#27703-a-LSW
2017 S.D. 47

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

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

      v.

DIW BOL KIIR,                                Defendant and Appellant.

                                    ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE SECOND JUDICIAL CIRCUIT
                   MINNEHAHA COUNTY, SOUTH DAKOTA

                               ****
                     THE HONORABLE JOHN R. PEKAS
                                and
                    THE HONORABLE SUSAN M. SABERS
                               Judges

                                    ****

MARTY J. JACKLEY
Attorney General

CULLEN P. MCNEECE
Assistant Attorney General
Pierre, South Dakota                         Attorneys for plaintiff
                                             and appellee.


RYAN KOLBECK of
Waltner, Kolbeck &
 Scharffenberg, LLP
Sioux Falls, South Dakota                    Attorneys for defendant
                                             and appellant.

                                    ****

                                             CONSIDERED ON BRIEFS
                                             ON FEBRUARY 13, 2017
                                             OPINION FILED 08/02/17
#27703

WILBUR, Retired Justice

[¶1.]        A jury found defendant guilty of eight offenses. Defendant appeals the

circuit court’s admission of res gestae evidence, claiming the evidence violated his

Sixth Amendment right of confrontation. Defendant also challenges the sufficiency

of the evidence for three offenses. We affirm.

                                    Background

[¶2.]        Officer Chase Vanderhule received a call from dispatch at

approximately 8:15 p.m. on May 15, 2015, to respond to a report of an aggravated

assault with a firearm at an apartment complex in Sioux Falls, South Dakota.

Officer Vanderhule arrived at the apartment complex and made contact with the

reporting witnesses. The witnesses spoke to Officer Vanderhule with the help of a

Spanish interpreter. The witnesses relayed that a silver, gray, or brown Chevy

Impala or Malibu arrived near the area with multiple African American males and

one female inside the vehicle. The witnesses claimed that one person from the

vehicle tried to sell them drugs. They further claimed that when they refused, one

of the African American males pointed a firearm at them. The witnesses reported

that this male was wearing a red hat and white t-shirt and was approximately 25 to

30 years old. The witnesses also described the gun—it had a black grip, a silver top,

and a slide that racks back. The witnesses told Officer Vanderhule that the vehicle

and its occupants left the area after the incident.

[¶3.]        While Officer Vanderhule was speaking with the witnesses and

reviewing the surveillance footage from the apartment complex, he learned that a

male fitting the witnesses’ description of the alleged perpetrator was in the area.


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Officer Vanderhule immediately called for assistance. He left the witnesses and

proceeded to the area where the male was reportedly located. Officer Vanderhule

later testified that as he rounded a corner at the apartment complex, he saw a

person, later identified as Diw Bol Kiir, who fit the description provided by the

witnesses—red hat, white t-shirt, African American male, 25 to 30 years old. The

area, according to Officer Vanderhule, had one light and was poorly lit. Officer

Vanderhule noticed that Kiir had a cigarette in his hand.

[¶4.]        Officer Vanderhule decided to make contact with Kiir. He attempted

to engage Kiir in nonconfrontational conversation. Officer Vanderhule testified that

he asked Kiir his name. Kiir gave a false name. The officer also asked Kiir what

Kiir was doing at the apartment complex. Officer Vanderhule testified that he

asked the question many times before Kiir answered. Kiir claimed that he had

arrived to drop off beer to his friend. Officer Vanderhule told Kiir that he was at

the complex to investigate an incident and that he wanted to discuss the incident

with Kiir. According to Officer Vanderhule, Kiir immediately responded, “No, I

wasn’t here. No, I wasn’t here.”

[¶5.]        Officer Vanderhule testified that he had asked Kiir to come with him

to the parking lot to talk about why Officer Vanderhule was at the apartment

complex. As Kiir was stepping off the stairs onto the sidewalk area, Officer

Vanderhule asked Kiir if he had any weapons on him. Kiir responded, “What for?”

Officer Vanderhule testified that he asked Kiir the same question again. Kiir

responded, “No, I don’t have any weapons on me.” Officer Vanderhule informed Kiir

that he wanted to pat Kiir down to see if he had any weapons. Officer Vanderhule


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took a step toward Kiir and according to the officer, Kiir threw his cigarette on the

ground, clenched his fists, “and started bouncing up and down as though he were a

boxer in a boxing ring about to fight somebody.” Officer Vanderhule testified that

Kiir said, “No, you are not going to touch me. Do not touch me. Do not come over

here and touch me.” The officer explained to the jury that he tried to remain calm,

keep the peace, and express his desire to Kiir that nothing happen.

