State v. Berhanu

#23760-a-JKK

2006 SD 94

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

ALEMU TADELE BERHANU, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

HONORABLE GLEN A. SEVERSON
Judge

* * * *

LAWRENCE E. LONG
Attorney General

ANN C. MEYER
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.

SCOTT B. CARLSON Attorney for defendant
Sioux Falls, South Dakota and appellant.

* * * *

ARGUED ON OCTOBER 3, 2006

OPINION FILED 11/01/06
#23760

KONENKAMP, Justice

[¶1.] Defendant appeals his convictions for attempted first degree murder

and two counts of aggravated assault. We affirm.

Background

[¶2.] Abraham Sandal was scheduled to work at Wal-Mart in Sioux Falls,

South Dakota, at 11:00 p.m. on January 7, 2005. He decided to go to work around

10:00 p.m. that evening because he wanted an extra hour of work. After he arrived

and parked his vehicle in the Wal-Mart parking lot, he began walking toward the

store entrance. At the same time, defendant Alemu Berhanu, a fellow employee

and former friend, sat in his parked car just a few spaces away from where Sandal

had parked.

[¶3.] As Sandal was walking toward the store, Berhanu pulled out of his

parking space and drove toward Sandal. Berhanu accelerated and ran his vehicle

into him. The impact of the collision caused Sandal’s body to bounce off the front of

Berhanu’s car. Sandal rolled off and got caught underneath. Berhanu continued

driving forward with Sandal still pinned underneath his car. He drove between two

concrete-based poles used to designate handicap parking. The right side of his car

grazed one pole, yet Berhanu continued to drive toward the front of the Wal-Mart

store. He did not stop until he ran into a car occupied by George Zahn. Zahn was

parked in front of the store waiting for his wife to return. The collision sandwiched

Zahn’s vehicle between Berhanu’s car and the Wal-Mart store, thereby pinning

Zahn inside his vehicle. Sandal was still trapped underneath Berhanu’s car.

-1-
#23760

[¶4.] Berhanu got out of his car and began to walk away. Moments later, a

bystander who witnessed him driving over Sandal, stopped Berhanu and restrained

him until law enforcement officers arrived. Thereafter, Berhanu was taken into

custody and charged with (1) attempted first-degree murder of Sandal, (2)

aggravated assault on Sandal, (3) aggravated assault with a dangerous weapon

against Zahn, and (4) violation of a protection order.

[¶5.] At the close of his jury trial, Berhanu moved the court for a judgment

of acquittal, claiming that the evidence was insufficient to establish guilt for

attempted murder and two counts of aggravated assault. The trial court denied

Berhanu’s motion, and the jury found him guilty of all four charges. He was

sentenced to twenty-five years for attempted first-degree murder, fifteen years for

the aggravated assault against Zahn, and one year for violating a protection order.

The court did not impose a sentence for the aggravated assault on Sandal. The

fifteen and twenty-five year sentences were ordered to be served consecutively, with

the one year sentence to be served concurrently. The court also ordered restitution

of $458,084.94 for Sandal’s medical expenses.

[¶6.] On appeal, Berhanu asserts that (1) there was insufficient evidence to

support the jury’s verdict beyond a reasonable doubt, and (2) his consecutive

sentences amount to cruel and unusual punishment.

Standard of Review

[¶7.] “In measuring evidentiary sufficiency, 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.’”

-2-
#23760

State v. Disanto, 2004 SD 112, ¶14, 688 NW2d 201, 206 (quoting Jackson v.

Virginia, 443 US 307, 319, 99 SCt 2781, 2789, 61 LEd2d 560 (1979)). We will set

aside a jury verdict only “where the evidence and all reasonable inferences to be

drawn therefrom fail to sustain a rational theory of guilt.” State v. Hage, 532

NW2d 406, 410 (SD 1995) (citations omitted).

The denial of a motion for judgment of acquittal presents a
question of law, and thus our review is de novo. See United
States v. Staula, 80 F3d 596, 604 (1stCir 1996). We must decide
anew whether the evidence was sufficient to sustain a
conviction. SDCL 23A-23-1 (Rule 29(a)); State v. Guthrie, 2001
SD 61, ¶47, 627 NW2d 401, 420-21; see also 2 Steven Alan
Childress & Martha S. Davis, Federal Standards of Review §
9.10 (3d ed 1999) (citing United States v. Scott, 437 US 82, 100
n13, 98 SCt 2187, 2198 n13, 57 LEd2d 65 (1978)).

Disanto, 2004 SD 112, ¶14, 688 NW2d at 206. See also State v. Tofani, 2006 SD 63,

¶35, 719 NW2d 391, 399. Whether a sentence is cruel and unusual in violation of

our state and federal constitutions is a question of law reviewed de novo. State v.

