#26695-aff in pt & rem-SLZ
2014 S.D. 7
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
RICHARD W. GUTHMILLER, Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
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THE HONORABLE THOMAS L. TRIMBLE
Judge
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MARTY J. JACKLEY
Attorney General
ANN F. MINES
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
JOHN S. RUSCH of
Rensch Law, Prof. LLC
Rapid City, South Dakota Attorneys for defendant
and appellant.
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CONSIDERED ON BRIEFS
ON JANUARY 14, 2014
OPINION FILED 02/12/14
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ZINTER, Justice
[¶1.] A jury found Richard Guthmiller guilty of eight counts of making false
or fraudulent sales tax returns. On appeal, Guthmiller argues that the circuit court
erred in denying his Batson challenges to three peremptory strikes exercised by the
State. He also argues that the court erred in denying his motion for judgment of
acquittal. We affirm the circuit court’s denial of the motion for judgment of
acquittal, but we remand for the court to undertake the required Batson analysis.
Facts and Procedural History
[¶2.] In 1995, Richard Guthmiller moved to Rapid City where he worked for
automotive body repair businesses. In January 2008, he started his own
automotive body repair business. That same month, he applied for and received a
sales tax license from the South Dakota Department of Revenue. The Department
cancelled his license in October 2008 because Guthmiller indicated on his sales tax
return that he was “out of business.” In March 2009, the Department discovered
that Guthmiller was still operating his business and informed him that he needed
to reapply. Guthmiller reapplied and was reissued a license.
[¶3.] While operating his business during eight tax-reporting periods,
Guthmiller filed sales tax returns. He reported sales on each return, but he
indicated that his sales were exempt. A subsequent investigation led the
Department to believe that Guthmiller was filing false or fraudulent returns.
Guthmiller was indicted on eight counts of making false or fraudulent sales tax
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returns in an attempt to defeat or evade the tax in violation of SDCL 10-45-27.3 and
SDCL 10-45-48.1(1). 1
[¶4.] Guthmiller moved to dismiss the indictment. He claimed that under
the terms of the Fort Laramie Treaty of 1868, Rapid City was located in Indian
Country. Based on this claim and on his tribal membership, Guthmiller argued
that South Dakota did not have authority to tax his Rapid City business. The
motion was denied. After Guthmiller’s unsuccessful petition for an intermediate
appeal before this Court, his case proceeded to trial.
[¶5.] During voir dire, Guthmiller’s attorney asked the veniremembers for a
“show of hands of anybody . . . who’s partially even in the smallest amount Native
American.” Although the record does not reflect the actual number of Native
American veniremembers, the circuit court stated that “there [were] at least five
identified.” No other questions were asked about race.
[¶6.] Following voir dire, the State exercised its peremptory strikes.
Guthmiller objected to three of those strikes, arguing that they violated Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). In response, the
1. As is relevant here, SDCL 10-45-27.3 provides:
Any person who holds a license issued pursuant to this chapter
[retail sales and service tax] or who is a person whose receipts
are subject to the tax imposed by this chapter shall, except as
otherwise provided in this section, file a return, and pay any tax
due, to the Department of Revenue on or before the twentieth
day of the month following each monthly period. The return
shall be filed on forms prescribed and furnished by the
department.
SDCL 10-45-48.1(1) provides: “Any person who: (1) Makes any false or
fraudulent return in attempting to defeat or evade the tax imposed by this
chapter [retail sales and service tax] is guilty of a Class 6 felony[.]”
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State tendered its reasons for the strikes. After brief remarks, the circuit court
summarily denied Guthmiller’s Batson challenges without giving a reason for its
decision.
[¶7.] During its case-in-chief, the State called the Department employee
who investigated Guthmiller. The investigator presented evidence indicating that
Guthmiller performed taxable services during each tax-reporting period but failed
to remit sales tax. Although Guthmiller ostensibly reported all his gross sales
during each period, the investigator also presented evidence indicating that
Guthmiller underreported his sales on all returns.
[¶8.] Another Department employee provided evidence relating to
Guthmiller’s knowledge of sales tax laws. The employee testified that she had
explained to Guthmiller how sales tax applied to his business. She testified that
she specifically told him “all [his] customers were subject to sales tax unless he was
given an exemption certificate.” According to her, Guthmiller seemed to understand
her explanation. In addition to her conversations with Guthmiller, the employee
testified that she also provided him with publications explaining how sales tax
applied to his business.
[¶9.] At the close of the State’s case-in-chief, Guthmiller moved for judgment
of acquittal. He argued that the State had failed to prove that he had the specific
intent to defeat or evade sales tax. The circuit court denied the motion.
