#25271-rev & rem-JKK

2010 SD 58

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                   * * * *

STATE OF SOUTH DAKOTA,                          Plaintiff and Appellant,

v.

TRENT DANIELSON,                                Defendant and Appellee.

                                   * * * *

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

                                   * * * *

                       HONORABLE RANDALL L. MACY
                                 Judge

                                   * * * *

JOHN H. FITZGERALD
Lawrence County State’s Attorney                Attorney for plaintiff
Deadwood, South Dakota                          and appellant.

JOHN R. FREDERICKSON
FRANCY E. FORAL of
Frederickson Law Office, P.C.                   Attorneys for defendant
Deadwood, South Dakota                          and appellee.

                                   * * * *

                                             ARGUED MARCH 23, 2010
                                             REASSIGNED MAY 20, 2010

                                             OPINION FILED 07/14/10
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KONENKAMP, Justice (on reassignment).

[¶1.]         This case requires us to decide whether a defendant, acquitted of grand

theft, may be prosecuted for perjury on his trial testimony if the issue in the

pending perjury trial was raised in the former trial. In dismissing the perjury

charge on double jeopardy grounds, the circuit court reasoned that defendant’s

truthfulness on whether he fixed a 1950 Studebaker had been litigated as an

essential issue in the former case. But the question is whether the jury verdict in

the former case necessarily decided the issue to be determined in the perjury trial.

Because the jury’s acquittal could have been based on grounds other than accepting

as true defendant’s allegedly false statements about fixing the Studebaker, we

reverse and remand.

                                     Background

[¶2.]         In 2003, Rocket Lube of Spearfish, South Dakota, hired Trent

Danielson. He worked there both as a mechanic and auto painter until he was fired

in September 2006. Rocket Lube reported to the police that Danielson had stolen

auto parts and had failed to remit checks for work done on a customer’s vehicle. All

the checks were from Dr. Tom Cox for mechanical work Danielson performed.

[¶3.]         Danielson was indicted on one count of grand theft under SDCL 22-

30A-1 and SDCL 22-30A-17. An amended bill of particulars listed all the parts and

money Danielson allegedly stole. 1 In the jury trial, the State presented evidence



1.      The bill of particulars alleged that the following transactions formed the
        basis of the charge: seven checks written by Dr. Cox that were given to
        defendant; an invoice for a Jeep oil pan; a throttle body injector system for a
        1957 Willys; sensors for a 1949 Chevy; sensors for a 1957 Willys; an invoice
                                                                     (continued . . .)
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that the checks Danielson obtained from Dr. Cox were property of Rocket Lube.

Danielson claimed that he and Dr. Cox had a private agreement, outside his

employment with Rocket Lube, to perform mechanical work on Dr. Cox’s vehicles.

Danielson testified that the arrangement with Dr. Cox resulted from a discussion

where Dr. Cox told Danielson he felt Rocket Lube was taking advantage of him.

According to Danielson, Dr. Cox asked him if he would work on Dr. Cox’s vehicles in

his spare time to save expenses. Danielson agreed, doing the work on his own time,

at his father’s house. Dr. Cox also testified. While he agreed that he felt he was

being overcharged by Rocket Lube, he claimed that he thought Danielson was

acting as an agent for Rocket Lube when performing the work on his vehicles.

[¶4.]        The jury found Danielson not guilty of grand theft. Shortly afterwards,

Danielson was indicted on one count of perjury. The indictment alleged that during

Danielson’s grand theft jury trial he testified falsely by saying that “he had replaced

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

when no such work was actually done. Danielson moved to dismiss the indictment

as a violation of the prohibition against double jeopardy guaranteed by the South

Dakota and United States constitutions. See US Const amend V; SD Const art VI,

§9. Danielson argued that the State was collaterally estopped from prosecuting

him for perjury arising out of his jury trial in which he was acquitted. To



__________________
(. . . continued)
         for two U-joint repair kits; two invoices for spark plug wires; an invoice for an
         electronic fuel pump for a 1949 Chevy; an invoice for shocks and struts; two
         invoices for an Edelbrock carburetor for a 1957 Willys; an invoice for a timing
         light; and an invoice for silver paint for a 1957 Jeep.

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Danielson, the jury’s acquittal was a final determination that he had indeed

replaced the 1950 Studebaker transmission parts. The circuit court agreed and

dismissed the perjury charge.

                                Analysis and Decision

[¶5.]        In Danielson’s trial for grand theft, the issue before the jury was

whether he had taken money or property owed to his employer for work he

performed on his employer’s behalf. Danielson testified that he had an outside

agreement with Dr. Cox to perform mechanic’s work. He described his work on Dr.

