APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA HONORABLE MERTON B. TICE, JR. Judge.
The opinion of the court was delivered by: Konenkamp, Justice
CONSIDERED ON BRIEFS ON FEBRUARY 16, 2010
[¶1.] Defendant was convicted of two counts of first degree escape and one count of simple assault on a public officer. He appeals on grounds that the court abused its discretion when it refused to sever the charges and erred when it failed to grant his motion for judgment of acquittal. Because defendant was not in the immediate custody of a law enforcement officer or a Department of Corrections employee on one of the two occasions when he departed against commands to submit or surrender, we reverse one of the two escape convictions. We affirm defendant's other first degree escape conviction and his conviction for simple assault.
[¶2.] Joseph Bradley (defendant) was on parole with the Department of Corrections. He met with his parole officer, Jack Gray, at Gray's office, on September 26, 2008. Parole Officer Gray obtained a urine sample from defendant. In a field test, the sample tested positive for amphetamines. Defendant claimed that taking a certain prescription medication caused his positive result. Gray asked defendant to provide a copy of the prescription. Gray then sent the urine sample to the State Laboratory for further analysis. The lab later reported that defendant's sample tested positive for MDMA, otherwise known as ecstasy. According to the report, defendant's prescription medication would not have caused a positive MDMA result.
[¶3.] Gray contacted defendant for another meeting. On October 22, 2008, defendant arrived at Gray's office. Gray confronted defendant about his urine sample, but did not mention that the sample tested positive for ecstasy. At some point Gray decided he was going to arrest defendant. Gray asked him to stand up and put his hands behind his back. Defendant stood, turned, and placed his hands behind his back. As Gray approached him with handcuffs, defendant ran out of Gray's office. He fled from the building, while three parole officers gave chase. He made it to the parking lot where his girlfriend, Alaina Shelton, was in her parked vehicle. Shelton started her car, and defendant got in on the passenger side and ordered Shelton to drive away. At the same time, Parole Officer Hower grabbed the door handle. Defendant was yelling for Shelton to drive. The parole officer held onto the door handle of the moving vehicle for a short time, but soon fell to the ground and received minor injuries. Defendant was not apprehended.
[¶4.] On October 30, 2008, Jeff Goble, an agent with the Division of Criminal Investigation, learned that defendant and Shelton were staying in a trailer house near Family Thrift Center. Agent Goble set up surveillance at the trailer court and contacted the Rapid City Police Department for assistance. While Agent Goble was waiting for assistance, Shelton and defendant left the trailer and got into Shelton's vehicle to drive away. Agent Goble and Detective Aric Lopez used a vehicle to create a roadblock in an attempt to stop Shelton's vehicle. Agent Goble ordered defendant and Shelton to stop and freeze. Detective Lopez drew his gun and ordered defendant and Shelton to stop the car. Shelton drove her vehicle off the road to go around the police vehicle. Shelton nearly hit Detective Lopez, who jumped out of the way to avoid being struck. Defendant and Shelton evaded capture.
[¶5.] Defendant was finally taken into custody in November 2008. He was charged with two counts of first degree escape, in violation of SDCL 22-11A-2(3); one count of possession of a controlled substance (MDMA), in violation of SDCL 22-42-5; and one count of simple assault on a public officer, in violation of SDCL 22-18-1(2) and SDCL 22-18-1.05. He pleaded not guilty to all counts. Before trial, defendant moved to sever the charges. The circuit court denied defendant's request, and a jury trial was held. At the close of the State's case, defendant moved for a judgment of acquittal, which was denied.*fn1 The jury acquitted defendant of possession of a controlled substance, but found him guilty of simple assault on a public officer and both counts of first degree escape. On appeal, defendant asserts that the court abused its discretion when it refused his motion to sever and erred when it denied his motion for a judgment of acquittal.*fn2
[¶6.] Defendant argues that the court abused its discretion when it denied his motion to sever the four counts in the indictment. He maintains that the acts necessary to prove each offense were insufficiently connected to warrant joinder. He further argues that he was prejudiced by the joinder. The State responds that defendant's actions were all part of a common scheme or plan to avoid arrest.
[¶7.] "Two or more offenses may be charged in the same indictment or information in separate counts for each offense, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." SDCL 23A-6-23. From our review of the record, the acts surrounding defendant's four counts were connected and constitute part of a common plan or scheme. Although defendant was not specifically informed by Gray that his urine sample tested positive for MDMA, it is reasonable to conclude that defendant's flight was connected to his belief that his sample was dirty. Defendant was in Gray's office to discuss the results of the State Laboratory's test of his previous dirty urine sample, and defendant ran out of the office when Gray asked him to stand up, turn around, and put his hands behind his back. Then, to avoid arrest, defendant ordered his girlfriend to continue to drive while Parole Officer Hower was holding onto the door handle. Defendant continued to evade capture when, on October 30, he and his girlfriend drove away after Agent Goble and Detective Lopez ordered them to stop.
[¶8.] Defendant has also failed to establish that he was unfairly prejudiced by the joinder of all counts. See SDCL 23A-11-2. A higher degree of prejudice must be shown to overcome the purpose of joinder. See State v. Dixon, 419 NW2d 699, 703 (SD 1988) (quoting State v. Hoffman, 316 NW2d 143, 157 (Wis 1982)). Defendant argues that he was substantially prejudiced because testimony related to the four charges was used by the jury to improperly convict him. Although "[a]ny joinder of offenses is apt to involve some element of prejudice" to an accused, here the evidence related to the charges was so intertwined that defendant was not unfairly prejudiced. See State v. Sabers, 442 NW2d 259, 263 (SD 1989) (quoting Dixon , 419 NW2d at 703). Moreover, the court instructed the jury to consider each charge independently. See Busack , 532 NW2d at 417. That the jury properly considered each charge individually is supported by the fact defendant was acquitted of the possession count. We find no abuse of discretion in the court's denial of defendant's motion to sever.
[¶9.] Defendant next asserts that the court erred when it denied his motion for a judgment of acquittal on the assault charge. He argues that the State presented no evidence that he recklessly caused bodily injury to a public officer because he took no specific actions against the parole officer when the officer was injured. "Any person who: . . . (2) Recklessly causes bodily injury to another . . . is guilty of simple assault." SDCL 22-18-1(2). Reckless conduct encompasses actions evincing a conscious and unjustified disregard of a substantial risk that such actions may cause a certain result. Although defendant did not personally injure Parole Officer Hower, defendant does not dispute that he ordered Shelton to continue to drive while Hower was holding onto the car handle and running beside the moving vehicle. Defendant's conduct was a conscious and unjustified disregard for substantial risk of harm to Hower. The court did not err when it refused a judgment of acquittal on this charge. There was sufficient evidence to support defendant's conviction for simple assault on a public officer.
[¶10.] Defendant next asserts that the court erred when it denied his motion for a judgment of acquittal on the two escape charges. He was charged with escaping the "immediate custody" of a law enforcement officer or a Department of Corrections employee. See SDCL 22-11A-2(3). According to defendant, he was not in the immediate custody of anyone at either time he evaded capture, and therefore, could not be guilty of escape. The State, on the other hand, argues that because defendant was a parolee, he was in the legal custody of the Department of Corrections, and therefore, was in custody at the times he evaded capture. The State further contends that because Gray ...