APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN COUNTY, SOUTH DAKOTA HONORABLE SCOTT P. MYREN Judge.
The opinion of the court was delivered by: Konenkamp, Justice
CONSIDERED ON BRIEFS ON APRIL 27, 2009
[¶1.] In defendant's jury trial for aggravated assault, the victim testified that defendant fired a rifle at him when he was on her boyfriend's property. Defendant and her boyfriend, on the other hand, testified that defendant never shot at the victim, that the victim was not on the property, and that defendant did not own a rifle. Defendant appeals her conviction on several grounds. We affirm.
[¶2.] Delton Hitchcock and his girlfriend, Dawn Shepard (defendant), lived on Hitchcock's farm near the Huntersville Hutterite Colony. Hitchcock and defendant claimed that young men from the colony had been causing problems on the farm, including damaging property and killing cats. Learning of these complaints, Glenn Wipf, a young man from the colony, went to Hitchcock's farm on April 20, 2005, to tell Hitchcock and defendant that he was not the one causing the problems. While at the residence, according to Wipf, defendant fired a .22 caliber rifle in the air. He also said that defendant shot around his feet while Hitchcock stood next to her. Unharmed, Wipf walked back to his pickup and returned home.
[¶3.] Before Wipf arrived back at the colony, George Waldner, the colony leader, received a call from defendant. According to Waldner, defendant was talking so frantically that he could not understand all she said. Waldner did hear defendant say, "I shot at Glenn." But he could not discern whether she said, "I missed him" or something else. When defendant hung up on Waldner, he tried calling her back, but the phone was busy and remained busy. Waldner spoke with Wipf about the shooting once Wipf arrived at the colony. Wipf also spoke with his father. Neither Wipf nor Waldner reported the incident to any law enforcement agency.
[¶4.] At some point after the shooting, Hitchcock made an appointment to talk to Waldner. Hitchcock was late for his appointment and, according to Waldner, when Hitchcock arrived he claimed that he was late because he had to calm defendant down after the shooting. Hitchcock left the meeting with no resolution. Thereafter, defendant and Hitchcock complained to the Brown County Sheriff's Department about the young men from the colony causing problems at the farm. A sheriff's deputy, Gary Bunt, went to the Hitchcock farm to investigate. Hitchcock and defendant told Deputy Bunt about all the acts they thought the young men were committing. They did not mention to the deputy any shooting at Wipf.
[¶5.] After leaving the Hitchcock residence, Deputy Bunt went to the colony to inquire further. He spoke with Waldner. Waldner told Deputy Bunt about the shooting. Deputy Bunt had no prior knowledge of what Waldner was talking about and asked for additional details. While he was at the colony, the deputy then began an investigation of the shooting. He spoke with Wipf and examined Wipf's shoe. The deputy noticed some metal material in the back sole of one boot and took the boots as evidence.
[¶6.] After speaking with Waldner and Wipf, Deputy Bunt left the colony to speak with Hitchcock and defendant about the shooting. Hitchcock denied having any knowledge of a shooting. He also would not allow Deputy Bunt to speak with defendant without a warrant. A warrant was obtained and a search conducted on the property. During the search, law enforcement officers found no rifle, but did find three spent .22 caliber rifle shells. Defendant told law enforcement officers that Wipf had not been there, she had not shot at him, and owned no .22 caliber rifle. Defendant was arrested and charged with aggravated assault in violation of SDCL 22-18-1.1(5).
[¶7.] During the jury trial, Deputy Bunt, defendant, Hitchcock, Waldner, Wipf, and Wipf's father testified, among others. Over defendant's objection, Waldner was permitted to testify about what Wipf said to him when Wipf returned to the colony after the shooting. Defendant also challenged the chain of custody for the metal fragments removed from Wipf's boot. Deputy David Fair had taken the metal fragments to the State Crime Lab in Pierre by delivering them there himself. The fragments were in three bags, all placed into a larger bag. After the State's forensic expert, David Lindman, tested the fragments, Deputy Fair testified that he personally repackaged the fragments because of a concern about moisture damage. In order to repackage the evidence, Deputy Fair cut the evidence tape with Lindman's initials. He removed the evidence from the three smaller plastic bags Lindman had placed them in and relocated them to three smaller manila envelopes. The three smaller manila envelopes were put into one larger envelope. At trial, the deputy admitted that his repackaging was an error. Defense expert, Larry Dehus, testified that there was an evidentiary "disconnect," causing a lack of a continuing chain of custody. The State argued that the chain of custody was sufficient because no tampering had been shown. The circuit court agreed and admitted the evidence.
[¶8.] At the close of the case, and after the court denied defendant's motion for a judgment of acquittal, the jury returned a guilty verdict and defendant was sentenced. Defendant filed her notice of appeal on November 22, 2006. On March 5, 2007, she moved this Court for a remand, which was granted on April 17, 2007. The remand order allowed the circuit court to consider an assessment of costs issue and defendant's motion for a new trial based on newly discovered evidence. On August 27, 2007, defendant moved for a new trial and for assessment of costs. Defendant claimed that certain newly discovered evidence, Lindman's bill submitted to the State after the trial for his services as an expert, proved that Lindman did not examine the metal fragments in Wipf's shoe. The court denied defendant's motion for a new trial, concluding that the evidence was merely impeaching, and therefore, not adequate grounds for a new trial.
[¶9.] Defendant appeals on grounds that the court abused its discretion when it (1) denied her objection to the chain of custody for the metal fragments, (2) allowed Waldner's hearsay statements, and (3) failed to grant her motion for a new trial. Defendant further contends that there is insufficient evidence to sustain the verdict.*fn1
[¶10.] When Deputy Fair tore open the evidence packages, sealed with Lindman's signature, he weakened the chain of custody for those pieces of evidence. Lindman testified that he always marks evidence packaging on the seal so he knows that the evidence contained therein is the exact evidence he tested. With his signature seal being broken, and the packaging changed,Lindman could only testify that the evidence appeared to be the same. Lindman did, however, provide rebuttal deposition testimony clarifying that, based on the explanation he received regarding Deputy Fair's repackaging, he could state with certainty that the evidence was the same. Deputy Fair was able to locate the three smaller plastic bags from which he had taken the evidence. These bags were shown to Lindman during his deposition. Lindman recognized ...