#25808-a-LSW
2011 S.D. 89

                         IN THE SUPREME COURT
                                 OF THE
                        STATE OF SOUTH DAKOTA
                                  ****

ESTATE OF ETHANUEL JAMES
HOLZNAGEL, DECEASED, WAYNE D.
HOLZNAGEL and PAULA M. HOLZNAGEL,
PERSONAL REPRESENTATIVES,

     and

WAYNE D. HOLZNAGEL, PAULA M.
HOLZNAGEL, and KATHLEEN F.
HOLZNAGEL, INDIVIDUALLY,                        Plaintiffs and Appellants,

     v.

JOHN ERVIN CUTSINGER,

     and

DEPENDABLE SANITATION, INC.,                    Defendants and Appellees.

                                  ****
                   APPEAL FROM THE CIRCUIT COURT OF
                       THE FIRST JUDICIAL CIRCUIT
                     DAVISON COUNTY, SOUTH DAKOTA
                                  ****
                     THE HONORABLE SEAN M. O’BRIEN
                                  Judge
                                  ****
JAMES A. MISKIMINS
JAMES D. TAYLOR of
Taylor & Miskimins, PC
Mitchell, South Dakota                       Attorneys for plaintiffs
                                             and appellants.

MICHAEL L. LUCE
ROCHELLE R. SWEETMAN of
Murphy, Goldammer, & Prendergast, LLP
Sioux Falls, South Dakota                       Attorneys for defendants
                                                and appellees.
                                   ****
                                                ARGUED OCTOBER 05, 2011

                                                OPINION FILED 12/21/11
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WILBUR, Justice

[¶1.]        Ethanuel Holznagel and John Cutsinger were involved in a car

accident in Mitchell, South Dakota. Ethanuel died from injuries sustained in the

accident. Ethanuel’s parents, Wayne and Paula Holznagel, who are representatives

of his estate, brought a wrongful death action against Cutsinger and his employer

Dependable Sanitation (Defendants). A jury trial was held and a verdict was

returned for Defendants. The Holznagels appeal the grant of Defendants’ motion in

limine excluding evidence of Cutsinger’s marijuana use. We affirm.

                 FACTS AND PROCEDURAL BACKGROUND

[¶2.]        Ethanuel was a Mitchell High School student. The day of the accident,

Ethanuel left school in his car for his lunch break. That same day, Cutsinger was

collecting recyclables for Dependable Sanitation with his co-worker and passenger

Joe Fisher. Shortly after 11 a.m., Cutsinger approached the intersection of Gamble

Street and Eighth Avenue, a “T” intersection not controlled by a stop sign.

Cutsinger came to a stop or a near complete stop. He began to make a wide right

turn, crossing the imaginary centerline, to proceed west on Eighth Avenue. An

investigating officer would later testify that the wide-turn was necessary because of

the size of Cutsinger’s vehicle and an attached 30-40 foot long trailer carrying the

recycling material.

[¶3.]        Before Cutsinger completed the turn, Cutsinger’s vehicle collided with

Ethanuel’s vehicle which was headed east on Eighth Avenue. Evidence at trial

suggested Ethanuel was not maintaining a proper lookout for other traffic.

Specifically, evidence suggested Ethanuel was operating a portable CD player,


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leaning over the passenger side until just before impact, and speeding. Police and

paramedics arrived at the scene within minutes. Ethanuel was unconscious when

examined at the scene. Paramedics took Ethanuel to the local hospital where

trauma care was provided; however, Ethanuel never regained consciousness.

[¶4.]        Law enforcement found no indication that Cutsinger was under the

influence of any intoxicant at the time of the accident. However, according to a

police report documenting an interview conducted two weeks after the accident,

Cutsinger admitted to marijuana use, including: (1) “probably” smoking marijuana

before leaving for work at 6 a.m. on the morning of the accident; (2) smoking

marijuana when he returned home after the accident; and (3) previously smoking

marijuana approximately 50 times before reporting to work. When Cutsinger was

deposed, he denied saying that he probably smoked marijuana the morning of the

accident and that he had smoked marijuana 50 times before work, but admitted

that he smoked marijuana when he returned home after the accident. In addition

to Cutsinger’s disputed statements, Cutsinger submitted to a blood and urine

analysis following the accident. The toxicology report came back positive for

tetrahydrocannabinol (THC), the essential active component in marijuana.