[¶6.]        When Kiir did not alter his actions, Officer Vanderhule drew his taser

and ordered Kiir to get on the ground. According to Officer Vanderhule, Kiir turned

and ran. The officer deployed his taser and the two probes attached to Kiir, causing

him to fall onto his stomach. Officer Vanderhule testified that he told Kiir to stay

on the ground and to put his hands behind his back. Once Kiir complied, the officer

approached Kiir, placed a knee on Kiir’s back, and grabbed his handcuffs. After

Officer Vanderhule attached a handcuff to Kiir’s left hand, Kiir began to resist. Kiir

struggled and freed his right hand. According to Officer Vanderhule, Kiir tried to

grab the front part of Kiir’s pants with his right hand and fought against Officer

Vanderhule’s attempt to restrain him. Officer Vanderhule testified that the force of

Kiir’s resistance injured the officer’s left hand. Officer Vanderhule activated the

taser again when Kiir attempted to bite the officer.

[¶7.]        After being tased, Kiir told Officer Vanderhule he would comply. But

according to the officer, Kiir did not. Kiir rotated his body and reached toward his

waistband. According to Officer Vanderhule, he tased Kiir three or four more times,

but Kiir continued to resist. At this point during the struggle, Officer Vanderhule

heard a noise come from around the corner. He looked up and noticed Officer Matt


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Dunn. Officer Vanderhule testified that shortly thereafter he placed Kiir’s right

hand in the handcuff. According to Officer Vanderhule, his struggle to restrain Kiir

spanned approximately two minutes. Once Kiir was fully handcuffed, Officer Dunn

assisted Officer Vanderhule in lifting Kiir to his feet and moving him approximately

five or six feet from where the struggle occurred.

[¶8.]        After placing Kiir under arrest, Officer Dunn shined his flashlight in

the area of the struggle. He observed a gun. The gun appeared to be consistent

with that described by the witnesses reporting the alleged aggravated assault.

Officer Vanderhule also noticed a vehicle in the parking lot, which was not there

when the officer first arrived, but which matched the one described by the

witnesses. The officers had the vehicle towed from the scene. The next day, law

enforcement obtained consent from the owner of the vehicle to search it. Officer

Patrick Mertes searched the vehicle and found a dark-colored backpack behind the

driver’s seat. Inside the bag were two jeweler’s bags and two scales wrapped in

men’s underwear. Law enforcement later confirmed the presence of

methamphetamine in the jeweler’s bags. A bus ticket listing Kiir’s name was also

in the backpack.

[¶9.]        On May 28, 2015, a grand jury issued an eleven-count indictment

against Kiir. The indictment alleged that Kiir committed the following offenses:

Count 1—aggravated assault against law enforcement; Counts 2-4—alternative

counts of simple assault against law enforcement; Count 5—possession of a

controlled substance; Count 6—possession of a controlled substance while armed;

Count 7—simple assault against law enforcement while armed; Count 8—


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possession of a firearm with an altered serial number; Count 9—possession of a

firearm by a person with one prior drug conviction; Count 10—grand theft; Count

11—resisting arrest. The State also filed a part II information alleging Kiir to be a

habitual offender.

[¶10.]       Kiir filed a motion in limine to “suppress any out-of-court statements

not subject to cross-examination” and to “suppress any statements or references

regarding allegations of attempted narcotics sales and intimidation with a

weapon[.]” In a pretrial hearing, the circuit court ruled that Officer Vanderhule

may testify about the statements made to him in the initial report. The court held

that the statements provided context and were res gestae evidence. However, the

court suppressed any statement by Officer Vanderhule that one of the reporting

witnesses told the officer that the witness observed the alleged perpetrator return to

the apartment complex. The court held that the out-of-court identification of the

defendant required the identifying witness’s testimony.

[¶11.]       At the conclusion of a two-day jury trial in October 2015, Kiir moved

for a judgment of acquittal on Counts 1 and 9. The court denied the motion. The

jury returned a guilty verdict on Counts 2 and 3 and Counts 5 through 10. The

State had dismissed Count 11 prior to voir dire. Kiir admitted to the allegations in

the part II information. The court sentenced Kiir to two years on Count 2, three

years on Counts 8 and 10, four years on Counts 5 and 9, and ten years with three

suspended on Count 6. The court did not impose a sentence for Count 7. The court

ordered the sentences for Counts 2, 5, 8, 9, and 10 to run concurrent with one




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another while the sentence for Count 6 was to run consecutively to the concurrent

sentences as mandated by statute. See SDCL 22-14-12.

