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State v. Greenwood

Supreme Court of South Dakota

November 22, 2016

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
MARLIN WAYNE GREENWOOD, Defendant and Appellant.

          CONSIDERED ON BRIEFS ON NOVEMBER 7, 2016

         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 JOHN M. STROHMAN Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

          BEAU J. BLOUIN of Minnehaha County Public Defender's Office Sioux Falls, South Dakota Attorneys for defendant and appellant.

          GILBERTSON, CHIEF JUSTICE

         [¶1.] 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.

         Background

         [¶2.] 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.

         [¶3.] 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 resistance.

         [¶4.] 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.

         [¶5.] 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 the police.

         [¶6.] 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."

         [¶7.] 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."

         [¶8.] 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 ...


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