APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT MCCOOK COUNTY, SOUTH DAKOTA THE HONORABLE TIMOTHY W. BJORKMAN Judge
The opinion of the court was delivered by: Severson, Justice
[¶1.] Following a jury trial, Kevin Roger Jucht was convicted of malicious intimidation or harassment, first-degree burglary, disorderly conduct, and commission of a felony while armed with a firearm. Jucht appeals, raising the following issues: (1) whether the trial court abused its discretion in excluding certain evidence from trial; (2) whether there was sufficient evidence to support Jucht's conviction for malicious intimidation or harassment; (3) whether there was sufficient evidence to support Jucht's conviction for first-degree burglary; and (4) whether there was sufficient evidence to support Jucht's conviction for commission of a felony while armed with a firearm. We reverse and remand for further proceedings.
[¶2.] Summer Neuman and her two daughters lived in a house in Bridgewater, South Dakota. Neuman's friend, Carrie Lape, and Carrie's daughter also lived in the house. Since Neuman moved into the house in June 2010, she has had several visitors. Some of these visitors stayed with Neuman for extended periods of time.
[¶3.] Robert Lee Anderson owns an office building across the street from Neuman's house. Anderson is a member of the Bridgewater City Council. Several town residents complained to Anderson about men who were "marauding" around the town. Anderson believed that the men the city residents were referring to resided in Neuman's house. According to Jucht, Anderson also suspected that the individuals residing in Neuman's house had stolen tires from Anderson and committed other thefts in town.
[¶4.] On September 21, 2010, Anderson went to a local bar in Bridgewater at around 8:30 or 9:00 p.m. After Anderson arrived at the bar, he began drinking extensively. He spoke with several individuals about the complaints he received from city residents.
[¶5.] Around 12:00 a.m., Jucht, an area farmer, arrived at the bar. Jucht eventually sat down next to Anderson. Jucht and Anderson drank beer and discussed the complaints Anderson received from city residents. Anderson soon invited Jucht to his office building.
[¶6.] After the men arrived at the office building, Anderson, who was extremely intoxicated, decided to go to Neuman's house and confront the individuals who were residing there. Because Anderson heard that the individuals living in the house possessed firearms, Anderson retrieved a nine-millimeter pistol from his gun cabinet and gave it to Jucht to hold for "protection." Jucht put the gun in the pocket of his bib overalls.
[¶7.] Around 1:45 a.m., Anderson and Jucht went across the street to Neuman's house. Anderson knocked on the screen door, pulled it open, and banged on the inside door. After the inside door opened, Anderson walked about four feet into the house. Jucht stepped one foot into the house briefly and then stepped back outside the doorway.
[¶8.] At the time Anderson and Jucht entered the house, Neuman was putting together a puzzle with one of her daughters in a room upstairs. Lape was sleeping in the bedroom on the main floor. An acquaintance of Neuman's, who she knew only by the name "Dre," was sleeping on the couch.
[¶9.] Neuman heard a loud pounding on the front door and ran downstairs.
Anderson then began yelling at Neuman, telling her that he "wanted her out of town" because she was "scaring everybody." Neuman then went to get Lape from the bedroom. Neuman and Lape argued with Anderson and told the men to leave. Anderson yelled obscenities at the women, telling them that he was on the city council, and that he was going to see that they were removed from the town.
[¶10.] At that point, Dre woke up and looked toward the door. Anderson pointed to Dre and, using a racially derogatory slur, yelled that he wanted Neuman and Lape to leave with Dre. While Anderson was arguing with Neuman and Lape, he broke the glass out of the screen door.
[¶11.] Neuman's brother and his friend then pulled up to the house in a white van. When they arrived, Jucht retreated to the middle of the street. From the street, Jucht fired three shots in rapid succession. Testimony at trial was inconsistent as to whether Jucht fired the shots into the air or whether he was aiming at the white van. After the shots were fired, Anderson walked to the street where Jucht was standing and took his pistol back from Jucht. Anderson's wife, who had been listening to a police scanner, came to the scene and took the men home.
[¶12.] The State charged Anderson with (1) malicious intimidation or harassment; (2) first-degree burglary; (3) intentional damage to property; and (4) disorderly conduct. Anderson reached a plea agreement with the State and pleaded guilty to malicious intimidation or harassment. The State dismissed the other charges against Anderson and he received a suspended imposition of sentence and two years of probation, provided that Anderson serve 90 days in the McCook County Jail.
[¶13.] The State charged Jucht with (1) malicious intimidation or harassment; (2) first-degree burglary; (3) intentional damage to property; (4) disorderly conduct; and (5) commission of a felony while armed with a firearm. Jucht pleaded not guilty to each of the charges.
[¶14.] The State made an oral motion in limine to preclude Jucht from introducing evidence regarding Anderson's suspicion that the individuals staying in Neuman's house had stolen tires from Anderson and committed other thefts in town. The State also sought to preclude Jucht from introducing evidence that Anderson received complaints from town residents concerning the activities of the individuals Anderson believed were staying in Neuman's house. The trial court granted the motion.
[¶15.] After the State completed its direct examination of Anderson, the trial court revisited the State's motion in limine. It held that Jucht could elicit testimony from Anderson concerning complaints he received from town residents. However, the court barred the introduction of any evidence regarding Anderson's suspicion that the men staying in Neuman's house had stolen tires from him and committed other thefts in town.
At the close of the evidence,
Jucht moved for judgment of acquittal on
all counts, which the trial court
denied. The jury acquitted Jucht on
intentional damage to property, but convicted
him of all the remaining charges.
The trial court sentenced Jucht to suspended terms of two years and five years for malicious intimidation or harassment and first-degree burglary, respectively. Further, the trial court ordered Jucht to pay a fine of $200 plus court costs for disorderly conduct. Finally, the trial court sentenced Jucht to the mandatory minimum term of five ...