Smiley, 2004 SD 119, ¶4, 689 NW2d 427, 429; State v. Bonner, 1998 SD 30, ¶17,

577 NW2d 575, 580.

Analysis and Decision

[¶8.] Berhanu argues that the State failed to produce sufficient evidence

establishing each element of attempted first-degree murder. He maintains that he

did not intend to kill Sandal, but only meant to scare him. Moreover, he claims that

the State failed to present evidence establishing his state of mind, and therefore,

did not prove beyond a reasonable doubt that he had a “premeditated design to

effect the death” of Sandal. In response, the State argues that at the very least

Berhanu formed the intent to kill Sandal moments before he intentionally drove his

-3-
#23760

car over him. This conclusion, the State contends, is supported by witness

testimony and from the Wal-Mart surveillance video, showing that Berhanu

intentionally drove into Sandal. Moreover, the State asserts that because of

Berhanu and Sandal’s troubled relationship, there is further evidence to support an

intent to kill Sandal.

[¶9.] At trial, the State offered the testimony of Detective Bruce Millikan

from the Sioux Falls Police Department. Detective Millikan interviewed Berhanu

after he was arrested. The interview was recorded and the tape was entered into

evidence at trial. The tape was not played in open court, but Detective Millikan

summarized for the jury the substance of the interview. 1 He stated that Berhanu

told him how he and Sandal had both immigrated to the United States from

Ethiopia. They had become friends about nine years ago when they worked

together at John Morrell. Sandal eventually left Morrell and began working at Wal-

Mart, and Berhanu left to work in Omaha, Nebraska. A short time later, however,

Sandal convinced Berhanu to join him in Sioux Falls. He had told Berhanu he

would get him a job at Wal-Mart and that Berhanu could live with him.

[¶10.] Berhanu told Detective Millikan that he came to Sioux Falls and began

living with Sandal and working at Wal-Mart. It was at some point after this move

that Sandal and Berhanu’s friendship deteriorated. Detective Millikan testified

that Berhanu had several different stories on why the two began having problems.

1. The Detective testified that the video of the interview was difficult to
understand because several times there would be more than one person
talking at a time. But, the detective took notes immediately after the
(continued . . .)

-4-
#23760

In one version, Berhanu said that Sandal wanted him to marry his sister who was

still in Ethiopia so she could come to America. Then, because Berhanu did not want

to, Sandal got upset. Berhanu also told the detective that Sandal started

“intimidating him” by saying he got him the job at Wal-Mart, so he owed him a

favor, and also threatened that he could get him fired.

[¶11.] Berhanu recalled for the detective two instances where he and Sandal

fought publicly. The first was at a restaurant in Sioux Falls, where words were

exchanged and drinks might have been thrown or spilled. The second was at a

different restaurant, where the two again had a verbal disagreement. Berhanu

explained that it was after this incident that Sandal sought and obtained a

protection order against him. As a result of the protection order, Wal-Mart had to

schedule Berhanu and Sandal for different work shifts. Berhanu told Detective

Millikan how after the protection order was issued, Sandal began belittling him,

calling him names at work, and telling coworkers and common friends that

Berhanu was trying to kill him. This frustrated Berhanu, and Detective Millikan

testified that “the overall attitude that I was picking up from my interview with

Berhanu—[he was] frustrated with the courts, frustrate[d] with the lawyers,

frustrated with [the] employer.”

__________________
(. . . continued)
interview. Jurors were allowed to view the interview videotape in the jury
room if they so desired.

-5-
#23760

[¶12.] Detective Millikan asked Berhanu about the evening of January 7,

2005, and why he ran his automobile into Sandal. According to the detective,

Berhanu had several versions of how and why it happened:

One of the investigations was that Mr. Berhanu had gone to the
store, [Wal-Mart], [to] check his schedule, his work schedule and
that when he left the store, he was sitting in his car and saw
that Abraham Sandal had come into the parking lot early,
wasn’t suppose [sic] to be there that early and that Abraham
Sandal looked at Berhanu and then that Abraham Sandal
approached Mr. Berhanu and yelled at him, you are not suppose
[sic] to be here and the next version was that Abraham Sandal
actually walked from Sandal’s car to the [front] of Berhanu’s car
and said if you’re going to hit me, go ahead and hit me, I’m not
moving—called him on.

Another version was that Mr. Berhanu didn’t feel like he had
any other alternative but to run him over because he was
blocking the roadway and Berhanu didn’t want to back up and
go out a different way because he didn’t want to hit somebody
else in the parking lot or back into a car. He then even went so
far as to say this was the normal way he always drove out of the
parking lot.

Detective Millikan had watched the Wal-Mart surveillance video tape, which

recorded the entire incident in the parking lot, and knew that Sandal did not

approach Berhanu or yell at him. He showed Berhanu the tape and then confronted

him on his inconsistent stories. Berhanu’s only response was, “If that’s what you

want to believe, that’s what you must believe.”

