Considered on Briefs February 17, 2015.
As Amended June 1, 2015
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA. THE HONORABLE BRADLEY G. ZELL, Judge.
MARTY J. JACKLEY, Attorney General, BETHANY L. ERICKSON, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
KATHERYN L. DUNN, Office of the Minnehaha County Public Defender, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
KERN, Justice. GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and WILBUR, Justices, concur.
[¶1] After intercepting a package with 37 grams of cocaine hidden in a doll, the State arrested and charged defendant with Count 1: possession of a controlled substance with intent to distribute, Count 2: possession of a controlled substance, Count 3: possession of marijuana, and Count 4: possession of drug paraphernalia. At defendant's jury trial, the circuit court admitted two text messages sent to defendant's phone, which suggested that the sender wanted to obtain cocaine from defendant. At the close of the evidentiary portion of the trial, defendant moved for a judgment of acquittal, and the court granted the motion with respect to Count 1. However, the dismissed Count 1 was listed in the final jury verdict form included with the instructions, and the jury found defendant guilty of that charge. The jury also convicted defendant of Count 2: possession of a controlled substance and Count 4: possession of drug paraphernalia. The jury acquitted defendant of Count 3: possession of marijuana. The court imposed a penitentiary sentence for Count 2, after finding grounds to depart from a presumptive sentence of probation under SDCL 22-6-11. Defendant appeals. We affirm the circuit court and remand with instructions to enter an amended judgment.
[¶2] On August 3, 2013, after receiving a tip that a package containing illegal drugs would be delivered to Sioux Falls from Texas, Agent Michael Hockett with the Sioux Falls Area Drug Task Force intercepted the package and brought it to the law enforcement center. Agent Hockett obtained a warrant to search the package, which was addressed to a " James Miguel" at the Brimark Inn, Sioux Falls, South Dakota. The detectives opened the package and found a large pink-headed doll (known as Lalaloopsy), a birthday card, markers, and a black garbage bag. The head of the Lalaloopsy doll had a pouch closed by a zipper. In the pouch, the detectives uncovered 37 grams of cocaine, which was packaged with a California Scent car air freshener canister.
[¶3] Agent Hockett and Detective Nick Cook set up a controlled delivery of the package to the front desk of the Brimark Inn. Louis Deak arrived at the Inn by taxi and attempted to pick up the package, after which law enforcement took him into custody. Agent Hockett and Detective Cook questioned Deak, who told them he was a worker at the carnival stationed at the fair grounds and that his supervisor, " Big John," had purchased a taxi for him
and sent him to pick up a package on his behalf. Deak told the officers they could find Big John at the fairgrounds ...