#27461-a-JMK

2016 S.D. 79

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

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

      v.

BROOKE ALLISON SCHREMPP,                  Defendant and Appellant.


                                   ****

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

                                   ****

                     THE HONORABLE JONI M. CUTLER
                                Judge

                                   ****

MARTY J. JACKLEY
Attorney General

PATRICIA ARCHER
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.


JASON R. ADAMS of
Tschetter & Adams Law Office, PC
Sioux Falls, South Dakota                 Attorneys for defendant
                                          and appellant.

                                   ****

                                          CONSIDERED ON BRIEFS
                                          ON AUGUST 29, 2016

                                          OPINION FILED 11/22/16
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KERN, Justice

[¶1.]        Defendant was indicted for eight drug-related offenses in March 2014

and convicted of seven of the eight counts. On appeal, defendant contends she is

entitled to a new trial because the trial court erred by amending the indictment the

day prior to trial. Defendant also argues she was prejudiced when the trial court

failed to notify the parties of a jury question that arose during deliberations and

then answered the question without input from the parties. We affirm.

                                    Background

[¶2.]        Brooke Schrempp resided in Sioux Falls with her boyfriend,

Christopher Uhing. The residence was located within a drug-free zone. Sioux Falls

Area Drug Task Force Detective John Spaeth obtained a warrant for the search of

the home after receiving numerous tips and other information that the occupants

were dealing drugs. During the search of the home, officers found evidence of drug

use and distribution. The officers found more than a half pound of marijuana, drug

paraphernalia, pipes, digital scales, jeweler’s baggies, and other packaging

materials. Additionally the officers found equipment and supplies for a marijuana

growing operation. The officers also discovered items used to manufacture hashish.

Such supplies included capped tubes with holes drilled in the caps. One tube was

packed with marijuana. The search also produced 44 empty cans of butane and

large bags used to filter marijuana to make hashish.

[¶3.]        Later that day, Sioux Falls Police located Schrempp at her place of

employment and arrested her. Schrempp received and waived her Miranda rights

and told the police that she lived at the residence with her boyfriend Uhing. She


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stated that she liked to smoke marijuana and admitted that she was selling both

marijuana and hashish. During the interview Schrempp admitted that she had also

made hashish or “concentrate” and explained the process.

[¶4.]        At trial Detective Spaeth testified that the active ingredient in

marijuana is Tetrahydrocannabinol (THC). Detective Spaeth explained that one

method of making hashish involved packing marijuana into tubes and flushing

butane through the leaves causing a resin or wax like substance to come out of the

bottom of the tube. The resin is known as hashish. Hashish is also referred to by

the slang terms “honey oil,” “dab,” or “concentrate.”

[¶5.]        The State charged both Schrempp and Uhing as codefendants with

eight drug-related offenses: possession of one-half pound but under one pound of

marijuana (SDCL 22-42-6); possession with intent to distribute or dispense more

than one-half pound but less than one pound of marijuana (SDCL 22-42-7);

possession of a controlled substance, hashish (SDCL 22-42-5); possession of a

controlled substance, cocaine (SDCL 22-42-5); maintaining a place where drugs are

kept, sold, or used (SDCL 22-42-10); possession with intent to distribute or dispense

more than one-half pound but less than one pound of marijuana (SDCL 22-42-7) in

a drug-free zone (SDCL 22-42-19); possession with intent to manufacture controlled

substance, hashish (SDCL 22-42-2); and possession or use of drug paraphernalia,

digital scales (SDCL 22-42A-3). The case was scheduled for a three-day jury trial

beginning on February 4, 2015.

[¶6.]        The day before trial, the court held a pretrial motions hearing. At this

hearing, the State noted that it had corresponded with defense counsel about an


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amendment to the indictment. After receiving the chemist’s test results, the State

discovered that Counts 3 and 7 of the indictment should have referenced “Delta-9-

Tetrahydrocannabinol” instead of “hashish.” The State sought an amendment to

correct the language in these two counts. Schrempp did not object. With the

parties consent the trial court amended the counts by crossing out the word

“hashish” and adding “Delta-9-Tetrahydrocannabinol AKA Hashish” in the margins

along with the court’s initials and date.

[¶7.]        The case was submitted to the jury for resolution on February 6, 2015.

During deliberations, the jury submitted a written question to the court stating,

“Can we get the portion of Detective Spaeth’s testimony regarding [Schrempp’s]

initial interview after arrest?” The trial court did not notify the parties that a

question had been received from the jury. Instead, the court sent the jury the

preliminary jury instructions highlighting a portion of Instruction Number 4. The

highlighted portion read, “At the end of the trial, you must make your decision

based upon what you recall of the evidence. You will not have the written

transcript to consult, and the court reporter will not be required to read back

lengthy testimony. Therefore, you should pay close attention to the testimony as it

is presented.” After the jury reached a verdict, the trial court informed counsel on

the record of the question and the court’s method of answering the question.

