State v. Timmons

#29740-a-SRJ
2022 S.D. 28

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

DAVID PAUL TIMMONS, Defendant and Appellant.

****

APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
HUGHES COUNTY, SOUTH DAKOTA

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THE HONORABLE BOBBI J. RANK
Judge

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BRAD SCHREIBER
Pierre, South Dakota Attorney for defendant and
appellant.

JASON R. RAVNSBORG
Attorney General

JONATHAN K. VAN PATTEN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff and
appellee.

****

CONSIDERED ON BRIEFS
MARCH 21, 2022
OPINION FILED 05/18/22
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JENSEN, Chief Justice

[¶1.] David P. Timmons was charged with aggravated assault arising from a

physical altercation with his girlfriend, K.C., during which K.C. claimed Timmons

choked her. At trial, Timmons moved for a judgment of acquittal arguing the

evidence was insufficient to show that he attempted to place K.C. in fear of death or

imminent serious bodily harm by choking her. The circuit court denied the motion

and the jury found Timmons guilty of aggravated assault. After the trial, Timmons

filed a motion for a new trial based upon a letter sent by K.C. to the court prior to

sentencing stating that she felt manipulated and threatened by the prosecution to

testify. The circuit court denied the motion. Timmons appeals his conviction

arguing that the circuit court erred in denying his motion for judgment of acquittal

and his motion for a new trial. We affirm.

Facts and Procedural History

[¶2.] On the morning of April 9, 2020, K.C. was at Timmons’s residence.

The two were dating at the time and had a child together. Timmons was 35 years

old. K.C. was 19 years old.

[¶3.] Timmons was sleeping in a bedroom while K.C. was on her phone in

the living room with the television on. Timmons woke up and became angry with

K.C., claiming the television was too loud. Timmons was also upset because he

believed that K.C. was always on her phone. Timmons and K.C. began arguing and

Timmons took K.C.’s phone away. K.C. grabbed her phone back and tried to walk

away, but Timmons grabbed her arm. The altercation escalated, and Timmons

grabbed both of K.C.’s arms. K.C. yelled at Timmons, shoved, and hit him.

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Timmons pulled K.C. to the floor onto her stomach and hit her face on the floor.

While K.C. was on her stomach, Timmons pulled K.C.’s arms behind her back and

pulled her hair. K.C. testified that Timmons then attempted to restrain her by

wrapping his arm around her neck. This caused K.C. to feel like she was unable to

breathe and that she was going to pass out. K.C. also bit Timmons’s thumb during

the altercation.

[¶4.] K.C. called 911 approximately one hour after the altercation. During

the 911 call, K.C. sounded shaken up and upset while describing that Timmons had

choked and hit her. Officer Jonathan Brill responded to the call and met with K.C.

at her grandparents’ home. Officer Brill observed that K.C. was visibly shaken and

her speech was broken up. K.C. told Officer Brill that Timmons hit her face on the

floor, held her down with her arms behind her back, and pulled her hair. She stated

that she bit Timmons’s thumb to get him off of her. She also told Officer Brill that

she felt like she was unable to breathe and believed that she might pass out when

Timmons’s arm was wrapped around her neck. She also explained to EMS that

Timmons had strangled her. Officer Brill took pictures of K.C.’s injuries, which

included a cut on her lower lip, scratches on her neck, and bruises on her legs, neck,

and arms.

[¶5.] Officer Brill also spoke with Timmons as part of his investigation.

Timmons told Officer Brill that K.C. had attacked him and she tried to bite his

thumb off. Officer Brill observed a cut on Timmons’s thumb. Timmons stated that

K.C. sustained her injuries from sex the night before the altercation. Timmons also

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reported that K.C. would ask him to choke her and pull her hair during their sexual

encounters.

[¶6.] Timmons was arrested, and the court set bond and ordered that

Timmons have no contact with K.C. Timmons was indicted for aggravated assault

in violation of SDCL 22-18-1.1(8) and the offense was designated as one involving

domestic abuse under SDCL 25-10-1(1). The State also filed a part II information

alleging Timmons had a prior conviction for attempted fourth-degree rape.

