State v. Shelton

#29263-a-JMK

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA


                                 …
STATE OF SOUTH DAKOTA,                    Plaintiff and Appellee,

      v.

SHAWN MICHAEL SHELTON,                    Defendant and Appellant.

                                 …

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE FIRST JUDICIAL CIRCUIT
                   YANKTON COUNTY, SOUTH DAKOTA

                                 …

                  THE HONORABLE CHERYLE W. GERING
                               Judge

                                 …

JASON R. RAVNSBORG
Attorney General

SARAH THORNE
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff and
                                          appellee.


LUCI YOUNGBERG
Yankton County Public Defender
Yankton, South Dakota                     Attorneys for defendant and
                                          appellant.

                                 …

                                          CONSIDERED ON BRIEFS
                                          JANUARY 11, 2021
                                          OPINION FILED 04/14/21
#29263

KERN, Justice

[¶1.]        Following a jury trial, Shawn Michael Shelton (Shelton) was convicted

of three felony drug offenses in connection with the sale of methamphetamine to a

confidential informant (CI). He appeals, alleging that the circuit court abused its

discretion by denying his motions to admit a written agreement with an informant

and two demonstrative exhibits and for a new trial. He also contends that the

sentence he received was cruel and unusual in violation of the Eighth Amendment.

We affirm.

                          Facts and Procedural History

[¶2.]        Detective Joseph Erickson (Detective Erickson) of the Yankton Police

Department and Special Agent Ryan Pennock (Agent Pennock) of the South Dakota

Division of Criminal Investigation (DCI) approached a 25-year-old woman to work

as a CI to make controlled purchases of methamphetamine in the Yankton, South

Dakota community. Before being enlisted to work as a CI, the woman was regularly

contacting Shelton and purchasing methamphetamine from him on a weekly basis.

She had previously used methamphetamine with Shelton, who sometimes assisted

her in taking it intravenously. As a CI, she was instructed to negotiate purchases

in the same manner as she had done for personal use in the past. She signed a

standard written agreement including a statement that she would refrain from

using illegal substances. Further, by oral agreement, she was to receive $200 in

compensation for completing each of the five controlled purchases, totaling $1000.

[¶3.]        On the evening of July 10, 2018, Detective Erickson, Agent Pennock,

and other officers attended a law enforcement briefing to prepare a plan for the CI’s


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controlled purchase of methamphetamine from Shelton that night. Detective

Erickson and Agent Pennock made contact with the CI near a middle school, located

353 feet from Shelton’s home in Yankton. The CI had been communicating with

Shelton via Facebook Messenger and made arrangements to buy half a gram of

methamphetamine for $50. After discussing safety measures and the route she

would take to and from Shelton’s home, law enforcement searched the CI and

equipped her with a transmitting and recording device. They gave her $50 of pre-

recorded, drug-buy money from the DCI Controlled Buy Fund to use in the

transaction and watched her walk in the direction of Shelton’s home. Yankton

County Deputy Sheriff Darren Moser (Deputy Moser) was parked across the street

to conduct surveillance and render aid if necessary.

[¶4.]        The CI spoke with Shelton on the phone as she approached his home.

He expressed concern that someone had dropped her off, which she denied, saying

she was on her way from babysitting. When the CI arrived, Shelton was outside

sweeping the sidewalk. He was high and paranoid and said that cars had been

circling the area. Although the CI reported not seeing anything on the sidewalk,

she did see a substance she believed to be methamphetamine scattered on the stairs

going down into his basement apartment.

[¶5.]        Once in the apartment, Shelton had the CI put her two phones in a

clear plastic container, which he then placed under a chair on the far side of the

living room. She told him her boyfriend had given her one of the phones. He still

suspected she was wired and wrote a note to that effect. She pulled up her shirt to

prove that she was not wearing a wire. As a result of Shelton taking her phones,


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law enforcement lost the ability to monitor what was happening for nearly eight

minutes. Police Sergeant Monty Rothenberger (Sergeant Rothenberger) was

dispatched to Shelton’s home to check on the CI’s well-being. During this time

frame, the drug transaction occurred. When Sergeant Rothenberger knocked, the

CI retrieved her phones and then answered the door. Sergeant Rothenberger asked

questions under the pretense of looking for a neighbor. Seeing that the CI was

uninjured, he went on his way, after which the CI left Shelton’s home for the post-

buy meeting location.