Cox’s 1950 Studebaker, even offering photographs to prove that he performed the

claimed work. As a means of challenging Danielson’s credibility, the State called

expert witnesses to show that Danielson had not worked on the 1950 Studebaker.

In closing remarks, the prosecutor went so far as to say that the jurors “should find

him innocent” if they believed Danielson did the claimed work.

[¶6.]        Relying on the fact that work performed on the 1950 Studebaker was

disputed and that counsel for the State underscored this dispute in closing remarks,

Danielson maintains that when the jury acquitted him it concluded that he

performed the work on the 1950 Studebaker. But the State argues that it was not

necessary for the jury to determine whether Danielson did the work in order to

acquit him of grand theft.

[¶7.]        The Fifth Amendment of the United States Constitution and Article

Six of the South Dakota Constitution forbids placing a person in jeopardy twice for




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the same offense. US Const amend V; SD Const art VI §9. 2 In Ashe v. Swenson, the

United States Supreme Court held that the Fifth Amendment’s prohibition against

double jeopardy encompasses the doctrine of collateral estoppel. 397 US 436, 443,

90 SCt 1189, 1194, 25 LEd2d 469 (1970). Generally, the doctrine applies when an

issue of fact or law was actually litigated and determined by a final and valid

judgment, and the determination was essential to the judgment. Id. Collateral

estoppel in a criminal case applies when an “‘issue of ultimate fact has once been

determined by a valid and final judgment[.]’” State v. Flittie, 318 NW2d 346, 348

(SD 1982) (quoting Ashe, 397 US at 443, 90 SCt at 1194, 25 LEd2d 469).

Nonetheless, when “‘a rational jury could have grounded its verdict upon an issue

other than that which the defendant seeks to foreclose from consideration’”

collateral estoppel will not bar subsequent prosecution. Id.

[¶8.]         In cases like these, “courts have long struggled with the question of

when acquittal of a crime will bar the defendant’s subsequent prosecution for

perjury for testimony given in his own behalf at trial.” State v. DeSchepper, 231

NW2d 294, 297 (Minn 1975). “In almost every criminal prosecution resulting in

acquittal where the defendant has testified, it may be said that the jury passed on

the defendant’s credibility and found him truthful.” United States v. Nash, 447 F2d

1382, 1387 (4thCir 1971) (Winter, C.J., concurring specially). Yet “an acquittal does


2.      Because defendant has not asserted and we have not discerned “a basis to
        distinguish the protections afforded by the South Dakota Constitution from
        those provided in the federal constitution under the circumstances of this
        case, our analysis applies equally to both the state and federal constitutional
        provisions.” See State v. Deneui, 2009 SD 99, ¶12, 775 NW2d 221, 229
        (citation omitted).

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not constitute an automatic bar to a subsequent prosecution for perjury committed

during the earlier trial.” United States v. Ruhbayan, 325 F3d 197, 201-02 (4thCir

2003); United States v. Richard, 892 F2d 761, 763 (9thCir 1989). To conclude

otherwise “would encourage prevarication by saying that necessarily such a

defendant is immune from prosecution for perjury.” Nash, 447 F2d at 1387.

Therefore, “[u]nless the record of the prior proceeding affirmatively demonstrates

that an issue involved in the second trial was definitely determined in the former

trial, the possibility that it may have been does not prevent the relitigation of that

issue.” United States v. Haines, 485 F2d 564, 565 (7thCir 1973). 3

[¶9.]         We review de novo a circuit court’s dismissal of an indictment on

double jeopardy grounds. See United States v. Petty, 62 F3d 265, 267 (8thCir 1995).

The burden is “on defendant to demonstrate that the issue whose relitigation

[defendant] seeks to foreclose was actually decided in the first proceeding.” Dowling

v. United States, 493 US 342, 350, 110 SCt 668, 673, 107 LEd2d 708 (1990). While

Danielson’s work on the Studebaker was interrelated with the question whether

Danielson committed grand theft, a question possibly addressed by the jury, there is

no indication that the jury was bound to decide that Danielson performed the work

on the Studebaker in order to acquit him.



3.      See also United States v. Baugus, 761 F2d 506 (8thCir 1985) (perjury
        prosecution not precluded by collateral estoppel rule in double jeopardy
        clause); United States v. Gugliaro, 501 F2d 68 (2dCir 1974) (same); Adams v.
        United States, 287 F2d 701 (5thCir 1961) (same); United States v.
        Woodward, 482 FSupp 953 (WDPa 1979) (same); State v. Hope, 577 A2d 1000
        (Conn 1990) (collateral estoppel barred subsequent prosecution for aiding and
        abetting); Dixon v. State, 513 So2d 951 (Miss 1987) (subsequent prosecution
        for kidnapping barred by collateral estoppel).

