#24607-a-RWS
2008 SD 94
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
ZACHARIAH PALMER RYAN, Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE FIFTH JUDICIAL CIRCUIT
ROBERTS COUNTY, SOUTH DAKOTA
* * * *
HONORABLE JON S. FLEMMER
Judge
* * * *
LAWRENCE E. LONG
Attorney General
CRAIG M. EICHSTADT
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
TERRY J. SUTTON of
Sutton Law Offices, PC
Watertown, South Dakota Attorney for defendant
and appellant.
* * * *
CONSIDERED ON BRIEFS
ON AUGUST 26, 2008
OPINION FILED 10/08/08
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SABERS, Justice
[¶1.] After a consent search revealed tablets of hydrocodone with
acetaminophen and Ritalin, and a pen tube encrusted with pill residue, Zachariah
Palmer Ryan was charged with three drug-related offenses. A jury found him guilty
of two charges, but acquitted him of the other. Ryan appeals, alleging a Batson
violation and insufficient evidence to sustain the jury’s verdict. We affirm.
FACTS
[¶2.] At 1:30 a.m. on October 1, 2006, Ryan was riding as a passenger in a
white Chevrolet Beretta in Sisseton, South Dakota. Trooper Larry Englund of the
South Dakota Highway Patrol observed the car make a sharp turn causing the right
front wheel to go off the road. He also noticed an exhaust leak and heard an
exhaust sound coming from under the vehicle. Trooper Englund followed the
vehicle for about a block and then signaled the vehicle to stop.
[¶3.] Upon the stop, Trooper Englund noticed the strong odor of patchouli
oil, which, in his training and experience, he knew to be a strong scent used to mask
marijuana odors. He had the driver, Victoria White, accompany him to his car and
obtained her permission to search her car. 1 He also spoke with Ryan and obtained
his consent to search his person. In Ryan’s front pocket, Trooper Englund found a
metal cylinder with a screw-on lid that contained various prescription tablets. Ryan
explained that the pills were hydrocodone and Ritalin and he had a prescription for
both, the former for back pain and the latter for attention deficient hyperactivity
1. Trooper Englund did not find anything illegal during the search of White’s
car.
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disorder. The search also revealed a pen tube that had been cut off and contained
what appeared to be pill residue. Based on Trooper Englund’s training and
experience, he thought the pen tube may have been used for snorting or ingesting
either methamphetamine or cocaine.
[¶4.] Ryan was placed under arrest and charged with three drug-related
offenses: (1) ingestion of a substance other than alcohol for the purpose of becoming
intoxicated; (2) unauthorized possession of a controlled substance (Hydrocodone);
and (3) possession of drug paraphernalia. A trial was held on July 9 and 10, 2007.
During voir dire, the State used four peremptory challenges to excuse four of the
five Native Americans on the potential jury panel. Ryan objected to the peremptory
challenges, claiming the State violated Batson. The State gave reasons for the
peremptory challenges and the trial court found the State had nonracial reasons for
using the peremptory challenges.
[¶5.] At the close of trial, the jury found Ryan guilty of unauthorized
possession of a controlled substance and possession of drug paraphernalia.
However, he was acquitted of ingestion of a substance other than alcohol for the
purpose of becoming intoxicated. The trial court sentenced Ryan to ten years with
four suspended upon certain conditions. He was sentenced to thirty days in the
county jail for the misdemeanor possession of drug paraphernalia charge. This
sentence was to run concurrently with the sentence for unauthorized possession.
However, these sentences were to run consecutively to the sentence Ryan was
currently serving for a third offense driving under the influence charge. Ryan
appeals raising the following issues:
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1. Whether the trial court abused its discretion in denying
Ryan’s Batson motion.
2. Whether the trial court erred in denying Ryan’s motion for
directed verdict based on insufficiency of the evidence.
STANDARD OF REVIEW
[¶6.] “[T]he finding of intentional discrimination is a factual determination.”
State v. Owen, 2007 SD 21, ¶11, 729 NW2d 356, 362 (citing State v. Martin, 2004
SD 82, ¶¶13, 16, 683 NW2d 399, 403, 405). Accordingly, we review an appeal
alleging a Batson violation for the State’s use of peremptory challenges for clear
error. Id.
