State v. Overbey

#25431, #25432-a-DG

2010 S.D. 78

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

ROBERT P. OVERBEY, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
MEADE COUNTY, SOUTH DAKOTA

* * * *

HONORABLE JEROME A. ECKRICH, III
Judge

* * * *

MARTY J. JACKLEY
Attorney General

ANDREW J. KNECHT
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.

DAVID L. CLAGGETT
Spearfish, South Dakota Attorney for defendant
and appellant.

* * * *
CONSIDERED ON BRIEFS
ON AUGUST 24, 2010

OPINION FILED 10/06/10
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GILBERTSON, Chief Justice

[¶1.] Defendant appeals his convictions for Possession of a Controlled

Substance with Intent to Distribute, Possession of a Controlled Substance, and

Possession of Marijuana under claims of violation of the Fourth Amendment. He

also appeals the sufficiency of the evidence for the convictions. In addition,

Defendant challenges his conviction on the Failure to Appear charge based on his

contention that his underlying criminal convictions should be reversed. Finally,

Defendant alleges that his sentences were grossly disproportionate given his

character and the factual basis of the convictions, and that the trial court failed to

take into consideration mitigation evidence. We affirm.

FACTS

[¶2.] On August 5, 2007, at approximately 5:35 p.m., South Dakota

Highway Patrol Officer Larry Langenfeld conducted a traffic stop of a four-door,

diesel pickup pulling a fifth-wheel camper. The pickup displayed a Colorado

dealer’s plate on the back of the pickup, but failed to have a license plate on the

front, which Officer Langenfeld knew was required by Colorado statute. Officer

Langenfeld identified the driver as Jason Overbey (Jason) and the passenger as

Katherine Gaskins. Officer Langenfeld also noticed a strong odor of perfume or

cologne emanating from the interior of the pickup. After initiating the traffic stop,

Officer Langenfeld asked Jason to accompany him to his Highway Patrol cruiser.

[¶3.] Because Officer Langenfeld knew that perfume or cologne is sometimes

used to mask the odor of drugs and because Jason was overly nervous, fidgety, and

hesitated to make eye contact, Officer Langenfeld initiated a call for a K-9 unit.

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Officer Langenfeld told Jason he would issue a warning ticket but that Jason was

not yet free to leave until after the K-9 sniff was conducted. Thirteen minutes after

the stop was initiated, and eight minutes after Jason was placed in the cruiser,

Trooper Shane Severn arrived with his drug dog, Cas. Although not visible on the

arrest compact disc, Cas alerted to the presence of illegal drugs on the pickup’s

passenger side. Within three minutes the drug sniff was completed.

[¶4.] When the officers put their heads into the pickup to begin the search,

both smelled the odor of raw marijuana. The search of the pickup generated three

baggies of marijuana and a pipe. Jason told the officers that the marijuana

belonged to his brother. The officers then entered the fifth-wheel camper to conduct

a search. They discovered two individuals, Michelle Prytla and Robert P. Overbey

(Defendant), hiding under a bed in the trailer. Defendant appeared to be under the

influence of alcohol or another substance.

[¶5.] The officers conducted a warrantless search of the fifth-wheel camper

and told the occupants they did not need a warrant given what the officers had

discovered in the pickup. The search of the camper revealed a glass pipe inside a

jewelry box that was contained within a closed drawer. A digital scale was

discovered in a closed drawer beneath the one in which the pipe was found. In the

area where a bed was located, officers also found a piece of aluminum foil and a

baggie containing a powdery substance. Subsequent laboratory tests indicated that

methamphetamine residue was present on the pipe, scale, and aluminum foil, and

that the powdery substance in the baggie was methamphetamine (meth). Officers

removed a black metal lockbox from the wall of the trailer, which they opened with

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a crowbar after the key failed to work. Inside the lockbox officers found a bag

containing approximately one ounce of crystal methamphetamine. Subsequent

testing revealed a total of eleven grams of marijuana in the pickup and 45.77 grams

of meth in the camper.

[¶6.] The officers confronted the four individuals about the drugs. Each

denied knowledge of the meth. All four were arrested. The pickup was owned and

registered to Jason Overbey. Jason and Defendant jointly owned the camper.