[¶7.] A two-day jury trial began on March 11, 2021. At trial, the State

introduced the statements made by K.C. and Timmons to Officer Brill about the

assault, as well as photographs of their injuries. A recording of K.C.’s 911 call was

also introduced into evidence. K.C. testified that Timmons had choked her while

she was pinned to the floor and that she was frightened during the altercation.

K.C. admitted that the incident was a “mutual physical confrontation” and that she

did not think Timmons was trying to hurt her. K.C. testified that Timmons put his

arm around her neck to restrain her. She also explained that she felt like she could

not breathe, but could still talk, and that she felt like she was going to pass out “a

little bit.” K.C. admitted that she hit and pushed Timmons during the altercation

and that she could have caused his bruising by trying to push him away.

[¶8.] K.C. also admitted that she and Timmons had contact throughout the

case, including just a few days before trial. Despite the no contact order, K.C.

explained that Timmons had contacted her and pressured her to lie to the police by

telling them that her injuries came from rough sex. K.C. stated that she and

Timmons planned for her to write text messages to Timmons every other week

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detailing how she likes rough sex in order to get the charges dropped. K.C. also

testified that she did not have sex with Timmons on the night before April 9 and

that her injuries were not from a sexual encounter with him. The State called two

of K.C.’s friends who testified that they heard a phone call on April 10, 2020,

between Timmons and K.C. where Timmons told K.C. to lie to police and tell them

it was just rough sex.

[¶9.] On cross-examination, K.C. admitted that she regretted calling the

police because she loves Timmons and he is the father of their child. K.C. testified

that she had been “kind of” manipulated and pressured by friends and family into

testifying against Timmons, but she was ultimately told to tell the truth. Defense

counsel asked K.C. about her interactions with the State as follows:

Q: Okay. How many times have you met with the prosecutor’s
office about your testimony today?
A: Like, five or six times.
Q: Yeah. You’ve talked to them quite a bit, haven’t you?
A: Yeah.
Q: They’ve been concerned about what you were going to testify
to today, haven’t they?
A: Yeah.
Q: Okay. Went over what your testimony was going to be?
A: Yeah.

[¶10.] At the close of the State’s evidence, Timmons moved for a judgment of

acquittal arguing he was merely trying to restrain K.C. from attacking him, and

there was no evidence that he intended to strangle K.C. or place her in fear of death

or imminent bodily harm. The court denied the motion determining there was

evidence from which the jury could find beyond a reasonable doubt that the

elements for aggravated assault under SDCL 22-18-1.1(8) had been met. The jury

found Timmons guilty of aggravated assault under SDCL 22-18-1.1(8), a class 3

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felony. Timmons admitted the part II information, thereby enhancing his potential

maximum punishment to the level of a class 2 felony.

[¶11.] The court ordered a presentence investigation report (PSI). As a part

of the PSI, K.C. submitted a letter of support for Timmons. In K.C.’s letter, she

stated that she felt like she was lied to, manipulated, and threatened by the State’s

prosecutor. K.C. stated that “she [threatened] to put me in prison for 30 years.”

K.C. wrote that she did not want to call the cops, was coming down from meth, and

did not believe that Timmons deserved a heavy sentence. She believed that

“[Timmons’s] [intentions] were not to hurt me.” On April 26, 2021, the circuit court

sentenced Timmons to fifteen years in the penitentiary with three years suspended.

The court entered a judgment of conviction for aggravated assault and indicated the

offense involved domestic abuse as required by SDCL 25-10-34.

[¶12.] Timmons timely filed a motion for a new trial pursuant to SDCL 23A-

29-1. Timmons asserted that K.C.’s letter constituted a surprise and newly

discovered evidence as set forth in SDCL 15-6-59(a)(3) and (4). Timmons requested

the court to conduct a hearing to allow K.C. to testify on her allegations. The State

opposed the motion. The State denied it had threatened K.C. but acknowledged a

discussion with K.C. that she could be charged with perjury if she testified falsely.

