#26055-a-DG

2012 S.D. 36

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                 ****

STATE OF SOUTH DAKOTA,                    Plaintiff and Appellee,

      v.

TRENT DANIELSON,                          Defendant and Appellant.


                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE FOURTH JUDICIAL CIRCUIT
                  LAWRENCE COUNTY, SOUTH DAKOTA

                                 ****

                    THE HONORABLE RANDALL L. MACY
                                Judge

                                 ****
MARTY J. JACKLEY
Attorney General

FRANK GEAGHAN
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.

ERIC D. WHITCHER
Lawrence County Public
 Defender’s Office
Deadwood, South Dakota                    Attorneys for defendant
                                          and appellant.


                                 ****
                                          CONSIDERED ON BRIEFS
                                          ON FEBRUARY 14, 2012

                                          OPINION FILED 05/16/12
#26055

GILBERTSON, Chief Justice

[¶1.]        A jury found Trent Danielson guilty of perjury. Danielson appeals,

arguing that the evidence was insufficient to sustain the verdict, the trial court

erred in denying his motion for a court-appointed private investigator, and the court

erred in denying a motion in limine and admitting used transmission parts into

evidence. We affirm.

                                       FACTS

[¶2.]        Rocket Lube of Spearfish, South Dakota, hired Danielson as a

mechanic and automobile painter in 2003. Rocket Lube fired Danielson in 2006,

claiming that Danielson stole auto parts and did not remit checks for work done by

Danielson on vehicles belonging to Dr. Tom Cox.

[¶3.]        Danielson was indicted on one count of grand theft and the case

proceeded to a jury trial. During trial, the State argued that the checks from Dr.

Cox were property of Rocket Lube. Danielson testified that he and Dr. Cox had a

private agreement and that the checks belonged to him. According to Danielson’s

testimony, Dr. Cox felt that Rocket Lube was taking advantage of Dr. Cox and thus,

Dr. Cox asked Danielson to work on Dr. Cox’s vehicles in Danielson’s spare time to

save expenses. Danielson testified that he replaced a front clutch pack in the

automatic transmission of Dr. Cox’s 1950 Studebaker. Dr. Cox admitted that he felt

that Rocket Lube was overcharging him, but he testified that he thought that

Danielson was still acting as an agent of Rocket Lube when performing the work on

Dr. Cox’s vehicles. The jury found Danielson not guilty of grand theft.



                                          -1-
#26055

[¶4.]        Then, in October 2008, a grand jury indicted Danielson on one count of

perjury during a felony trial. The indictment alleged that Danielson committed

perjury during the grand theft jury trial by testifying falsely that “he had replaced

parts inside the transmission of Dr. Tom Cox’s 1950 Studebaker pick-up truck.”

The indictment further alleged that Danielson did not actually perform this work.

[¶5.]        Danielson moved to dismiss the perjury indictment as a violation of the

constitutional prohibition against double jeopardy, arguing that the jury acquittal

was a final determination that he did perform the work in question. The trial court

agreed and granted Danielson’s motion to dismiss. This Court reversed and

remanded on appeal, holding that “Danielson has failed to satisfy his burden of

demonstrating that the jury’s not guilty verdict necessarily included an implicit

factual finding that he performed the work on the 1950 Studebaker.” State v.

Danielson, 2010 S.D. 58, ¶¶ 11-12, 786 N.W.2d 354, 358.

[¶6.]        On remand, the perjury case proceeded to a jury trial. The jury found

Danielson guilty of perjury. Danielson appeals.

[¶7.]        The issues on appeal are:

             1. Whether the jury had sufficient evidence to find Danielson guilty of
                perjury.

             2. Whether the trial court abused its discretion in denying Danielson’s
                request for a court-appointed private investigator.

             3. Whether the trial court abused its discretion in admitting used
                transmission parts into evidence.

             4. Whether the trial court abused its discretion in denying Danielson’s
                motion to dismiss based on the destruction of evidence.