However, the report was indeterminate as to whether Cutsinger was under the

influence of marijuana when the accident took place and how recently Cutsinger

used marijuana prior to the accident.

[¶5.]        Before trial, Defendants moved in limine to exclude (1) any suggestion

that Cutsinger was under the influence of marijuana or any other drug at the time

of the accident and (2) Cutsinger’s prior misdemeanor conviction for marijuana


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possession. The Holznagels appeal the order granting Defendants’ motion in

limine.1

                              STANDARD OF REVIEW

[¶6.]         The exclusion of evidence pursuant to a motion in limine is subject to

the same abuse of discretion standard as other evidentiary rulings. Joseph v.

Kerkvliet, 2002 S.D. 39, ¶ 7 n.1, 642 N.W.2d 533, 534 n.1. “‘An abuse of discretion

refers to a discretion exercised to an end or purpose not justified by, and clearly

against reason and evidence.’” St. John v. Peterson, 2011 S.D. 58, ¶ 10, 804 N.W.2d

71, 74 (quoting Mousseau v. Schwartz, 2008 S.D. 86, ¶ 10, 756 N.W.2d 345, 350).

                                      ANALYSIS

[¶7.]         Although there was discussion at the motion in limine hearing

regarding whether Cutsinger’s marijuana use was relevant under SDCL 19-12-1

(Rule 401),2 the crux of the dispute, both at trial and on appeal, is whether

Cutsinger’s marijuana use, although relevant, is excludable. SDCL 19-12-3 (Rule

403) provides that, “[a]lthough relevant, evidence may be excluded if its probative




1.      Defendants argue that the Holznagel’s waived any right to appeal on the
        issue by failing to ask the trial court to reconsider its decision on Defendants’
        motion in limine and failing to make any offer of proof regarding the excluded
        evidence. However, because the trial court’s ruling at the motion in limine
        hearing was a final decision on the record, the Holznagel’s did not need to
        renew their objection or make an offer of proof to preserve the claim of error
        for appeal. See SDCL 19-9-3.

2.      SDCL 19-12-1 (Rule 401) defines “Relevant evidence” as “evidence having any
        tendency to make the existence of any fact that is of consequence to the
        determination of the action more probable or less probable than it would be
        without the evidence.”
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value is substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.”

[¶8.]         We have previously held that under SDCL 19-12-3 (Rule 403), “[t]he

trial court may exclude evidence . . . if the evidence, as admitted, would provide the

jury with an undue tendency to decide the case on an improper basis.” Shamburger

v. Behrens, 380 N.W.2d 659, 661 (S.D. 1986). Based on SDCL 19-12-3 (Rule 403)

and this Court’s decision in Shamburger, the trial court excluded the evidence.

[¶9.]         In Shamburger, the plaintiff alleged he received negligent medical

treatment from the defendant doctor. Id. at 661. At trial, the plaintiff sought to

introduce testimony of prior occasions where individuals smelled alcohol on

defendant’s breath while the defendant was at work. Id. Besides defendant’s prior

use of alcohol, there was no evidence that the defendant was under the influence at

the time the alleged negligent action occurred. Id. The trial court granted

defendant’s motion in limine “barring any mention of alcohol on [defendant’s]

breath during trial.” Id. On appeal, this Court found that granting the motion was

not an abuse of discretion because “[t]he trial court’s refusal to admit this evidence

did not hamper [the plaintiffs’] efforts to show [the defendant] acted negligently.”

Id. at 662.

[¶10.]        The Holznagels argue that the excluded evidence of intoxication in this

action is distinguishable from the excluded evidence in Shamburger. According to

the Holznagels, the evidence the trial court excluded in Shamburger sought to

demonstrate habitual alcohol use, but did not demonstrate that the defendant was


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under the influence when the alleged negligent action took place. In contrast, the

Holznagels assert that the evidence the trial court excluded here suggests that

Cutsinger actually used marijuana before and after the accident.