[¶13.] The State also called Sandal, who explained the nature and history of

Berhanu and Sandal’s relationship. Sandal told the jury that the problems started

after he and his girlfriend decided to get married, moved out of the apartment, and

purchased a home. He disagreed with Berhanu’s statement to Detective Millikan

that their problems arose because he wanted Berhanu to marry his sister. His

-6-
#23760

sister, Sandal explained, is married, has been for 22 years, and has seven children.

Nonetheless, he agreed that their friendship did deteriorate and that he did request

and obtain a protection order against Berhanu in December 2004.

[¶14.] As for the evening of January 7, 2005, Sandal could not recall all the

circumstances of the incident. He testified that he remembered parking his car and

walking toward the entrance of Wal-Mart, when a car “was screaming behind” him.

He turned back and looked at the car, but did not recognize it, because “[w]ithin a

short time he was—within a second, the car was jumped at me—jumped on top of

my whole body. . . .” Beyond that rendition, Sandal remembered nothing else.

However, the State offered the testimony of several witnesses, who saw Berhanu

run into Sandal. Each witness explained how they saw Berhanu’s vehicle accelerate

and proceed directly toward Sandal, which led each of them to believe that Berhanu

had deliberately driven into Sandal.

[¶15.] First-degree murder is “perpetrated without authority of law and with

a premeditated design to effect the death of the person killed or of any other human

being. . . .” SDCL 22-16-4.

The term, premeditated design to effect the death, means an
intention, purpose, or determination to kill or take the life of the
person killed, distinctly formed and existing in the mind of the
perpetrator before committing the act resulting in the death of
the person killed. A premeditated design to effect death
sufficient to constitute murder may be formed instantly before
committing the act.

SDCL 22-16-5 (emphasis added). To be guilty of attempted first-degree murder, the

State was required to prove beyond a reasonable doubt that Berhanu (1) had the

specific intent to kill Sandal, (2) committed a direct act toward killing Sandal, and

-7-
#23760

(3) failed or was prevented or intercepted in the perpetration of the crime. See

Disanto, 2004 SD 112, ¶15, 688 NW2d at 206 (citations omitted); State v. Scherr,

2002 SD 140, ¶15, 654 NW2d 220, 223; SDCL 22-4-1.

[¶16.] Based on our review of the evidence, we conclude that a rational trier

of fact could have found the essential elements of attempted first-degree murder

and aggravated assault against Sandal beyond a reasonable doubt. The evidence

presented by the State and reasonable inferences to be drawn therefrom support the

verdict. See Hage, 532 NW2d at 410; see also State v. Motzko, 2006 SD 13, ¶6, 710

NW2d 433, 436-37. Although there is no evidence that Berhanu made any

advanced preparation to kill Sandal, “extensive planning and calculated

deliberation need not be shown to establish premeditation.” See State v. Owens,

2002 SD 42, ¶96, 643 NW2d 735, 758 (citations omitted). “The design to effect

death need only exist for an instant before the commission of the crime.” Id.

(citations omitted). The video evidence reveals that Berhanu drove directly into

Sandal and did not attempt to avoid him or stop after he hit him. Even though

Sandal was pinned underneath, Berhanu continued driving forward. It is

undisputed that Sandal suffered life-threatening injuries and could have been killed

by Berhanu.

[¶17.] Berhanu next argues that there was insufficient evidence to prove

beyond a reasonable doubt the charge of aggravated assault with a dangerous

weapon against Zahn. He concedes that an automobile is a dangerous weapon.

However, he argues that the State failed to prove that he attempted to cause, or

knowingly caused bodily injury as required under SDCL 22-18-1.1(2). Instead, he

-8-
#23760

claims that the evidence merely established that he drove into Zahn’s car because it

was in his direct line of travel, not because he attempted to cause bodily injury to

Zahn.

[¶18.] To be guilty of aggravated assault with a dangerous weapon under

SDCL 22-18-1.1(2), the State must prove beyond a reasonable doubt that Berhanu

attempted to cause, or knowingly caused bodily injury to Zahn, with a dangerous

weapon. “Knowingly” in this statute denotes “acts or circumstances where the

result is likely to occur.” State v. Marshall, 495 NW2d 87, 89 (SD 1993), overruled

on other grounds, State v. Giroux, 2004 SD 24, 676 NW2d 139. Berhanu was aware

that by driving his vehicle toward the entrance of Wal-Mart, he placed in danger

any person or vehicle parked in his line of travel. Moreover, it is clear that Berhanu

never attempted to stop his vehicle before it hit Sandal or collided with Zahn’s car.

While he may not have tried to hit Zahn, his “act” of intentionally driving into

Sandal, who was walking toward the entrance of the Wal-Mart store, and not

stopping until he crashed into Zahn’s vehicle, was a result that was “likely to occur.”

See Marshall, 495 NW2d at 89.

[¶19.] Berhanu’s last argument that his sentence amounts to cruel and

unusual punishment is without merit. See State v. Bonner, 1998 SD 30, ¶17, 577

NW2d 575, 580.

[¶20.] Affirmed.

[¶21.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and

MEIERHENRY, Justices, concur.

-9-