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[¶10.]         That a fact may have been determined in the former trial is not

enough; only an unequivocal showing that the issue sought to be foreclosed by the

defendant was definitely and necessarily decided by the jury will suffice to prohibit

the prosecution from relitigating that issue in a second trial. United States v.

Marino, 200 F3d 6, 10 (1stCir 1999). To convict Danielson of grand theft, the jury

had to find beyond a reasonable doubt that he took or exercised control over

“property” of Rocket Lube “with intent to deprive [it] of the property[.]” See SDCL

22-30A-1. In acquitting Danielson, the jury could have simply found that Danielson

had a side agreement with Dr. Cox to perform mechanical work and that

consequently Danielson did not deprive Rocket Lube of any checks or property.

[¶11.]         Merely because a point was sharply disputed before the jury does not

mean the issue was necessarily decided or that it was an ultimate issue of fact. Nor

does the State’s emphasis on the Studebaker during closing arguments mean

perforce that the jury was confined to determine guilt or innocence based on

whether it believed that Danielson worked on the Studebaker. Neither the formal

charge against Danielson nor the bill of particulars mentioned the 1950

Studebaker. 4 Considering the entire record, including the pleadings, evidence, and

instructions, Danielson has failed to satisfy his burden of demonstrating that the



4.       The charge against defendant alleged:
               That on or about the month of January 2005 through September
               2006, in the County of Lawrence, State of South Dakota, [Trent
               Danielson] did take or exercise control over property of another,
               pursuant to one scheme or course of conduct, namely, property
               of Rocket Lube, Spearfish, South Dakota, the value of which
               exceeds $1,000.00, with intent to deprive the owner of said
               property. Contrary to SDCL 22-30A-1 and 22-30A-17(1).

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#25271

jury’s not guilty verdict necessarily included an implicit factual finding that he

performed the work on the 1950 Studebaker. Simply put, the jury could have

acquitted him for reasons other than deciding whether he actually did that work.

See Ashe, 397 US at 444, 90 SCt at 1194, 25 LEd2d 469. Therefore, the circuit court

erred in barring the perjury prosecution.

[¶12.]       Reversed and remanded.

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

concur.

[¶14.]       MEIERHENRY, Justice, dissents.



MEIERHENRY, Justice (dissenting).

[¶15.]       I would affirm the circuit court because the State made Danielson’s

claim of repairing Dr. Cox’s 1950 Studebaker truck central to its case and necessary

for the jury’s verdict. The State charged Danielson of converting seven checks

belonging to Rocket Lube. The checks were payment for repairs to Dr. Cox’s

vehicles. Danielson claimed that he was entitled to the checks because of a side

agreement with Dr. Cox. The State attacked Danielson’s credibility by presenting

in its case-in-chief, Jake Jansevic, Rocket Lube’s manager, and Rich Parcels, a

mechanic, to testify that no work had been done on Dr. Cox’s Studebaker as

Danielson claimed.

[¶16.]       Danielson described his work on the Studebaker’s transmission to the

jury. He presented photographs of the transmission and clutch discs he claimed to

have replaced. Parcels and Jansevic disputed Danielson’s claim of repairing the


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#25271

transmission. Parcels claimed the transmission appeared untouched. He also

claimed that Danielson’s photos depicted discs that would not have fit the

transmission. Parcels concluded Danielson had not worked on the transmission.

Danielson explained that the reason the transmission did not appear recently

modified or opened was because of the way he accessed it. Danielson further

testified that the pictured transmission discs were interchangeable and capable of

being installed in the Studebaker’s transmission.

[¶17.]       The State’s theory of the case was that Danielson was getting “blank

checks from [Dr. Cox] for work as a Rocket Lube employee” and that “those checks

belonged to Rocket Lube.” The State argued during closing argument that its

witnesses established that “the transmission had no evidence of being opened up”

and that the clutch discs from the transmission were old. The State also stated that

Danielson’s contention that he performed work on the transmission was “not true.”

Finally, the State told the jurors that if they believed [Danielson’s] explanations,

“then [the jurors] should find him innocent.” This is exactly what the jury did on all

counts of theft. Because the State presented the case in this way, Danielson’s

credibility concerning whether he worked on the transmission was implicit in the

verdict.