[¶7.] When we examine a challenge claiming insufficient evidence:
[W]e determine “whether there is sufficient evidence in the
record which, if believed by the jury, is sufficient to sustain a
finding of guilt beyond a reasonable doubt; in making this
determination, the Court will accept the evidence, and the most
favorable inference fairly drawn therefrom, which will support
the verdict.” State v. Owen, 2007 SD 21, ¶35, 729 NW2d 356,
367 (quoting State v. Mesa, 2004 SD 68, ¶9, 681 NW2d 84, 87).
“A guilty verdict will not be set aside if the state’s evidence and
all favorable inferences that can be drawn therefrom support a
rational theory of guilt.” State v. Swalve, 2005 SD 17, ¶5, 692
NW2d 794, 797 (quoting State v. Phair, 2004 SD 88, ¶16, 684
NW2d 660, 665 (quoting State v. Downing, 2002 SD 148, ¶22,
654 NW2d 793, 800)).
State v. Gard, 2007 SD 117, ¶12, 742 NW2d 257, 260-61.
[¶8.] 1. Whether the trial court abused its discretion in
denying Ryan’s Batson motion.
[¶9.] The State exercised four peremptory challenges to remove four out of
the five Native Americans from the jury and the State concedes that Ryan has
established a prima facie case of purposeful discrimination. See Batson v.
Kentucky, 476 US 79, 94-95, 106 SCt 1712, 1722, 90 LEd2d 69 (1986); see also
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Owen, 2007 SD 21, ¶45, 729 NW2d at 369 (citation omitted). Once a defendant has
established a prima facie case, the State must come forward with race neutral
explanations for exercising peremptory challenges. Batson, 476 US at 97, 106 SCt
at 1723, 90 LEd2d 69. In this case, the State gave race neutral explanations, which
the trial court accepted.
[¶10.] Juror 1. Juror S.S. was struck by the State because the State had
prosecuted her husband, who was currently on felony probation. S.S.’s son had also
been prosecuted by the State. 2 Ryan offered nothing further after the State gave
these reasons and the court specifically noted that it “would find that there is a non-
racial reason for exercising a pre-empt in the case of [S.S.] and the challenge to that
peremptory challenge would be denied.”
[¶11.] Juror 2. The State’s race neutral explanation for C.I. is that the State
recently prosecuted C.I. for third offense DUI. Juror 3. The State indicated C.S.’s
mother worked for the State’s attorney when she worked at Legal Services and that
C.S.’s family is a neighbor to the Ryan family. Moreover, when C.S. was a juvenile
she was prosecuted by the State. Juror 4. Finally, the State explained it had
prosecuted some of Juror B.W.’s children and grandchildren. In all of these cases,
2. In Ryan’s brief, he argues that the use of a “gut feeling” is not a race neutral
reason to exclude a juror and indicated the State simply said, “I didn’t feel
comfortable with her being a juror on behalf of the STATE.” However, the
record reflects that the State’s complete sentence was: “Because of those
relationships or the past history with her family [State’s prosecution of her
husband and son], I didn’t feel comfortable with her being a witness or a juror
on behalf of the State. . . . I continue to have concerns about that because of
prior history with her husband and her son.”
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the trial court accepted these explanations as non-racially motivated and denied the
Batson challenge.
[¶12.] In Owen, the State removed seven out of eleven Native Americans from
the potential jury. In that case, we noted “‘that the findings underlying a district
court’s Batson analysis depend largely on credibility evaluations,’” which requires
deference to the trial court. 2007 SD 21, ¶47 n9, 729 NW2d at 369 n9 (quoting
United States v. Maxwell, 473 F3d 868, 871, 873 (8thCir 2007)). Moreover, the
explanations found to be race neutral in Owen are similar to the explanations in
this case. Given the record and our case law, Ryan has not demonstrated that the
trial court was clearly erroneous when it accepted the State’s explanations as race
neutral and found the State had not engaged in purposeful discrimination when it
exercised its peremptory challenges.
[¶13.] Ryan argues, however, that the trial court did not complete the third
step of the Batson analysis: whether the prosecutor’s race neutral explanation in
exercising its challenges provide[s] “a ‘clear and reasonably specific’ explanation of
[the prosecutor’s] ‘legitimate reasons’ for exercising the challenges.” Batson, 476 US
at 98 n20, 106 SCt at 1724 n20, 90 LEd2d 69 (citing Texas Dep’t of Cmty. Affairs v.