The circuit court denied the motion for a new trial. The circuit court concluded that

the letter was not surprise evidence or newly discovered evidence that justified a

new trial because Timmons could have discovered the evidence before trial based

upon his extensive contact with K.C. The court also determined the letter was

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cumulative and merely impeached K.C., and it would not have probably led to an

acquittal.

[¶13.] Timmons appeals arguing (1) the circuit court erred in denying his

motion for judgment of acquittal because there was insufficient evidence to support

his aggravated assault conviction, and (2) the circuit court abused its discretion in

denying his motion for a new trial because K.C.’s letter was a surprise and newly

discovered evidence under SDCL 15-6-59(a).

Analysis

1. Whether the circuit court erred in denying
Timmons’s motion for judgment of acquittal.

[¶14.] This Court reviews “‘a denial of a motion for judgment of acquittal de

novo.’” State v. Frias, 2021 S.D. 26, ¶ 21, 959 N.W.2d 62, 68 (citation omitted). “[A]

motion for a judgment of acquittal attacks the sufficiency of the evidence[.]” State v.

Wolf, 2020 S.D. 15, ¶ 12, 941 N.W.2d 216, 220. In evaluating the sufficiency of the

evidence, this Court considers “[w]hether there is evidence in the record which, if

believed by the fact finder, is sufficient to sustain a finding of guilt beyond a

reasonable doubt . . . .” Id. ¶ 13, 941 N.W.2d at 220 (quoting State v. Carter, 2009

S.D. 65, ¶ 44, 771 N.W.2d 329, 342).

[¶15.] A person is guilty of aggravated assault under SDCL 22-18-1.1(8) if he

“[a]ttempts to induce a fear of death or imminent serious bodily harm by impeding

the normal breathing or circulation of the blood of another person by applying

pressure on the throat or neck, or by blocking the nose and mouth[.]” Timmons

asserts that the evidence was insufficient to show that he attempted to induce a

fear of death or imminent serious bodily harm because K.C. did not testify that she

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was in fear of death or serious bodily harm. The State argues K.C.’s testimony that

Timmons wrapped his arm around her neck and impeded her breathing was

sufficient to show that Timmons attempted to place K.C. in fear of death or

imminent serious bodily harm by choking.

[¶16.] This Court has not previously addressed whether the language in

SDCL 22-18-1.1(8), “[a]ttempts to induce a fear of death or imminent serious bodily

harm by impeding the normal breathing[,]” requires a showing that the alleged

victim must be placed in actual fear. However, we have discussed similar language

in SDCL 22-18-1.1(5), which defines an aggravated assault as an “[a]ttempt[ ] by

physical menace with a deadly weapon to put another in fear of imminent serious

bodily harm[.]” We have explained that “[t]he gravamen of the offense is the

attempt to put a person in fear of imminent serious bodily harm.” State v. LaCroix,

423 N.W.2d 169, 170 (S.D. 1988). “Actual fear of imminent serious bodily harm is

not an essential element of the offense.” Id. “[A]n attempt to put another in fear

exists when the defendant does ‘any act toward the commission of the crime but

fails or is prevented or intercepted in the perpetration thereof.’” State v. Scott, 2019

S.D. 25, ¶ 19, 927 N.W.2d 120, 127 (citation omitted). Similarly, the plain language

of SDCL 22-18-1.1(8) provides that an attempt to place the victim in fear of death or

imminent serious bodily harm by impeding the victim’s breathing is sufficient to

prove an aggravated assault. “The State need not prove ‘actual fear of imminent

serious bodily harm’” to prove aggravated assault under SDCL 22-18-1.1(8). Id.

(citation omitted).

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[¶17.] There was sufficient evidence for the jury to find beyond a reasonable

doubt that Timmons attempted to place K.C. in fear of death or imminent serious

bodily harm by wrapping his arm around K.C.’s neck and impeding her breathing

while she was pinned to the floor. K.C. testified that she was frightened during the

assault, and that she struggled to breathe and felt like she was going to pass out.