[¶18.]       The United States Supreme Court in Ashe set forth the manner of

inquiry to guide courts in deciding when collateral estoppel applies in criminal

cases. 397 US at 444, 90 SCt at 1194. The rule “is not to be applied with the

hypertechnical and archaic approach of a 19th century pleading book, but with

realism and rationality.” Id. If the prior conviction is by a general verdict, a court


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is required “to ‘examine the record of a prior proceeding, taking into account the

pleadings, evidence, charge, and other relevant matter, and conclude whether a

rational jury could have grounded its verdict upon an issue other than that which

the defendant seeks to foreclose from consideration.’” Id. (citation omitted). A

court’s “inquiry ‘must be set in a practical frame and viewed with an eye to all the

circumstances of the proceedings.’” Id. (citation omitted). Ashe rejected technically

restrictive tests, especially “where the first judgment was based upon a general

verdict of acquittal” because “[a]ny test more technically restrictive would, of course,

simply amount to a rejection of the rule of collateral estoppel in criminal

proceedings, at least in every case where the first judgment was based upon a

general verdict of acquittal.” Id.

[¶19.]         In Flittie, this Court applied the dictates of Ashe, and stated that a

reviewing court’s main inquiry is “whether a rational jury could have grounded its

verdict upon an issue other than that which the defendant seeks to foreclose from

consideration.” 318 NW2d at 348 (quoting Ashe, 397 US at 444, 90 SCt at 1194).

The inquiry is a practical analysis of all the circumstances of the prior proceedings,

including “the pleadings, evidence, charge, and other relevant matter[s].”

Consequently, whether collateral estoppel bars a subsequent perjury prosecution

based on testimony from a prior case depends on the unique facts and proceedings

of the case.

[¶20.]         The Fourth Circuit Court of Appeals found double jeopardy applied in

a case with similar facts. United States v. Nash, 447 F2d 1382 (4thCir 1971). Nash

was tried for postal theft of “marked” coins from an envelope. Id. at 1383. Nash


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testified in her defense that she received the coins from a change machine. She was

acquitted. The government then brought a perjury charge based on her testimony

that she got the coins from the change machine. Id. at 1384. The government

conceded that Nash’s testimony was “highly material,” but argued that

“procurement or possession of the coins was not an element of the mail offense.” Id.

at 1384. At trial, the government presented evidence that the change machine

could not recycle marked coins. The jury found Nash guilty of perjury. On review,

the Fourth Circuit reversed the verdict on the basis of collateral estoppel. Relying

on the prescriptions set forth in Ashe, the court determined that “the jury in the

first case undoubtedly passed upon the believability of [] Nash’s statements made

under oath.” Id. at 1385.

             Of course, the Government did not have to prove that she had
             not obtained the coins as she explained, but it did have the
             burden of establishing that she had taken the letter containing
             the coins from the mail. The change machine explanation was
             part of her defense and had to be weighed by the jury.
             Consequently, it cannot have been simply a collateral issue.
             While she was under no obligation to prove that the coins had
             not come from the mail box, still when her story was adduced, it
             created a conflict with the Government’s proof. There were but
             two conflicting explanations of her possession to be considered.
             Thus, the jury ‘necessarily’ had to pass upon the truthfulness of
             her account. The issue was ‘crucial’ and once adjudicated, its
             redetermination in a trial for another offense is estopped.

Id.

[¶21.]       A comparable analysis applies here. The State did not have to prove

that Danielson failed to perform work on the transmission, but it did have to prove

that the checks and parts Danielson received belonged to Rocket Lube. The side

agreement with Dr. Cox was part of Danielson’s defense that he was in lawful


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possession of the checks. The jury had to weigh the truthfulness of his defense.

Consequently, the side agreement and whether he worked on the transmission were

not simply collateral issues. The jury had before it two conflicting explanations.

The jury “necessarily” had to pass upon the truthfulness of Danielson’s explanation.

Id. Therefore, Danielson’s credibility concerning whether he performed the work for

Dr. Cox was “crucial,” and the State should be collaterally estopped from retrying

that same issue in a subsequent perjury trial. Id.

[¶22.]       The circuit court correctly ruled in this case. The circuit court looked

at this in “a practical frame” with “an eye to all the circumstances of the

proceedings.” Ashe, 397 US at 444, 90 SCt at 1194. The question on appeal is

whether a rational jury could have decided this case without deciding whether

Danielson was telling the truth about working on the transmission. I would answer

this question in the negative because of the way the State tried the case. The

prosecutor told the jurors to base their decision on how they judged Danielson’s

credibility. The majority concludes that the jury could have disbelieved Danielson

and still found him not guilty of theft. This conclusion ignores the State’s

presentation of evidence and argument to the jury. The challenge to Danielson’s

credibility hinged on whether he was telling the truth about working on the

transmission. It is difficult to imagine how a rational jury would have returned a

not guilty verdict without finding Danielson credible. Consequently, I would affirm

the circuit court’s dismissal of the State’s perjury indictment.




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