 2009 S.D. 71, ¶ 13, 772 N.W.2d at 121). “When a defendant’s theory is

supported by law and . . . has some foundation in the evidence, however tenuous,

the defendant has a right to present it.” Id. “However, ‘the law in South Dakota is

well settled on the point that courts are not required to instruct as to matters which

find no support in the evidence.’” Janklow, 2005 S.D. 25, ¶ 26, 693 N.W.2d at 695

(quoting State v. Jenner, 451 N.W.2d 710, 720 (S.D. 1990)). “Further, ‘it is

axiomatic that there can be no abuse of discretion in the refusal of a proposed jury

instruction that does not represent a correct statement of the law.’” Id. (quoting

State v. Downing, 2002 S.D. 148, ¶ 27, 654 N.W.2d 793, 801).

[¶19.]       The instructions provided to the jury correctly stated the law and

informed the jury. Hauge was charged with possession of marijuana, not the failure

to control noxious weeds. Thus, the instructions informed the jury on the law of the

charged offense – possession of marijuana.

[¶20.]       Moreover, Hauge was given the opportunity to present a complete

defense and was not prejudiced from the court’s denial of his proposed jury

instructions. Hauge’s theory of defense was that marijuana grows wild in South

Dakota, was not a noxious weed to be eradicated, and was planted by someone else.


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In support of his theory, he argued to the jury that other plants and grasses were

growing in the flower bed with the marijuana and that a woman named “Brenda”

planted the seeds. Further, he presented the testimony of the Hanson County Weed

and Pest Supervisor, who testified that marijuana grows wild in Hanson County

and that it is not a noxious weed for which there is a duty to remove. Therefore,

Hauge was not prejudiced by the trial court’s denial of his proposed jury

instructions.

[¶21.]          3.    Whether the trial court abused its discretion in denying
                      Hauge’s motion to allow the jury to visit Hauge’s
                      residence.

[¶22.]          Hauge further contends that the trial court committed prejudicial error

when it denied Hauge’s motion to allow the jury to visit his residence pursuant to

SDCL 15-14-16. 2 Hauge asserts that the evidence was relevant to support his

theory of defense that the marijuana was growing wild in his yard.

[¶23.]          The trial court denied Hauge’s motion to have the jury visit Hauge’s

residence because there had been “sufficient pictures received into evidence that



2.       SDCL 15-14-16 allows for a jury to view property in a civil case. SDCL 23A-
         22-17 allows a jury to view property in a criminal case. SDCL 23A-22-17
         provides:

                When, in the opinion of a court, it is proper that a jury should
                view the place where an offense is alleged to have been
                committed, or where any other material fact occurred, it may
                order the jury to be conducted in a body, in the custody of proper
                officers, to the place, which must be shown to them by a person
                appointed by the court for that purpose. The officers must be
                sworn to prevent any person from speaking to or communicating
                with the jury, and not to do so themselves, on any subject
                connected with the trial, and to return them into court without
                unnecessary delay or at a specified time.

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would depict the property and that the pictures that were presented would reflect a

more accurate depiction or description of the property at that time.” The court also

reasoned that a sign located near the property, which bore criticism concerning the

trial judge, the sheriff of Hanson County, and the prosecuting attorney, would not

be proper for the jury to view. 3

[¶24.]         The trial court is afforded broad discretion “in deciding whether to

admit or exclude evidence.” Jucht, 2012 S.D. 66, ¶ 43, 821 N.W.2d at 639 (quoting

Ronan v. Sanford Health, 2012 S.D. 6, ¶ 8, 809 N.W.2d 834, 836). The trial court’s

decision whether to admit or exclude evidence is reviewed under an abuse of

discretion standard. Id. “[E]ven if a trial court’s evidentiary ruling is erroneous,

the error must be prejudicial in nature before we will overturn the ruling.” Id. ¶ 47

(quoting State v. Fisher, 2011 S.D. 74, ¶ 32, 805 N.W.2d 571, 578). “Error is

prejudicial when, in all probability . . . it produced some effect upon the final result

and affected rights of the party assigning it.” Id.

[¶25.]         Here, the photographs placed in evidence were taken on the date of the

offense, depict the condition of the property at that time, exhibit the location of the

flower bed, and show a number of marijuana plants growing in Hauge’s yard.

