APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT BUTTE COUNTY, SOUTH DAKOTA HONORABLE JOHN W. BASTIAN Judge.
The opinion of the court was delivered by: Gilbertson, Chief Justice
CONSIDERED ON BRIEFS ON APRIL 27, 2009
[¶1.] Defendant was convicted of aggravated assault based on the testimony of his co-perpetrators and an eye witness who placed him at the scene of the crime. On appeal, Defendant alleges the trial court erred when it did not permit him to impeach the eye witness who placed him at the scene after she testified consistently with her prior statements to police. Defendant also contends that there was insufficient evidence to support the conviction. Finally, Defendant argues that the trial court's use of an aiding and abetting instruction was without support in the evidence. We affirm.
[¶2.] On October 27, 2007, Justin Scott (Scott), Ivan Rosander (Rosander), and Ryan Ollerich (Ollerich) ended their day working cattle by having dinner in Belle Fourche, South Dakota. The three men then went to the Cowboy Back Bar for drinks where they met Libby Huber (Huber). Huber invited the men to a house party approximately two to three blocks from the bar. Huber, Scott, Rosander, and Ollerich along with Huber's friends Bobbi Satzinger (Bobbi) and her husband Jim Satzinger (Jim), and Dee Dee Farghali (Farghali) arrived at the house party a little after 2 a.m. They immediately recognized that they did not fit in with the others in attendance. The other attendees were later described as being "goths," as well as much younger than the late arrivals.*fn1 In addition, Scott and Ollerich were wearing cowboy hats that made them stand out in the crowd as being cowboy or rancher oriented.
[¶3.] At the party, words were exchanged between the "cowboys" and the "goths," and it appeared that a fight might break out due to the conflict between the two groups. Scott and Ollerich testified that they had remained at the front door most of the time they were at the party with Huber, the Satzingers, and Farghali due to their discomfort with the atmosphere and the prospect of a fight. Finally, the "goths" demanded the "cowboys" leave the party.
[¶4.] After the "cowboys" left the party, a small fire was discovered in the backyard, which the "goths" alleged the "cowboys" had started. Several of those in attendance at the party decided to pursue the "cowboys." Sean Richard Carter (Defendant) and another man, Courtney Rodriguez (Rodriguez), led the way as they and Orin Schulze (Orin) and his brother Jeffery Schulze (Jeffery) chased after Scott, Rosander, Ollerich, and Huber in order to confront them about the fire.
[¶5.] Jim and Bobbi Satzinger left at the same time as the others, but they stopped to visit with some acquaintances who lived nearby and who were out on their lawn. The rest of the "cowboy" group proceeded down Railroad Street toward the Cowboy Back Bar parking lot to get Huber's car. As Jim and Bobbi were visiting, Bobbi saw a group of about four or five people from the party run past her along the path taken by Scott, Rosander, Ollerich, and Huber. Among the pursuers, Bobbi saw a tall white man wearing a black t-shirt on which the word "Security" was printed in big white letters. Bobbi had noticed the man earlier that evening first at the Outlaw Bar where she had previously been and again later at the house party. She also noticed a short, Hispanic man wearing glasses among the group. Bobbi had also observed the Hispanic man become confrontational and belligerent with the "cowboys" at the house party, and she thought he was looking for an excuse to start a fight.
[¶6.] Soon after Bobbi noticed the men from the party running toward the Cowboy Back Bar and her friends, Scott heard someone shouting from behind him. Scott was walking with Rosander and was about 100 feet behind Ollerich and Huber in the vicinity of Railroad Street and 4th Street. Scott turned around and saw four figures he assumed were men closing in on him. Huber turned around at the time the attack began and saw a "large, tall, white person" involved in an assault on Scott as well as a "little short Hispanic person with glasses on and two other people" involved in assaulting Scott and Rosander. As Ollerich turned to look back at the assault, he saw a police cruiser in the adjacent alley, ran to it, and reported the fight. As the fight was dispersing, law enforcement arrived on the scene.
[¶7.] By this time, Bobbi had walked down toward the corner of Railroad Street to see what was happening. Before she reached the corner, she saw some of the individuals who had pursued the "cowboys" running back toward the house party. Bobbi noticed the short Hispanic man again, but did not see the tall white man in the "Security" t-shirt. Those returning to the house party were saying things like "that's what you get, that's what you get," and laughing. Bobbi returned to her husband and Farghali picked them up in her van and drove to the location of the fight to provide assistance.
[¶8.] After the assault ended, Rosander was unable to identify his attackers to the police. He was also not able to identify which of the attackers assaulted Scott. He was, however, able to describe Scott's injuries. Rosander noted that Scott's face and eyes were bloody and swollen, and that his leg was at a ninety degree angle at the ankle. Scott was face down in the street, conscious but unable to focus on what had happened, or provide any information about his condition or the attack.