Burdine, 450 US 248, 258, 101 SCt 1089, 1096 (1981)). However, a trial court
implicitly conducts this analysis when it accepts or rejects the State’s explanations
for use of its peremptory challenges. There are not some “magic words” the trial
court must use in order to fulfill a Batson analysis. As demonstrated above, the
State provided race neutral explanations for using its peremptory challenges and
the trial court specifically noted that it accepted these explanations as race neutral.
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[¶14.] Finally, as the State indicates, Ryan did not engage in any
comparative analysis; nor does the record indicate anything that suggests white
jurors, who had been prosecuted by the State, had family prosecuted by the State or
knew the defendant were kept on the jury, while the Native American jurors who
exhibited these characteristics were struck from the jury. See Snyder v. Louisiana,
___ US ___, 128 SCt 1203, 1211-12, 170 LEd2d 175 (2008). 3 The trial court did not
err in denying Ryan’s Batson challenge and we affirm issue 1.
[¶15.] 2. Whether the trial court erred in denying Ryan’s motion
for directed verdict based on insufficiency of the
evidence.
[¶16.] Ryan alleges there is insufficient evidence to sustain the guilty verdict
of unauthorized possession of a controlled substance for two reasons. First, he
argues there was insufficient evidence the pills were a controlled substance because
the pills were not chemically analyzed and the State chemist testified he would
need chemical analysis in order to determine the identity of the pills. Second, Ryan
argues he had a valid prescription for hydrocodone; therefore, he claims his use of
the controlled substance was authorized and not in violation of the statute.
[¶17.] There is sufficient evidence on the record for the jury to find Ryan
guilty of the offense. 4 There was testimony from pharmacists that the pills were 10
3. The United States Supreme Court found a discriminatory intent by
comparing the answers of white jurors with those of the minority juror who
was allegedly improperly stricken from the jury. Snyder, ___ US at ___, 128
SCt at 1211-12, 170 LEd2d 175.
4. Ryan only challenges the sufficiency of the evidence in relation to the
unauthorized possession of a controlled substance charge and not the
(continued . . .)
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mg hydrocodone with 650 mg acetaminophen. Ryan had a prescription for
Hydrocodone 7.5 mg with 500 mg acetaminophen. The testimony revealed that the
pills dispensed to Ryan through Indian Health Services were 20 pills containing 7.5
mg of hydrocodone and 500 mg acetaminophen. The pills in Ryan’s possession were
stronger than the ones obtained by his prescription. He was not authorized to
possess pills of this strength and therefore was in violation of the statute.
[¶18.] Moreover, there is no need to chemically analyze the pills in order to
determine whether they were hydrocodone. The pen tube residue was determined
to be hydrocodone, Ryan admitted some of the pills were hydrocodone, and a urine
sample taken immediately after Ryan’s arrest contained hydrocodone. A
pharmacist testified that the pills were 10 mg hydrocodone from the stamped
markings of “Watson 503” on the pills. The pharmacist testified that he can tell
what substance a pill contains by observation. While the chemists may need
chemistry to determine composition, the pharmacist testified he knows the
substance based on observation alone. At most there may be conflicting testimony
between the chemist and pharmacist on identification of the pills, but the jury, by
virtue of its verdict, resolved the conflict and believed the pharmacist could identify
the type and strength of the pills. There is more than enough evidence on the
record for the jury to find these pills contained 10 mg hydrocodone. Hydrocodone is
a controlled substance and 10 mg was more than Ryan’s prescription authorized
_________________________
(. . . continued)
possession of drug paraphernalia charge. The residue in the pen was
chemically analyzed and found to be hydrocodone.
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and more than he could obtain from Indian Health Services. It is well settled that
we will not set aside a guilty verdict “‘if the state’s evidence and all favorable
inferences that can be drawn therefrom support a rational theory of guilty.’” Gard,
2007 SD 117, ¶12, 742 NW2d at 260 (quoting State v. Swalve, 2005 SD 17, ¶5, 692
NW2d 794, 797) (citations omitted). There was sufficient evidence to find Ryan
guilty of unauthorized possession of a controlled substance and the jury’s verdict
stands.
[¶19.] Affirmed.
[¶20.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and
MEIERHENRY, Justices, concur.
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