[¶6.]        Upon her arrival, the CI was debriefed by Detective Erickson and

Agent Pennock about the transaction. She told the officers that she believed that

the substance on the stairs was methamphetamine, possibly as much as two or

more grams and that Shelton had likely dropped it because he was so high. The CI

explained that after she placed the phones in the plastic container, Shelton shaved

off and weighed a portion of methamphetamine that came out of “his pocket in a uh

like a round container like uh, like a tobacco container with those speckled packets

in it.” Detective Erickson asked if she meant a chewing tobacco tin, and she said

“yeah.” She also explained that just before Sergeant Rothenberger knocked on

Shelton’s door, Shelton placed the methamphetamine in a baggie. The CI gave him

the drug buy money and took the baggie. She reported that she declined an offer to

use it with him and did not arrange any future deals. Detective Erickson performed

a standard search of her person and confirmed that she had turned over all of the

methamphetamine she had acquired. The officers stopped the recording, paid her

$200, and drove her to another location. The South Dakota Public Health


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Laboratory subsequently tested the contents of the bag and confirmed that the

substance was forty-eight hundredths of a gram of methamphetamine.

[¶7.]        Shelton was in the custody of the Department of Corrections serving

separate sentences when he was indicted by a Yankton County grand jury for

possession of a controlled substance, in violation of SDCL 22-42-5; distribution of a

controlled substance, in violation of SDCL 22-42-2; and distribution of a controlled

substance in a drug free zone, in violation of SDCL 22-42-19. The State also filed a

habitual offender information alleging that Shelton had seven prior felony

convictions, subjecting him to a two-level enhancement for each of the charges

levied against him. SDCL 22-7-8.1.

[¶8.]        A two-day jury trial began on December 12, 2019. Before calling the

first witness at trial, the State advised the court that it had prepared a transcript of

the tape of the CI’s interaction with Shelton on July 10, 2018. The State requested

permission for the jury to follow along with the transcript while the audio recording

was played. The court not only granted the request but ordered that both the tape

and transcript would be admitted into evidence and sent with the jury for their use

during deliberations. Shelton agreed that the transcript was accurate and had no

objection to the transcript being admitted for the jury’s consideration.

[¶9.]        Prior to the time that the tape was played, however, the court, on its

own initiative, revisited the issue and changed its ruling on the admissibility of the

transcript. After reviewing caselaw and South Dakota Pattern Jury Instruction 4-




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1-5, 1 the court ordered that the transcript would be collected after the tape was

played and not admitted as substantive evidence.

[¶10.]         The court also presented the parties with a proposed limiting

instruction advising the jury that the recording itself was the primary evidence and

the transcript merely a demonstrative aid. Neither party objected to the

instruction. Before the audio recording was played, the court read the instruction to

the jury and gave each member a written copy.

[¶11.]         Shelton elected not to testify at trial, instead developing his defense

that the CI brought the drugs to the transaction through his cross-examination of

the witnesses. 2 At the close of the evidence, Shelton moved for a directed verdict,

which the circuit court denied, and the case was submitted to the jury. Despite the

court’s ruling to the contrary, the transcript was inadvertently included with the

other exhibits and sent back to the jury. The jurors wrote a note to the bailiff

asking for a device to listen to the recording again but reached a verdict before the

court responded. The jury convicted Shelton of all three counts.

[¶12.]         Shelton filed a motion for a new trial, arguing that he was prejudiced

by the circuit court’s error. He contended that allowing the transcript to go to the

jury violated the court’s ruling and was contrary to law. At a January 2, 2020

hearing on the motion, the circuit court denied Shelton’s request for a new trial,


1.       This instruction includes a comment advising that “[t]he transcript, absent
         stipulation of the parties, should not go to the jury room. See United States v.
         Kirk, 

 (8th Cir. 1976).”