Schrempp did not object to the action taken by the trial court.

[¶8.]        The jury convicted both Schrempp and Uhing on all counts with the

exception of Count 4. The court sentenced Schrempp for the seven offenses to a

combined total of 29 years in the South Dakota State Women’s Prison and 30 days


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in the Minnehaha county jail. However, the court suspended all but 6 years and 30

days of the prison sentence and ordered that Schrempp’s 30 day sentence in the

county jail be served concurrently.

[¶9.]          Schrempp appeals her conviction, arguing two issues:

               1.    Whether the trial court erred by amending the indictment
                     the day prior to trial.

               2.    Whether the trial court committed plain error by not
                     informing the parties of the jury’s question at the time it
                     occurred.

                                       Decision

[¶10.]         1.    Whether the trial court erred by amending the indictment the day
                     prior to trial.

[¶11.]         Schrempp contends that the trial court’s amendment of the indictment

constitutes reversible error. She argues that there was no evidence presented that

Delta-9-Tetrahydrocannabinol and hashish are the same substance; thus, the

amendment could have been confusing to the jury. 1 In response, the State contends

that Schrempp not only waived the issue, but “agreed with and acquiesced to the

very action she now challenges.” (Emphasis omitted.) It is undisputed that

Schrempp did not object to the trial court’s amendment during the motions hearing.

While this failure would normally waive consideration of the issue on appeal, State

v. Anderson, 1996 S.D. 46, ¶ 17, 546 N.W.2d 395, 400 (citing SDCL 23A-8-3(3)),



1.       SDCL 34-20B-1(9) defines hashish, as “the resin extracted from any part of
         any plant of the genus cannabis, commonly known as the marijuana plant.”
         Hashish is listed as a schedule I drug in SDCL 34-20B-14 (10).
         Tetrahydrocannabinol, other than that occurring “in marijuana in its natural
         and unaltered state,” is listed as a schedule I drug in SDCL 34-20B-(20)
         which subsection includes a number of other compounds.

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Schrempp argues that the issue is jurisdictional—namely that the court lacked

jurisdiction to make the amendments. Accordingly, Schrempp submits review is

proper as “jurisdictional defects may be raised for the first time on appeal.” State v.

Sanders, 2016 S.D. 32, ¶ 3, 878 N.W.2d 105, 107 (quoting State v. Neitge, 2000 S.D.

37, ¶ 9, 607 N.W.2d 258, 260). Schrempp alternatively argues that the question

could be reviewed under the plain error doctrine.

[¶12.]        Schrempp mistakenly conflates a court’s jurisdiction with a court’s

authority. The “elastic concept of jurisdiction” used by Schrempp “is not what the

term ‘jurisdiction’ means today, i.e., ‘the courts’ statutory or constitutional power to

adjudicate the case.’” United States v. Cotton, 535 U.S. 625, 630, 122 S. Ct. 1781,

1785, 152 L. Ed. 2d 860 (2002) (quoting Steel Co. v. Citizens for Better Env’t, 523

U.S. 83, 89, 118 S. Ct. 1003, 1010, 140 L. Ed. 2d 210 (1998)). Because a defective

indictment “does not affect the jurisdiction of the trial court to determine the case

presented by the indictment,” the United States Supreme Court “departed from . . .

[the] view that indictment defects are ‘jurisdictional.’” Id. at 631, 122 S. Ct. at 1781.

The proper question, then, is whether the court had authority to amend the

indictment.

[¶13.]        Because Schrempp failed to object to the amendment during the

motions hearing, we can only review for plain error. State v. Bowker, 2008 S.D. 61,

¶ 45, 754 N.W.2d 56, 69. Plain error review must be “applied cautiously and only in

exceptional circumstances.” State v. Beck, 2010 S.D. 52, ¶ 10, 785 N.W.2d 288, 293.

To establish plain error, an appellant must show “(1) error, (2) that is plain, (3)

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


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notice the error if (4) it seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.” State v. Buchhold, 2007 S.D. 15, ¶ 22, 727

N.W.2d 816, 822 (alteration in original). To establish that an error has affected

substantial rights, “the error must have been prejudicial: It must have affected the

outcome of the [circuit] court proceedings.” United States v. Olano, 507 U.S. 725,

734, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508 (1993). Additionally, “with plain error

analysis, the defendant bears the burden of showing the error was prejudicial.”

Beck, 2010 S.D. 52, ¶ 10, 785 N.W.2d at 293.

[¶14.]        Schrempp cites United States v. Sazenski in support of her argument

that circuit court judges are without authority to amend an indictment even with a

defendant’s consent. 833 F.2d 741, 743-44 (8th Cir. 1987) (citing United States v.