[¶11.]       However, even if it is assumed that Cutsinger used marijuana before

the accident it would have been when Cutsinger was preparing to leave home for his

6 a.m. shift, at least five hours before the accident occurred. The investigating

officer and Joe Fisher, Cutsinger’s passenger and co-worker, did not find any

indication that Cutsinger was under the influence of marijuana at the time of the

accident. Additionally, as in Shamburger, the exclusion of prior marijuana use did

not prohibit the Holznagel’s from showing that it was Cutsinger’s negligence which

caused the accident. Given the lack of evidence that Cutsinger was under the

influence at the time of the accident, and that introducing the evidence of prior

marijuana use could have both confused the jurors and led them to presume

Cutsinger was negligent, the trial court did not abuse its discretion in determining

that the probative value of Cutsinger’s marijuana use was outweighed by the

danger of unfair prejudice.

[¶12.]       Alternatively, the Holznagels argue that Cutsinger’s marijuana use

should have been presented to the jury for impeachment purposes pursuant to

SDCL 19-14-8 (Rule 607), which provides: “The credibility of a witness may be

attacked by any party, including the party calling him.”

[¶13.]       According to the Holznagels, Cutsinger’s marijuana use calls into

question his credibility because it may have impaired his ability to accurately

observe and recall the accident and the events leading up to the accident. However,


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the Holznagels did not provide expert testimony or submit evidence of any nature

suggesting how marijuana use approximately five hours before the accident and

subsequent to the accident would impair Cutsinger’s ability to perceive or recall the

details of the accident. The Holznagels assert that no expert testimony was

necessary and that the evidence should have been admitted “in order to allow the

jury to make any appropriate inference” based on its “common sense and life

experience.” To support their position, Holznagels cite to the Connecticut Supreme

Court decision in State v. Clark, 801 A.2d 718 (Conn. 2002).

[¶14.]       In Clark, the Connecticut Supreme Court held that a jury could

“consider the effects of marijuana use on a witness’ ability to observe and relate

events” without “specific testimony addressed expressly to that issue.” Id. at 724.

The court reasoned:

             [T]he unfortunate prevalence of marijuana use, coupled with the
             substantial effort to educate all segments of the public regarding
             its dangers, underscores the reality that the likely effects of
             smoking five marijuana cigarettes in a short period of time before
             an incident are within the ken of the average juror.

Id. at 726 (emphasis added).

[¶15.]       However, Clark is distinguishable. In Clark, the jurors were asked to

determine the effects of smoking a large amount of marijuana, five cigarettes,

during a short period of time before the accident. In other words, there was no

dispute that the witness was actually intoxicated when the incident took place. In

such circumstances, it may be reasonable to ask jurors to draw on their own

“common sense” to determine if the witness’s “ability to observe and relate events”




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was impaired by ingesting a large amount of an intoxicating substance in a short

period of time before witnessing an event.

[¶16.]       In contrast, an Illinois federal court addressed the relevancy of

marijuana use hours before an incident in determining the “credibility of the parties

involved.” Mason v. City of Chicago, 631 F. Supp. 2d 1052, 1060 (N.D. Ill. 2009). In

Mason, the “[p]laintiff testified that he took ‘three to four puffs’ of a marijuana

cigarette three hours before his encounter with the police.” Id. at 1055. Although

the plaintiff admitted to marijuana use hours before the incident, there was no

evidence plaintiff was under the influence of marijuana at the time of the incident.

Id. Defendants sought to introduce expert testimony on the effects of marijuana at

the time of the encounter. Id. Plaintiff moved in limine to exclude all reference to

his marijuana use on the day of the incident. Id. at 1054. The court granted the

motion, reasoning that “there [was] no foundation for relevant evidence concerning

the influence of marijuana on [p]laintiff. Plaintiff’s admissions during discovery

that he smoked a marijuana cigarette on the date of the incident do not come close

to providing the necessary foundation to admit such highly inflammatory and

prejudicial evidence.” Id. at 1058.

[¶17.]       Here, as in Mason, jurors would have been asked to determine whether

Cutsinger’s alleged marijuana use five hours before the accident affected his ability

to accurately observe and recall the accident. Asking jurors to assess how an

intoxicating substance may impair one’s perception hours after ingestion, without

assistance of an expert, differs from asking jurors to assess how actual intoxication

impairs perception. Therefore, the trial court did not abuse its discretion in


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determining that the probative value of the evidence was outweighed by the danger

of unfair prejudice and granting Defendants’ motion in limine. We affirm.

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

SEVERSON, Justices, concur.




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