[¶7.] Defendant was charged with the Unauthorized Possession of a

Controlled Substance with Intent to Distribute (meth) in violation of SDCL 22-42-2

and SDCL 32-12-52.3; Possession of a Controlled Substance (meth) in violation of

SDCL 22-42-5 and SDCL 32-12-52.3; and Possession of Marijuana – Less than Two

Ounces under SDCL 22-42-6. Defendant’s motion to suppress the evidence seized

from the pickup and the camper was denied by the trial court. Defendant was

found guilty by a jury.

[¶8.] On the date set for his sentencing hearing, Defendant claimed he

understood the hearing was in the afternoon rather than at 11:30 a.m. His son was

able to notify the trial court on his behalf and the trial court agreed to reschedule

the hearing for 2:30 in the afternoon in order for Defendant’s flight to arrive and

travel by car to the courthouse. However, after landing in Rapid City, Defendant

boarded a departing flight rather than appearing at the hearing that had been

rescheduled to accommodate his late arrival. Defendant was subsequently charged

with Failure to Appear under SDCL 23A-43-31(1). Defendant was a fugitive for

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over one year after failing to appear. Defendant eventually pleaded guilty to the

Failure to Appear charge.

[¶9.] Defendant was sentenced to ten years in the state penitentiary with

one year suspended on the Possession of a Controlled Substance with Intent to

Distribute conviction, a Class 4 felony with a maximum sentence of ten years in the

penitentiary. See SDCL 22-42-2; SDCL 22-6-1(7). Defendant received a sentence of

six years for the Possession of a Controlled Substance count, also a Class 4 felony

with a maximum sentence of ten years. See SDCL 22-6-1(7). Defendant was also

sentenced to two days in the Meade County jail on the Possession of Marijuana

conviction, a misdemeanor punishable by up to one year in county jail. SDCL 22-

42-6. Finally, Defendant was sentenced to two years in the penitentiary on the

Failure to Appear conviction, a Class 6 felony punishable by up to two years in the

penitentiary, to be served consecutively with the sentences on the drugs charges.

See SDCL 23A-43-31(1); SDCL 22-6-1(9).

[¶10.] Defendant appeals raising the following issues:

1. Whether the trial court erred when it denied Defendant’s motion to
suppress.

2. Whether there was sufficient evidence to support a conviction on
the Possession of a Controlled Substance and Possession of a
Controlled Substance with Intent to Distribute charges.

3. Whether Defendant’s Failure to Appear conviction should be
overturned.

4. Whether the sentence imposed constituted cruel and unusual
punishment.

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STANDARD OF REVIEW

[¶11.] “This Court reviews the denial of a motion to suppress alleging a

violation of a constitutionally protected right as a question of law by applying the de

novo standard.” State v. Ludemann, 2010 S.D. 9, ¶ 14, 778 N.W.2d 618, 622

(quoting State v. Madsen, 2009 S.D. 5, ¶ 11, 760 N.W.2d 370, 374). We review the

trial court’s findings of fact under the clearly erroneous standard and give no

deference to its conclusions of law. Id. (citing State v. Haar, 2009 S.D. 79, ¶ 12, 772

N.W.2d 157, 162). As this Court has often noted,

[t]his court’s function under the clearly erroneous standard is to
determine whether the decision of the lower court lacks the
support of substantial evidence, evolves from an erroneous view
of the applicable law or whether, considering the entire record,
we are left with a definite and firm conviction that a mistake
has been made. In making this determination, we review the
evidence in a light most favorable to the trial court’s decision.

In re H.L.S., 2009 S.D. 92, ¶ 11, 774 N.W.2d 803, 807-08 (quoting State v.

Baysinger, 470 N.W.2d 840, 843 (S.D. 1991) (internal citations omitted)).