[¶12.]       Kiir appeals, asserting the following issues:

             1. Whether the testimony and argument regarding the initial
                report was proper res gestae evidence.

             2. Whether the evidence was sufficient to support the conviction
                of possession of a controlled substance while armed with a
                firearm.

             3. Whether the evidence was sufficient to support the conviction
                of simple assault on a law enforcement officer while armed
                with a firearm.

             4. Whether the evidence was sufficient to support the conviction
                of possession of a controlled substance.

                                      Analysis

             1. Res gestae evidence

[¶13.]       Kiir asserts that the State transformed the contextual statements

made by the witness reporters to Officer Vanderhule into inadmissible hearsay in

violation of Kiir’s Sixth Amendment rights. The witnesses did not testify, and

according to Kiir, the State used the witnesses’ hearsay statements to prove the

truth of the matters asserted. Kiir admits that certain statements by the witnesses

were admissible to explain Officer Vanderhule’s actions. But he argues that the

State went too far when the State used the witnesses’ statements to prove that Kiir

was armed with a firearm prior to his interaction with Officer Vanderhule and was

associated with the vehicle containing the backpack with methamphetamine.

[¶14.]       We review the circuit court’s evidentiary rulings for an abuse of

discretion. State v. Goodroad, 1997 S.D. 46, ¶ 9, 563 N.W.2d 126, 129. The circuit


                                         -6-
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court denied Kiir’s request to suppress witness statements made to Officer

Vanderhule, finding that those statements were res gestae evidence explaining

Officer Vanderhule’s thoughts and actions. We have said that “the Confrontation

Clause ‘does not bar the use of testimonial statements for purposes other than

establishing the truth of the matter asserted.’” State v. Johnson, 2009 S.D. 67, ¶ 23,

771 N.W.2d 360, 269 (quoting Crawford v. Washington, 541 U.S. 36, 124 S. Ct.

1354, 158 L. Ed. 2d 177 (2004)). Therefore, “[w]hen out-of-court statements are not

offered to prove the truth of the matter asserted, the Confrontation Clause is

satisfied if the defendant had the opportunity to cross-examine the person repeating

the out-of-court statement.” Id. We have also said that the res gestae rule “permits

the admission of evidence that is ‘so blended or connected’ in that it ‘explains the

circumstances; or tends logically to prove any element of the crime charged.’” State

v. Wright, 2009 S.D. 51, ¶ 55, 768 N.W.2d 512, 531 (quoting State v. Owen, 2007

S.D. 21, ¶ 15, 729 N.W.2d 356, 363). The evidence is admissible even though it

sometimes implicates the defendant in other acts. See United States v. LaDue, 561

F.3d 855, 858 (8th Cir. 2009).

[¶15.]       Here, the circuit court admitted out-of-court statements through

Officer Vanderhule’s testimony. The officer repeated the witnesses’ statements

made to him when testifying about his reason for arriving at the apartment complex

and his reason for approaching Kiir. Kiir had an opportunity to cross-examine

Officer Vanderhule about the statements made to him. From our review of Officer

Vanderhule’s testimony, the witnesses’ statements were inextricably intertwined

with the charged crime so as to constitute res gestae evidence and were not offered


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to prove the truth of the matter asserted. The statements explained why Officer

Vanderhule was at the apartment complex and why the officer engaged Kiir in

conversation. The witnesses’ statements also gave context to why Officer

Vanderhule exercised heightened caution during his interaction with Kiir. The

witnesses’ statements also informed the jury why Officer Vanderhule believed the

vehicle in the parking lot might be associated with Kiir. See, e.g., State v. Stark,

2011 S.D. 46, ¶ 26, 802 N.W.2d 165, 173 (information about an informant’s tip was

necessary for the jury to hear to give context in the case and explain why defendant

was being followed).