2.       Although defense counsel referred to a motion for a directed verdict, such
         motions were abolished by SDCL 23A-23-1, which provides that “motions for
         judgment of acquittal shall be used in their place.”

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stating that it would have allowed the transcript to go back with the jury if the

parties had so requested because the audio was garbled and difficult to understand

without it.

[¶13.]         Shelton admitted to six of the seven prior felony convictions listed in

the habitual offender information. The court ordered a presentence report and

scheduled a sentencing hearing. The court sentenced Shelton to serve fifteen years

for the possession and distribution counts, to run concurrently to each other and to

the sentences he was currently serving. 3 For the offense of distribution in a drug

free zone, the court sentenced Shelton to serve twenty-five years, with fifteen years

suspended, to run consecutively to his other sentences.

[¶14.]         Shelton appeals, raising three issues which we reformulate as follows:

               I.     Whether the circuit court abused its discretion by refusing
                      to admit the written CI agreement and precluding
                      demonstrative exhibits.

               II.    Whether the circuit court abused its discretion in denying
                      Shelton’s motion for new trial.

               III.   Whether Shelton’s sentence constitutes cruel and unusual
                      punishment.

                                         Issues

               I.     Whether the circuit court abused its discretion by
                      refusing to admit the written CI agreement and
                      precluding demonstrative exhibits.

[¶15.]         Shelton contests two evidentiary rulings made by the circuit court

during his jury trial. First, Shelton sought admission of the written CI agreement



3.       Shelton was serving time in the penitentiary on four prior Yankton County
         felony convictions.

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for the purpose of proving that the CI was paid. The State objected on the grounds

of relevance, arguing the desired evidence was not in the agreement. Additionally,

the State pointed to its public policy interest in protecting CI agreements from

becoming a matter of public knowledge. The circuit court agreed and denied

Shelton’s request, finding it irrelevant and unfairly prejudicial. Second, Shelton

requested the opportunity to use two demonstrative exhibits—a chewing tobacco tin

and a golf ball—during the cross-examination of the CI. The circuit court ruled that

even if the evidence was relevant, any probative value would be substantially

outweighed by the danger of misleading the jury and, with reference to the golf ball,

a needless presentation of evidence.

[¶16.]       “‘[A] trial court’s evidentiary rulings are presumed to be correct.’ We

review evidentiary rulings for abuse of discretion.” State v. Bausch, 

, 

 (quoting State v. Crawford, 

, ¶ 13, 

) (alteration in original). “An abuse of discretion is a fundamental error of

judgment, a choice outside the range of permissible choices, a decision, which, on

full consideration, is arbitrary or unreasonable.” State v. Rodriguez, 

, 

 (quoting State v. Spaniol, 

, ¶ 12, 

). To warrant reversal, “not only must error be demonstrated, but it must

also be shown to be prejudicial.” State v. Stone, 

, 

 (quoting Bausch, 

, 

). “Prejudicial error is

error which in all probability produced some effect upon the jury’s verdict and is

harmful to the substantial rights of the party assigning it.” Casper Lodging, LLC v.




                                          -7-
#29263

Akers, 

, ¶ 60, 

 (quoting Harter v. Plains Ins. Co.,

Inc., 

, ¶ 32, 

).

[¶17.]       “Evidence is relevant if: (a) [i]t has any tendency to make a fact more

or less probable than it would be without the evidence; and (b) [t]he fact is of

consequence in determining the action.” SDCL 19-19-401. When evidence has been

deemed relevant, “the balance tips emphatically in favor of admission unless the

dangers set out in Rule 403 ‘substantially’ outweigh probative value.” State v.

Janklow, 

, 

 (quoting State v. Wright, 

, ¶ 14, 

). “The court may exclude relevant evidence if its

probative value is substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” SDCL 19-19-403.

“Prejudice ‘refers to the unfair advantage that results from the capacity of the

evidence to persuade by illegitimate means.’” State v. Birdshead, 

, ¶

63, 

 (quoting State v. Moeller, 

, ¶ 38, 

).