                                          -2-
#26055

                             STANDARD OF REVIEW

[¶8.]        Danielson appeals the trial court’s denial of his motion for judgment of

acquittal. “We review the denial of a motion for judgment of acquittal as a question

of law under the de novo standard.” State v. Overbey, 2010 S.D. 78, ¶ 12, 790

N.W.2d 35, 40. “On appeal, the question before this Court is whether the evidence

was sufficient to sustain the convictions.” Id. “In measuring the sufficiency of the

evidence, we ask whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” State v. Stark, 2011 S.D. 46, ¶ 21, 802

N.W.2d 165, 172. “We accept the evidence and the most favorable inferences fairly

drawn therefrom, which will support the verdict.” Id. In addition, “the jury is the

exclusive judge of the credibility of the witnesses and the weight of the evidence.”

Id. “This Court will not resolve conflicts in the evidence, assess the credibility of

witnesses, or evaluate the weight of the evidence.” Id.

[¶9.]        Danielson also appeals the trial court’s denial of a motion for the

appointment of a private investigator, a motion in limine, and a motion to dismiss

based on the destruction of evidence. “The appointment of an expert is in the

discretion of the trial court.” In re E.L. and R.L., 2005 S.D. 124, ¶ 22, 707 N.W.2d

841, 847. This Court also reviews a “trial court’s denial of a motion to dismiss

[based on the destruction of evidence] under an abuse of discretion standard.” State

v. Williams, 2008 S.D. 29, ¶ 23, 748 N.W.2d 435, 442. In addition, we review “a

trial court’s evidentiary rulings under an abuse of discretion standard.” State v.

Fisher, 2011 S.D. 74, ¶ 32, 805 N.W.2d 571, 578. “An abuse of discretion refers to a

                                           -3-
#26055

discretion exercised to an end or purpose not justified by, and clearly against reason

and evidence.” Id. Furthermore, “[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. “Error is prejudicial when, in all probability . . . it produced some effect

upon the final result and affected rights of the party assigning it.” Id.

                                      ANALYSIS

[¶10.]       1.     Whether the jury had sufficient evidence to find
                    Danielson guilty of perjury.

[¶11.]       Danielson argues that the jury did not have sufficient evidence to find

him guilty of perjury. Danielson specifically challenges materiality and mens rea.

Danielson argues that whether certain repair work was done or not done was not

material to the grand theft trial, and thus, any alleged false statement does not

constitute perjury under SDCL 22-29-1. Danielson also argues that the State did

not prove that he intentionally misled the jury in making any alleged false

statement. Danielson asserts that the alleged false statement could have been a

result of faulty memory or mistake.

[¶12.]       The State responds that materiality is an issue for the jury to decide.

The State contends that Danielson’s testimony about repair work was material to

the grand theft trial because it bolstered and affected Danielson’s credibility and his

claim of right defense. The State further asserts that perjury is a general intent

crime and alternatively argues that even if perjury is a specific intent crime, the

State established that Danielson had the specific intent to make a false statement

of material fact.


                                           -4-
#26055

[¶13.]        Perjury is codified in SDCL Chapter 22-29. Under SDCL 22-29-1,

              Any person who, having taken an oath to testify, declare,
              depose, or certify truly, before any competent tribunal, officer, or
              person, in any state or federal proceeding or action in which
              such an oath may by law be administered, states, intentionally
              and contrary to the oath, any material matter which the person
              knows to be false, is guilty of perjury.

“It is sufficient for a [perjury] conviction . . . that a finding of guilty is based upon

admissible evidence.” SDCL 22-29-18.

[¶14.]        Regarding materiality, “[i]t is no defense to a prosecution for perjury

that the accused did not know the materiality of the false statement, or that the

false statement did not in fact affect the proceeding in or for which the false

statement was made.” SDCL 22-29-4. “It is sufficient that the false statement was

material and might have been used to affect such proceeding.” Id. Furthermore,

“[a] statement is sufficient to support a charge of perjury ‘if it is material to any

proper matter of inquiry, and if, furthermore, it is calculated and intended to bolster

the testimony of a witness on some material point, or to support or attack the

credibility of a witness.’” State v. Maves, 358 N.W.2d 805, 810 (S.D. 1984) (quoting

State v. Lachowitzer, 314 N.W.2d 307, 310 (S.D. 1982)). “A statement made by a

witness during the course of a trial is also material if it ‘has a legitimate tendency

to prove or disprove some relevant fact irrespective of the main fact at issue, or . . .

is capable of influencing the court, officer, tribunal, or other body created by law on

any proper matter of inquiry.’” Lachowitzer, 314 N.W.2d at 310 (quoting State v.