[¶16.]       Nonetheless, Kiir claims that the circumstances of this case are akin to

those in State v. Johnson, 2009 S.D. 67, 771 N.W.2d 360. In Johnson, we held that,

although an officer’s testimony about statements made to him properly gave context

to the circumstances, the State’s argument to the jury violated the defendant’s

Sixth Amendment right of confrontation. Id. ¶ 24. The State’s argument converted

the res gestae evidence to hearsay statements used to prove the truth of the matter

asserted—that the defendant sold the drugs because the declarant witness told the

detective that the defendant sold the drugs. Id. Here, however, the prosecutor did

not use the witnesses’ statements to prove the truth of the matters asserted. The

prosecutor did not argue that Kiir in fact pointed a gun at the witnesses when they

refused to buy the drugs offered. The prosecutor also did not argue that Kiir was in

fact an occupant in the vehicle. Instead, the prosecutor’s opening and closing

remarks aligned with Officer Vanderhule’s testimony giving context to the




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circumstances related to the crimes charged. The circuit court did not abuse its

discretion when it admitted the witnesses’ statements as res gestae evidence.

              2. Conviction of possession of a controlled substance while
                 armed with a firearm.

[¶17.]        Kiir argues that there is insufficient evidence to prove that he was

armed while possessing a controlled substance. He emphasizes that the gun was

found near the area he and Officer Vanderhule struggled but that the drugs were

found in a backpack in a vehicle in the parking lot away from any association with

Kiir. He argues that no evidence, circumstantial or otherwise, establishes that he

did anything other than merely possess a gun while also being in possession of a

controlled substance. Kiir did not move for a judgment of acquittal on this charge

at the conclusion of the case. He, however, asks this Court to invoke plain error

review. He claims that counsel’s failure to make “an argument that could have

prevented the allegation from going to the jury for deliberation is per se prejudicial

and proper for plain error consideration.”

[¶18.]        “Plain errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of a court.” SDCL 23A-44-15 (Rule

52(b)). To establish plain error, Kiir must show “(1) error, (2) that is plain, (3)

affecting substantial rights; and only then may this Court exercise its discretion to

notice the error if (4) it ‘seriously affects the fairness, integrity, or public reputation

of judicial proceedings.’” State v. Buchhold, 2007 S.D. 15, ¶ 22, 727 N.W.2d 816,

822 (quoting State v. Nelson, 1998 S.D. 124, ¶ 8, 587 N.W.2d 439, 443). “We invoke

our discretion under the plain error rule cautiously and only in ‘exceptional

circumstances.’” Nelson, 1998 S.D. 124, ¶ 8, 587 N.W.2d at 443 (quoting State v.

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Davi, 504 N.W.2d 844, 855 (S.D. 1983)). Also, as the party asserting the error, Kiir

bears the burden of proving that the error was prejudicial. Id. ¶ 7.

[¶19.]       In his brief to this Court, Kiir specifically asserts that error occurred

and that prejudice exists because the evidence is wholly insufficient to support the

verdict. But he also indirectly argues that prejudicial error occurred because his

trial counsel did not move for a judgment of acquittal on this charge, which would

have preserved Kiir’s argument against the sufficiency of the evidence on appeal.

We rarely consider a claim of ineffective assistance of counsel on direct appeal.

State v. Thomas, 2011 S.D. 15, ¶ 20, 796 N.W.2d 706, 713. This is because on direct

appeal, trial counsel is unable to explain or defend actions and strategies and give a

more complete picture of what occurred for our review. Id. ¶ 23. However, we have

recognized that this Court “may consider unpreserved issues in certain cases

involving claims of ineffective assistance of counsel.” Id. ¶ 20. We do so “only when

trial counsel was ‘so ineffective and counsel’s representation so casual as to

represent a manifest usurpation of the defendant’s constitutional rights.’” Id. ¶ 23

(quoting State v. Arabie, 2003 S.D. 57, ¶ 20, 663 N.W.2d 250, 256).

[¶20.]       To determine whether we should consider Kiir’s claim that counsel was

ineffective, we examine his conviction for possession of a controlled substance while

armed with a firearm. In State v. Chavez, we recognized that SDCL 22-14-12 is

“designed to discourage firearm use and decrease the probability of serious bodily

harm to felony victims.” 2002 S.D. 84, ¶ 13, 649 N.W.2d 586, 592 (quoting State v.

