#30426-a-MES
2024 S.D. 33
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
…
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
BRANDON DEAN HAHN, Defendant and Appellant.
…
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
…
THE HONORABLE MATTHEW M. BROWN
Judge
…
KYLE BEAUCHAMP of
Colbath and Sperlich
Rapid City, South Dakota Attorneys for defendant and
appellant.
MARTY J. JACKLEY
Attorney General
JENNIFER M. JORGENSON
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff and
appellee.
…
ARGUED
MARCH 20, 2024
OPINION FILED 06/20/24
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SALTER, Justice
[¶1.] A jury convicted Brandon Hahn of intentional damage to property with
the damage amount totaling more than $1,000 but less than $2,500. At trial, the
circuit court denied Hahn’s motion for judgment of acquittal, which was based on
the theory that the State had not provided sufficient evidence of the fair market
value of the property that was damaged. Hahn appeals, arguing that the court
erred when it denied his motion for judgment of acquittal because it did not apply
what he believes to be the correct legal standard for determining damages. We
affirm.
Factual and Procedural Background
[¶2.] Shortly after midnight on August 24, 2021, 88-year-old Delores Moen
was awakened by the sound of loud pounding and shouting at the front door of her
Rapid City home. Afraid, she fled out the back door and called for help. Jason Pate,
who was three houses away at the time, heard the disturbance and called the police.
Soon after, he observed a man, later identified as Brandon Hahn, jogging away from
Delores’ house. Pate and Delores’ next-door neighbor, who also observed Hahn,
went to assist Delores and called the police again to provide Delores’ address and a
description of Hahn.
[¶3.] Soon after the police arrived on the scene, Hahn reappeared in the
area and was identified by Pate and Delores’ next-door neighbor. When officers
confronted Hahn, he quickly became verbally combative. They attempted to detain
him while they conducted their investigation, but Hahn resisted their efforts. After
he was placed in the back of a patrol vehicle, officers noticed Hahn was attempting
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to hurt himself. Additional officers were called to the scene, and, together, they
applied a wrap device to restrain Hahn and prevent him from harming himself and
others. Once they concluded their investigation, law enforcement officers
determined there was sufficient evidence to arrest Hahn for the damage to Delores’
property. 1
[¶4.] A Pennington County grand jury returned an indictment charging
Hahn with three counts: (1) intentional damage to property in the first degree in
violation of SDCL 22-34-1(2), with damage amounting to more than $1,000 but less
than or equal to $2,500 (a Class 6 felony); (2) obstructing a public officer in violation
of SDCL 22-11-6; and (3) disorderly conduct in violation of SDCL 22-18-35(1), which
the State later dismissed.
[¶5.] During the two-day jury trial, the State presented multiple witnesses,
including Delores’ neighbors, who testified about their observations during and
after the incident, and the responding police officers, who testified about Hahn’s
aggressive conduct and their interactions with him. Hahn himself elected to testify
and denied any responsibility for damaging the door. He testified that he had been
walking to his mother’s house when he was unjustifiably detained and arrested by
police officers.
[¶6.] Many of the witnesses also testified about the damage to Delores’ door.
During her testimony, Delores explained that she and her family had built the
1. It appears that Hahn’s conduct at Delores’ house was random. Delores
testified that she did not know Hahn, and there is no known connection
between them or specific motivation for Hahn’s actions. One of the arresting
officers testified that Hahn appeared to be highly intoxicated.
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home in 1962, though her son-in-law later testified that the home was constructed
sometime in the 1970s. Regardless, the steel door was installed when the house
was built and had never been replaced, according to Delores.
[¶7.] Delores’ neighbor, Pate, also testified about the damaged door, which
he believed “was pretty much destroyed.” Pate had taken pictures of the damaged
door on the night of the incident and described what was depicted in those photos to
the jury.