[¶18.]       We turn first to the circuit court’s refusal to admit the written CI

agreement. With reference to compensation, the agreement provided that law

enforcement would “furnish funds only to cover the purchase price of any controlled

substances or contraband purchased after this agreement is in effect[.]” The court

found that “the actual document itself has no purpose at this point in time” and

excluded it under Rule 403 as cumulative and misleading. Shelton argues that the

oral agreement was dependent on the written agreement and that any confusion


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about the two agreements could have been cleared up by questioning the witnesses.

In response, the State argues that the written CI agreement should remain

confidential and was irrelevant for the purpose for which Shelton sought to

introduce it because it did not include the terms of the CI’s compensation.

[¶19.]       Much of our caselaw pertaining to CIs concerns the tension between an

individual defendant’s interest in disclosure of a CI’s identity and the State’s public

policy interest in nondisclosure. While the question herein involves admission of

the written CI agreement rather than the CI’s identity, much of the same reasoning

applies. The disclosure of information regarding CIs is not always appropriate.

State v. Wellner, 

 (S.D. 1982) (“The public’s interest in

protecting the flow of information must be balanced against the individual’s right to

prepare his defense.” (citing Roviaro v. United States, 

, 

, 

 (1957))). “While there is no litmus test for determining when

disclosure is required, [the Eighth Circuit has] held that perhaps the most

important factor for a court in this circumstance to consider is whether the [CI’s]

information is material to the defense.” United States v. Lapsley, 

(8th Cir. 2003) (citing United States v. Harrington, 

 (8th Cir.

1991)). “[E]vidence is material only if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been

different.” 

 (quoting Harrington, 

) (alteration in original).

[¶20.]       Guided by these principles, we find no abuse of discretion here.

Shelton wanted the jury to see that the CI was compensated for her role in the

controlled buy, but the written agreement did not provide this information. It


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addressed only law enforcement’s role in providing the funds necessary to purchase

the controlled substances. Even though the agreement was not introduced, Shelton

was permitted to fully explore the payment arrangements between the State and

the CI both generally and for the July 10, 2018 transaction. Shelton thoroughly

cross-examined the CI, Detective Erickson, and Agent Pennock on this point, and all

acknowledged, including the CI, that she was paid for conducting the controlled

buy. The circuit court did not err in finding that the limited probative value of the

written agreement, as to the fact for which Shelton sought its admission, was

substantially outweighed by the dangers of confusing the issues and presenting

cumulative evidence. The court’s ruling was not arbitrary or unreasonable, and

Shelton did not show that the written agreement itself was material to his defense

or that he was in any way prejudiced by its exclusion.

[¶21.]       Nor do we conclude that the circuit court abused its discretion in

refusing to permit the use of a chewing tobacco tin and a golf ball as demonstrative

evidence. The circuit court denied the request, finding that, based on the

descriptions that the CI gave to the officers, Shelton had failed to establish that the

tin possessed by defense counsel was representative of the one used by Shelton.

Moreover, Shelton was unable to lay further foundation in his examination of the

CI. Shelton asked the CI on cross-examination if the methamphetamine was in a

tobacco container, to which she testified: “Yeah. It was a little like that, but I don’t

know if that’s exactly what it was.” Because chewing tobacco tins come in various

sizes and the CI did not identify the type of tin that she saw with enough specificity,

the court denied admission of the particular tin proffered. As for the golf ball, the


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court remarked that everyone had seen a golf ball, finding it unnecessary to

introduce one into evidence.

[¶22.]       Shelton argues that he desired to impeach the CI’s testimony by

allowing the jury to see whether a golf ball-sized chunk of methamphetamine could

fit into a chewing tobacco tin. In Shelton’s view, the circuit court abused its

discretion by not allowing the demonstration. The State, however, asserts the

identification of the container as any particular type of tin can be attributed more to

law enforcement’s suggestions than the CI’s own words and that the dimensions of

the container are not a fact of consequence in the case. The State contends that

Shelton failed to show that the size and amount of methamphetamine in the

container were pertinent to the verdict.

