#27447, #27448-a-SLZ

2016 S.D. 19

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                    ****

STATE OF SOUTH DAKOTA,                       Plaintiff and Appellee,

      v.

ROCKY THOMAS TRAVERSIE,                      Defendant and Appellant.

                                    ****

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

                                    ****

                    THE HONORABLE SUSAN M. SABERS
                               Judge

                                    ****

MARTY J. JACKLEY
Attorney General

JARED TIDEMANN
Assistant Attorney General
Pierre, South Dakota                         Attorneys for plaintiff
                                             and appellee.


BEAU J. BLOUIN
Minnehaha County
 Public Defenders Office
Sioux Falls, South Dakota                    Attorneys for defendant
                                             and appellant.

                                    ****

                                             CONSIDERED ON BRIEFS
                                             ON FEBRUARY 16, 2016
                                             OPINION FILED 03/09/16
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ZINTER, Justice

[¶1.]        A jury returned guilty verdicts against Rocky Traversie on six counts

of kidnapping in the first degree, eleven counts of aggravated assault, possession of

methamphetamine, and possession of methamphetamine with intent to distribute.

The circuit court entered a judgment of conviction and sentence on six of the counts,

and Traversie appeals. We affirm.

                          Facts and Procedural History

[¶2.]        On February 5, 2014, Sioux Falls Metro Communications received a

911 call from a woman requesting assistance. Police would later identify the

woman as Tanya Ross. Tanya told the dispatcher that “we are being held hostage

by a family member, please come.” The call disconnected and a second 911 call was

received a few moments later from Michelle Miller. Miller stated that her neighbors

“came pounding on my door, they say they need the cops, I don’t know what is going

on.” The evidence reflects that Tanya and her son, C.D.R., were at Miller’s door

asking her to call the police. When asked by the dispatcher what was going on,

Miller responded, “The brother is going crazy[.]” Miller also told the dispatcher that

“the brother” was Rocky Traversie.

[¶3.]        C.D.R. then spoke to the dispatcher. He told the dispatcher that

Traversie threatened to kill them. C.D.R. also indicated that Traversie “just came

inside after he heard us call the police on him, and me and my mom just jumped out

a window.” C.D.R. indicated that Traversie was still in their residence with

C.D.R.’s grandmother and three other children. He stated that his grandmother

was “still trapped down there with [Traversie].” C.D.R. indicated that Traversie


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was high on methamphetamine. He also indicated that Traversie struck Tanya on

the head and struck C.D.R.’s grandmother on the leg with a brick. While C.D.R was

on the phone, Miller and Tanya watched outside because Tanya was afraid that

Traversie might follow them. They believed Traversie left because his vehicle was

no longer parked at the apartment complex.

[¶4.]         Police Officers Starr and Hanisch were the first law enforcement

officers to arrive. Officer Hanisch made contact with C.D.R.’s grandmother, Diana

Ross, who is Traversie’s mother. C.D.R. was with Diana, and C.D.R. confirmed that

Traversie struck Diana with a brick.

[¶5.]         While this conversation was occurring, a third officer, Officer

Dunteman, observed that a vehicle matching the description of Traversie’s had

returned to the parking lot of the apartment complex. When Officer Starr located

Traversie and informed him that he would be detained, Traversie punched Officer

Starr in the face. Moments later, Traversie punched Officer Dunteman in the face,

forcing him to the ground. With these officers temporarily incapacitated, Traversie

delivered a series of punches to the face and body of Officer Hanisch. Traversie was

subdued after more officers arrived. During his arrest, several baggies containing

methamphetamine were found on Traversie’s person. The baggies contained three

incremental amounts of methamphetamine, consistent with amounts that are

typically sold.

[¶6.]         In Traversie’s subsequent trial, he proposed a jury instruction on

kidnapping. The instruction provided definitional detail to the rule that kidnapping

cannot occur if the confinement or restraint is only incidental to another crime. The


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circuit court denied the instruction, concluding that there was no evidence the

assaults were only incidental to the kidnapping. The court explained that the

assaults took place in a relatively short period of time compared to the total time of

the confinement.

[¶7.]        The court sentenced Traversie to three concurrent fifty-year

penitentiary terms for the aggravated assaults of the law enforcement officers. The

court imposed two concurrent ten-year sentences for the kidnapping of Diana and

Tanya Ross. The court imposed a five-year sentence for the aggravated assault of

Tanya. Traversie was not sentenced on the remaining counts. The concurrent

sentences on each type of offense were to be served consecutively, resulting in a

sixty-five year sentence.

[¶8.]        On appeal, Traversie challenges his conviction and subsequent

sentence, raising the following issues:

             1.     Whether there was sufficient evidence to convict on the
                    kidnapping charges.

             2.     Whether the circuit court erred in refusing to give
                    Traversie’s proposed jury instruction on kidnapping.

