CONSIDERED ON BRIEFS ON FEBRUARY 13, 2017
FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE JOHN R. PEKAS
and THE HONORABLE SUSAN M. SABERS Judges
J. JACKLEY Attorney General
P. MCNEECE Assistant Attorney General Pierre, South Dakota
Attorneys for plaintiff and appellee.
KOLBECK of Waltner, Kolbeck & Scharffenberg, LLP Sioux
Falls, South Dakota Attorneys for defendant and appellant.
WILBUR, Retired Justice
A jury found defendant guilty of eight offenses. Defendant
appeals the circuit court's admission of res gestae
evidence, claiming the evidence violated his Sixth Amendment
right of confrontation. Defendant also challenges the
sufficiency of the evidence for three offenses. We affirm.
Officer Chase Vanderhule received a call from dispatch at
approximately 8:15 p.m. on May 15, 2015, to respond to a
report of an aggravated assault with a firearm at an
apartment complex in Sioux Falls, South Dakota. Officer
Vanderhule arrived at the apartment complex and made contact
with the reporting witnesses. The witnesses spoke to Officer
Vanderhule with the help of a Spanish interpreter. The
witnesses relayed that a silver, gray, or brown Chevy Impala
or Malibu arrived near the area with multiple African
American males and one female inside the vehicle. The
witnesses claimed that one person from the vehicle tried to
sell them drugs. They further claimed that when they refused,
one of the African American males pointed a firearm at them.
The witnesses reported that this male was wearing a red hat
and white t-shirt and was approximately 25 to 30 years old.
The witnesses also described the gun-it had a black grip, a
silver top, and a slide that racks back. The witnesses told
Officer Vanderhule that the vehicle and its occupants left
the area after the incident.
While Officer Vanderhule was speaking with the witnesses and
reviewing the surveillance footage from the apartment
complex, he learned that a male fitting the witnesses'
description of the alleged perpetrator was in the area.
Officer Vanderhule immediately called for assistance. He left
the witnesses and proceeded to the area where the male was
reportedly located. Officer Vanderhule later testified that
as he rounded a corner at the apartment complex, he saw a
person, later identified as Diw Bol Kiir, who fit the
description provided by the witnesses-red hat, white t-shirt,
African American male, 25 to 30 years old. The area,
according to Officer Vanderhule, had one light and was poorly
lit. Officer Vanderhule noticed that Kiir had a cigarette in
Officer Vanderhule decided to make contact with Kiir. He
attempted to engage Kiir in nonconfrontational conversation.
Officer Vanderhule testified that he asked Kiir his name.
Kiir gave a false name. The officer also asked Kiir what Kiir
was doing at the apartment complex. Officer Vanderhule
testified that he asked the question many times before Kiir
answered. Kiir claimed that he had arrived to drop off beer
to his friend. Officer Vanderhule told Kiir that he was at
the complex to investigate an incident and that he wanted to
discuss the incident with Kiir. According to Officer
Vanderhule, Kiir immediately responded, "No, I
wasn't here. No, I wasn't here."
Officer Vanderhule testified that he had asked Kiir to come
with him to the parking lot to talk about why Officer
Vanderhule was at the apartment complex. As Kiir was stepping
off the stairs onto the sidewalk area, Officer Vanderhule
asked Kiir if he had any weapons on him. Kiir responded,
"What for?" Officer Vanderhule testified that he
asked Kiir the same question again. Kiir responded, "No,
I don't have any weapons on me." Officer Vanderhule
informed Kiir that he wanted to pat Kiir down to see if he
had any weapons. Officer Vanderhule took a step toward Kiir
and according to the officer, Kiir threw his cigarette on the
ground, clenched his fists, "and started bouncing up and
down as though he were a boxer in a boxing ring about to
fight somebody." Officer Vanderhule testified that Kiir
said, "No, you are not going to touch me. Do not touch
me. Do not come over here and touch me." The officer
explained to the jury that he tried to remain calm, keep the
peace, and express his desire to Kiir that nothing happen.
When Kiir did not alter his actions, Officer Vanderhule drew
his taser and ordered Kiir to get on the ground. According to
Officer Vanderhule, Kiir turned and ran. The officer deployed
his taser and the two probes attached to Kiir, causing him to
fall onto his stomach. Officer Vanderhule testified that he
told Kiir to stay on the ground and to put his hands behind
his back. Once Kiir complied, the officer approached Kiir,
placed a knee on Kiir's back, and grabbed his handcuffs.
After Officer Vanderhule attached a handcuff to Kiir's
left hand, Kiir began to resist. Kiir struggled and freed his
right hand. According to Officer Vanderhule, Kiir tried to
grab the front part of Kiir's pants with his right hand
and fought against Officer Vanderhule's attempt to
restrain him. Officer Vanderhule testified that the force of
Kiir's resistance injured the officer's left hand.
Officer Vanderhule activated the taser again when Kiir
attempted to bite the officer.
After being tased, Kiir told Officer Vanderhule he would
comply. But according to the officer, Kiir did not. Kiir
rotated his body and reached toward his waistband. According
to Officer Vanderhule, he tased Kiir three or four more
times, but Kiir continued to resist. At this point during the
struggle, Officer Vanderhule heard a noise come from around
the corner. He looked up and noticed Officer Matt Dunn.
Officer Vanderhule testified that shortly thereafter he
placed Kiir's right hand in the handcuff. According to
Officer Vanderhule, his struggle to restrain Kiir spanned
approximately two minutes. Once Kiir was fully handcuffed,
Officer Dunn assisted Officer Vanderhule in lifting Kiir to
his feet and moving him approximately five or six feet from
where the struggle occurred.
After placing Kiir under arrest, Officer Dunn shined his
flashlight in the area of the struggle. He observed a gun.
The gun appeared to be consistent with that described by the
witnesses reporting the alleged aggravated assault. Officer
Vanderhule also noticed a vehicle in the parking lot, which
was not there when the officer first arrived, but which
matched the one described by the witnesses. The officers had
the vehicle towed from the scene. The next day, law
enforcement obtained consent from the owner of the vehicle to
search it. Officer Patrick Mertes searched the vehicle and
found a dark-colored backpack behind the driver's seat.
Inside the bag were two jeweler's bags and two scales
wrapped in men's underwear. Law enforcement later
confirmed the presence of methamphetamine in the
jeweler's bags. A bus ticket listing Kiir's name was
also in the backpack.
On May 28, 2015, a grand jury issued an eleven-count
indictment against Kiir. The indictment alleged that Kiir
committed the following offenses: Count 1-aggravated assault
against law enforcement; Counts 2-4-alternative counts of
simple assault against law enforcement; Count 5-possession of
a controlled substance; Count 6-possession of a controlled
substance while armed; Count 7-simple assault against law
enforcement while armed; Count 8- possession of a firearm
with an altered serial number; Count 9-possession of a
firearm by a person with one prior drug conviction; Count
10-grand theft; Count 11-resisting arrest. The State also
filed a part II information alleging Kiir to be a habitual
Kiir filed a motion in limine to "suppress any
out-of-court statements not subject to
cross-examination" and to "suppress any statements
or references regarding allegations of attempted narcotics
sales and intimidation with a weapon[.]" In a pretrial
hearing, the circuit court ruled that Officer Vanderhule may
testify about the statements made to him in the initial
report. The court held that the statements provided context
and were res gestae evidence. However, the court suppressed
any statement by Officer Vanderhule that one of the reporting
witnesses told the officer that the witness observed the