[¶23.]       Our court has long recognized the admissibility of demonstrative

evidence. State v. Hartman, 

 (S.D. 1977). The purpose of

demonstrative evidence is not its standalone probative value but rather making

other admitted evidence easier for the jury to comprehend. See Robert P. Mosteller,

et al., McCormick on Evidence § 214 (8th ed. 2020). “A demonstrative or illustrative

exhibit ‘is admissible if it clearly depicts the factual situations and will allow the

trier of facts to more clearly understand a witness’s descriptions.’” Kaiser v.

University Physicians Clinic, 

, ¶ 24 n.3, 

, 192 n.3

(quoting Hartman, 

).

[¶24.]       To lay the foundation for a duplicate of unavailable evidence,

“[t]ypically, an aid will be identified by a witness, during the witness’s testimony, as

a substantially correct representation of something the witness once perceived and


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is now describing.” Mosteller, supra ¶ 23, § 214. We have held that this test was

satisfied when the underlying substantive evidence was properly admitted and the

demonstrative aid based upon it contained no additional information. State v.

Rough Surface, 

 (S.D. 1989) (referring to two charts

summarizing admitted evidence). “Whether the admission of a particular

demonstrative aid will in fact be helpful, or will instead tend to confuse or mislead

the trier, is a matter within the sound discretion of the trial court . . . .” Mosteller,

supra ¶ 23, § 214.

[¶25.]        Given the lack of certainty about the type of container from which

Shelton produced the methamphetamine, the circuit court did not err in finding

inadequate foundation for the exhibit. In order to introduce a demonstrative aid to

illustrate the CI’s testimony, Shelton’s counsel needed to show that the aid clearly

depicted the container the CI perceived and was describing. See SDCL 19-19-901

(requiring the proponent to “produce evidence sufficient to support a finding that

the item is what the proponent claims it is”). Counsel failed to do so. Regardless,

the CI’s description of the container from which Shelton produced the

methamphetamine was included in the recording played for the jury and admitted

into evidence. Shelton was also able to further develop the CI’s testimony through

cross-examination. Additionally, after the container was properly excluded, the golf

ball had no bearing on any of the issues in the case as the dimensions of the chunk

of methamphetamine were not at issue in this case. The circuit court was within its

discretion in denying this demonstrative evidence, and Shelton has not shown that

he was prejudiced by the exclusion of the evidence.


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             II.    Whether the circuit court abused its discretion in
                    denying Shelton’s motion for new trial.

[¶26.]       Shelton argues that denying his motion for a new trial was an abuse of

discretion because, in his view, if the transcript had not been admitted, the jury

would have reached a different conclusion. In response, the State asserts that

Shelton, who failed to object to the use of the transcript, its accuracy, or the court’s

limiting instruction regarding its proper use, has failed to show any prejudice

resulting from the jury’s consideration of the transcript.

[¶27.]       We review rulings on motions for new trials for an abuse of discretion.

State v. Rolfe, 

, ¶ 9, 

 (citing State v. Zephier, 

, 

). “We review a circuit court’s denial of a motion

for a new trial under SDCL 23A-29-1, the same as its civil counterpart SDCL 15-6-

59(b).” State v. Muhm, 

, ¶ 43, 

. “[A] new trial

may follow only where the violation has prejudiced the party or denied such party a

fair trial.” State v. Hofman, 

, ¶ 13, 

 (quoting

Robbins v. Buntrock, 

, ¶ 6, 

) (alteration in

original). When there is evidentiary support for the circuit court’s findings

underlying its decision to deny a motion for a new trial, this Court finds no abuse of

discretion. State v. Condon, 

, ¶ 46, 

.

[¶28.]       Although the circuit court initially admitted the transcript, it changed

course, allowing its use for demonstrative purposes only. The transcript, however,

was inadvertently sent back to the jury with the exhibits. SDCL 23A-25-7 permits

the jury to take only the “exhibits and all papers which have been received as

evidence in the case[]” into the jury room with them during deliberations. “The

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delivery to the jury for their consideration of an exhibit not received in evidence

constitutes error.” Osborne v. United States, 

 (8th Cir. 1965)

(citation omitted). See also State v. Midgett, 

, ¶ 20, 

 (holding that “[a]llowing the jury to consider such non-admitted evidence was

prejudicial error that require[d] reversal”).