             3.     Whether there was sufficient evidence to convict on the
                    aggravated assault charges involving the police officers.

             4.     Whether there was sufficient evidence to convict on the
                    possession with intent to distribute methamphetamine
                    charge.

             5.     Whether the circuit court’s sentence was cruel and
                    unusual in violation of the Eighth Amendment to the
                    United States Constitution.




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                                         Decision

                        Sufficiency of the Evidence—Kidnapping

[¶9.]          Traversie argues that the circuit court should have granted his motion

for judgment of acquittal because there was insufficient evidence to establish

kidnapping. We review the denial of a motion for acquittal de novo. State v. Brim,

2010 S.D. 74, ¶ 6, 789 N.W.2d 80, 83. “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.” State v. Fasthorse, 2009 S.D. 106, ¶ 6, 776

N.W.2d 233, 236 (internal quotation marks omitted). “[W]e accept the evidence and

the most favorable inferences fairly drawn therefrom, which will support the

verdict.” Brim, 2010 S.D. 74, ¶ 6, 789 N.W.2d at 83. “[T]he jury is the exclusive

judge of the credibility of the witnesses and the weight of the evidence[,]” and this

Court “will not resolve conflicts in the evidence, assess the credibility of witnesses,

or evaluate the weight of the evidence.” Id.

[¶10.]         Traversie was convicted of first-degree kidnapping under SDCL 22-19-

1. That statute proscribes “unlawfully confining another person for a substantial

period of time . . . [t]o inflict bodily injury on or to terrorize the victim or another[.]”

Id. Traversie argues that the elements of the statute were not met because any

confinement that occurred in this case was merely incidental to the crime of

assault. 1 Traversie relies on State v. Reiman, 284 N.W.2d 860 (S.D. 1979).



1.       Traversie also contends that insufficient evidence was presented suggesting
         that the family members had been confined within their own home. We
         reject this contention out of hand. The evidence of confinement was
         overwhelming.

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Traversie correctly points out that under Reiman, kidnapping cannot occur if the

acts of confinement in the kidnapping are only incidental to another crime. Id. at

873. Thus, a defendant cannot be convicted of kidnapping where the only

confinement is the “restraint utilized . . . to complete the act of [the underlying

offense].” State v. Lykken, 484 N.W.2d 869, 876 (S.D. 1992); see also State v. Reyes,

2005 S.D. 46, ¶ 41, 695 N.W.2d 245, 258 (reciting what has come to be known as the

Reiman/Curtis test, which precludes a kidnapping conviction “where the only

restraint utilized was that necessary to complete [the underlying offense.]”).

[¶11.]         In this case, the court only entered judgment and sentence on the two

counts of kidnapping involving Traversie’s assault of Diana and Tanya with a brick.

Unlike the rape in Reiman, those physical assaults did not require any restraint.

Therefore, the confinement associated with the kidnappings was not incidental to

the assaults. Moreover, even under Traversie’s version of the evidence, 2 the

confinement that occurred greatly exceeded the period necessary to strike Diana

and Tanya with bricks. The evidence was sufficient to support the convictions for

kidnapping Diana and Tanya Ross.

                          Traversie’s Proposed Jury Instruction

[¶12.]         Traversie argues that the circuit court erred in refusing to give his

proposed jury instruction on kidnapping. 3 “[J]ury instructions are adequate when,




2.       In his appellate brief, Traversie concedes that the confinement involved a
         period of “less than forty-five minutes, and likely less than thirty minutes.”

3.       The proposed jury instruction provided:
               Any person who
                                                                        (continued . . .)
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considered as a whole, they give a full and correct statement of the law applicable to

the case.” State v. St. Cloud, 465 N.W.2d 177, 181-82 (S.D. 1991). “[A] trial court

need not instruct on matters that find no support in the evidence.” State v. Huber,

356 N.W.2d 468, 474 (S.D. 1984).

[¶13.]       The circuit court did not abuse its discretion in refusing to give

Traversie’s proposed instruction on kidnapping. Kidnapping requires confinement

of another person for a “substantial period of time,” SDCL 22-19-1, and a jury

instruction setting forth the two-prong Reiman/Curtis test is warranted only where

the kidnapping is “incidental” to the underlying crime, St. Cloud, 465 N.W.2d at

181. Traversie’s proposed instruction would have defined the substantial (rather

than incidental) period as “such time period being separate from the commission of

any other crime . . . .” See supra n.3. The circuit court declined to give the

instruction partly because the assaults happened in substantially less time than the

period the family was confined. We agree with the circuit court. As previously

noted, the assaults took place instantaneously as Tanya and Diana were struck

with bricks. Given the nature of these two assaults, and given the length of the

undisputed part of the confinement, see supra n.2, Traversie’s proposed instruction

had no support in the evidence.