Deets, 195 N.W.2d 118, 122 (Iowa 1972)). The materiality element is an issue for

the jury to decide. State v. Pechan, 1996 S.D. 123, ¶¶ 9-12, 554 N.W.2d 663, 664-65.


                                            -5-
#26055

[¶15.]       In this case, the State presented several witnesses, including three

expert witnesses. The State’s experts generally opined that the 1950 Studebaker’s

transmission had not been disassembled recently and that it contained mostly

original, manufacturer-issued parts. The State introduced a partial transcript of

the grand theft trial, which included all of Danielson’s testimony in that trial. After

the State’s case-in-chief, Danielson moved for a judgment of acquittal, arguing that

the State did not establish materiality because the State only introduced a partial

transcript from the grand theft trial which did not include the State’s case-in-chief

and also because the State did not introduce the grand theft indictment. The State

responded that materiality is established through Danielson’s claim of right defense

in the grand theft trial which is asserted in Danielson’s testimony, eliminating the

need to introduce the rest of the grand theft trial transcript. The trial court denied

Danielson’s judgment of acquittal motion, noting that materiality is a jury issue and

finding that the State presented sufficient evidence to submit the case to the jury.

[¶16.]       It is no defense to perjury that Danielson did not recognize the

materiality of his grand theft trial testimony or that the testimony did not in fact

affect the grand theft proceeding. Under SDCL 22-29-4, it is sufficient that

Danielson’s testimony might have been used by the grand theft jury. Furthermore,

the perjury jury could have reasonably concluded that Danielson’s testimony about

the repair work in the grand theft trial was calculated and intended to bolster

Danielson’s testimony on his claim of right defense, a material point, or to support

or attack the credibility of Danielson as a witness during the grand theft trial.

Because Danielson’s testimony had a legitimate tendency to prove or disprove a

                                          -6-
#26055

relevant fact irrespective of the main fact at issue, we find that the jury could have

reasonably concluded that Danielson’s testimony in the grand theft trial was

material.

[¶17.]       In addition, the State’s failure to introduce the entire grand theft trial

transcript was not fatal to the materiality element. The grand theft trial transcript

included three volumes. Volume Three contained all of Danielson’s testimony. The

State offered and the court received Volume Three during the State’s case-in-chief

at the perjury trial. Then, while the first defense witness was on the stand,

Danielson offered Volume Two. The court received Volume Two, overruling a

relevancy objection by the State. During cross-examination of the same defense

witness, the State offered Volume One. Danielson objected because the first few

pages of Volume One appeared to be missing. The court sustained this objection

and Volume One was not admitted as an exhibit. In the end, Volume Two and

Volume Three of the grand theft trial transcript were admitted as exhibits in the

perjury trial, and Danielson’s claim that the entire transcript was not before the

perjury jury is somewhat disingenuous because it was Danielson that objected to

the admission of Volume One. Moreover, Volume Three contained Danielson’s

testimony, including his claim of right defense, and provided sufficient evidence for

the jury to determine materiality in the perjury trial.

[¶18.]       The facts relating to materiality in this case are analogous to the facts

in Lachowitzer, 314 N.W.2d 307. In Lachowitzer, a jury found the defendant not-

guilty of theft by deception after the defendant testified and asserted a claim of

right defense. Id. at 309. The defendant was subsequently charged with perjury for

                                          -7-
#26055

testimony he gave at the theft trial. Id. A jury found the defendant guilty of

perjury. Id. at 308. On appeal, the defendant argued that “the evidence introduced

at his perjury trial was insufficient to support a finding that the perjured testimony

was material to the issues at the [theft] trial.” Id. at 310. This Court affirmed,

finding that “[the d]efendant’s testimony may not be directly material to the

principal issue of whether he obtained the repair work with [the] intent to defraud

Midas Muffler by creating a false impression, but it is material to [the] defendant’s

claim of right defense.” Id.