Simons, 313 N.W.2d 465, 467 (S.D. 1981)). “It is a gun control statute that

mandates additional punishment if a firearm is used in the perpetration of the


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predicate felony.” Simons, 313 N.W.2d at 467 (emphasis added). In our review of

the record, the evidence does not support that Kiir used or attempted to use a

firearm in the commission of his offense of possessing a controlled substance. No

officer testified that he or she observed Kiir use or attempt to use a gun while Kiir

possessed the drugs. Also, no other testifying witnesses claimed to have observed

Kiir use or attempt to use a gun while in possession of the drugs. See State v. Cook,

319 N.W.2d 809, 813 (S.D. 1982) (“The purpose of the statute . . . would not be

furthered by applying this statute to the situation before us.”).

[¶21.]       Because the evidence is lacking to support the jury’s guilty verdict on

the charge of possession of a controlled substance while armed with a firearm, had

Kiir’s trial counsel moved for a judgment of acquittal, the circuit court should have

granted it. This suggests, then, that trial counsel erred. But before we will review

Kiir’s claim of ineffective counsel on direct appeal, Kiir must establish that “trial

counsel was ‘so ineffective and counsel’s representation so casual’” that counsel’s

representation constituted “a manifest usurpation of the defendant’s constitutional

rights.” Thomas, 2011 S.D. 15, ¶ 23, 796 N.W.2d at 714 (quoting Arabie, 2003 S.D.

57, ¶ 20, 663 N.W.2d at 256).

[¶22.]       We consistently state that “[t]he preferable means to consider

incompetent counsel claims is through habeas corpus proceedings.” State v.

Petersen, 515 N.W.2d 687, 688 (S.D. 1994) (quoting State v. Aliberti, 401 N.W.2d

729, 732 (S.D. 1987)). Indeed, it is through habeas that this Court may obtain a

more complete picture of what occurred for review. Thomas, 2011 S.D. 15, ¶ 23,

796 N.W.2d at 714. On this record, we are unable to obtain a complete picture to


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examine counsel’s reason for not moving for a judgment of acquittal. We, therefore,

decline to consider Kiir’s claim of ineffective assistance of counsel claim on direct

appeal.

[¶23.]       We also decline to invoke our plain error review under the

circumstances. The State indicted Kiir on two counts of violating SDCL 22-14-12—

committing or attempting to commit a felony armed with a firearm. The jury found

Kiir guilty on both counts, and as we conclude in the next issue, the evidence is

sufficient to support the jury’s verdict for Count 7. At the sentencing hearing,

however, the court indicated that it would sentence Kiir on only one of the offenses

under SDCL 22-14-12. The court said, “And between Counsel, is there any rhyme

or reason whether I pick . . . Count VI or VII among the firearms?” Both counsel for

the State and for Kiir responded that neither believed it made a difference. The

court then sentenced Kiir for Count 6 and imposed no sentence for the jury’s guilty

verdict for Count 7. To the court, it did not make a difference on which conviction it

sentenced Kiir—it intended to sentence Kiir to 10 years in prison. This does not

mean “we simply substitute the sentence imposed for Count 6 for a sentence on

Count 7” or that we “engage in the sentencing function, which is the exclusive

province of the trial court.” See Dissent ¶ 34. On the contrary, the question is

whether this case presents exceptional circumstances warranting this Court’s

discretion under plain error. See Henjum, 1996 S.D. 7, ¶ 14, 542 N.W.2d at 763.

Because the evidence supports that Kiir violated SDCL 22-14-12, and because Kiir

received one sentence for his crime under that statute, we decline to exercise our

discretion under plain error. See id.


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             3. Conviction of simple assault on a law enforcement officer
                while armed with a firearm.

[¶24.]       Kiir similarly asserts that the evidence is insufficient to support the

conviction for assaulting Officer Vanderhule while armed with a firearm. Kiir did

not move for a judgment of acquittal. He again asks us to invoke plain error review.

This we decline to do. There is no evidence of an error. See Buchhold, 2007 S.D. 15,

¶ 22, 727 N.W.2d at 822 (plain error review requires an error that is plain). Kiir

does not challenge the jury’s conclusion that he committed a simple assault against

Officer Vanderhule. And, when viewing the evidence in a light most favorable to

the jury’s verdict, the evidence at trial supports that Kiir attempted to use a firearm

against Officer Vanderhule’s efforts to restrain Kiir. State v. Pellegrino, 1998 S.D.

39, ¶ 20, 577 N.W.2d 590, 598 (we “accept that evidence, and the most favorable

inferences that can be fairly drawn therefrom, which will support the verdict”

(quoting State v. Hart, 1996 S.D. 17, ¶ 8, 544 N.W.2d 206, 208)).

