APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT MEADE COUNTY, SOUTH DAKOTA HONORABLE JEROME A. ECKRICH, III Judge.
The opinion of the court was delivered by: Gilbertson, Chief Justice
CONSIDERED ON BRIEFS ON AUGUST 24, 2010
[¶1.] Defendant appeals his convictions for Possession of a Controlled Substance with Intent to Distribute, Possession of a Controlled Substance, and Possession of Marijuana under claims of violation of the Fourth Amendment. He also appeals the sufficiency of the evidence for the convictions. In addition, Defendant challenges his conviction on the Failure to Appear charge based on his contention that his underlying criminal convictions should be reversed. Finally, Defendant alleges that his sentences were grossly disproportionate given his character and the factual basis of the convictions, and that the trial court failed to take into consideration mitigation evidence. We affirm.
[¶2.] On August 5, 2007, at approximately 5:35 p.m., South Dakota Highway Patrol Officer Larry Langenfeld conducted a traffic stop of a four-door, diesel pickup pulling a fifth-wheel camper. The pickup displayed a Colorado dealer's plate on the back of the pickup, but failed to have a license plate on the front, which Officer Langenfeld knew was required by Colorado statute. Officer Langenfeld identified the driver as Jason Overbey (Jason) and the passenger as Katherine Gaskins. Officer Langenfeld also noticed a strong odor of perfume or cologne emanating from the interior of the pickup. After initiating the traffic stop, Officer Langenfeld asked Jason to accompany him to his Highway Patrol cruiser.
[¶3.] Because Officer Langenfeld knew that perfume or cologne is sometimes used to mask the odor of drugs and because Jason was overly nervous, fidgety, and hesitated to make eye contact, Officer Langenfeld initiated a call for a K-9 unit.
Officer Langenfeld told Jason he would issue a warning ticket but that Jason was not yet free to leave until after the K-9 sniff was conducted. Thirteen minutes after the stop was initiated, and eight minutes after Jason was placed in the cruiser, Trooper Shane Severn arrived with his drug dog, Cas. Although not visible on the arrest compact disc, Cas alerted to the presence of illegal drugs on the pickup's passenger side. Within three minutes the drug sniff was completed.
[¶4.] When the officers put their heads into the pickup to begin the search, both smelled the odor of raw marijuana. The search of the pickup generated three baggies of marijuana and a pipe. Jason told the officers that the marijuana belonged to his brother. The officers then entered the fifth-wheel camper to conduct a search. They discovered two individuals, Michelle Prytla and Robert P. Overbey (Defendant), hiding under a bed in the trailer. Defendant appeared to be under the influence of alcohol or another substance.
[¶5.] The officers conducted a warrantless search of the fifth-wheel camper and told the occupants they did not need a warrant given what the officers had discovered in the pickup. The search of the camper revealed a glass pipe inside a jewelry box that was contained within a closed drawer. A digital scale was discovered in a closed drawer beneath the one in which the pipe was found. In the area where a bed was located, officers also found a piece of aluminum foil and a baggie containing a powdery substance. Subsequent laboratory tests indicated that methamphetamine residue was present on the pipe, scale, and aluminum foil, and that the powdery substance in the baggie was methamphetamine (meth). Officers removed a black metal lockbox from the wall of the trailer, which they opened with a crowbar after the key failed to work. Inside the lockbox officers found a bag containing approximately one ounce of crystal methamphetamine. Subsequent testing revealed a total of eleven grams of marijuana in the pickup and 45.77 grams of meth in the camper.
[¶6.] The officers confronted the four individuals about the drugs. Each denied knowledge of the meth. All four were arrested. The pickup was owned and registered to Jason Overbey. Jason and Defendant jointly owned the camper.
[¶7.] Defendant was charged with the Unauthorized Possession of a Controlled Substance with Intent to Distribute (meth) in violation of SDCL 22-42-2 and SDCL 32-12-52.3; Possession of a Controlled Substance (meth) in violation of SDCL 22-42-5 and SDCL 32-12-52.3; and Possession of Marijuana -- Less than Two Ounces under SDCL 22-42-6. Defendant's motion to suppress the evidence seized from the pickup and the camper was denied by the trial court. Defendant was found guilty by a jury.
[¶8.] On the date set for his sentencing hearing, Defendant claimed he understood the hearing was in the afternoon rather than at 11:30 a.m. His son was able to notify the trial court on his behalf and the trial court agreed to reschedule the hearing for 2:30 in the afternoon in order for Defendant's flight to arrive and travel by car to the courthouse. However, after landing in Rapid City, Defendant boarded a departing flight rather than appearing at the hearing that had been rescheduled to accommodate his late arrival. Defendant was subsequently charged with Failure to Appear under SDCL 23A-43-31(1). Defendant was a fugitive for over one year after failing to appear. Defendant eventually pleaded guilty to the Failure to Appear charge.
[¶9.] Defendant was sentenced to ten years in the state penitentiary with one year suspended on the Possession of a Controlled Substance with Intent to Distribute conviction, a Class 4 felony with a maximum sentence of ten years in the penitentiary. See SDCL 22-42-2; SDCL 22-6-1(7). Defendant received a sentence of six years for the Possession of a Controlled Substance count, also a Class 4 felony with a maximum sentence of ten years. See SDCL 22-6-1(7). Defendant was also sentenced to two days in the Meade County jail on the Possession of Marijuana conviction, a misdemeanor punishable by up to one year in county jail. SDCL 22-42-6. Finally, Defendant was sentenced to two years in the penitentiary on the Failure to Appear conviction, a Class 6 felony punishable by up to two years in the penitentiary, to be served consecutively with the sentences on the drugs charges. See SDCL 23A-43-31(1); SDCL 22-6-1(9).
[¶10.] Defendant appeals raising the following issues:
1. Whether the trial court erred when it denied Defendant's motion to suppress.
2. Whether there was sufficient evidence to support a conviction on the Possession of a Controlled Substance and Possession of a Controlled ...