CONSIDERED ON BRIEFS ON NOVEMBER 7, 2016
FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE ROBIN J. HOUWMAN
J. JACKLEY Attorney General JOHN M. STROHMAN Assistant
Attorney General Pierre, South Dakota Attorneys for plaintiff
J. BLOUIN of Minnehaha County Public Defender's Office
Sioux Falls, South Dakota Attorneys for defendant and
GILBERTSON, CHIEF JUSTICE
Marlin Greenwood appeals from a conviction for aggravated
assault, in violation of SDCL 22-18-1.1(1) and SDCL
22-18-1.1(4). Greenwood argues that the circuit court erred
by allowing testimony of a nurse practitioner, who opined
about the seriousness of the victim's injuries. Greenwood
contends that such error was plain and violated his Fifth and
Sixth Amendment rights to a fair trial by jury. We affirm.
On April 3, 2015, Damon Fabre hosted an evening social
gathering at his Sioux Falls apartment in Minnehaha County.
Marlin Greenwood, as well as four other individuals-Martin,
J.R., Twila, and Detroit-attended. The group consumed alcohol
including beer and vodka.
Some twenty minutes after Martin's arrival, Fabre accused
Twila of stealing his cell phone. Twila argued with Fabre and
then left with J.R. Detroit had departed prior to the
argument. Fabre, lying down on the couch and still upset,
asked Martin and Greenwood to leave as well. Martin refused,
as he had just opened his second beer. Martin observed that
Greenwood was "extremely irritated" and "went
berserk, " and he began "kick[ing] [Fabre] in the
face . . . seven times" before "punch[ing] him
seven or eight times." The kicks were "flat-faced .
. . [Greenwood] didn't use his heel or his toe."
Fabre did not appear to fight back, or offer any verbal
Martin asked Greenwood what he was doing, prompting Greenwood
to cease for "about two to three minutes."
Greenwood, however, then resumed kicking Fabre's face six
more times. Martin, who was on blood thinners and thus prone
to bleeding, did not intervene, fearing that Greenwood would
retaliate if he did so.
After the second assault, Greenwood again seemed to compose
himself. But "for some reason he got back up and . . .
gave [Fabre] three more kicks." At this point Martin
observed that Greenwood had "kind of wore himself
out." Martin then found a cell phone and used it to call
Sioux Falls Police Officers Justin Reiter and Paul Frerichs
were the first respondents to the scene. Officer Reiter
indicated that Fabre "was covered in blood" and
"his face was unrecognizable as a human face to
[him]." Officer Reiter requested a supervisor in his
belief that "it was going to be a homicide."
Officer Peter Blankenfeld was dispatched to Fabre's
residence. Other law enforcement officers and paramedics were
present when Officer Blankenfeld arrived on the scene. While
medical staff attended Fabre, Officer Blankenfeld attempted
to speak with Greenwood, who was seated in the apartment.
Officer Blankenfeld observed that Greenwood "became
disorderly when being asked questions about what had
occurred[.]" Photographs of the crime scene taken by
Officer Matthew Wolfe depicted blood splatters traveling up
against the wall and on the cushions of the couch. According
to Officer Reiter, the blood went "almost all the way up
to the ceiling."
Fabre was taken to Avera McKennan Hospital (Avera). Fabre
remained in the hospital for four days. Fabre's face and
neck experienced significant tissue swelling, and a risk for
airway compromise existed. Fabre was concussive, and a rapid
response team responded the ...