[¶8.] Officer Kaleigh Crumb responded to the August 24 incident and also
described the damaged door to the jury, noting decorative pieces had been broken
off of the front of the door and that “the door frame itself was busted into little
parts.” Splintered pieces of the wooden doorframe had broken off and were located
inside the home. Like Pate, Officer Crumb had taken photos of the damaged door,
which she explained to the jury. One photo in particular depicted shoe prints on the
door, which Officer Crumb believed to match Hahn’s boots.
[¶9.] Kraig Moen, Delores’ son, testified that he had filed an insurance claim
for Delores and that Delores received payment from the insurance provider for the
damage to the door. However, Hahn objected to the testimony concerning the
amount of the claim and also to the admission of the insurance claim documents.
The circuit court sustained these objections apparently on the basis that the
insurance information had been belatedly disclosed by the State.
[¶10.] However, the State was able to introduce evidence of the insurance
settlement for the door damage through another witness. Deborah Mudge, Delores’
daughter, explained that she had been assisting Delores with her finances prior to
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the incident. And while she had not personally filed an insurance claim, Deborah
testified that Delores’ homeowner’s insurance policy had a $1,000 deductible and
that she deposited a check issued by Delores’ insurance carrier for $384 into
Delores’ bank account after the door was damaged in the August 24 incident. When
asked on cross-examination if Deborah had “any information as to what the door
was worth at the time that this all happened[,]”she responded, “Only the value that
the insurance company placed on it.”
[¶11.] Deborah also testified about the $1,474-worth of out-of-pocket
payments she made for repairs to the door prior to Delores receiving the insurance
money. These included $300 for a carpenter to install the door frame; $599 for the
door itself, lock set, and other materials necessary for repairs; and $575 for a
“specially manufactured locking mechanism.”
[¶12.] Robert Mudge, Delores’ son-in-law, testified that he had helped repair
the doorway and replace the door, though he was not compensated for his labor.
Robert explained he personally invested about two days-worth of time into locating
materials and fixing the door, which involved extensive work by a carpenter to
reconstruct the door frame and the area surrounding it. In Robert’s view, the value
of the door was what it cost to repair it, but, on cross-examination, he acknowledged
that he “did not assess the actual value of what the door was the day of the
incident[.]”
[¶13.] At the end of the State’s case-in-chief, Hahn moved for judgment of
acquittal on the intentional damage to property charge. Hahn argued that the jury
could not find that the value of the damaged door exceeded $1,000 because the State
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had not established the fair market value of the door, which, he claimed, included
depreciation. Hahn’s theory, in essence, was that the cost to conduct repairs and
replace the door was not the same as the fair market value of the door prior to the
incident. In response, the State argued that the testimony of the various witnesses
was sufficient for the jury to find the damage amount element of the intentional
damage to property offense.
[¶14.] During an extended discussion with counsel on the damage amount
topic, the circuit court referenced State v. Rich, 268 N.W.2d 603 (S.D. 1978). The
court viewed the Rich decision as holding that the value of the property damaged
should be used to satisfy the damage amount element and not the reasonable cost of
repairs, which Rich described as a method for proving damages in a civil case. The
court contrasted the apparent holding in Rich with South Dakota Pattern Jury
Instruction No. 3-25-4, which provides, “The value of the damage to the property in
question is equal to the value of reasonable repairs that will restore the property
. . . .”
[¶15.] The circuit court specifically asked Hahn’s counsel if South Dakota
Pattern Jury Instruction No. 3-25-4 “would be an appropriate instruction to give?”
Counsel responded indirectly by referring to a different pattern jury instruction,
South Dakota Pattern Jury Instruction No. 3-25-5, which incorporates the market
value method when the reasonable cost of repairs exceeds the value of the property.
[¶16.] Ultimately, the circuit court concluded that South Dakota Pattern Jury
Instruction No. 3-25-4 which allows the State to prove the damage amount element
through evidence of the cost of reasonable repairs was an accurate statement of the
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law. The court found some support in our decision in State v. Ladu, 2016 S.D. 14,
876 N.W.2d 505, though the court acknowledged the value issue had not been
squarely presented in Ladu.