[¶25.]       Nonetheless, the dissent suggests that we remand Count 7 to the

circuit court so that it may impose a sentence. On the contrary, whether this Court

can remand Count 7 to the circuit court for sentencing is not before us. Even so,

State v. Well, cited by the dissent, does not support remand in this case. 2000 S.D.

156, ¶ 25, 620 N.W.2d 192, 197. In Well, the defendant preserved his claimed error

by moving for a judgment of acquittal, and we concluded that the circuit court

should have granted the motion. We reversed the conviction for which the circuit

court had imposed no sentence and remanded for a possible reduction in sentence.

Here, on the other hand, Kiir did not preserve his error for our review, we are



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affirming Kiir’s conviction on Count 7, and Kiir did not request that he receive a

sentence for Count 7 had we reversed his conviction on Count 6.

             4. Conviction of possession of a controlled substance.

[¶26.]       Kiir claims there is insufficient evidence to support that he possessed a

controlled substance because the backpack containing methamphetamine was not

in Kiir’s possession, and the State offered no evidence that Kiir had knowledge of

the presence of the drugs. Kiir contends that the only way to link him to the drugs

would be to link him to the vehicle. He then argues that the State presented no

evidence associating him with the vehicle except the res gestae evidence from the

witness reporters.

[¶27.]       Kiir asserts that we are to review his argument de novo. But Kiir did

not move for a judgment of acquittal on this charge. Therefore, Kiir must establish

that he is entitled to plain error review. From our review, there is no error. The

evidence, viewed in the light most favorable to the prosecution, supports that a

“rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789,

61 L. Ed. 2d 560 (1979). We give “circumstantial and direct evidence equal weight,”

and recognize that “circumstantial evidence can be more reliable than direct

evidence.” State v. Laplante, 2002 S.D. 95, ¶ 32, 650 N.W.2d 305, 313. Here, the

State presented evidence of incriminating circumstances from which the jury could

infer Kiir’s knowledge of the presence of drugs in the backpack and the ability to

control them. Because this evidence and the reasonable inferences to be drawn

from the evidence sustain a rational theory of guilt, Kiir has failed to establish plain


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error. See State v. Guthrie, 2001 S.D. 61, ¶ 47, 627 N.W.2d 401, 420 (discussing the

standard on a claim of insufficient evidence).

[¶28.]       Affirmed.

[¶29.]       GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices,

concur.

[¶30.]       KERN, Justice, concurs in part and dissents in part.



KERN, Justice (concurring in part and dissenting in part).

[¶31.]       I concur in Issues 1, 3, and 4, but respectfully dissent on Issue 2. I

would notice the plain error and remand to the trial court to vacate the conviction

for Count 6 and sentence Kiir for the conviction on Count 7. I would do so for the

sake of judicial economy and because sustaining a conviction that is not supported

by the evidence affects the integrity of the justice system.

[¶32.]       Kiir was prejudiced by his counsel’s failure to move for a judgment of

acquittal on Count 6. “When a defendant challenges a conviction, the question is

whether there is a reasonable probability that, absent the errors, the factfinder

would have had a reasonable doubt respecting guilt.” Strickland v. Washington,

466 U.S. 668, 695, 104 S. Ct. 2052, 2068-69, 80 L. Ed. 2d 674 (1984); see also State v.

Thomas, 2011 S.D. 15, ¶ 28, 796 N.W.2d 706, 715. It is undisputed that there was

insufficient evidence to support the conviction on Count 6. And, absent counsel’s

error to move for a judgment of acquittal, no reasonable factfinder could have found

Kiir guilty on Count 6. Because the evidence is wholly lacking to support the jury’s

guilty verdict on Count 6, we need not wait for trial counsel to explain her actions or


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strategies in not moving for a judgment of acquittal. See Thomas, 2011 S.D. 15, ¶¶

23-25, 796 N.W.2d at 714. In fact, trial counsel specifically requested a judgment of

acquittal on other counts, and there is no conceivable strategic benefit in failing to

request a judgment of acquittal on this count. Kiir has met the high burden of

establishing on direct appeal that his trial counsel was ineffective.

