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State v. Scott

Supreme Court of South Dakota

April 24, 2019

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
NATHAN SCOTT, Defendant and Appellant.



          MARTY J. JACKLEY Attorney General QUINCY R. KJERSTAD Assistant Attorney General Attorneys for plaintiff Pierre, South Dakota and appellee.

          MARK KADI of Minnehaha County Office of the Public Advocate Attorneys for defendant Sioux Falls, South Dakota and appellant.

          KONENKAMP, Retired Justice

         [¶1.] A jury found Nathan Scott guilty of aggravated assault of his wife and his wife's sister. On appeal, he contends: (1) the circuit court erroneously admitted a police officer's opinion on the nature of his wife's wounds, (2) the evidence was insufficient, so his judgment of acquittal motions should have been granted, and (3) the court's judgment of conviction violated his rights because it included a notation that the aggravated assault of his wife constituted domestic abuse, when the jury made no such finding. We conclude that the officer's testimony about the wounds was not prejudicial; that the evidence was sufficient; and that adding the domestic abuse notation was error, but the remedy is to remand for entry of an amended judgment without the notation. Thus, we affirm and remand.


         [¶2.] On Easter Sunday, April 16, 2017, Tasina Swimmer attended a family picnic at a park in Sioux Falls with her mother, sisters, and other family members. Tasina's husband of three days, Nathan Scott, did not attend. After Tasina left the picnic early, some of her family members became concerned when they received disquieting text messages from Scott. They headed over to Tasina and Scott's apartment.

         [¶3.] Tasina's sister, Marissa Swimmer, and Marissa's husband, Oliver Red Feather, arrived first. They noticed Scott's vehicle double parked outside with the engine running. Oliver dropped Marissa off and continued down the street to park. As Marissa approached the apartment, she heard Tasina scream, "Help me." Marissa later testified that the scream was "just horrible, a horrible scream." Finding the front door locked, Marissa threw her shoulder into the door and, in her words, "bursted it open." Once inside, Marissa saw her bloodied sister on the living room floor with Scott standing over her. He held a drywall hammer in his right hand, raised above his head as if he were about to strike Tasina. Marissa shouted, "Call the cops," to family members just arriving outside. Without saying anything, Scott left the apartment.

         [¶4.] Marissa ran to Scott's car and removed the keys to prevent him from leaving. He left on foot, heading down the sidewalk, still holding the hammer. Marissa went back to the apartment to care for Tasina and await the police and an ambulance, while Tasina's sister, Sonia Bisonnette, pursued Scott. Sonia did not want Scott to escape. He told her to get away from him. She ignored him.

         [¶5.] During the pursuit, Scott swung the hammer at her legs, but she jumped back to avoid being hit. When Scott darted across a yard and into an alley, Sonia followed. At one point, Scott turned back toward Sonia, yelling for her to leave him alone. Scott pushed her down with one hand while holding the hammer in the other. She stood up and pushed him. Scott again swung the hammer at her and the two struggled. He threw her down into a water puddle and landed on top of her. He raised the hammer above his head. She believed he was going to strike her with it. At that moment, Sonia's husband, Oliver, yelled from a distance, "[P]ut the hammer down, bitch." Both Scott and Sonia got up. He again swung the hammer at her legs but did not make contact. Then he ran away. Sonia told Oliver to follow him, and Sonia returned to Tasina. Oliver trailed Scott until he saw officers arrest him at a nearby park. When he was arrested, Scott did not have the hammer, but it was later recovered nearby.

         [¶6.] At Tasina's apartment, Officer Kylie Huemoeller took pictures of Tasina's injuries and the crime scene. Tasina's cheeks and lips were swollen, blood spurted from her nostrils when she breathed, there was blood around her mouth and she was spitting out blood, her knuckles were scratched, she had scrapes and bruises on her legs, and her clothing was ripped and disheveled. There were fresh blood spatters on the carpet and on a mattress in the living area. Officer Huemoeller was not able to interview Tasina at the apartment because she was "very emotional" and was "crying very hard." When Sonia returned, she was interviewed and her injuries were photographed. Later, at the hospital, Tasina allowed Officer Huemoeller to photograph some of her injuries, but she would not cooperate in filling out a victim's form. DNA samples taken from the hammer later tested positive for the presence of Tasina's and Scott's DNA.

         [¶7.] A Minnehaha County grand jury indicted Scott on six counts: two counts of aggravated assault with a dangerous weapon, two counts of aggravated assault by physical menace, and two counts of simple assault. The indictment noted that the aggravated assaults of Tasina were "domestic" offenses as defined in SDCL 25-10-1. After a two-day trial, the jury found Scott guilty of two counts of aggravated assault by physical menace (one for Tasina and the other for Sonia). He was acquitted on the two counts of aggravated assault with a dangerous weapon. On the two misdemeanor simple assault counts, the jury found Scott guilty of one and not guilty on the other. Scott later admitted to an amended part II habitual offender information. At sentencing, the court imposed twenty years in prison with five years suspended for the aggravated assault of Tasina, and fifteen years with ten suspended for the aggravated assault of Sonia. The sentences were set to run consecutively. Scott's conviction for simple assault was dismissed.

         [¶8.] Scott appeals on grounds that (1) the circuit court abused its discretion in admitting opinion evidence from a police officer, (2) there was insufficient evidence to support either conviction for aggravated assault by physical menace, and (3) he was entitled to have a jury determine whether he committed a domestic abuse offense as noted in the judgment of conviction.

         Analysis and Decision 1. Police officer's opinion on offensive and defensive wounds.

         [¶9.] In the following exchange, defense counsel asked Officer Huemoeller to relate her "training and experience about individuals who end up ...

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