APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES COUNTY, SOUTH DAKOTA, HONORABLE JOHN BROWN Judge.
The opinion of the court was delivered by: Miller, Retired Justice
CONSIDERED ON BRIEFS ON OCTOBER 5, 2009
[¶1.] In this decision, we affirm the circuit court and hold it did not err in refusing to dismiss charges of third degree burglary or in permitting other acts evidence from defendant's earlier burglary conviction.
[¶2.] In January 2008, Adan Miranda was a patron at the American Legion (Legion) in Pierre, South Dakota; however, he remained in the establishment after closing time without permission. After a silent alarm sounded, police observed Miranda exiting the Legion. After a short chase, he was arrested and charged with various crimes. Miranda moved to dismiss the charges and the State moved to introduce other acts evidence pursuant to SDCL 19-12-5 (Rule 404(b)). Miranda's motion was denied and the State was permitted to admit other acts evidence. The jury convicted Miranda on all counts. He appeals the circuit court's order denying his motion to dismiss the charge of third degree burglary. Miranda asserts that because he was privileged or licensed to enter the Legion, he cannot be convicted of burglary under SDCL 22-32-8. Additionally, he appeals the circuit court's order granting the State's motion to introduce other acts evidence. We affirm.
FACTS AND PROCEDURAL HISTORY
[¶3.] On January 29, 2008, Miranda and his wife were at the Legion in Pierre, South Dakota, and sometime before the facility closed for the night they left to go home. However, after an argument ensued as they walked to their vehicle, Miranda returned to and remained in the Legion without his wife. Later, when the bartender, Shannon Nelson (Bartender), did the final walk-through as part of the normal closing routine, he did not check the party room because it was too dark. Also, he did not check the bathrooms and a storage room near the party room. Unaware of Miranda's presence in the building, the Bartender did not personally tell him to leave or that he had permission to remain before arming the alarm and leaving the building around 3:00 a.m.
[¶4.] At approximately 3:23 a.m., Pierre police officers Bryan Walz and John Weber were on duty and received a dispatch indicating a silent burglar alarm had been activated at the Legion. When the officers arrived at the Legion, Walz began checking exterior doors and windows while Weber drove around the main parking lot. No forcible entry was detected.
[¶5.] As Weber continued the investigation of the remaining portions of the Legion, specifically while Weber shined his flashlight into the kitchen, Walz observed an individual suddenly open a door and run out. Walz ordered the person to "show his hands and lie upon the ground." After pretending to kneel, the individual took off running and Walz pursued. Following a short chase, Walz detained the individual who was later identified as Miranda.
[¶6.] After arresting and securing Miranda, Officer Walz and other Pierre police officers examined the interior of the Legion. The other Pierre police officers that arrived at the scene after Miranda was detained did not see signs of forced entry. They concluded that Miranda had concealed himself in a storage area at closing time and had removed the hinge pins from another door to gain access to a safe in a different part of the building. The police contacted the Bartender and asked him to return to the Legion.
[¶7.] The Bartender confirmed two hinge pins had been removed from the door to the liquor room and safe. He also pointed out other different conditions from when he closed, including: the French doors which went from the party room into the bar were busted; a sign had been knocked onto the floor; some straws had been scattered on the ground; the wooden lottery drawer had been opened, although the change inside was still there; the door to the walk-in cooler was open and the light had been turned on; and, someone had turned a light on in the manager's office where extra liquor is stored.
[¶8.] The manager, Don Henrichsen (Manager), was also contacted after the silent alarm sounded. He testified that he checked for damage the next day and made the following observations: the locks on the doors going into the meeting room "were all bent up;" that there was no reason for either himself or any Legion employee to remove the hinge pins from the door to the liquor and safe room because it can be easily unlocked with their key; the hinge pins could have been pulled out with the crescent wrench and knife found nearby; and, the motion detector was the only security device in the building and it is possible to move around with the detector on because it has short range and does not reach certain areas.
[¶9.] On March 17, 2008, the State filed an amended complaint that charged Miranda with three counts: (count I) third degree burglary; (count II) obstructing a law enforcement officer; and, (count III) intentional damage to private property. Subsequently, the State filed a Part II Information for Habitual Offender because Miranda had been convicted of third degree burglary in October 2001. Miranda moved to dismiss the charges and the State moved to introduce other acts evidence pursuant to SDCL 19-12-5. Miranda's motion to dismiss was denied and the State was permitted to admit other acts evidence.
[¶10.] Because the State's motion to admit other acts evidence was granted, the circumstances of Miranda's May 2001 burglary of the Eagle's Club in Aberdeen, South Dakota, were recounted at trial. The State offered testimony of Randy Majeske, a retired detective, who explained that at the Eagle's Club crime scene police had also failed to find any evidence of forced entry and that Miranda had hidden inside at closing time before stealing a safe and using a two-wheel cart to transport the safe to a nearby apartment complex. Majeske confirmed Miranda had removed the safe's hinges to get the money inside before he inadvertently left behind his Job Corps card at a nearby vacant apartment. Miranda's wife confirmed Miranda had stolen the safe in 2001, and admitted he had a gambling problem "back then." She also admitted that one of her family's vehicles was repossessed in January 2008, but denied Miranda still had a gambling problem or was in a bad financial situation.
[¶11.] The jury convicted Miranda on all counts and he appeals claiming the circuit court's order denying his motion to dismiss the charge of third degree burglary. Because he was a patron at the Legion earlier that night, he contends he could not be convicted of burglary under SDCL 22-32-8. Additionally, he appeals the circuit court's order granting the State's motion to introduce other acts evidence.
1. Whether the circuit court abused its discretion in denying Miranda's motion to dismiss the third degree burglary charge because Miranda lawfully entered the Legion.
2. Whether the circuit court abused its discretion when it granted the State's motion to admit other acts evidence pursuant to SDCL 19-12-5 that related to Miranda's ...