[¶9.] Officers with the Belle Fourche Police Department arrived on the scene shortly after the attackers dispersed. Shortly before 4 a.m., police began looking for the men who had assaulted Scott and Rosander based on the descriptions provided at the scene. One of the suspects was reported to be wearing a camouflage jacket, and one was reported to be wearing a black t-shirt with the word "Security" printed on it in white letters. Several minutes after the fight, Officer William Earl (Earl) located three males walking approximately one- to one-and-half blocks away from the intersection where the fight occurred. Earl questioned the men as to whether they had any knowledge of the assault. One man, the Defendant, stopped to speak with Earl while the other two walked away from the encounter. Earl radioed to another officer to stop the pair and attempt to engage them in conversation.
[¶10.] Defendant was wearing a camouflage jacket with a black t-shirt. Earl immediately noticed that Defendant's t-shirt was inside out and he could see that something was printed on it. Earl asked Defendant to turn his shirt right side out and the word "Security" was visible in bold white lettering. There was no blood or other evidence of a fight visible on the t-shirt. Earl asked to see the Defendant's hands, which he determined did not have any cuts or bruises that indicated a recent fight. A small bruise and scratch on Defendant's arm were determined to be a prior injury that Defendant claimed was work related. Defendant denied any involvement in the assault and claimed he had no knowledge that a fight had occurred. Earl was unable to detain Defendant based on the information he had at the time or to examine Defendant's shoes.
[¶11.] Defendant's companions were intercepted by another officer and later questioned by Earl. They gave their names as Orin Schulze and Jeffery Schulze. Jeffery had a broken right hand as well as cuts and dried blood on his hand. The brothers were taken to the police station where they admitted they had been in the fight with the "cowboys," but that they had acted in self defense. Orin eventually gave a written statement that indicated he had struck Rosander. Jeffery's statement indicated that he had broken his hand while fighting with Scott. The brothers were issued tickets for disorderly conduct and released.
[¶12.] Scott was taken to the Spearfish hospital. His injuries included a dislocated ankle and broken fibula that required surgery and several months off of work, as well as injuries to his face and head. One of Scott's eyes was completely swollen shut and so large that when looking at his face straight on his ear was not visible. Scott was not able to identify his attackers as he had little memory of the attack.
[¶13.] A few days later, Orin and Jeffery were asked to return to the police station to provide further information. Their stories remained the same or very close to their stories on the morning of the attack. However, during a third police interview, Orin told Officer Larry Rohlf (Rohlf) that he ran into Rosander and began throwing punches, which Rosander returned and that they knocked each other to the ground. While the two were exchanging punches, Orin stated he heard his brother call out to him that Jeffery had lost his glasses. Orin stated he then disengaged with Rosander, found Jeffery's glasses, pulled him off of Scott, and the two ran away.
[¶14.] Jeffery gave a similar statement. Jeffery recounted how he had thrown a flying "superman" style punch at Scott's head and knocked him to the ground. The two began wrestling and punching each other. Jeffery believed he had broken his hand when he attempted to punch Scott in the face and instead hit the pavement. Neither brother gave police any information regarding Defendant's participation.
[¶15.] Huber was contacted by Rohlf by telephone and asked to describe the attackers and the events she recalled. Huber placed Defendant at the scene. An individual statement from Huber was not included in the original police report from the date of the attack. Instead, Rohlf's notes from the supplemental case report, which was not offered at trial, indicated that Rohlf had telephoned several witnesses on October 31, 2007. That report stated:
[Bobbi] Satzinger, Huber, and Ollerich... state that they were all about one and a half blocks ahead of where the fight happened and could not see who was fighting for sure. It was too dark and they were too far ahead. They could only tell there was a fight happening.*fn2
[¶16.] On either November 1 or 2, Rohlf asked Defendant to return to the police station to provide additional information about the assault. Defendant voluntarily agreed to provide a videotaped statement. He explained that he had taken off running toward the Cowboy Back Bar after Scott, Rosander, and Ollerich, along with a tall blond man with a ponytail, a little guy with a bald head and glasses, and a tall man wearing a camouflage jacket.*fn3 Defendant told Rohlf that he had been at the fight scene but did not participate in the assault. Defendant said he was unable to give Rohlf any names because he was relatively new to thearea and did not know the names of the individuals with whom he had run after the "cowboys." Defendant stated that the tall man in the camouflage jacket and the short man with the glasses jumped the "cowboys."
[¶17.] Defendant was eventually charged with one count of aggravated assault in violation of SDCL 22-18-1.1(1), a Class 3 Felony, and in the alternative one count of aggravated assault in violation of SDCL 22-18-1.1(4).*fn4 Jeffery and Orin were also charged with aggravated assault for their part in the attack on Scott. Trial on the charges against Defendant was held on April 28, 2008.
[¶18.] Huber testified at trial that she had observed Defendant at the Outlaw Bar where she had been prior to arriving at the Cowboy Back Bar. She also testified that she saw Defendant at the house party and again during the assault. Although she did not know his name at the time, she remembered Defendant by the black t-shirt he was wearing with the word "Security" in bold white letters printed on it. Huber identified Defendant in the court room as the man she saw that night wearing the "Security" t-shirt. She also testified she saw Defendant "hollering at Justin [Scott]," and then she saw Rosander push the attackers away from him. She further testified that she saw the Defendant assault Scott. The following questions were asked of Huber by the state's attorney on direct examination:
Q: And what was he doing?
Q: Assaulting Justin [Scott]?