State v. Itzen

MORGAN, Justice.

Robert Itzen (Itzen) appeals from his conviction of intentional damage to property in the first degree in violation of SDCL 22-34-1. He was sentenced to eighteen months in the South Dakota State Penitentiary, the execution of said sentence suspended upon certain conditions. We reverse.

Itzen was a plaintiff in a personal injury action arising out of a vehicular accident. The defendants in that action were represented by a member of the Davenport law firm in Sioux Falls. Settlement negotiations proved fruitless and the action went to trial. On October 22, 1987, at about 3:30 p.m., the jury returned a verdict for Itzen in the amount of $13,000, a fraction of the monetary award sought.

The Davenport offices sustained glass damage on five separate occasions. The first occurred sometime between 9:00 p.m. and 11:00 p.m. on October 22, 1987. A member of the firm leaving the office that evening discovered that the glass panes in the south door were broken out and a “big hunk of concrete block” was inside the door. The second occurred sometime in the early morning hours of October 23, 1987. The police officer that had responded to the first incident discovered that a glass door at the east entrance had been broken and a cement block lay inside. This door had not been damaged in the first incident. Damage to both doors was repaired that morning.

On the afternoon of October 23, 1987, a secretary and an attorney from the Davenport firm heard glass breaking and saw that the east door had again been smashed. The secretary saw a man with “sandy *668blonde” hair outside the south door with a brick in his hand. Both the secretary and the attorney ran outside and saw a blonde-haired man in a black trench coat in the parking lot. Later, they identified Itzen in a photo lineup as the man they had seen in the parking lot.1 Two additional incidents of vandalism to the glass doors occurred during the evening hours of October 23, 1987, and the early morning hours of October 24, 1987. Each time a cement block was found inside.2

Itzen was arrested on October 24, 1987, and indicted by grand jury for injury to property in the first degree. The indictment provided in pertinent part: “That on or about the 23rd of October, 1987 in the County of Minnehaha, State of South Dakota, that [Itzen], then and there did intentionally injure, damage, or destroy private property, namely several windows in which other persons, Davenport Law Firm, have an interest,_” Itzen’s request to represent himself as counsel was granted. However, court-appointed counsel, sat at counsel table interjecting objections, motions, and advising Itzen throughout the trial. The jury returned a verdict of guilty.

On appeal, Itzen raises three issues. Because we deem one issue as dispositive, we only discuss it, namely: Whether the trial court erred in admitting evidence as to all five incidents of vandalism as prior bad acts evidence.

Evidence of other bad acts is admissible under certain circumstances. SDCL 19-12-5 provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

There is no quarrel between the parties concerning the law. Pursuant to SDCL 19-12-5, evidence of other bad acts is not admissible to prove character. However, it may be admissible as proof of motive, intent or identity. The trial court must first determine if such evidence is relevant for one of these purposes and, if so, to balance the probative value against its prejudicial effect. State v. Reutter, 374 N.W.2d 617 (S.D.1985).

The trial court has wide discretion under this provision. Our standard of review is to determine whether the trial court abused its discretion in admitting evidence of other wrongs. State v. Rose, 324 N.W.2d 894 (S.D.1982). “The test is not whether judges of this court would have made an original like ruling, but whether they believe a judicial mind, in view of the law and the circumstances, could have reasonably reached that conclusion.” Id. at 895-96.

The Davenport offices sustained damage on five separate occasions. Itzen was charged with and State intended to prove that Itzen committed the third incident. In a pretrial hearing, Itzen objected to the introduction of any evidence of any of the other incidents. The trial court ruled that it would allow such evidence, pursuant to SDCL 19-12-5, if State provided the foundation that Itzen was the actor in connection with those particular incidents. Itzen argues that the trial court ruled correctly initially. However, State offered no foundation that connects him with any other incidents. Therefore, by allowing the jury *669to consider evidence of the two prior incidents, the trial court improperly permitted them to draw the inference that Itzen participated in all three incidents of vandalism. We agree.

The theory underlying the exceptions in SDCL 19-12-5 is that, under certain circumstances, evidence that a defendant committed a certain bad act tends to identify him as the one who committed the crime in question or shows motive or intent for committing that crime. Necessarily, this requires that the prior bad acts must be those of the defendant.3 State may not use evidence of prior bad acts unless there is evidence that the defendant was the actor in those prior bad acts.

After careful review of the record, we can find no direct evidence, introduced by State, that proves Itzen was the actor in the other incidents of vandalism. No witnesses were called to identify Itzen in connection with the two prior incidents. On these facts, it was an abuse of discretion to admit evidence concerning the prior incidents of vandalism. We reverse as to this issue.

WUEST, C.J., and HENDERSON, J., concur. SABERS and MILLER, JJ., dissent.

. The dissent appears to suggest that Itzen was identified as being at the scene on all five occasions. This is not the case. He was seen there only once.

. The dissent suggests that some of the windows were broken with a wooden cane seized from Itzen's vehicle, thus connecting him to several of the uncharged incidents. No witness testified that in his or her opinion any of the breakage was caused by a cane. This, despite the prosecution calling the men who repaired the windows. There were wood fragments found in some of the glass, but contrary to the dissent’s position, no witness connected these splinters to the cane seized from Itzen or, for that matter, gave any opinion about where these splinters came from. All any prosecution witness could say about the cane in question was that "a shiney, transparent material [was] imbedded in the damaged portion_” Not glass, as the dissent states, and certainly no evidence that the substance matched the damaged windows.

. Even if one were to accept the dissent’s "essentially contemporaneous acts” basis for admitting the uncharged incidents, to be relevent they still must be linked to Itzen. As was discussed in footnote 2, Itzen was never connected to these other incidents.