[¶19.]         Here, like the defendant in Lachowitzer, Danielson testified and

asserted a claim of right defense during the grand theft trial. Also like the

defendant in Lachowitzer, Danielson argues that the State did not establish

materiality for perjury. However, like the perjured statements in Lachowitzer,

Danielson’s alleged false statements bolstered his credibility and supported his

claim of right defense. Therefore, as this Court concluded in Lachowitzer, the

evidence introduced at Danielson’s perjury trial was sufficient to support a finding

that Danielson’s testimony was material to the grand theft proceeding.1



1.       Danielson claims that Lachowitzer is materially distinguishable because both
         the petty theft information and a claim of right jury instruction were read to
         the perjury jury in that case. Lachowitzer, 314 N.W.2d at 310. Danielson
         notes that, in contrast, neither the grand theft indictment nor a claim of right
         jury instruction were read to the perjury jury in this case. While the grand
         theft indictment and a claim of right jury instruction may have assisted the
         perjury jury in determining materiality, the State’s failure to introduce these
         documents is not fatal to its case. The perjury jury was instructed on the
         elements of perjury and the meaning of materiality and also had Danielson’s
         grand theft trial testimony before it. Therefore, even without the grand theft
         indictment and a claim of right jury instruction, the perjury jury in this case
                                                               (continued . . .)
                                             -8-
#26055

[¶20.]         In addition to materiality, Danielson also claims that the State did not

establish mens rea, arguing that perjury requires the specific intent to mislead the

jury and relying on the legislature’s use of the word “intentionally” in SDCL 22-29-

1. We have not previously addressed the mens rea requirement of SDCL 22-29-1.2

“However, we have addressed the dichotomy of specific intent/general intent crimes

several times under other statutes.” State v. Schouten, 2005 S.D. 122, ¶ 11, 707

N.W.2d 820, 823 (citations omitted). “The use of the terms ‘intentionally’ or

‘knowingly’ merely designate that the culpability required is something more than

negligence or recklessness.” State v. Taecker, 2003 S.D. 43, ¶ 25, 661 N.W.2d 712,

718. “Mere use of that term (intentionally) does not designate an additional mental

state beyond that accompanying act.” Id. “Whether or not a crime is a general

intent or specific intent crime depends upon its legislative enactment.” Id. “Specific

intent has been defined as meaning some intent in addition to the intent to do the

physical act which the crime requires, while general intent means an intent to do

the physical act—or, perhaps, recklessly doing the physical act—which the crime

requires.” Id.

[¶21.]         Contrary to Danielson’s arguments, nothing in SDCL 22-29-1 requires

the specific intent to mislead a party or fact finder. Certainly, the legislature’s use
_____________________________
(. . . continued)
         could have reasonably concluded that Danielson’s testimony was material to
         the grand theft trial.

2.       We previously addressed the mens rea requirement for the crime of false
         statements as perjury under SDCL 4-9-4. State v. Shilvock-Havird, 472
         N.W.2d 773, 776-77 (S.D. 1991). However, as we noted in the Shilvock-
         Havird opinion, that crime differs from general perjury under SDCL 22-29-1.
         See id.

                                           -9-
#26055

of the term “intentionally” alone does not produce that result. A review of the

record demonstrates that there was sufficient evidence for the perjury jury to

reasonably conclude that Danielson, intentionally and contrary to oath, stated a

material matter which Danielson knew to be false. Therefore, the trial court did not

err in denying Danielson’s motion for judgment of acquittal and we affirm on this

issue.

[¶22.]        2.    Whether the trial court abused its discretion in
                    denying Danielson’s request for a court-appointed
                    private investigator.

