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12/14/94 STATE SOUTH DAKOTA v. SCOTT SCHMIEDT

December 14, 1994

STATE OF SOUTH DAKOTA, PLAINTIFF AND APPELLEE,
v.
SCOTT SCHMIEDT, DEFENDANT AND APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT. DAVISON COUNTY, SOUTH DAKOTA. THE HONORABLE LEE D. ANDERSON, Judge.

Miller, Chief Justice, Wuest, Sabers, Amundson, and Konenkamp, Justices, participating.

PER CURIAM

ACTION

A jury convicted Scott Schmiedt (Schmiedt) of aggravated assault of Mitchell police officer Kessler. SDCL 22-18-1.1(5) (attempt by physical menace with a deadly weapon to put another in fear of imminent serious bodily harm). Schmiedt appeals his conviction alleging insufficiency of evidence and errors of law. We affirm.

FACTS

At 11:15 p.m. on July 1, 1993, Mitchell police were called to the Schmiedt home after Donna Schmiedt (Donna) telephoned them and reported that her husband, Schmiedt, had hit her and was planning to leave with their two-year-old son. Officer Pardy was the first to arrive.

As Officer Pardy approached the front door he could see Donna crying. He entered the home and began questioning Donna and Schmiedt. During the questioning he noticed two pistols on a table a foot behind where Schmiedt was sitting. Schmiedt asked Officer Pardy whether he saw what was behind Schmiedt. Officer Pardy said yes. Schmiedt said, "it makes you nervous, doesn't it?" When the officer replied yes, Schmiedt told him that it was supposed to.

Officer Appletoft arrived and heard Schmiedt "angrily" ask Officer Pardy whether he was nervous. Officer Appletoft did not know what Schmiedt was referring to, but he could tell that Officer Pardy was nervous. Officer Appletoft began speaking to Donna. When Officer Kessler arrived, Officer Appletoft took Donna outside.

Officer Kessler walked toward Officer Pardy's left side. As he did, he heard Schmiedt say "don't you guys come any closer" and "you are in my territory now." Schmiedt referred to a table three feet from himself. Officer Kessler looked and saw a single-action revolver and a double-action handgun on the table. Behind the cylinder of the double-action handgun he saw brass colored objects which he knew to be ammunition or the casing of ammunition.

Officer Pardy left to go outside to confer with Officer Appletoft. One minute later, Schmiedt "suddenly reached down and grabbed the double-action handgun that [had] the brass colored ammunition inside." Schmiedt started walking away from Officer Kessler to the kitchen. At that point Officer Kessler:

became very scared. I drew my handgun. I pointed it at him and began to yell, "put it down, put it down now," and I started backing up as quickly as I could to the front door of the house. I had no cover.

Schmiedt continued to casually walk toward the kitchen with the gun at his side. According to Officer Kessler, Schmiedt held the middle portion of the gun with his right hand with his fingers down and his thumb over the opposite side of the gun. His thumb was at the rear of the gun over the hammer.

From the tone of Officer Kessler's voice, Officer Appletoft could tell that what was happening in the house was not good. He drew his weapon, entered the front door, and collided with Officer Kessler who was backing out. He saw Schmiedt's "big gun." He and Officer Kessler continued to repeatedly tell Schmiedt to put the gun down.

Officer Pardy, who was outside, observed the scene through the picture window. He had his gun drawn because Schmiedt had control of the hammer of his weapon and could "slip right into the grip of the pistol."

Schmiedt continued to the refrigerator where he got a pack of cigarettes from the freezer. He turned and started toward Officers Appletoft and Kessler who were continuing to order him to put down the gun. He finally placed the gun on the counter with it pointing toward the officers.

Schmiedt refused Officer Appletoft's order to get up against the wall. Instead he started opening the cigarettes and told the officers "fuck you, go ahead and shoot me." As Officer Kessler went to secure the gun, Officer Pardy reholstered his weapon, walked past Officer Appletoft, forcibly took Schmiedt to the couch, and arrested him for the simple assault of his wife.

Schmiedt was charged by complaint with the simple assault of Donna and the aggravated assault of Officer Kessler. Following a preliminary hearing, he was bound over on the aggravated assault charge. The simple assault charge was dismissed without prejudice.

ISSUE ONE

WAS THE EVIDENCE SUFFICIENT TO SUPPORT SCHMIEDT'S CONVICTION OF THE AGGRAVATED ASSAULT OF OFFICER KESSLER UNDER SDCL 22-18-1.1(5)?

This court's method of evidentiary review is well-settled. In determining the sufficiency of evidence on appeal, the test is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt. In making this determination, this court must accept ...


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