[¶29.]         Because the transcript was not received as evidence, we review the

error to determine its prejudicial effect. Here, the circuit court found that the

quality of the audio recording was garbled, and, if the parties had asked, the court

would have admitted the transcript for substantive purposes. 4 In this case, Shelton

does not dispute that the State laid the proper foundation for admission of the


4.       “Under modern American practice it is common to allow many types of
         tangible exhibits to be taken by the jury into the jury room for consideration
         during the deliberations, provided that the exhibits have been formally
         admitted into evidence. The question whether a particular exhibit may be
         taken into the jury room is widely viewed as subject to discretionary control
         by the trial judge . . . .” Mosteller, supra ¶ 23, § 220.

         “Courts have frequently commented that such [testimonial] writings, viewed
         as simply a different form of testimony, should not be unduly emphasized
         over oral testimony in the case. For this reason, the transcript of an audio
         recording which may be given to the jury during the playing of the recording
         is usually treated as a demonstrative aid to the jury’s understanding. Thus,
         it is not admitted as evidence of the recording’s contents and is not taken into
         the jury room during deliberation.” Id.

         We note that courts from other jurisdictions have affirmed convictions where
         demonstrative transcripts were sent to juries at their request during
         deliberations, absent a showing that the transcripts were inaccurate or that
         specific prejudice had occurred. See, e.g., United States v. Garcia, 

 (5th Cir. 2009) (holding any error harmless when an
         appropriate limiting instruction was given and the accuracy of the transcript
         was unchallenged); United States v. Trent, 

 (11th Cir.
         2009) (holding use of a transcript not formally marked into evidence was not
         error absent showing of inaccuracy or specific prejudice, especially when
         portions of the recording were inaudible).

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recording itself. And the CI and law enforcement agents involved with the

recording testified at trial. This is significant because, while the recording

corroborated the CI’s version of what occurred, the recording did not pick up the

exchange of drugs for money, and, accordingly, the transcript did not reference the

actual drug buy.

[¶30.]         In addition, Shelton raised no objection to the admissibility of the

transcript as a demonstrative aid at trial, and the jury followed along with the

transcript while the audio recording was played. Before the jury received the

transcript and the recording was played, the court gave a limiting instruction both

orally and in writing identifying the recording as the primary evidence. 5 “We

presume the jury follows the [circuit] court’s limiting instructions.” Stone, 2019




5.       Limiting Instruction No. 1 reads as follows:
                   As you have heard, there is a typewritten transcript of the
               tape recording you are about to hear. That transcript also
               undertakes to identify the speakers engaged in the conversation.
                   You are permitted to have the transcript for the limited
               purpose of helping you follow the conversation as you listen to
               the tape recording, and also to help you identify the speakers.
               The transcript, however, is not evidence.
                   Whether the transcript correctly or incorrectly reflects the
               conversation or the identity of the speakers is entirely for you to
               decide based upon what you have heard here about the
               preparation of the transcript, and upon your own examination of
               the transcript in relation to what you hear on the tape recording.
               The tape recording itself is the primary evidence of its own
               contents. If you decide that the transcript is in any respect
               incorrect or unreliable, you should disregard it to that extent.
                   Differences between what you hear in the recording and read in the
               transcript may be caused by such things as the inflection in a speaker’s
               voice, or by inaccuracies in the transcript. You should, therefore, rely
               on what you hear rather than what you read when there is a
               difference.

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#

, ¶ 20, 

 (quoting State v. Ralios, 

, ¶ 47, 

).

[¶31.]         Although the jurors were not meant to have the transcript during

deliberations, they had the recording available for their review. Where the jury had

already considered the transcript as a demonstrative aid when it first heard the

recording during trial, Shelton has not shown that the jury could have or likely

would have reached a different verdict had the transcript not been included with

the exhibits sent to the jury deliberation room. 6

[¶32.]         Therefore, while the transcript was not intended to go back with the

jury, the error was not prejudicial. The court properly advised the jury that the

tape recording of the buy was the best evidence of its own contents. The CI testified

about the details of the controlled buy and was subject to cross-examination. The

recording and the testimony provided sufficient evidentiary support for the jury to

reach its verdict. The circuit court did not abuse its discretion in denying the

motion for a new trial.