Hauge was not prejudiced by the court’s denial of his motion because he was

allowed to argue his theory to the jury that the marijuana was growing wild.

Moreover, the jurors would have had to walk past a sign disparaging the trial judge,

sheriff, and prosecuting attorney, which could have influenced the jurors




3.       The sign read: “Bartlett, O’Brien, and Papendick Unfit for Public Trust[.]”

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improperly. Thus, the trial court did not abuse its discretion in denying Hauge’s

motion.

[¶26.]       4.     Whether the trial judge abused his discretion when he
                    failed to recuse himself on his own accord pursuant to
                    SDCL 15-12-37.

[¶27.]       On appeal, Hauge argues that the trial judge abused his discretion

when he failed to recuse himself on his own accord pursuant to SDCL 15-12-37

because of the appearance of impartiality. Specifically, Hauge asserts that the trial

judge presided over a contentious restraining order involving Hauge and one of

Hauge’s neighbors. Hauge contends that “the small town in which he lived publicly

knew Hauge’s dissatisfaction with the [restraining order] ruling.” Hauge also

argues that the trial judge sentenced Hauge’s son and Hauge’s son made

inappropriate remarks toward the trial judge and voiced his belief that marijuana

should be legalized. Further, Hauge asserts that there is a perception among

community members that Hauge posted the sign containing the disparaging

remarks about the trial judge, sheriff, and prosecutor. Additionally, Hauge argues

that his affidavit for change of judge filed on March 30, 2012, was improperly

denied.

[¶28.]       It is settled “that decisions to recuse lie within a judge’s discretion.”

Marko v. Marko, 2012 S.D. 54, ¶ 18, 816 N.W.2d 820, 826. “A judge exercises

discretion in deciding whether the facts and circumstances fit within the

disqualifying criteria.” Id. “Once the trial judge has answered the question

affirmatively, however, he must recuse himself; that is not discretionary.” Id.

(quoting Childers and Davis, Federal Standards of Review § 12.05, at 12-31 (3d ed.


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1999)). “By rule, South Dakota judges must disqualify themselves on their own

motion under SDCL 15-12-37: ‘A judge or magistrate having knowledge of a ground

for self-disqualification under the guidelines established by Canon 3C [Canon 3E]

shall not, unless Canon 3D [Canon 3F] is utilized, await the filing of an affidavit but

shall remove himself . . . .’” Id. (alterations in original). “A fair trial before a fair

judge is indispensable to due process.” Id. ¶ 19.

[¶29.]        In South Dakota, the Code of Judicial Conduct governs judicial

disqualifications. “Canon 3E(1) provides that ‘a judge shall disqualify himself or

herself in a proceeding in which the judge’s impartiality might reasonably be

questioned, including but not limited to instances’ of (a) ‘personal bias or prejudice’

or ‘personal knowledge,’ (b) prior service as a lawyer in the matter, (c) economic

interest, and (d) close personal relationship of relatives or parties to a proceeding.”

Id. (quoting Code of Judicial Conduct, SDCL ch. 16-2, App., Canon 3E(1)).

[¶30.]        Indeed, Canon 3E(1) contemplates two scenarios: “(1) situations where

the ‘judge’s impartiality might reasonably be questioned,’ and (2) instances

‘including but not limited to’ when rules (a) through (d) apply.” Id. ¶ 20 (quoting

Code of Judicial Conduct, SDCL ch. 16-2, App., Canon 3E(1)). “Under this rule, a

judge is disqualified whenever the judge’s impartiality might reasonably be

questioned, regardless whether any of the specific rules in Section 3E(1) apply.” Id.

It is an objective standard, “requiring disqualification where there is ‘an appearance

of partiality . . . even though no actual partiality exists.’” Id. (quoting Liljeberg v.

Health Servs. Acquisition Corp., 486 U.S. 847, 860, 108 S. Ct. 2194, 2202-03, 100 L.




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Ed. 2d 855 (1988)). “Judicial fairness requires the appearance as well as the

existence of impartiality.” Id.