[¶17.] This instruction, along with South Dakota Pattern Jury Instruction
No. 3-25-5, were included in the circuit court’s proposed jury instructions as
Instructions No. 20 and 21. The record does not contain an instruction-by-
instruction settling with the court and counsel, but the trial transcript does indicate
that the court asked counsel for both parties if either had any objections to its
proposed instructions. Neither did.
[¶18.] In addition to commenting upon the evidence relating to whether Hahn
was the person who damaged Delores’ door, the parties’ closing argument also
addressed the amount of the damage. The State pointed to the evidence of the
unchallenged actual repair costs and the insurance settlement, both of which
exceeded $1,000. Hahn claimed that the jury could not use the cost of repairs until
it determined that they did not exceed the value of the property, and, because there
was no evidence of the property’s market value, Hahn contended the jury could not
find the existence of the element.
[¶19.] The jury found Hahn guilty on both Count 1, intentional damage to
property, and Count 2, obstruction of a public officer. Hahn later admitted to
allegations in a part II information that he had previously been convicted of four
felonies. The circuit court imposed an enhanced 15-year prison sentence on Count 1
with ten years suspended and a 30-day jail sentence on Count 2, which the court
deemed served by crediting 30 days of Hahn’s pretrial confinement.
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[¶20.] Hahn appeals, claiming that the circuit court erred when it denied his
motion for judgment of acquittal on the intentional damage to property charge.
Hahn’s theory is that South Dakota Pattern Jury Instructions No. 3-25-4 and 3-25-5
(Instructions No. 20 and 21 at trial) cannot be properly applied by a jury without
first establishing the fair market value of the property. And without evidence of the
door’s fair market value, Hahn asserts the court should have granted his motion for
judgment of acquittal.
Analysis and Decision
[¶21.] “Denial of a motion for acquittal is reviewed de novo.” State v. Peltier,
2023 S.D. 62, ¶ 24,
998 N.W.2d 333, 340 (quoting State v. Smith,
2023 S.D. 32, ¶ 45,
993 N.W.2d 576, 591). Likewise, “[a] question regarding the sufficiency of the
evidence to sustain a conviction is reviewed de novo.”
Id. (quoting State v. Kwai,
2023 S.D. 42, ¶ 21,
994 N.W.2d 712, 718).
[¶22.] When reviewing a motion for judgment of acquittal, “[w]e consider
‘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.’” State v. Manning,
2023 S.D. 7, ¶ 27,
985 N.W.2d 743,
752 (quoting State v. Nelson,
2022 S.D. 12, ¶ 21,
970 N.W.2d 814, 823). “In doing so,
we ‘will not resolve conflicts in the evidence, assess the credibility of witnesses, or
evaluate the weight of the evidence.’”
Id. (quoting State v. Seidel,
2020 S.D. 73,
¶ 32,
953 N.W.2d 301, 313). “This is because ‘the jury is . . . the exclusive judge of
the credibility of the witnesses and the weight of the evidence.’”
Id. (quoting Seidel,
2020 S.D. 73, ¶ 32,
953 N.W.2d at 313).
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[¶23.] For this reason, we also “accept the evidence and the most favorable
inferences fairly drawn therefrom, which will support the verdict.” Id. (quoting
Seidel,
2020 S.D. 73, ¶ 32,
953 N.W.2d at 313). “If the evidence, including
circumstantial evidence and reasonable inferences drawn therefrom sustains a
reasonable theory of guilt, a guilty verdict will not be set aside.”
Id. (quoting State
v. Otobhiale,
2022 S.D. 35, ¶ 37,
976 N.W.2d 759, 772).
[¶24.] Hahn was convicted of violating SDCL 22-34-1, which provides in
relevant part:
Any person who, with specific intent to do so, injures, damages,
or destroys . . . (2) [p]rivate property in which any other person
has an interest, without the consent of the other person; is guilty
of intentional damage to property. . . . Intentional damage to
property is a Class 6 felony if the damage to property is two
thousand five hundred dollars or less, but more than one
thousand dollars.