6.       The Supreme Court of Wyoming held, under a plain error analysis, that
         allowing non-admitted demonstrative models used at trial to be taken into
         the jury room was erroneous but not sufficiently prejudicial to warrant
         reversal. Worcester v. Wyoming, 

 (Wyo. 2001) (reasoning
         that both prosecution and defense used the evidence, defense counsel had the
         opportunity to cross-examine the witness, and, as it was impossible to be sure
         what use, if any, the jury made of the demonstrative evidence, there was no
         reason to believe the outcome would have been more favorable to the
         defendant).

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               III.   Whether Shelton’s sentence constitutes cruel and
                      unusual punishment.

[¶33.]         Shelton contends that his sentence is grossly disproportionate and

constitutes cruel and unusual punishment under the Eighth Amendment. He

argues that the circuit court was predisposed to sentence him harshly based on the

court’s comment that it believed he would relapse in the future. In response, the

State argues that “Shelton has not shown that a term of years in the penitentiary is

a cruel and unusual punishment for a defendant with at least six prior felony drug-

related convictions, including two for distribution.” 7

[¶34.]         “We review de novo whether a defendant’s sentence is cruel and

unusual in violation of the Eighth Amendment.” State v. Quevedo, 

, 

 (quoting State v. Jensen, 

, ¶ 9, 

). “[T]he Eighth Amendment does not require strict proportionality

between the crime and the sentence, but instead ‘forbids only extreme sentences

that are “grossly disproportionate” to the crime.’” Id. ¶ 37, 

(quoting State v. Diaz, 

, 

).

[¶35.]         Following the United States Supreme Court’s lead, we elected to make

a “course correction” in our Eighth Amendment jurisprudence. See State v. Rice,

, 

; see also Harmelin v. Michigan, 

, 

, 

 (1991). “Our inquiry for determining


7.       Although the habitual offender information included only one prior conviction
         in 2016 for possession with intent to distribute, the circuit court was aware
         that in 2013, Shelton bought methamphetamine from an undercover agent
         and in 2018, as a result of a traffic stop, was found in possession of more than
         an ounce of methamphetamine. Shelton was never charged for these
         offenses. Rather, both incidents led to parole violations.

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gross disproportionality is [now] well established[.]” State v. Holler, 

, 

. Our analysis begins with a comparison of “the gravity of

the offense and the harshness of the penalty.” State v. Chipps, 

, ¶ 38,

 (quoting State v. Garreau, 

, ¶ 9, 

). “This comparison rarely ‘leads to an inference of gross disproportionality’ and

typically marks the end of . . . review[.]” 

 (quoting Garreau, 

, ¶ 9,

) (alteration in original).

[¶36.]       “[T]he gravity of the offense refers to the offense’s relative position on

the spectrum of all criminality.” Id. ¶ 35, 

 (citation omitted).

When an offender has committed prior offenses, we have concluded that “if the

sentence is enhanced because of the offender’s recidivism, then the gravity of his

past offenses also contributes to the gravity of the present offense.” Id. ¶ 36, 

 (citing Ewing v. California, 

, 

,

 (2003)).

[¶37.]       When examining the harshness of the penalty, we consider “the

penalty’s relative position on the spectrum of all permitted punishments.” Id. ¶ 37,

 (citation omitted). The most severe punishments authorized by

the Legislature include the death penalty (class A felonies), mandatory life in prison

(class A and B felonies), and non-mandatory life sentences (class C felonies). See

SDCL 22-6-1. There are six felony classifications that are less severe, setting forth

maximum sentences ranging from 50 years for a class one felony down to two years

for a class six felony. See 

 We also consider whether a defendant may be eligible

for parole in our examination of the sentence imposed. Chipps, 

, ¶ 37,


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#29263

 (citation omitted). When a defendant receives multiple

sentences, “we evaluate the individual sentence for each count, [as] opposed to

scrutinizing the aggregate sentence.” State v. Uhing, 

, ¶ 18, 

 (quoting State v. Dubois, 

, ¶ 41, 

).