[¶12.] We review the denial of a motion for judgment of acquittal as a

question of law under the de novo standard. State v. Packed, 2007 S.D. 75, ¶ 17,

736 N.W.2d 851, 856 (quoting State v. Disanto, 2004 S.D. 112, ¶ 14, 688 N.W.2d

201, 206). On appeal, the question before this Court is “whether the ‘evidence was

sufficient to sustain the convictions.’” State v. Adamson, 2007 S.D. 99, ¶ 17, 738

N.W.2d 919, 924 (quoting State v. Running Bird, 2002 S.D. 86, ¶ 19, 649 N.W.2d

609, 613). We consider the evidence in a light most favorable to the verdict and will

not set aside a guilty verdict on appeal “if the state’s evidence and all favorable

inferences that can be drawn therefrom support a rational theory of guilt. We do

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not resolve conflicts in the evidence, pass on the credibility of the witnesses,

determine the plausibility of an explanation, or weigh the evidence.” Id.

[¶13.] We generally review a sentence within the statutory maximum under

the abuse of discretion standard of review. State v. Blair, 2006 S.D. 75, ¶ 20, 721

N.W.2d 55, 61-62 (citing State v. McKinney, 2005 S.D. 73, ¶ 10, 699 N.W.2d 471,

476). However, when a sentence is challenged on constitutional grounds as being

cruel and unusual, we apply the proportionality standard from State v. Bonner,

1998 S.D. 30, 577 N.W.2d 575. See State v. Piper, 2006 S.D. 1, ¶ 72, 709 N.W.2d

783, 810-11 (citing Bonner, 1998 S.D. 30, ¶17, 577 NW2d at 580).

ANALYSIS AND DECISION

[¶14.] 1. Whether the trial court erred when it denied Defendant’s
motion to suppress.

[¶15.] Defendant argues that the trial court erred when it denied his motion

to suppress evidence. He argues that under Arizona v. Gant, ___ U.S. ___, 129 S.Ct.

1710, 173 L.Ed.2d 485 (2009), the police violated the Fourth Amendment because

they searched the camper when it was not within Jason’s reach at the time of the

traffic stop. In the alternative, Defendant argues that the officer lacked probable

cause to believe the camper contained contraband because the drug dog did not

alert to the camper but only to the pickup. Defendant also argues that the initial

stop was illegal as it was no more than a curiosity stop. Finally, Defendant argues

that the search exceeded the scope of the stop. We first address Defendant’s

argument that the stop was a curiosity stop because this is the threshold issue.

[¶16.] The Fourth Amendment’s “prohibition against unreasonable searches

requires generally the issuance of a warrant by a neutral judicial officer based on

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probable cause prior to the execution of a search or seizure of a person.” In re

H.L.S., 2009 S.D. 92, ¶ 14, 774 N.W.2d at 808 (quoting State v. Mattson, 2005 S.D.

71, ¶ 29, 698 N.W.2d 538, 548). Exceptions to the warrant requirement include

investigative detentions where an officer has reasonable suspicion to believe

criminal activity “may be afoot.” State v. DeLaRosa, 2003 S.D. 18, ¶ 7, 657 N.W.2d

683, 686 (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889

(1968)). With regard to a traffic stop, all that is required is that the officer have

“‘specific and articulable suspicion of a violation’ for a traffic stop to be permissible.”

Id. ¶ 8 (citing State v. Cuny, 534 N.W.2d 52, 53 (S.D. 1995)). The observation of a

minor violation is sufficient to justify stopping of a vehicle. Mattson, 2005 S.D. 71, ¶

30, 698 N.W.2d at 548 (quoting State v. Akuba, 2004 S.D. 94, ¶ 15, 686 N.W.2d 406,

413).

[¶17.] Officer Langenfeld pulled Jason over because his pickup did not have a

front license plate as required by Colorado Revised Statute Annotated 42-3-202(1).

This statute provides in part: “Number plates assigned to a self-propelled vehicle

other than a motorcycle or street rod vehicle shall be attached thereto, one in the

front and the other in the rear.” There is no dispute in the record that Officer

Langenfeld saw the missing front license plate and knew that Colorado statute

required its presence. Furthermore, SDCL 32-5-46 exempts out-of-state motorists

from displaying South Dakota issued license plates as required by SDCL 32-5-98, if

an out-of-state motorist has complied with the requirements of his or her home

state’s statutory scheme for motor vehicle license plates. In this case, Jason was

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not in compliance with the Colorado statute, and was thus not in compliance with

SDCL 32-5-98, which justified the traffic stop.