[¶23.]        Danielson argues that the court erred in denying his motion for the

appointment of a private investigator. In “determining [whether] court-appointed

experts are essential to an adequate defense[,]” we consider the following

guidelines:

              1) The request must be made in good faith; 2) the request must
              be reasonable in all respects; 3) the request[ ] must be timely
              and set forth reasons which seem to make such services needed
              or necessary to the defendant; and 4) the request must specify
              that the defendant is financially unable to obtain the required
              service himself and that such services would otherwise be
              justifiably obtained if the defendant were financially able.

E.L. and R.L., 2005 S.D. 124, ¶ 22, 707 N.W.2d at 847-48. “Trial courts should

scrutinize a defense request for an expert to insure that an indigent defendant may

procure any reasonable defense, and, when in doubt, lean toward the appointment

of such an expert.” State v. Stuck, 434 N.W.2d 43, 51 (S.D. 1988). However, “if the

request is frivolous, unreasonable, unnecessary for an adequate defense, or without

underlying factual support, the appointment need not be made.” E.L. and R.L.,

2005 S.D. 124, ¶ 22, 707 N.W.2d at 848. We apply these concepts regarding

                                         -10-
#26055

appointment of experts to requests for appointments of private investigators. See

State v. Goodroad, 1997 S.D. 46, ¶¶ 42-50, 563 N.W.2d 126, 135-36.

[¶24.]       Here, Danielson, an indigent defendant, moved for appointment of

both an expert witness and a private investigator. Danielson argued that a private

investigator was necessary because the case was complex, had been ongoing for

many years, and because the 1950 Studebaker had been possessed by multiple

mechanics and people before the transmission parts were seized for the perjury

trial. The court granted Danielson’s request for an expert witness but denied

Danielson’s motion for appointment of a private investigator. In doing so, the court

stated that “I will allow [Danielson’s] expert who’s going to review parts to also

inquire as to the possession of the transmission from the date that it’s alleged that

Mr. Danielson worked on the vehicle. I think that would cover your concern.” Upon

this record, we find that the court did not abuse its discretion in denying

Danielson’s motion for appointment of a private investigator.

[¶25.]       3.     Whether the trial court abused its discretion in
                    admitting used transmission parts into evidence.

[¶26.]       Danielson argues that the trial court erred in admitting used

transmission parts into evidence. Danielson challenges this ruling on three

grounds: relevancy, chain of custody, and destruction of evidence. Because the

chain of custody challenge relates to a motion in limine and the destruction of

evidence challenge relates to a motion to dismiss, we separately review these

claims.




                                         -11-
#26055

[¶27.]        During the pretrial motions stage of the perjury proceeding, Danielson

moved to exclude the 1950 Studebaker clutch and any testimony about the clutch

because “the object lack[ed] sufficient chain of custody for such evidence to be

admissible.” The court denied Danielson’s motion in limine regarding the chain of

custody, stating that the State could establish chain of custody at trial. During the

trial, Danielson objected to the admission of the used transmission parts on

foundation grounds.

[¶28.]        First, we question whether Danielson’s relevancy challenge was

properly preserved for appeal. “We generally do not reverse trial courts for reasons

not argued before them.” Rogen v. Monson, 2000 S.D. 51, ¶ 15, 609 N.W.2d 456,

459. “Generally, parties must object to specific court action and state the reason

underlying their objection so that the circuit court has an opportunity to correct any

error.” State v. Johnson, 2009 S.D. 67, ¶ 16, 771 N.W.2d 360, 367. This Court has

permitted some flexibility in this rule. See id. (finding that a Sixth Amendment

confrontation rights challenge was preserved for appeal when a motion in limine

merely argued that the defendant would not have an opportunity to cross-examine a

witness). However, a defendant’s motion or objection must at least “make the

[lower] court aware of his [or her] concerns[.]” Id. Furthermore, we recognize that

“[t]he objection of ‘lack of foundation’ has no single defined meaning, and an

objection of ‘lack of foundation’ generally is of little or no use to a trial judge.”