[¶38.]         We begin by examining the gravity of Shelton’s offenses. Shelton was

found guilty of possession, distribution, and distribution in a drug free zone. The

latter offense occurred near a middle school and a playground. He admitted to

committing six of the seven prior drug-related felonies as alleged in the habitual

offender information, one involving distribution. We have previously observed that:

               While [certain drug offenses] are classified as nonviolent in
               nature, they are nonetheless serious felonies. “Selling drugs is a
               harsh and unsavory business. Drug abuse has devastated
               countless American youth to include young South Dakotans.
               Drugs are a peril to our society. Our Legislature, recognizing
               this, made manufacture and distribution of certain controlled
               substances . . . a felony—a harsh crime.”

Uhing, 

, ¶ 17, 

-56 (quoting State v. Pettis, 

 (S.D. 1983)) (cleaned up). Indeed, even nonviolent drug offenses

pose significant risks to the public. 8

[¶39.]         Next, we examine the harshness of Shelton’s sentences. Shelton,

having admitted to committing “three or more [prior] non-violent felonies[,]” was

subject to a two-level enhancement for each offense. SDCL 22-7-8.1. The circuit


8.       Distributing a “significant amount of controlled substances[,]” such as
         methamphetamine, “inevitably cause[s] devastation to the community in
         which drugs [are] sold[.]” United States v. Nunez-Hernandez, No. CR 14-20
         (08) (MJD), 

, at *2 (D. Minn. 2020). See also Terrebonne v.
         Butler, 

 (5th Cir. 1987) (“[I]t seems apparent that the retail
         dealer who sells in small amounts to the ultimate consumer is as vital a
         component in the . . . distribution chain as any other[.]”).

                                           -19-
#29263

court sentenced Shelton to two concurrent terms of fifteen years for the possession

and distribution charges. Because this was Shelton’s second distribution offense, he

was subject to a minimum mandatory sentence in the state penitentiary of at least

ten years, which could not be suspended, unless the court found mitigating

circumstances. See SDCL 22-42-2. For the offense of distribution within a drug free

zone, a class four felony carrying a minimum mandatory sentence of five years to be

served consecutively to the sentence imposed for the principal felony, Shelton

received a twenty-five-year sentence with fifteen years suspended. SDCL 22-42-19.

While this minimum mandatory sentence could also be suspended upon a finding of

mitigating circumstances, the court found none to justify deviation for either

offense.

[¶40.]       Shelton has been sentenced to a term of years for each count, and he is

eligible for parole. Per the statutes applicable to Shelton’s crimes, he could have

faced an aggregate sentence of 65 years had he received maximum consecutive

sentences for each count. Instead, he may be released on parole in as few as twelve

years. The punishments imposed, when compared to the gravity of his offenses, do

not appear grossly disproportionate, ending our review within the scope of the

Eighth Amendment. Shelton’s punishments as a habitual offender for possession,

distribution, and distribution in a drug free zone are not cruel and unusual under

the Eighth Amendment.

                                    Conclusion

[¶41.]       The circuit court did not abuse its discretion by refusing to admit the

written CI agreement into evidence or by precluding the demonstrative exhibits.


                                         -20-
#29263

Shelton was able to cross-examine the CI and law enforcement to establish the

terms of the CI’s payment. The CI’s perception of the container from which Shelton

produced the methamphetamine was described in the recording that was admitted

into evidence, and Shelton was able to further confront the CI’s testimony through

cross-examination. Nor did the court abuse its discretion in denying Shelton’s

motion for a new trial. While the transcript was inadvertently sent to the jury,

Shelton has failed to establish that he was prejudiced. The court gave the jury a

proper limiting instruction, the jury had already heard the recording with the aid of

the transcript, and Shelton raised no objection to the use of the transcript at any

time before or during trial.

[¶42.]       Shelton is a habitual offender with six prior drug convictions. His

sentence for three additional drug felonies, two of which the court permitted to run

concurrently while suspending a portion of the third, is not grossly disproportionate

to his crimes, or cruel and unusual.

[¶43.]       JENSEN, Chief Justice, and SALTER, DEVANEY, and MYREN,

Justices, concur.




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