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State of South Dakota v. Simon P. Torres

March 28, 2012

STATE OF SOUTH DAKOTA,
PLAINTIFF AND APPELLEE,
v.
SIMON P. TORRES,
DEFENDANT AND APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE THOMAS L. TRIMBLE Judge

The opinion of the court was delivered by: Wilbur, Justice

#25799-a-LSW

ARGUED FEBRUARY 14, 2012

#25799

[¶1.] Simon Torres appeals his conviction of attempted murder and commission of a felony with a firearm. Torres argues that the trial court (1) abused its discretion in admitting a video of the shooting and photographs of the gunshot wounds inflicted on the victim and (2) violated his due process rights by failing to advise him that he would receive mandatory consecutive sentences if convicted of both attempted murder and commission of a felony with a firearm. We affirm.

FACTS AND PROCEDURAL BACKGROUND

[¶2.] Shane Bordeaux was shot several times while waiting to enter the Lakota Nation Invitational basketball tournament at the Rushmore Plaza Civic Center in Rapid City, South Dakota. As a result of the gunshot wounds, Bordeaux required extensive medical treatment to save his life.

[¶3.] Shortly before the shooting occurred, A.F., a minor who was also outside the Civic Center, sensed a fight brewing and began recording a video of the scene using his cell phone. A.F. incidentally captured the shooting and later turned his cell phone containing the video over to police. Despite the State's efforts to digitally enhance the video, the video remained pixilated and individual faces could not be identified in the video. However, the State used the video several times at trial in questioning witnesses to, according to the State, "assist the jury's understanding of the shooting."

[¶4.] To identify Torres as the shooter, the State proffered separate evidence. Specifically, the State called two witnesses who testified that they saw Torres shoot Bordeaux firsthand. Additionally, a third witness testified that Torres admitted to her that he shot Bordeaux. To show the jury the extent of Bordeaux's injuries, the State, in addition to other evidence, submitted photographs of Bordeaux's wounds taken at the hospital. The jury determined Torres fired the shots and convicted him of attempted murder and commission of a felony with a firearm.

[¶5.] The trial court ordered Torres to serve two consecutive 25-year sentences for the crimes. The trial court ordered the consecutive sentences pursuant to SDCL 22-14-12, which provides that any person convicted of a felony while armed with a firearm is guilty of an additional Class 2 felony. The statute also provides that the sentence for the additional felony "shall be [served] consecutive to any other sentences imposed for a violation of the principal felony." Torres appeals.

ANALYSIS AND DECISION

[¶6.] 1. Whether the trial court abused its discretion in denying

Torres's motion in limine to exclude a cell phone video of the shooting and photographs of Bordeaux's gunshot wounds.

[ΒΆ7.] Torres argues that the trial court abused its discretion in denying his motion in limine to exclude two pieces of evidence: (1) a version of the cell phone video of the shooting that contained superimposed identifiers labeling individuals in the video as "Shooting Victim," "Shooter," and "Shooter hidden behind third person"; and (2) photographs of Bordeaux's wounds. We review a trial court's decision regarding the exclusion of evidence ...


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