[¶18.] Defendant also argues that Officer Langenfeld had a pretextual reason

for stopping Jason. However, as this Court has previously noted, “even if an officer

has subjective reasons for stopping someone, ‘those subjective reasons are not

relevant.’” State v. Lockstedt, 2005 S.D. 47, ¶ 20, 695 N.W.2d 718, 723 (quoting

State v. Chavez, 2003 S.D. 93, ¶ 20, 668 N.W.2d 89, 96). “An objectively reasonable

stop will not be invalidated even if the stop was pretextual.” Id. Any pretextual

reason Officer Langenfeld may have had for the stop was irrelevant given that he

witnessed a legitimate violation of the Colorado statute that required a front and

rear license plate to be displayed on a vehicle registered in Colorado.

[¶19.] Defendant next argues that under Arizona v. Gant, the officers

illegally searched the camper after placing Jason in a patrol car. Defendant

contends that Gant precluded officers from conducting a search of the camper and

limited their search to the pickup. Defendant contends that the search was limited

because only the pickup’s interior was within Jason’s reach or could have contained

offense-related evidence after the drug dog alerted to the cab of the pickup and not

to the camper.

[¶20.] Defendant’s reliance on Gant is misplaced. Gant involved a search

incident to an arrest. See ___ U.S. at ___, 129 S.Ct. at 1714. In Gant, the defendant

was arrested for driving on a suspended license. Id. After the defendant was

handcuffed and placed in a patrol car, the officers searched the passenger

compartment of the defendant’s car. Id. The United States Supreme Court held

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that the search was illegal because the officers could not expect to find offense-

related evidence in the passenger compartment of the defendant’s car given the

offense for which the defendant was arrested. Id.

[¶21.] Here, Defendant was not arrested prior to the search and the State did

not argue that the officers based their search on the search incident to an arrest

exception to the warrant requirement. As such, the rule in Gant is inapplicable to

the facts of this case. Instead, the State based its argument on the motor vehicle

exception to the warrant requirement and contended that the search of the pickup,

the containers therein, and the camper were constitutionally permissible once Cas,

the drug dog, alerted to the odor of drugs in the pickup’s cab.

[¶22.] Defendant’s next argument regarding the stop is that the search of the

camper was illegal because Cas only alerted to the pickup’s cab. Once probable

cause exists for the search of a vehicle, it enables a search of the entire vehicle.

United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572

(1982). A tractor-trailer, or a camper hitched to a pickup, is one unit. United States

v. Ortega-Ramos, 56 F.3d 65 (Table), 1995 WL 314889, *3 (6th Cir. 1995); United

States v. Torres, 2005 WL 3546677, *7-8 (S.D. Ohio) (citing United States v. Ervin,

907 F.2d 1534, 1537-38 (5th Cir. 1990); Aviles v. Burgos, 783 F.2d 270, 276 (1st Cir.

1986)). A drug dog’s alert to the tractor of a tractor-trailer and not to the trailer is a

reliable indication that illegal narcotics are present in the tractor or trailer. Torres,

2005 WL 3546677 at *7-8 (citing Ortega-Ramos, 1995 WL 314889 at *3); United

States v. Dennis, 113 F.3d 1247 (Table), 1997 WL 282870, *2 (10th Cir. 1997)).

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[¶23.] Defendant’s argument that the drug dog alert to the pickup did not

permit a constitutional search of the camper fails. The fifth-wheel camper was

being towed by the pickup in the same fashion in which a semi-tractor tows a

trailer. The camper was a part of the pickup and subject to search as long as the

motor vehicle exception was satisfied as to any part of the pickup or camper.

[¶24.] Defendant’s final argument is that the detention exceeded the scope of

the stop because it went beyond the time required to conduct a computer check,

verify documents, examine vehicle equipment, and issue a citation. Without

indicating what Officer Langenfeld should or should not have done during the stop,

it is difficult to ascertain the essence of Defendant’s argument. Defendant appears

to be arguing that Officer Langenfeld should not have called for the drug dog

because it impermissibly extended the time it took to conduct the necessary steps

for the traffic stop. However, the trial court found that when Officer Langenfeld

told Jason that only a warning ticket would be issued, Langenfeld also told Jason he

would not be free to leave until after the drug dog conducted a sniff of the vehicle’s

exterior. At that exact moment, Trooper Severyn and Cas arrived and the drug

sniff was conducted immediately. Within three minutes the drug sniff was

completed and the law enforcement officers called dispatch to report that they

would be conducting a vehicle search.