Rogen, 2000 S.D. 51, ¶ 15, 609 N.W.2d at 459 (quoting Tolver v. State, 269 Ga. 530,

500 S.E.2d 563, 565 (1998)).



                                            -12-
#26055

[¶29.]        Here, Danielson did not challenge the relevancy of the used

transmission parts at the lower court level. Danielson’s motion in limine regarding

the used transmission parts challenged the evidence on chain of custody grounds

and Danielson objected at trial citing lack of foundation. Thus, the trial court did

not have an opportunity to rule on the relevancy of the transmission parts under

SDCL 19-12-1 and -2 or on Danielson’s claim that the evidence should have been

excluded under SDCL 19-12-3. Danielson’s relevancy argument was not preserved

for appeal.

[¶30.]        Regarding chain of custody, “[t]rial courts have broad discretion in

determining the competency of chain of custody evidence.” State v. Reay, 2009 S.D.

10, ¶ 22, 762 N.W.2d 356, 363. “In considering the admissibility of demonstrative

evidence, the trial judge must be satisfied in reasonable probability that the object

sought to be admitted is the one involved in the case, and that it has not changed in

important respects.” Id. “The ‘chain of custody’ rule, requiring the prosecution to

account for the whereabouts of physical evidence connected with a crime from the

time of its seizure to its offer at trial is to ensure that the real evidence offered is

that object which was involved in the transaction, and that the object is in a

substantially unchanged condition.” Id. ¶ 25. In addition,

              where the offered object is not readily identifiable or
              distinguishable, or is susceptible to alteration by mistake in
              substitution, tampering[,] or contamination, a proper foundation
              requires testimony tracing the chain of custody of the object with
              sufficient completeness to render it improbable that the original
              item has been so altered.

State v. Brings Plenty, 490 N.W.2d 261, 265 (S.D. 1992).


                                           -13-
#26055

[¶31.]        “It is not necessary for the State to establish an absolutely perfect

chain of custody, but the testimony must at least strongly suggest the exact

whereabouts of the exhibit at all times.” Id. (citations omitted). Furthermore,

“[m]ere suspicion or speculation is insufficient to establish a break in the chain of

custody.” Id. ¶ 26.

[¶32.]       In this case, Danielson challenges the whereabouts of the 1950

Studebaker between 2006 and 2008. Danielson claims that the location of the

vehicle prior to 2008 is relevant because he allegedly replaced the clutch parts in

2006. The record demonstrates that the State seized the transmission parts in

October 2008. The State demonstrated with reasonable probability that no

tampering or substitution had occurred after October 2008 by having the evidence

custodians testify at trial. In addition, the mechanics who examined and

dismantled the transmission also testified at trial. Danielson merely speculates

that the evidence was altered or tampered with. Danielson has not only failed to

show that the challenged evidence was in some way altered or tampered with, but

Danielson has also failed to demonstrate that the trial court’s rulings regarding the

chain of custody constitute prejudicial error. Furthermore, unlike drugs or blood,

used transmission parts from a 1950 Studebaker are arguably readily identifiable,

distinguishable, and not easily susceptible to alteration by mistake in substitution,

tampering, or contamination. Therefore, we conclude that the trial court did not

abuse its discretion in denying Danielson’s motion in limine regarding the used

transmission parts.



                                          -14-
#26055

[¶33.]         4.    Whether the trial court abused its discretion in
                     denying Danielson’s motion to dismiss based on the
                     destruction of evidence.

[¶34.]         Danielson argues that the State removed and discarded certain parts

from the 1950 Studebaker, including the transmission filter. Danielson claims that

the discarded parts would have demonstrated the transmission’s age and usage,

making it significant and exculpatory evidence. Danielson notes that one of the

State’s experts testified that the transmission pan and filter were newer than the

rest of the transmission parts, “thereby demonstrating that someone had altered

the evidence[,]” according to Danielson.3 Thus, Danielson claims that the trial court

should have granted Danielson’s motion to dismiss, or, at the very least, excluded

the other used transmission parts from evidence.