[¶10.] Guthmiller then presented a defense that he lacked the specific intent
to defeat or evade sales tax. He testified that he believed Rapid City was located in
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Indian Country, and therefore, as a tribal member, his sales were exempt from state
tax laws. The jury ultimately returned a guilty verdict on all counts.
Decision
[¶11.] On appeal, Guthmiller raises two issues. He first argues that the
circuit court’s Batson analysis was incomplete, thus necessitating remand to allow
the court to engage in the missing analysis. 2
[¶12.] Under Batson and its progeny, a three-step analysis is used to
determine whether peremptory strikes were based on purposeful racial
discrimination.
First, the defendant must make out a prima facie case by
showing that the totality of the relevant facts gives rise to an
inference of discriminatory purpose. Second, once the defendant
has made out a prima facie case, the burden shifts to the State
to explain adequately the racial exclusion by offering
permissible race-neutral justifications for the strikes. Third, [i]f
a race-neutral explanation is tendered, the trial court must then
decide . . . whether the opponent of the strike has proved
purposeful racial discrimination. 3
2. We review the circuit court’s application of the law under Batson de novo.
State v. Scott, 2013 S.D. 31, ¶ 9 n.1, 829 N.W.2d 458, 461 n.1. We review a
circuit court’s findings on purposeful racial discrimination for clear error. Id.
3. While the normal course in a Batson analysis is to take each step in order,
the first step becomes moot if the circuit court rules on the ultimate issue of
purposeful racial discrimination. See Hernandez v. New York, 500 U.S. 352,
359, 111 S. Ct. 1859, 1866, 114 L. Ed. 2d 395 (1991) (plurality opinion) (“Once
a prosecutor has offered a race-neutral explanation for the peremptory
challenges and the trial court has ruled on the ultimate question of
intentional discrimination, the preliminary issue of whether the defendant
had made a prima facie showing becomes moot.”).
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State v. Scott, 2013 S.D. 31, ¶ 16, 829 N.W.2d 458, 465-66 (alteration in original)
(quoting Johnson v. California, 545 U.S. 162, 168, 125 S. Ct. 2410, 2416, 162 L. Ed.
2d 129 (2005)) (internal citations and quotation marks omitted).
[¶13.] In this case, the following dialogue is the entire record of the Batson
challenge and the circuit court’s analysis.
Defense Counsel: Judge, at this time, the Defense moves to
challenge the exclusion of all minorities from the jury pool.
Prior to the selection process, there was at least three minorities
that were physically identifiable, those being [S.A.], [J.H.]
appeared to be black, and [D.B.], who appeared to be black, all of
which have been struck.
Ultimately, following the selection process, there appears not to
be a single minority on the jury panel, despite the fact that at
the beginning of the panel there were several individuals that
indicated minority status.
Court: [State].
State: Okay. You had [D.B.]? I did not know that he was a
minority. I will give you my reasons for all three, okay?
[D.B.] and [S.A.] each had prior convictions. I had them marked
before we came into the jury room [sic]. [S.A.] actually had both.
He was convicted and had family members convicted. I didn’t
have access to Triple I’s. I don’t know what those crimes are, if
egregious or something minor. That was a red flag for me, and
so that’s why I exercised.
As for [J.H.], [J.H.] I guess concerned us. I didn’t have anything
marked on him. I was neutral coming in. During voir dire, I did
not see him respond to any question. I didn’t hear him say a
word the entire morning. I didn’t even see him shake his head
or nod his head during -- while I was questioning.
I’m not sure if he gestured or responded while [Defense Counsel]
was up there. I did not see that he did. And there were even
times, you know, where I asked for assurances, can you follow --
can you follow the law? Can you give each side a fair shake?
And you could see the entire body of the jury shaking their head
except for [S.A.] actually, and [J.H.], who were sitting next to
each other, so it was kind of conspicuous. That’s why I exercised
on those three.
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Court: All right. Well, when the question was asked whether
there [were] any Native Americans here, I saw at least five
hands go up, and I’m not sure if there were more, but I counted
five for sure. They were not up very long. They were not
identified. I don’t know whether or not defense or plaintiffs
struck the people that were up. But I know there was at least
five identified. And I guess there’s two that we don’t know
anything about.
I’m assuming Mr. Guthmiller is Native American. I don’t know
what his percentage is. I have no idea. It’s not part of the
record at this time.
Guthmiller: Under Federal Guidelines, I’m recognized.
Court: I’m just saying. That’s my question. But I’m going to
deny your motion.
[¶14.] The State contends that the circuit court resolved the Batson
challenges under step one, finding that Guthmiller had not established a prima
facie case. But during the Batson dialogue, the State never claimed that Guthmiller
failed to establish his prima facie case. Instead, the State tacitly accepted
Guthmiller’s prima facie showing and proceeded to step two, explaining its reasons
for striking the three minority veniremembers.