[¶25.] As this Court has held before, “[w]e cannot accept the premise that

while the State’s interest in drug interdiction is compelling, a few seconds delay for

non-entry sniffing the exterior of a vehicle by a dog already on the scene is

constitutionally unreasonable.” DeLaRosa, 2003 S.D. 18, ¶ 11, 657 N.W.2d at 687.

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It was not unreasonable for Jason to wait less than three minutes while the drug

dog was walked around the vehicle after Jason was advised that he would not be

free to leave until after the drug dog sniff was conducted. The drug dog was at the

scene as the ticket was being issued, and Jason did not have to wait for a prolonged

period of time for the drug dog to arrive before the search was commenced. There

was no perceptible difference between the drug dog being on site while the ticket

was being written and then conducting the drug sniff, in comparison to the drug dog

arriving at the scene while Officer Langenfeld was finishing writing the ticket and

conducting the sniff immediately thereafter.

[¶26.] 2. Whether there was sufficient evidence to support a
conviction on the Possession of a Controlled Substance
and Possession of a Controlled Substance with Intent to
Distribute charges.

[¶27.] Defendant argues that the trial court erred when it denied his motion

for acquittal. His first argument is that the trial court erroneously denied two jury

instructions Defendant sought that collectively requested the trial court to instruct

the jury that ingestion of a controlled substance can be a lesser included offense of

the charge of Possession of a Controlled Substance and Possession of a Controlled

Substance with Intent to Distribute. Defendant also argues that there was

insufficient evidence or circumstantial evidence of the intent to sell element.

[¶28.] “The fact that the methamphetamine was not on defendant’s person

when found by the police does not negate a finding of possession.” State v. Deneui,

2009 S.D. 99, ¶ 69, 775 N.W.2d 221 (citing State v. Goodroad, 442 N.W.2d 246, 251

(S.D. 1989)). It is sufficient for a conviction of knowing possession for the defendant

to have control over the premises where the narcotics were found. Id. (citing

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Goodroad, 442 N.W.2d at 251). Possession, whether constructive or actual, need not

be exclusive to support a conviction for knowing possession. State v. Barry, 2004

S.D. 67, ¶ 9, 681 N.W.2d 89, 92-93 (citing Goodroad, 442 N.W.2d at 251).

[¶29.] In this case, among the evidence seized during the initial search of the

camper was a digital scale with a white powdery residue on it. That substance was

eventually determined to be methamphetamine. Defendant admitted to Officer

Langenfeld that the scale belonged to Defendant and that he had received it as a

gift from a friend. Officer Langenfeld also testified at trial that digital scales are

used to weigh illegal drugs for sale and not for personal use of drugs. In addition to

the scale, Officer Langenfeld found several bags of meth inside the camper.

According to his testimony, Officer Langenfeld made the arrest for possession with

intent to distribute (meth) based on the quantity of meth found during the search,

forty-eight to fifty-two grams; the digital scale; and the approximate street value of

meth of $100 to $120 per gram, which resulted in a total value between $4,800 and

$6,350 for the amount discovered in the camper. Based on this evidence, it was

reasonable for the jury to find that Defendant intended to distribute the meth

rather than use it for personal consumption.

[¶30.] 3. Whether Defendant’s Failure to Appear conviction
should be overturned.

[¶31.] Defendant argues that his conviction for the failure to appear charge

must be overturned in the event the underlying convictions are reversed. Because

we find that the convictions for Possession of a Controlled Substance and Possession

of a Controlled Substance with Intent to Distribute are not constitutionally

deficient, Defendant’s argument fails on this issue.

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[¶32.] 4. Whether the sentence imposed constituted cruel and
unusual punishment.