[¶33.]       Further, the circumstances of this case constitute plain error. The

Eighth Circuit Court of Appeals has explained that “where it clearly appears in a

criminal case that a defendant has been convicted of an offense which the evidence

fails to show was committed, the error of submitting the case to the jury for

determination is so plain and vital that this court is at liberty to and will reverse

even in the absence of a proper motion and exception, not because the defendant

has a right to demand a reversal, but solely in the public interest and to guard

against injustice.” Cox v. United States, 96 F.2d 41, 43 (8th Cir. 1938). I agree with

the Eighth Circuit’s reasoning and would notice plain error in this case.

[¶34.]       The majority contends that there was no plain error in this case

because the trial court could have sentenced Kiir on either Count 6 or Count 7.

Kiir’s convictions on Counts 6 and 7 were for violating SDCL 22-14-12. That statute

provides:

             Any person who commits or attempts to commit any felony while
             armed with a firearm, including a machine gun or short
             shotgun, is guilty of a Class 2 felony for the first conviction. A
             second or subsequent conviction is a Class 1 felony. The
             sentence imposed for a first conviction under this section shall
             carry a minimum sentence of imprisonment in the state
             penitentiary of five years. In case of a second or subsequent
             conviction under this section such person shall be sentenced to a
             minimum imprisonment of ten years in the penitentiary.


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               Any sentence imposed under this section shall be consecutive to
               any other sentences imposed for a violation of the principal
               felony. The court may not place on probation, suspend the
               execution of the sentence, or suspend the imposition of the
               sentence of any person convicted of a violation of this section.

Although the trial court only sentenced Kiir on Count 6, it sentenced him to ten

years imprisonment with the sentence to run consecutively to Kiir’s other

sentences. 1 The majority proposes by implication that we simply substitute the

sentence imposed for Count 6 for a sentence on Count 7. The majority’s approach is

problematic because this Court does not engage in the sentencing function, which is

the exclusive province of the trial court. Moreover, it is unclear what effect the

erroneous conviction on Count 6 may have had on the trial court’s sentencing

decision.

[¶35.]         In State v. Well, 2000 S.D. 156, 620 N.W.2d 192, the defendant was

convicted of both aggravated assault and abuse or cruelty to a minor. The trial

court sentenced him on the abuse conviction but did not impose a sentence for the

aggravated assault conviction. Id. ¶ 9, 620 N.W.2d at 194. On appeal, this Court

vacated the conviction for aggravated assault. Id. ¶ 25, 620 N.W.2d at 197. We

remanded to the trial court to determine whether “the improper conviction for

aggravated assault had any effect on the imposed sentence,” and if it did, to “make

an appropriate reduction in said sentence.” Id. Likewise, in this case, I would




1.       The court suspended three years of the sentence.


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remand to the trial court to determine whether the erroneous conviction on Count 6

would have any effect on a sentence imposed for Count 7. 2

[¶36.]         Kiir has made the rare showing on direct appeal of both ineffective

assistance of counsel and plain error. However, just as it is untenable that Kiir

should remain incarcerated on a conviction that was not supported by the evidence,

it is equally untenable that Kiir should go unpunished for the crime that he was

rightfully convicted of but no sentence was imposed. I would notice the plain error

and remand to the trial court to vacate the conviction for Count 6 and sentence Kiir

for the conviction on Count 7. Kiir’s continued incarceration on an erroneous and

prejudicial conviction and sentence while he applies for inevitable post-conviction

relief “seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” State v. Hayes, 2014 S.D. 72, ¶ 25, 855 N.W.2d 668, 675 (setting forth

the required showing for plain error).




2.       The Double Jeopardy Clause is not implicated by remanding this case for
         sentencing on Count 7. The Double Jeopardy Clause “is written in terms of
         potential or risk of trial and conviction, not punishment.” Schiro v. Farley,
         510 U.S. 222, 231, 114 S. Ct. 783, 790, 127 L. Ed. 2d 47 (1994) (quoting Price
         v. Georgia, 398 U.S. 323, 329, 90 S. Ct. 1757, 1761, 26 L. Ed. 2d 300 (1970)).
         “The pronouncement of sentence simply does not ‘have the qualities of
         constitutional finality that attend an acquittal.’” Monge v. California, 524
         U.S. 721, 729, 118 S. Ct. 2246, 2251, 141 L. Ed. 2d 615 (1998) (quoting United
         States v. DiFrancesco, 449 U.S. 117, 134, 101 S. Ct. 426, 436, 66 L. Ed. 2d 328
         (1980)). As such, the general rule is “that double jeopardy principles have no
         application in the sentencing context.” Id. at 730.

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