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State v. Abdo

Supreme Court of South Dakota

April 25, 2018

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
JOHN ABDO, JR., Defendant and Appellant.

          CONSIDERED ON BRIEFS ON MARCH 19, 2018

          APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT CHARLES MIX COUNTY, SOUTH DAKOTA THE HONORABLE BRUCE V. ANDERSON Judge

          KEITH GOEHRING Parkston, South Dakota Attorney for defendant and appellant.

          MARTY J. JACKLEY Attorney General

          CULLEN P. MCNEECE Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

          SEVERSON, Justice

         [¶1.] In this consolidated appeal following separate convictions and sentences for aggravated assault and escape, John Abdo asserts multiple issues for our review. He challenges the circuit court's denial of the motion to suppress filed in each case. Abdo further claims the circuit court erred when it denied him a new trial after the jury found him guilty of aggravated assault and guilty of the lesser-included offense of simple assault. Additionally, Abdo asserts the circuit court abused its discretion in certain evidentiary rulings and that the evidence is insufficient to support the jury's verdict. We affirm.

         Background

         [¶2.] On the evening of January 7, 2016, Roseanne Weddell, Winston Houseman, John Abdo, Philomene Boneshirt, and Hazen Winckler were watching television together in a home owned by Shelly Selwyn in Wagner, South Dakota. Roseanne is Shelly's daughter. Shelly did not live in the home but allowed Roseanne and Roseanne's now-husband Winston to live there. Winston later testified that Abdo (Winston's nephew) also stayed at the home from time to time and had been staying there during the two weeks preceding January 7, 2016. Philomene was Abdo's girlfriend. Hazen was an acquaintance.

         [¶3.] Around midnight on January 7, after Abdo, Winston, Philomene, and Hazen had collectively consumed at least a half-gallon of vodka, the group went outside to smoke. Roseanne was not drinking and did not join the group outside; she had retired to her bedroom. When Abdo, Winston, Philomene, and Hazen finished smoking and came back inside Abdo and Philomene went to Abdo's bedroom located in the northwest corner of the home. A curtain separated the bedroom from the living room. Winston testified that around five or ten minutes after Abdo and Philomene retreated to the bedroom, he saw Hazen leave the home. Shortly thereafter, Winston went to the bedroom he and Roseanne shared.

         [¶4.] Winston testified that 20 or 30 minutes after he went to his bedroom, he heard hollering. He went to the living room to investigate, but by the time he got there, the hollering had stopped. Winston returned to his bedroom. Shortly thereafter, Winston heard crying and screaming. He testified that he heard Philomene say, "Stop biting me!" When Winston went to investigate, he found that Philomene was in the bathroom screaming. The door to the bathroom was closed. Winston saw Abdo asleep or passed out on the floor in the bedroom adjacent to the bathroom. Winston did not want to barge into the bathroom in case Philomene was indisposed, so he asked Roseanne to check on Philomene. Roseanne found Philomene bloody with an injury to her nose and with bite marks on her body.

         [¶5.] Roseanne and Winston took Philomene to the Indian Health Service hospital in Wagner, South Dakota. Hospital staff called law enforcement to investigate. Wagner Police Officer Shane Larson spoke with Winston. Winston relayed the sequence of events to Officer Larson. Officer Larson determined that Abdo was a suspect. Winston also informed Officer Larson that he and Roseanne lived in the home and that Abdo was passed out in one of the bedrooms. Winston gave Officer Larson permission to enter the home. Winston also signed a written statement consenting to law enforcement's entry into the home to remove Abdo.

         [¶6.] After obtaining Winston's consent, Officer Larson, Officer Brian McGuire, and Charles Mix County Deputy Sheriff Derik Rolston entered the home to look for Abdo. They found him passed out on the bedroom floor. The officers had a difficult time waking Abdo. The officers did not observe scratches or marks on Abdo. However, the officers observed that Abdo had blood around his mouth and on his hands. The officers arrested Abdo.

         [¶7.] Back at the hospital in Wagner, staff bandaged Philomene. She was transferred to Sanford Hospital in Sioux Falls, South Dakota for surgery. Once at Sanford Hospital, Dr. Bradley Coots, a board certified plastic surgeon, examined and spoke with Philomene. As he and his staff prepped her for surgery, Dr. Coots observed that the tip of Philomene's nose had been cut, torn, or bitten off. He also noticed multiple abrasions on her body. Dr. Coots asked Philomene how the injuries had occurred. She replied that her boyfriend bit her. During surgery, Dr. Coots successfully reattached the tip of Philomene's nose.

         [¶8.] A grand jury issued an indictment charging Abdo with aggravated assault (domestic) in violation of SDCL 22-18-1.1(4) and SDCL 25-10-1. The State filed a part II information alleging Abdo to be a habitual offender. While incarcerated, Abdo obtained a furlough to attend a job interview. Once released on furlough, Abdo did not return. Thereafter and in a separate criminal file, a grand jury indicted Abdo for second-degree escape in violation of SDCL 22-11A-2.1. The State again filed a part II information alleging Abdo to be a habitual offender.

         [¶9.] Abdo filed a motion to suppress in both files. He asserted that law enforcement's entry into his bedroom in the residence without a warrant violated his rights under the Fourth Amendment, requiring suppression of all the evidence gathered against him including the evidence related to the escape charge. After a hearing and after ...


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