Considered on Briefs Date: April 22, 2013
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE ROBIN J. HOUWMAN Judge
MARTY J. JACKLEY Attorney General BETHANNA M. FEIST Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
KENNETH M. TSCHETTER of Nicholson, Tschetter, Adams & Nicholson, Attorneys for defendant and appellant.
[¶1.] David Wheeler appeals his convictions for possession of marijuana and drug paraphernalia.
[¶2.] On January 15, 2011, around 2:00 a.m., after twelve shots of tequila each, Wheeler and his girlfriend, Nateema Lewis, quarreled in Lewis's apartment. A neighbor called 911. Law enforcement officers arrived to find Lewis and Wheeler disorderly and intoxicated. Officer Joseph Martyna took Wheeler outside, arrested him for domestic disturbance, and placed him in the patrol car. With the car's video camera activated, the officer asked Wheeler about the events of that night. Unwilling even to reveal his name, Wheeler at times was calm and polite, and at others, tearful, screaming racial slurs, and slamming his head on the security screen. But he had something he wanted to get off his chest. Referring to his girlfriend's apartment, Wheeler told the officer, "You need to check that house for drugs, now. . . . Let me tell you exactly where." He described a half pound of marijuana "bagged up" in ounces, along with a scale. He said the "weed" was near Lewis's bed in the basement bedroom. It was not his, he claimed; it belonged to "that bitch, " telling the officer to check the baggies for fingerprints.
[¶3.] Officer Martyna relayed to Officers Cullen McClure and Jason Holbeck what Wheeler had told him. The officers went downstairs and Officer McClure saw a marijuana baggie on the floor next to the couch. Lewis admitted it was hers. She gave consent to search the apartment. In the basement bedroom, Officer Holbeck pulled out the bottom dresser drawer of one of the dressers. Below the drawer was a large bag of marijuana containing five smaller baggies of marijuana. The dresser drawer held men's clothing. Officer McClure found a box of baggies with Lewis's name written on it. When asked, Lewis insisted the marijuana was Wheeler's.
[¶4.] Both Wheeler and Lewis were indicted for (1) possession of marijuana with the intent to distribute in violation of SDCL 22-42-7; (2) possession of more than two ounces, but less than one-half pound of marijuana in violation of SDCL 22-42-6; and (3) possession of drug paraphernalia in violation of SDCL 22-42A-3. In exchange for dismissal of all other charges, Lewis pleaded guilty to misdemeanor possession of marijuana and agreed to testify against Wheeler.
[¶5.] At trial, Lewis told the jury that on the day before the incident at her apartment, she was riding with Wheeler when he stopped at an apartment complex, went inside, and came out with marijuana. She and Wheeler returned to her apartment and divided, weighed, and bagged it. It was Wheeler's, she said, but she had not known where he put it in her apartment. She testified that she and Wheeler had recently restarted their relationship and that they had been living together. He had stayed in her apartment the previous four nights, and the men's clothing found in the dresser was his.
[¶6.] The jury found Wheeler guilty of possession of more than two ounces but less than one-half pound of marijuana and possession of drug paraphernalia, but not guilty of possession with the intent to distribute.
Analysis and Decision
[¶7.] On appeal, Wheeler maintains that the jury had insufficient evidence to find that he possessed the marijuana. "In measuring the sufficiency of the evidence, we ask 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Brim, 2010 S.D. 74, ¶ 6, 789 N.W.2d 80, 83 (quoting State v. Klaudt, 2009 S.D. 71, ¶ 14, 772 N.W.2d 117, 122). "'[W]e accept the evidence and the most favorable inferences fairly drawn therefrom, which will support the verdict.'" Id. (quoting State v. Jensen, 2007 S.D. 76, ¶ 7, 737 N.W.2d 285, 288) (alteration in original). See State v. Stark, 2011 S.D. 46, ¶ 21, 802 N.W.2d 165, ...