Norris, 281 U.S. 619, 623, 50 S. Ct. 424, 425, 74 L. Ed. 1076 (1930)). While it is true

as a general rule that courts may not amend indictments, “that rule is inapplicable

when the change is one of form only.” United States v. Mason, 869 F.2d. 414, 417

(8th Cir. 1989). Thus, the State argues that “where it was not a material change

and was a clarification as to form,” there is no plain error.

[¶15.]        We have previously addressed the question of the validity of an

amendment to an indictment. In State v. Anderson, we held that a “trial court has

no inherent authority to amend an indictment in any material respect,” but may

amend an indictment “as to matters of form.” 1996 S.D. 46, ¶ 11, 546 N.W.2d at

398. See also Cotton, 535 U.S. at 631, 122 S. Ct. at 1785 (holding courts have

authority to amend indictments if the amendment is one of form only). “An

indictment is sufficient if it ‘contains the elements of the offense charged such that


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it apprises the defendant with reasonable certainty of the accusations against him,

and it must enable him to plead an acquittal of conviction as a bar to future

prosecutions for the same offense.’” State v. Smith, 1999 S.D. 83, ¶ 25, 599 N.W.2d

344, 350 (quoting State v. Darby, 1996 S.D. 127, ¶ 8, 556 N.W.2d 311, 315). The test

for determining the sufficiency of an indictment is whether it employs the language

of the statute and enables a person of “common understanding to know what was

intended.” State v. Younger, 453 N.W.2d 834, 840 (S.D. 1990); see also State v.

Oster, 495 N.W.2d 305, 307 (S.D. 1993). We review the question of whether an

indictment is sufficient de novo. State v. Fisher, 2013 S.D. 23, ¶ 28, 828 N.W.2d

795, 803.

[¶16.]       The State argues that this case is similar to the North Carolina Court

of Appeals’ decision in State v. Brady, 557 S.E.2d 148, 151 (N.C. Ct. App. 2001). In

that case, the court amended the indictment during trial, switching the drug in

question from “Xanax” to “Percocet.” The court held that the change was not

substantive and that the defendant was not prejudiced by the change, even though

the two drugs were in different schedules. Id. The court emphasized that the

statute under which the prosecution charged the defendant remained the same and

that the indictment was sufficient. Id. We are presented with a similar situation.

[¶17.]       In this case, the trial court crossed out the word “hashish” and

replaced it with “Delta-9-Tetrahydrocannabinol aka hashish.” Erin McCaffrey, a

forensic analyst, testified that hashish is made by extracting the Delta-9-

Tetrahydrocannabinol either chemically or physically by heating the marijuana.

When asked by the prosecutor how she tested for “hashish or Delta-9-


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Tetrahydrocannabinol,” McCaffrey stated, “I usually physically observe it, look to

see under a microscope to see if I see any green plant material in it[.]” (Emphasis

added.) McCaffrey’s usage of the singular pronoun in this context indicates that she

would test for hashish or Delta-9-Tetrahydrocannabinol in the same way, which

would indicate that they are at least related substances.

[¶18.]       As in Brady, the charge in this case remained the same, the statute

remained the same, and the drugs are in the same schedule of controlled

substances. The two terms were used interchangeably during the trial. The jury

was correctly instructed as to the elements of the offenses of Counts 3 and 7 at trial.

In State v. Fisher, we reaffirmed that an indictment may be amended when it does

not change the elements of the offense. 2013 S.D. 23, ¶ 28 n.7, 828 N.W.2d 795, 803

n.7. Whether the drug in this case is technically known as hashish or by its

chemical compound Delta-9-Tetrahydrocannabinol, the name is not an essential

element of the offenses as both are controlled schedule I substances. See id.

[¶19.]       In light of these factors, the amendment made by the trial court was

simply one of form. As such, the error, even if conceded, did not affect Schrempp’s

substantial rights, as Schrempp cannot show that she was prejudiced by the

amendment. And “even assuming the error affected [Schrempp’s] substantial

rights, it did not seriously affect the fairness, integrity, or public reputation of

judicial proceedings.” Cotton, 535 U.S. at 633, 122 S. Ct. at 1786. Therefore, the

court did not commit plain error.

[¶20.]       2.     Whether the trial court committed plain error by not informing
                    the parties of the jury’s question at the time it occurred.



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[¶21.]        Schrempp concedes that she did not object to the court’s decision to

answer the jury’s question without informing her in advance and allowing her to

comment on the manner in which the question was answered. As the issue was not

preserved for appeal, Schrempp requests that we analyze her claim under the plain

error doctrine. State v. Hayes, 2014 S.D. 72, ¶ 25, 855 N.W.2d 668, 675.