[¶15.] Thereafter, the court’s questions suggested that it may have been
considering whether Guthmiller satisfied his prima facie case. But the court did not
indicate whether it found that Guthmiller failed to establish his prima facie case or
whether he failed to carry his ultimate burden to prove purposeful racial
discrimination. The court denied the challenges without analysis or explanation.
[¶16.] Under this record, we are unable to determine the circuit court’s
reason for denying the Batson challenges. We acknowledge that there are no
“‘magic words’ the trial court must use in order to fulfill a Batson analysis.” State v.
Ryan, 2008 S.D. 94, ¶ 13, 757 N.W.2d 155, 159. For example, “a trial court
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implicitly conducts [the required] analysis when it accepts or rejects the State’s
explanations for use of its peremptory challenges.” Id. (emphasis added). However,
the circuit court did not indicate whether it had accepted the State’s reasons for its
strikes. The court simply denied the Batson challenges without explanation.
Absent the required Batson analysis, “limited remand is required to allow the
circuit court to engage in the missing analysis.” Scott, 2013 S.D. 31, ¶ 22, 829
N.W.2d at 467 (citations omitted).
[¶17.] On remand, the court should first determine whether Guthmiller
“satisfie[d] the requirements of Batson’s first step by producing evidence sufficient
to permit the [court] to draw an inference that [racial] discrimination has
occurred.” 4 Johnson, 545 U.S. at 170, 125 S. Ct. at 2417. If the court determines
that Guthmiller satisfied step one, it must then proceed to step two.
[¶18.] Under step two, the circuit court must determine whether the record
shows that the State offered facially race-neutral justifications for its strikes. The
bar to meet step two is not high. As the Supreme Court explained:
The second step of [Batson] does not demand an explanation
that is persuasive, or even plausible. “At this [second] step of
the inquiry, the issue is the facial validity of the prosecutor’s
explanation. Unless a discriminatory intent is inherent in the
4. The circuit court questioned Guthmiller’s race. “[A] criminal defendant may
object to race-based exclusions of [veniremembers]” regardless of whether
“the defendant and the excluded [veniremember] share the same race.”
Honomichl v. Leapley, 498 N.W.2d 636, 639 (S.D. 1993) (citing Powers v.
Ohio, 499 U.S. 400, 402, 111 S. Ct. 1364, 1366, 113 L. Ed. 2d 411 (1991)).
The races of the defendant and the struck veniremember are, however,
relevant “circumstances for the trial court to consider in determining whether
[a] defendant raised an inference that [the] State used its peremptory
challenges for race-based reasons.” Id. (citing Powers, 499 U.S. at 416, 111 S.
Ct. at 1373-74).
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prosecutor’s explanation, the reason offered will be deemed race
neutral.”
Purkett v. Elem, 514 U.S. 765, 767-68, 115 S. Ct. 1769, 1771, 131 L. Ed. 2d 834
(1995) (per curiam) (second alteration in original) (quoting Hernandez, 500 U.S. at
360, 111 S. Ct. at 1866 (plurality opinion)) (citing Hernandez, 500 U.S. at 374, 111
S. Ct. at 1874 (O’Connor, J., concurring in judgment)). If the circuit court
determines that the State offered facially race-neutral justifications for its strikes,
the court must proceed to step three.
[¶19.] It is within step three that the circuit court has “the duty to assess the
veracity of the State’s race-neutral” justifications for its strikes and to determine
whether Guthmiller “met his burden of proving purposeful [racial] discrimination.”
See Scott, 2013 S.D. 31, ¶ 21, 829 N.W.2d at 466 (citing Snyder v. Louisiana, 552
U.S. 472, 477, 128 S. Ct. 1203, 1208, 170 L. Ed. 2d 175 (2008)); see also Johnson,
545 U.S. at 171, 125 S. Ct. at 2418 (“It is not until the third step that the
persuasiveness of the justification becomes relevant—the step in which the trial
court determines whether the opponent of the strike has carried his burden of
proving purposeful [racial] discrimination.” (quoting Purkett, 514 U.S. at 768, 115 S.
Ct. at 1771)). In performing that analysis, the court “should not supinely accept
‘any purportedly race-neutral reason that a skilled attorney can conjure up in
response to a Batson challenge,’ but must decide if the reason offered for the strike
was ‘merely a pretext designed to mask the improper consideration of race to
exclude’ a [veniremember].” Scott, 2013 S.D. 31, ¶ 19, 829 N.W.2d at 466 (quoting
Coombs v. Diguglielmo, 616 F.3d 255, 261 n.5 (3d Cir. 2010)) (citing Miller-El v.
Dretke, 545 U.S. 231, 251-52, 125 S. Ct. 2317, 2331-32, 162 L. Ed. 2d 196 (2005)).