(Emphasis added.)
[¶25.] This statute is not the same intentional damage to property statute
that was set out in our 1978 Rich decision. As is relevant to our discussion here,
the provisions of the now-repealed SDCL 22-34-3.1 described in Rich differed from
SDCL 22-34-1 in one particularly critical respect. Although both statutes were
designed to criminalize the same type of conduct—intentionally damaging another’s
property without consent—the way the two statutes distinguish grades of relative
severity is much different.
[¶26.] In Rich, we held that under SDCL 22-34-3.1, the difference between
misdemeanor and felony intentional damage to property is determined by “the value
of . . . [the damaged] property” and not by the damage to the property. 268 N.W.2d
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at 605 (emphasis added). Applying this interpretation, we held that the market
value of a damaged house should have been used to determine whether the
defendant’s conduct constituted a felony instead of the cost to repair the windows
and doors that the defendant had damaged. There are plausible reasons to question
whether this interpretation was correct, but we need not resolve that issue because
the current version of SDCL 22-34-1 and the repeal of SDCL 22-34-3.1 have
effectively abrogated this part of Rich. 2
[¶27.] The text of SDCL 22-34-1 assesses the relative severity of a
defendant’s conduct by valuing the “damage to property”—not the value of the
property, as Rich contemplated. See Ladu, 2016 S.D. 14, ¶ 18,
876 N.W.2d at 509
(acknowledging that a “repair bill” could suffice for evidence of damage to property);
see also SDCL 22-35-1.1 (allowing “injuries, damages, or destruction resulting from
violations of § 22-34-1 committed pursuant to one scheme or course of conduct may
be aggregated to determine the degree of the offense”).
[¶28.] Here, the circuit court relied upon South Dakota Pattern Jury
Instructions No. 3-25-4 and 3-25-5 to instruct members of the jury on the damage
element of SDCL 22-34-1:
The value of the damage to the property in question is equal to
the value of reasonable repairs that will restore the property to
substantially the same condition as it was immediately prior to
the damage.
If you find the value of reasonable repairs exceeds the value of
the property as it was immediately prior to the damage, then
2. The former SDCL 22-34-3.1 was enacted in 1971 and repealed in 1976,
curiously, one year before it appears the conduct described in Rich was
committed. Regardless, the Legislature enacted SDCL 22-34-1 in 1976 and
included the “damage to property” language which has remained ever since.
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you must find the amount of damage is equal to the fair market
value of the property immediately prior to the damage.
[¶29.] On appeal, Hahn presents a legal challenge to the method for valuing
damages under SDCL 22-34-1. In Hahn’s view, Rich requires that the damage
element for intentional damage to property can only be proven by evidence of the
property’s market value. Though he presented a similar argument to the circuit
court, Hahn did not object to the court’s damage instructions excerpted above,
which allow the jury to determine the existence of the damage element using
evidence of the reasonable cost of repairs. The State views this as a failure to
preserve Hahn’s damage issue for review. We disagree.
[¶30.] Hahn’s argument is not that evidence of repairs can never be used to
determine damages; he asserts that repair costs can be considered, but only after
the State proves that these costs do not exceed the market value of the property.
This view is based upon Rich and was illustrated during Hahn’s closing argument:
Instruction Number 21 talks about fair market value. If you
find the value of reasonable repairs exceeds the value of the
property as it was immediately prior to the damage, then you
must find the amount of damage is equal to the fair market
value of the property immediately prior to the damage. Ask
yourself, what is the fair market value of this door? I don’t
know. You don’t know. . . . This is an essential element that
you must find to find him guilty.