The jury also heard the 911 call where K.C. sounded upset as she described

Timmons choking her. Further, the jury watched Officer Brill’s interview with K.C.

where she described that she “couldn’t breathe at all” and felt like she was close to

passing out. Officer Brill testified that K.C. appeared shaken up from the assault.

The jury also observed photos of K.C.’s injuries that showed bruising on her neck,

arms, and legs and a cut lip. These photos of her injuries were consistent with

K.C.’s description of Timmons’s actions.

[¶18.] Timmons asserts that K.C.’s testimony that he was trying to restrain

her and her admission that she hit him and bruised him shows that he did not

attempt to cause fear of death or imminent serious bodily harm to her. Rather, in

his view, this evidence shows that he was attempting to restrain her from injuring

him. When reviewing the record, we do not “resolve conflicts in the evidence, pass

on the credibility of witnesses, or reweigh the evidence on appeal.” Wolf, 2020 S.D.

15, ¶ 13, 941 N.W.2d at 220 (citation omitted). Rather, this Court “accept[s] [the]

evidence, and the most favorable inference fairly drawn therefrom, which will

support the verdict.” Scott, 2019 S.D. 25, ¶ 18, 927 N.W.2d at 127 (citation

omitted). At Timmons’s request, the jury was given a self-defense instruction based

on K.C.’s testimony regarding her actions and photos of Timmons’s injuries. The

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jury rejected the theory of self-defense and determined that Timmons was guilty of

aggravated assault. The evidence, and reasonable inferences therefrom, supports

the jury’s determination that Timmons attempted to place K.C. in fear of imminent

serious bodily harm or death when he pinned her to the floor, wrapped his arm

around her neck, and impeded her breathing.

2. Whether the circuit court abused its discretion in
denying Timmons’s motion for a new trial.

[¶19.] This Court reviews the circuit court’s “denial of a motion for a new trial

under the abuse of discretion standard.” State v. Zephier, 2012 S.D. 16, ¶ 15, 810

N.W.2d 770, 773 (citation omitted). “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. Miller, 2014 S.D. 49, ¶ 11,

851 N.W.2d 703, 706 (citation omitted). “[T]he decision whether to grant a new trial

is within the sound discretion of the trial court, ‘whose superior knowledge of all the

facts and circumstances of the case enables him to know the requirements of

justice.’” State v. Lodermeier, 481 N.W.2d 614, 626 (S.D. 1992) (citation omitted).

“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. Shelton, 2021 S.D. 22, ¶

27, 958 N.W.2d 721, 730 (quoting State v. Muhm, 2009 S.D. 100, ¶ 43, 775 N.W.2d

508, 523).

[¶20.] Timmons initially argues that the circuit court erred by failing to hold

an evidentiary hearing on the contents of the letter before denying the motion for a

new trial. The procedure for granting or denying a motion for a new trial in

criminal proceedings is contained in SDCL 23A-29-1, which cross-references to

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SDCL 15-6-59(b) in the Rules of Civil Procedure. SDCL 15-6-59(b) permits the

circuit court to extend the time for considering a motion for new trial, but neither

SDCL 23A-29-1 nor SDCL 15-6-59(b) requires the court to conduct a hearing before

ruling on the motion for a new trial. Rather, SDCL 15-6-59(b) permits a circuit

court to take no action on a motion for a new trial, and a motion for a new trial is

deemed automatically denied if the circuit court fails to timely rule upon the

motion. See Bridgewater Quality Meats, L.L.C. v. Heim, 2007 S.D. 23, ¶ 10, 729

N.W.2d 387, 392 (reviewing an automatic denial of a motion for a new trial after the

circuit court failed to rule on the motion for an abuse of discretion).

[¶21.] It was within the court’s discretion to determine the necessity of

holding a hearing on the motion for a new trial. Other jurisdictions have found that

“[g]enerally, a hearing is not required on a motion for a new trial.” Busey v. U.S.,

747 A.2d 1153, 1168 (D.C. 2000) (explaining that the rule governing a motion for a

new trial in criminal proceedings does not mandate a hearing, therefore, “a trial

court is not required to hold a hearing before ruling on such a motion” (citations

omitted)); see also Story v. State, 788 P.2d 617, 622 (Wyo. 1990) (finding that there

is no due process requirement for a hearing on all motions for a new trial).