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[¶20.] We remand on the Batson issue to allow the circuit court to perform
the required analysis on the existing record in accordance with this opinion. “If the
court concludes that [Guthmiller] proved purposeful [racial] discrimination . . .,
[Guthmiller’s] conviction[s] should be vacated and a new trial ordered.” See id. ¶ 23
(citation omitted). If Guthmiller failed to make his required showings, his
challenges should be denied.
[¶21.] Guthmiller also appeals the denial of his motion for judgment of
acquittal. We review the denial of a motion for judgment of acquittal de novo. State
v. Danielson, 2012 S.D. 36, ¶ 8, 814 N.W.2d 401, 405 (citation omitted). Our task is
to determine “whether the evidence was sufficient to sustain the conviction.” State
v. Dowty, 2013 S.D. 72, ¶ 15, 838 N.W.2d 820, 825 (quoting State v. Roubideaux,
2008 S.D. 81, ¶ 13, 755 N.W.2d 114, 118). To do so, we ask “whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
Id. (quoting State v. Plenty Horse, 2007 S.D. 114, ¶ 5, 741 N.W.2d 763, 765).
[¶22.] Guthmiller argues that his motion for judgment of acquittal should
have been granted because the State failed to prove that he had the specific intent
necessary to commit the crimes. He contends that he held a good-faith belief that
all his sales were exempt, and therefore, he did not have the specific intent to defeat
or evade sales tax. He relies on Cheek v. United States, 498 U.S. 192, 111 S. Ct.
604, 112 L. Ed. 2d 617 (1991), to support his contention that good-faith beliefs
negate specific intent. Guthmiller misconstrues Cheek.
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[¶23.] Guthmiller correctly notes that a good-faith belief, even if objectively
unreasonable, “provide[s] an evidentiary basis upon which the jury could find that
the necessary element of specific intent had not been proven beyond a reasonable
doubt.” See id. at 202. From this, however, Guthmiller incorrectly asserts that
Cheek required the jury to find that his claimed good-faith belief negated his
specific intent. Cheek does not demand that result.
[¶24.] As Guthmiller acknowledges, his claimed belief that his sales were
exempt from tax “did not make him per se immune from prosecution[.]” Instead, it
was for the jury to decide whether his belief was held in good faith. See id. at 203
(“[B]elief [is] characteristically [a] question[] for the factfinder, in this case the
jury.”).
[¶25.] In this case, the totality of the evidence, when viewed in a light most
favorable to the State, was sufficient for a rational juror to disbelieve Guthmiller’s
claimed belief and find that he had the specific intent to defeat or evade sales tax.
The State presented evidence showing that Guthmiller was aware of the legal
duties imposed by South Dakota tax laws. A Department employee testified that
she explained to Guthmiller how sales tax applied to his business. She told him
that all his customers were subject to sales tax, unless the customer gave him an
exemption certificate. The employee further testified that Guthmiller appeared to
understand her sales-tax explanation. Moreover, Guthmiller was given
publications that described how sales tax applied to his business.
[¶26.] In addition to evidence of Guthmiller’s knowledge of tax laws, the
State presented evidence that a rational juror could find sufficient to demonstrate
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that Guthmiller intended to defeat or evade sales tax. The State’s evidence showed
that Guthmiller falsely indicated to the Department that he was “out of business,”
which caused his license to be temporarily cancelled. Yet during the time his
license was cancelled, he continued operating his business, and he did not reapply
for his license until he was contacted by the Department. The State also presented
evidence showing that Guthmiller not only failed to pay sales tax each reporting
period, he also underreported his gross sales for each period; and in one case, he
actually collected sales tax but did not remit it to the Department. Finally, there
was evidence that Guthmiller misled the Department investigator regarding the
existence of business records, bank accounts, and exemption certificates relating to
the taxability of his sales.
[¶27.] Ultimately, it was for the jury to resolve the factual conflicts, weigh
credibility, and sort out the truth. See Dowty, 2013 S.D. 72, ¶ 15, 838 N.W.2d at
825 (“[I]n reviewing the sufficiency of the evidence . . . [we] ‘will not usurp the jury’s
function in resolving conflicts in the evidence, weighing credibility, and sorting out
the truth.’” (citation omitted)). The evidence presented on Guthmiller’s state of
mind conflicted, but the jury resolved that conflict against Guthmiller. While
Guthmiller contends that he held a good-faith belief that he was exempt from sales
tax, it was within the jury’s prerogative to disbelieve his contention and find that he
had the specific intent to defeat or evade sales tax. Because the evidence was
sufficient to sustain the convictions, we affirm the circuit court’s denial of
Guthmiller’s motion for judgment of acquittal.
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[¶28.] Affirmed in part and remanded for further proceedings in conformance
with this opinion.
[¶29.] GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and
WILBUR, Justices, concur.
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