[¶33.] Defendant’s final issue on appeal is whether the sentences, as imposed

by the trial court, constitute cruel and unusual punishment in violation of the

Eighth Amendment. Defendant argues that the sentence he received was “excessive

and clearly disproportionate to the severity of the crime in light of the evidence used

at trial to obtain a conviction.” He further argues that his sentence exceeded the

minimum amount of incarceration needed to protect the public and provide for

rehabilitation, was not proportionate to the crimes for which he was convicted, and

that the trial court ignored mitigating factors. Mitigating factors, according to

Defendant, were the lack of evidence to show he had profited from the sale of drugs

in the past, his criminal record was “relatively clean,” he had a successful business,

he was generous, and he was supported by his family and friends.

[¶34.] The Bonner proportionality review requires this Court to: “first

determine whether the sentence appears grossly disproportionate. To accomplish

this, we consider the conduct involved, and any relevant past conduct, with utmost

deference to the Legislature and the sentencing court. If these circumstances fail to

suggest gross disproportionality, our review ends.” Blair, 2006 S.D. 75, ¶ 21, 721

N.W.2d at 61 (quoting Piper, 2006 S.D. 1, ¶ 72, 709 N.W.2d at 810-11). “We also

compare ‘the sentence with the criminal acts defendant committed and the

consequences of those acts upon the victims and society.’” Id. (quoting Bonner, 1998

S.D. 30, ¶ 22, 577 N.W.2d at 581) (additional citations omitted). An intra and inter-

jurisdictional analysis is warranted only when the sentence appears grossly

disproportionate. Id. (citing Bonner, 1998 S.D. 30, ¶ 17, 577 N.W.2d at 580).

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[¶35.] It is also settled that a trial court’s sentencing discretion requires

understanding that “the Legislature in establishing a punishment range of zero to

[ten] years for [Possession of a Controlled Substance with Intent to Distribute]

intended the more serious commissions of this crime to deserve sentences at the

harsher end of the spectrum.” See id. ¶ 26, 721 N.W.2d at 63. The more severe

sentences are reserved for the most serious combinations of the crime and the

defendant’s background. Id. (quoting Bonner, 1998 S.D. 30, ¶ 25, 577 N.W.2d at

582).

[¶36.] The imposition of a proportionate sentence requires the trial court to

“acquire a thorough acquaintance with the character and history of the [defendant]

before it.” Id. ¶ 27 (quoting Bonner, 1998 S.D. 30, ¶ 19, 577 N.W.2d at 580). The

trial court has discretion to consider the following factors: “general moral character,

mentality, habits, social environment, tendencies, age, aversion or inclination to

commit crime, life, family, occupation, and previous criminal record[,]” as well as

the rehabilitative prospects of the defendant. Id. (quoting Bonner, 1998 S.D. 30, ¶

19, 577 N.W.2d at 580). The effect of the crime on the victims may also be

considered. Id. (citing State v. Rhines, 1996 S.D. 55, ¶¶ 130-134, 548 N.W.2d 415,

445-46) (additional citations omitted).

[¶37.] The trial court had before it the evidence admitted at trial as well as a

presentence investigation report. The trial court also had before it the evidence

concerning Defendant’s conviction for Failure to Appear and the factual basis for

that conviction. In imposing its sentence, the trial court focused on Defendant’s

failure to take responsibility for his actions for the drug charges during trial and his

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failed attempt to focus the blame on co-defendants, a strategy the jury did not

embrace. The trial court focused on Defendant’s failure to appear as ordered and

his subsequent attempts at the sentencing hearing to shift the blame onto others

involved in the case including his former attorney and the prosecutor. Based on

what the trial court perceived to be Defendant’s unwillingness to accept personal

responsibility for his crimes and the facts as found by the jury, it imposed nearly the

maximum sentence for the Possession of a Controlled Substance with Intent to

Distribute. The trial court imposed the maximum for the Failure to Appear

convictions. Based on this record, we do not find either sentence grossly

disproportionate given that Defendant was unwilling to accept personal

responsibility for his actions, which reduced his rehabilitative prospects.

[¶38.] The trial court did not err in admitting the evidence seized from the

camper, in denying Defendant’s motion for judgment of acquittal, in accepting

Defendant’s guilty plea to the Failure to Appear charge, or in imposing the

sentence. We affirm.

[¶39.] KONENKAMP, ZINTER, MEIERHENRY and SEVERSON, Justices,

concur.

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