[¶31.] However, the merits of this argument are not sustainable. First,
Hahn’s reliance upon Rich is misplaced for the reasons explained above. Rich’s
view that “[t]he plain terms of the [former SDCL 22-34-3.1]” meant the difference in
the severity of the offense implicated only “the value of the property[,]” 268 N.W.2d
at 605, and does not reflect an accurate statement of the current law. As the
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intentional damage to property offense is now formulated in SDCL 22-34-1, the
degree of criminal liability is focused on the “damage to property” and not the value
of the property. 3
[¶32.] And second, the principal focus of SDCL 22-34-1 is not the valuation of
the damage to property but, rather, the criminal conduct that caused that damage.
See Willett v. State, 826 P.2d 1142, 1144 (Alaska 1992) (stating that “[t]he critical
element for valuation” is not the value of the damage but “the amount of damage
caused by the defendant” and that damage “‘relates to economic loss caused by the
knowing infliction of damage’ to the property of another” (citation omitted)); see also
54 C.J.S. Malicious or Criminal Mischief or Damage to Property § 6 (stating that
“the value of the property damaged or destroyed is determined by the loss suffered
by the victim”). In fact, “value” is not used in the text of SDCL 22-34-1.
[¶33.] Of course, quantifying the damage to property within statutory ranges
set out in SDCL 22-34-1 is necessary to determine the grade of the offense. But this
is not to say that the State must first prove the market value of the damaged
property as a predicate to relying upon the reasonable cost of repairs, and this
sequential argument Hahn makes is a holdover of Rich’s abrogated market-value
holding. Certainly, where the evidence adduced at trial would support a
determination that the reasonable cost of repairs exceeds the market value of the
property that was damaged, the defendant could seek an instruction that required
3. This current statutory focus on the value of the damage neutralizes what
would appear to be a genuine potential for disparate and incongruent results
under the rule expressed in Rich. For instance, under Rich’s holding, a
defendant could be convicted of a felony for even a slight amount of damage if
it were inflicted on a valuable piece of property.
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the jury to use the lower market value to determine the damage element. Nothing
in SDCL 22-34-1, however, requires the State to affirmatively prove the market
value of the property in all intentional damage to property cases as part of the
damage to property element. 4
[¶34.] Finally, we note that Hahn does not argue that the door’s market value
was actually below the $1,000 felony threshold of SDCL 22-34-1, and there is no
proof or offer of proof to support such an assertion. Here, Hahn’s challenge is much
narrower—the State may not rely upon the cost of repairs without first proving the
market value of the property. 5 Having rejected that argument, our legal analysis is
at an end.
[¶35.] Judged correctly against the current legal standard for assessing
damage to the property, we conclude that there was sufficient evidence for the jury
4. Also, Hahn’s assertion that there was no evidence of the market value of
Delores’ damaged door does not appear sound. As recounted above, in
response to Hahn’s cross-examination question of asking about evidence of
pre-incident value, Deborah stated, “Only the value that the insurance
company placed on it.”
5. On appeal, it seems as though Hahn may be seeking to broaden his argument
with claims that the repair costs reflected for a new lock may not be
reasonable or that the testimony relating to damage to the door was inferior
because it was provided by lay people. Hahn did not challenge the
reasonableness of the repair costs at trial, and he may not advance what is
essentially an unpreserved weight-of-the evidence argument on appeal.
Regardless, we note that other courts have allowed lay witnesses to testify
about value of the property damage. See, e.g., Walker v. State, 888 S.E.2d
624, 626–27 (Ga. 2023) (stating value of damage “may be established by
several means[,]” including lay witness opinion when the witness had the
opportunity to form a reliable opinion); Campbell v. State, 426 S.W.3d 780,
785 (Tex. Crim. App. 2014) (holding a property owner’s testimony about what
his insurance company paid him was sufficient evidence of value of the
damage caused to his property).
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to find that the damage Hahn caused to Delores’ door was at least $1,000 but less
than $2,500. Deborah Moen testified to spending $1,474 on repairs, and Delores’
homeowner’s insurer valued the loss at $1,384. Under the circumstances, the
circuit court did not err by denying Hahn’s motion for judgment of acquittal. We
affirm.
[¶36.] JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN,
Justices, concur.
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