_________________________________
(. . . continued)
                  1. Unlawfully confines another person for a substantial
                  period of time, such time period being separate from the
                  commission of any other crime, and such confinement
                  being more than minimal or movement within the same
                  premises;
                    2. to inflict bodily injury on or to terrorize the victim of
                    another is guilty of the crime of kidnapping.

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                      Sufficiency of the Evidence—Other Convictions

[¶14.]       Traversie argues that the evidence was insufficient to convict on

aggravated assault (on the police officers) and possession of methamphetamine with

intent to distribute. However, Traversie did not make a motion for judgment of

acquittal on these charges. Because sufficiency of the evidence on these charges

was not raised below, it is waived for consideration on appeal. See State v. Gard,

2007 S.D. 117, ¶ 33, 742 N.W.2d 257, 264 (refusing to consider a defendant’s

argument that the circuit court erred by not dismissing charges when a motion was

not made at trial).

                             Cruel and Unusual Punishment

[¶15.]       Traversie argues that his sentence was cruel and unusual in violation

of the Eighth Amendment. In reviewing whether a sentence violates the Eighth

Amendment, this Court first compares the sentence and offense for gross

disproportionality. State v. Chipps, 2016 S.D. 8, ¶ 38, ___ N.W.2d ___, ___. If the

threshold requirement of gross disproportionality is not met, the analysis under the

Eighth Amendment ends. Id.

[¶16.]       To determine whether a sentence is grossly disproportionate, we

examine “the gravity of the offense and the harshness of the penalty.” Id. (quoting

Solem v. Helm, 463 U.S. 277, 290-91, 103 S. Ct. 3001, 3010, 77 L. Ed. 2d 637

(1987)). “This comparison rarely ‘leads to an inference of gross disproportionality’

and typically marks the end of our review[.]” Id. (quoting State v. Garreau, 2015

S.D. 36, ¶ 9, 864 N.W.2d 771, 774). The Supreme Court has suggested some factors

to consider when judging the gravity of an offense, such as violent versus non-


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violent crimes, value of goods stolen, and the level of intent required. Id. ¶ 35

(citing Helm, 463 U.S. at 292-94, 103 S. Ct. at 3011). “[O]ther conduct relevant to

the crime” and sentence enhancements due to recidivism are also relevant

considerations. Id. ¶ 40 (quoting Garreau, 2015 S.D. 36, ¶ 12, 864 N.W.2d at 776).

When considering the harshness of the penalty, we examine the penalty’s “relative

position on the spectrum of all permitted punishments.” Id. ¶ 35. There is a clear

distinction between capital and non-capital punishments, and prison sentences are

judged by degree. Id. ¶ 37 (citing Helm, 463 U.S. at 294, 103 S. Ct. at 3012).

[¶17.]       In this case, Traversie was convicted of numerous serious offenses; i.e.

two counts of kidnapping and four counts of aggravated assault (three assaults

against police officers and one assault against Tanya). These were violent crimes,

officer assaults are especially egregious, and the officer assaults caused some

serious injuries. Traversie also used a brick as a weapon in his assault of Tanya.

The gravity of these offenses is magnified by the fact that Traversie was previously

convicted of aggravated assault and was therefore convicted as a habitual offender.

Although kidnapping and assault are not capital offenses, they are very serious and

often warrant severe penalties.

[¶18.]       With respect to the harshness of the penalties, kidnapping is a Class C

felony. SDCL 22-19-1. Therefore, Traversie faced life imprisonment on each of the

six kidnapping counts. However, he was not sentenced on four of the kidnapping

counts, and he received two concurrent ten-year sentences on the other two counts.

A ten-year prison sentence for two kidnapping convictions is not disproportionately

harsh when considering the gravity of the crime of kidnapping.


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[¶19.]       We reach the same conclusion on Traversie’s aggravated assault

convictions. Aggravated assault on a law enforcement officer is a Class 2 felony, but

Traversie’s convictions were enhanced to Class 1 felonies due to his habitual

offender status. Thus, each aggravated assault count on law enforcement carried a

maximum penalty of fifty years imprisonment, or a total of 150 years. Although

Traversie received a maximum fifty-year sentence for each of the assaults on the

officers, the sentences were imposed concurrently, thus totaling fifty years.

Additionally, the five-year sentence for Tanya was a relatively short term

considering all potential punishments. Considering the seriousness of his offenses

and the potential harshness of the penalties, these sentences were not grossly

disproportionate. Traversie’s sentences did not violate the Eighth Amendment.

[¶20.]       Affirmed.

[¶21.]       GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN,

Justices, concur.




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