[¶22.]        Until 2006, trial courts were specifically required to notify parties of

jury questions and to settle them in writing. Duda v. Phatty McGees, Inc., 2008

S.D. 115, ¶ 21, 758 N.W.2d 754, 760. The rule required that “[t]he court must

settle, in writing, pursuant to § 15-6-51(b), a response to a jury question sent out by

the jury during deliberations.” SDCL 15-6-51(c) (amended July 1, 2006). In 2006,

the rules were changed to mirror Federal Rule of Civil Procedure 51, removing the

requirement that the court explicitly inform the parties of the question and settle

the question in writing. 2 Duda, 2008 S.D. 115, ¶ 21, 758 N.W.2d at 760. However,




2.       The amended version of the rule provides:
              (1) A party who objects to an instruction or the failure to give an
              instruction must do so on the record, stating distinctly the
              matter objected to and the grounds of the objection.
              (2) An objection is timely if:
                     (A) a party that has been informed of an instruction or
                     action on a request before the jury is instructed and
                     before final jury arguments, as provided by § 15-6-
                     51(b)(1), objects at the opportunity for objection required
                     by § 15-6-51(b)(2); or
                     (B) a party that has not been informed of an instruction or
                     action on a request before the time for objection provided
                     under § 15-6-51(b)(2) objects promptly after learning that
                     the instruction or request will be, or has been, given or
                     refused.
                                                                     (continued . . .)
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as we cautioned in Duda, “it is still error even under the federal rule for a court to

answer jury questions without giving the parties notice and an opportunity to be

heard.” Id.; JAS Enters., Inc. v. BBS Enters., Inc., 2013 S.D. 54, ¶ 47, 835 N.W.2d

117, 130.

[¶23.]         This Court has previously addressed whether such an error warrants

reversal in the civil context, but we have not done so in a criminal case. See, e.g.,

Duda, 2008 S.D. 115, ¶ 21, 758 N.W.2d at 760. In Meeks v. United States, the

Eighth Circuit Court of Appeals addressed the question in the context of criminal

cases. 742 F.3d 841 (8th Cir. 2014). The court held that the trial court “must

provide defense counsel with a meaningful opportunity to object before responding

to questions asked by the jury after deliberations begin and ‘[c]ommunication

between judge and jury in the absence of and without notice to the defendant

creates a presumption of prejudice.’” Id. at 844 (quoting Stewart v. Nix, 972 F.2d

967, 971 (8th Cir. 1992)). However, a clear absence of prejudice dispels the

presumption. United States v. Anwar, 428 F.3d 1102, 1114 (8th Cir. 2005).

Additionally, a defendant does not have a right to be present for a jury question if

the court “merely repeats instructions it has already given[.]” Meeks, 742 F.3d at

844.

[¶24.]         The circumstances of this case present a clear absence of any prejudice

to Schrempp. It is undisputed that the trial court answered the jury’s question in

_________________________________
(. . . continued)
               IT IS FURTHER ORDERED that this rule shall become
               effective July 1, 2006.
         2006 S.D. Sess. Laws Ch. 324 § SCR 06-50.

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this case without informing the parties of the question or obtaining their input.

This was an error on the part of the trial court judge. However, because Schrempp

was given an opportunity to object and chose not to do so, she must now show that

the error seriously affected her substantial rights and the integrity of the

proceedings as required under plain error review. Buchhold, 2007 S.D. 15, ¶ 22,

727 N.W.2d at 822.

[¶25.]       Schrempp has failed to make the necessary showing. Had the court

informed the parties of the question, there is not a conceivable course of action

Schrempp could have taken that would have in any way altered the outcome. The

parties settled the jury instructions prior to trial. Preliminary Instruction number

4 informed the jury that they would not have a written transcript of the testimony

to consult. In response to the jury’s question, the court merely highlighted this

instruction and gave it to the jury. We have previously held that the decision

whether to provide further instruction to the jury rests in the sound discretion of

the trial court. State v. Holtry, 321 N.W.2d 530, 531 (S.D. 1982). Referring the jury

to instructions already given is not error. See Meeks, 742 F.3d at 844; State v.

Rhines, 1996 S.D. 55, ¶ 178, 548 N.W.2d 415, 454. Because of the content of the

question, it is unlikely that, even if the parties were properly noticed and given the

opportunity to be heard, the court would have given a significantly different answer.

Indeed, Schrempp has not proposed an alternative answer to the question. As such,

there is no prejudice, and the outcome of the proceedings was unaffected. See

Olano, 507 U.S. at 734, 113 S.Ct. at 1778.




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                                     Conclusion

[¶26.]         The trial court neither erred by making an amendment to the

indictment, nor can Schrempp show that her substantial rights were affected by the

amendment. Likewise, Schrempp has not established that, despite the court’s error

in not allowing the parties to participate in settlement of the answer to the jury’s

question, she was prejudiced or that the error affected the fairness of the

proceedings.

[¶27.]         Affirmed.

[¶28.]         GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and

WILBUR, Justices, concur.




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