[¶35.]         The State responds that the trial court denied Danielson’s motion to

dismiss based on destruction of evidence because the trial judge “[hadn’t] seen any

activity by the State with regard to the evidence that would warrant dismissal

based on the destruction of evidence.” The State also argues that Danielson’s

destruction of evidence claim focuses on the transmission pan and filter. The State

notes that the perjury charge did not relate to whether Danielson changed the pan

and filter (the State conceded that Danielson did that work), but rather related to


3.       From the record and appellate briefs, it is somewhat unclear whether
         Danielson believes that the transmission pan and filter would have shown
         that he changed the pan and filter himself (thus, creating the presumption
         that he also worked on the transmission clutch) or whether Danielson
         believes that the discarded parts would have shown that someone else
         changed the pan and filter (thus, suggesting that the evidence was tampered
         with sometime before the perjury trial). This argument seems to suggest the
         latter.

                                          -15-
#26055

whether Danielson replaced the clutch or clutch pack, a separate transmission part.

Thus, the State argues, the discarded evidence would not have played a significant

role in the perjury trial. The State also contends that any discarded evidence was

not destroyed in bad faith.

[¶36.]        “The State’s duty to preserve the evidence is limited to evidence that

might be expected to play a significant role in a suspect’s defense.” Williams, 2008

S.D. 29, ¶ 23, 748 N.W.2d at 442. “Evidence plays a ‘significant role’ where the

evidence possessed ‘an exculpatory value that was apparent before the evidence was

destroyed, and [was] of such a nature that the defendant would be unable to obtain

comparable evidence by other reasonably available means.’” Moeller v. Weber, 2004

S.D. 110, ¶ 15, 689 N.W.2d 1, 7 (quoting California v. Trombetta, 467 U.S. 479, 488-

89, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413 (1984)). “The State’s destruction of

evidence favorable to the defense is a violation of due process if the evidence

requested by the defense and destroyed by the State is material either to guilt or

punishment.” State v. Bousum, 2003 S.D. 58, ¶ 15, 663 N.W.2d 257, 262.

[¶37.]       “Additionally, the defense must show that the State acted in bad faith

in releasing the evidence.” Id. (citing Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.

Ct. 333, 337, 102 L. Ed. 2d 281, 289 (1981)). Indeed, “mere negligence in the loss or

destruction of evidence does not result in a constitutional violation.” Id.

             Bad faith, as used in cases involving destroyed evidence or
             statements, means that the state deliberately destroyed the
             evidence with the intent to deprive the defense of information;
             that is, that the evidence was destroyed by, or at the direction
             of, a state agent who intended to thwart the defense.

Id. (citing State v. Steffes, 500 N.W.2d 608, 613 (N.D. 1993)).

                                          -16-
#26055

[¶38.]       Here, Danielson has failed to demonstrate that the State, in bad faith,

destroyed evidence that would have played a significant role in his defense. While

the State failed to preserve the transmission pan and filter, the perjury charge

centered on whether Danielson replaced the clutches or clutch packs. Even if the

transmission pan and filter had some evidentiary value, Danielson has not

demonstrated that these parts would have played a significant role in his defense.

In addition, the record is devoid of any indication that the State deliberately

destroyed evidence with the intent to deprive Danielson of the information. The

State readily admitted that the pan and filter were newer than the other

transmission parts and offered that information to Danielson. The State and its

experts believed that the transmission pan and filter were immaterial to the perjury

charge because the State believed that Danielson did, in fact, remove and replace

those parts. Upon this record, we cannot say that the trial court abused its

discretion when it denied Danielson’s motion to dismiss.

                                   CONCLUSION

[¶39.]       The record demonstrates that when viewing the evidence in the light

most favorable to the prosecution, a rational trier of fact could have found the

essential elements of perjury beyond a reasonable doubt and there is sufficient

evidence to sustain the jury’s guilty verdict. Furthermore, the trial court did not

abuse its discretion in denying Danielson’s motion for appointment of a private

investigator, motion in limine to exclude the transmission parts, and motion to

dismiss for the destruction of evidence.

[¶40.]       Affirmed.

                                           -17-
#26055

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




                               -18-