[¶31.]       “[A] judge also has an ‘equally strong duty not to recuse when the

circumstances do not require recusal.’” Id. ¶ 21 (quoting Center for Professional

Responsibility, American Bar Association, Annotated Model Code of Judicial

Conduct 187 (2004)). “[U]nder South Dakota’s Code of Judicial Conduct, a ‘judge

shall hear and decide matters assigned to the judge except those in which

disqualification is required.’” Id. (quoting Code of Judicial Conduct, SDCL ch. 16-2,

App., Canon 3B(1)). Notably, “[d]isqualification ‘was never intended to enable a

discontented litigant to oust a judge because of adverse rulings made.’” Id. (quoting

Ex parte Am. Steel Barrel Co., 230 U.S. 35, 44, 33 S. Ct. 1007, 1010, 57 L. Ed. 1379

(1913)).

[¶32.]       Here, we examine whether the trial judge’s “impartiality might

reasonably be questioned” for either of the two reasons asserted by Hauge. Those

reasons are: (1) that the trial judge presided over two prior proceedings – one

proceeding involving Hauge and the other proceeding, his son, and (2) that Hauge

had been associated by the community with the sign, which disparaged the trial

court, sheriff, and prosecutor. Thus, we ask ourselves, “would a reasonable person

knowing all of the facts conclude that the judge’s impartiality might reasonably be

questioned?” Id. ¶ 22.

[¶33.]       First, Hauge argues that the trial judge presided over two matters

related to Hauge: a contentious restraining order case between Hauge and his

neighbor and Hauge’s son’s sentencing. However, as Hauge concedes, “even in cases


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where judges have had prior judicial exposure to [the] parties, without more,

appellate courts have ruled that this is insufficient to show that impartiality might

reasonably be questioned.” Id. ¶ 23. “Every judge is called upon to form opinions on

the merits of a case and often on the parties and witnesses involved, but that does

not mean the judge has a prejudice or bias.” Id. In this case, Hauge claims that the

restraining order case was contentious and that the public knew of his

dissatisfaction with the ruling. He also contends that his son made inappropriate

remarks to the trial judge during his son’s sentencing. This, without more, is

insufficient to show that the judge’s ability to be impartial might reasonably be

questioned. We see no objective grounds to conclude that the trial judge’s

impartiality might be reasonably questioned as to this point.

[¶34.]       Second, Hauge asserts that the perception among community members

was that Hauge had made the disparaging sign. He contends that the trial judge

likely had this perception as well, thus requiring the judge to recuse himself. The

record indicates that the trial judge was aware of the presence of the sign and the

wording on it. However, without more and even with the trial judge’s knowledge of

the sign, it appears Hauge was a discontented litigant who was not happy with the

trial judge’s prior rulings and wanted the judge removed from the present case.

Again, we see no objective grounds to conclude that the trial judge’s impartiality

might be reasonably questioned.

[¶35.]       Moreover, Hauge’s argument that his affidavit for change of judge was

improperly denied is also without merit. Hauge’s affidavit was denied as untimely.




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SDCL 15-12-27. 4 Following an informal request to the trial judge to disqualify

himself on March 29, 2012, 5 Hauge filed his affidavit on March 30, 2012. An order

filed February 22, 2012, set Hauge’s case for a jury trial on April 9, 2012. Thus,

Hauge filed his affidavit less than 15 days before the scheduled date of the jury

trial. Therefore, Hauge’s affidavit was untimely under SDCL 15-12-27 and was

properly denied.

                                  CONCLUSION

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

acquittal. In addition, Hauge’s proposed jury instructions were properly denied.

Further, the trial court did not abuse its discretion in denying Hauge’s motion to

have the jury view his residence. Lastly, the trial judge did not abuse his discretion

when he did not recuse himself pursuant to SDCL 15-12-37. We affirm.

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

SEVERSON, Justices, concur.



4.       SDCL 15-12-27 provides in pertinent part:

               An affidavit for change of judge or magistrate, if against the
               judge or magistrate who, in the ordinary course, would preside
               at the hearing or trial, must be filed within the following times:
                      (1) If there be any motion or application to be heard upon
                      notice, the party resisting the same may file an affidavit
                      not less than two days before the hearing; or if the matter
                      is returnable in a shorter time, then before the
                      commencement of such hearing;
                      (2) If there is no such motion or application:
                      ...
                              (b) In actions triable by a jury at least fifteen days
                              prior to the date said action is scheduled for trial[.]

5.       This motion was denied.

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