Considered on Briefs on Jan. 14, 2014.
[Copyrighted Material Omitted]
Marty J. Jackley, Attorney General, Ann F. Mines, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
John S. Rusch of Rensch Law, Prof. LLC, Rapid City, South Dakota, Attorneys for defendant and appellant.
[¶ 1.] A jury found Richard Guthmiller guilty of eight counts of making false or fraudulent sales tax returns. On appeal, Guthmiller argues that the circuit court erred in denying his Batson challenges to three peremptory strikes exercised by the State. He also argues that the court erred in denying his motion for judgment of acquittal. We affirm the circuit court's denial of the motion for judgment of acquittal, but we remand for the court to undertake the required Batson analysis.
Facts and Procedural History
[¶ 2.] In 1995, Richard Guthmiller moved to Rapid City where he worked for automotive body repair businesses. In January 2008, he started his own automotive body repair business. That same month, he applied for and received a sales tax license from the South Dakota Department of Revenue. The Department cancelled his license in October 2008 because Guthmiller indicated on his sales tax return that he was " out of business." In March 2009, the Department discovered that Guthmiller was still operating his business and informed him that he needed to reapply. Guthmiller reapplied and was reissued a license.
[¶ 3.] While operating his business during eight tax-reporting periods, Guthmiller filed sales tax returns. He reported sales on each return, but he indicated that his sales were exempt. A subsequent investigation led the Department to believe that Guthmiller was filing false or fraudulent returns. Guthmiller was indicted on eight counts of making false or fraudulent sales tax returns in an attempt to defeat or evade the tax in violation of SDCL 10-45-27.3 and SDCL 10-45-48.1(1).
[¶ 4.] Guthmiller moved to dismiss the indictment. He claimed that under the terms of the Fort Laramie Treaty of 1868, Rapid City was located in Indian Country. Based on this claim and on his tribal membership, Guthmiller argued that South Dakota did not have authority to tax his Rapid City business. The motion was denied. After Guthmiller's unsuccessful petition for an intermediate appeal before this Court, his case proceeded to trial.
[¶ 5.] During voir dire, Guthmiller's attorney asked the veniremembers for a " show of hands of anybody ... who's partially even in the smallest amount Native American." Although the record does not reflect the actual number of Native American veniremembers, the circuit court stated that " there [were] at least five identified." No other questions were asked about race.
[¶ 6.] Following voir dire, the State exercised its peremptory strikes. Guthmiller objected to three of those strikes, arguing that they violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In response, the State tendered its reasons for the strikes. After brief remarks, the circuit court summarily denied Guthmiller's Batson challenges without giving a reason for its decision.
[¶ 7.] During its case-in-chief, the State called the Department employee who investigated Guthmiller. The investigator presented evidence indicating that Guthmiller performed taxable services during each tax-reporting period but failed to remit sales tax. Although Guthmiller ostensibly reported all his gross sales during each period, the investigator also presented evidence indicating that Guthmiller underreported his sales on all returns.
[¶ 8.] Another Department employee provided evidence relating to Guthmiller's knowledge of sales tax laws. The employee testified that she had explained to Guthmiller
how sales tax applied to his business. She testified that she specifically told him " all [his] customers were subject to sales tax unless he was given an exemption certificate." According to her, Guthmiller seemed to understand her explanation. In addition to her conversations with Guthmiller, the employee testified that she ...