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State v. Foote

Supreme Court of South Dakota

June 19, 2019

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
BEAU DEAN FOOTE, SR., Defendant and Appellant.

          CONSIDERED ON BRIEFS ON APRIL 29, 2019

          APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT STANLEY COUNTY, SOUTH DAKOTA THE HONORABLE PATRICIA DEVANEY Judge

          BRAD A. SCHREIBER Pierre, South Dakota Attorney for defendant and appellant.

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

          OPINION

          WILBUR, RETIRED JUSTICE

         [¶1.] Beau Dean Foote Sr. was convicted of resisting arrest; he does not dispute this conviction. He was also convicted of two counts of aggravated assault against a law enforcement officer. For these convictions, he claims the evidence was insufficient because, in his view, a Taser is not a dangerous weapon and he did not attempt to use the Taser to cause serious bodily harm to either officer. We affirm.

         Background

         [¶2.] Parole Agent Mike Stolley and Stanley County Deputy Sheriff Greg Swanson went to a residence in Fort Pierre to execute an arrest warrant for Foote. Foote was on parole at the time, and Agent Stolley was his parole agent. Agent Stolley knocked on the front door and announced his presence while Deputy Swanson stood outside the back door. No one came to the front door, but Agent Stolley heard a sound from inside suggesting that someone was moving. The front door was unlocked, and Agent Stolley entered the residence and called for Foote. At the same time, Deputy Swanson entered the residence through the back door and began walking down a hallway toward the living room.

         [¶3.] Once inside, Agent Stolley saw Foote lying face down on the floor of the living room. Agent Stolley tried to handcuff him, but Foote jumped up and ran down the hallway toward Deputy Swanson. Deputy Swanson pushed Foote onto the couch, and in doing so, the deputy's Taser fell out of its holster. Foote noticed the Taser had fallen and reached for it at the same time as Deputy Swanson. A short but intense struggle ensued while Deputy Swanson wrestled Foote to attempt to gain control of the Taser. Foote held the pistol grip and pointed it at the deputy's face. Deputy Swanson grabbed the barrel of the Taser and pushed it away from his face. The probes deployed and lodged into the back of the couch. Deputy Swanson became tangled up in the Taser wires and received an electrical shock. He continued to receive electrical shocks as the Taser fired three more times. The repeated electrical shocks caused Deputy Swanson to lose his partial grip of the Taser.

         [¶4.] With full control of the Taser, Foote focused his efforts on Agent Stolley. He pushed the barrel against Agent Stolley's chest and pulled the trigger. Agent Stolley's bulletproof vest prevented him from being stunned. Agent Stolley drew his weapon and pointed it at Foote. Foote dropped the Taser and put his hands behind his back. Although he initially seemed amenable to arrest, Foote again resisted while handcuffed, kicking at the officers and trying to wriggle free. After being placed in wrist and ankle restraints, with an attachment to his waist, Foote was arrested and taken into custody.

         [¶5.] Foote was charged with two counts of aggravated assault with a dangerous weapon against a law enforcement officer, and in the alternative two counts of simple assault against a law enforcement officer. Foote was also charged with resisting arrest. The State filed a part II information alleging Foote to be a habitual offender. Foote pleaded not guilty, and after a trial, the jury found Foote guilty of two counts of aggravated assault against a law enforcement officer and guilty of one count of resisting arrest. After Foote admitted to the part II information, the court imposed sentence.

         [¶6.] Foote appeals, asserting the circuit court erred when it denied his motion for a judgment of acquittal. He also challenges the sufficiency of the evidence for both convictions of aggravated assault against a law enforcement officer.

         Analysis

         [¶7.] Foote combines his arguments as to both issues because whether the circuit court erred when it denied a judgment of acquittal and whether sufficient evidence exists to support a verdict implicate the same standard of review. Both questions require us to examine "whether there is evidence in the record which, if believed by the fact finder, is sufficient to sustain a finding of guilt beyond a reasonable doubt." State v. Carter, 2009 S.D. 65, ¶ 44, 771 N.W.2d 329, 342. A circuit court properly denies a motion for a judgment of acquittal if the State produces evidence that-if believed by the jury-may reasonably support a guilty verdict. State v. Abdo, 518 N.W.2d 223, 227 (S.D. 1994). Our review as to the sufficiency of the evidence to sustain the convictions is de novo. State v. ...


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