[¶22.] In denying the motion for a new trial, the circuit court relied upon the

evidence and proceedings at trial in considering whether the letter from K.C.

presented grounds for a new trial and determined the letter did not constitute

newly discovered or surprise evidence. “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.” Shelton, 2021 S.D. 22, ¶ 27, 958 N.W.2d at 730.

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The circuit court properly exercised its discretion in declining to hold a hearing on

the motion for a new trial.

[¶23.] Timmons relied upon the grounds set forth in SDCL 15-6-59(a)(3) and

(4) in his motion for a new trial. On appeal, Timmons asserts the same grounds

arguing that the circuit court erred by failing to grant a new trial because K.C.’s

letter was an “[a]ccident or surprise which ordinary prudence could not have

guarded against”; and “[n]ewly discovered evidence, material to the party making

the application, which he could not with reasonable diligence have discovered and

produced at the trial[.]” SDCL 15-6-59(a)(3)-(4). Timmons claims the letter shows

that K.C.’s testimony would have been different without the State’s alleged coercion

and her uncoerced testimony could have resulted in a judgment of acquittal.

[¶24.] The circuit court did not abuse its discretion in denying the motion for

a new trial based on surprise. “To constitute grounds for new trial[,] accident or

surprise must be such that ordinary prudence could not have guarded against it.”

Egan v. Shindelbower, 73 S.D. 212, 215, 41 N.W.2d 225, 226 (1950). Timmons

cross-examined K.C. about her interactions with the State. K.C. admitted to

meeting five or six times with the State and testified that she felt “kind of”

manipulated into testifying by friends and family. Timmons did not inquire further

at trial concerning her testimony that she felt manipulated or about her

interactions with the State. Further, Timmons cannot claim surprise because

K.C.’s testimony was similar to the statements contained in her letter. Finally,

Timmons’s bare assertion that he was surprised by K.C.’s letter does not show how

the allegations in K.C.’s letter would have probably changed the outcome at trial.

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[¶25.] “To succeed on a motion for a new trial based on after-discovered

evidence, a defendant must prove that ‘(1) the evidence was undiscovered by the

movant at the time of trial; (2) the evidence is material, not merely cumulative or

impeaching; (3) that it would probably produce an acquittal; and (4) that no lack of

diligence caused the movant to fail to discover the evidence earlier.’” State v.

Corean, 2010 S.D. 85, ¶ 18, 791 N.W.2d 44, 51 (quoting State v. Shepard, 2009 S.D.

50, ¶ 20, 768 N.W.2d 162, 167). “[N]ew trial motions based on newly discovered

evidence request extraordinary relief; they should be granted only in exceptional

circumstances and then only if the requirements are strictly met.” Id. ¶ 18, 791

N.W.2d at 51–52 (quoting State v. Gehm, 1999 S.D. 82, ¶ 15, 600 N.W.2d 535, 540).

“Courts have long been skeptical of new trial motions asserting ‘newly discovered’

evidence when [defendants] fail to exercise reasonable diligence to discover the

evidence beforehand.” Gehm, 1999 S.D. 82, ¶ 16, 600 N.W.2d at 541 (citation

omitted).

[¶26.] K.C.’s letter does not constitute newly discovered evidence that

warranted a new trial. Evidence that is merely cumulative is not newly discovered

and does not constitute grounds for a new trial. State v. Beynon, 484 N.W.2d 898,

906 (S.D. 1992). K.C.’s comments in her letter mirrored much of her testimony on

cross-examination and highlighted her reluctance to testify about the assault, which

was evident from her trial testimony. Even where the evidence truly is newly

discovered, “we have repeatedly held . . . [that] a new trial is not warranted” in

cases where the “newly discovered evidence would merely impeach or discredit a

trial witness[.]” Lodermeier, 481 N.W.2d at 628. Here, K.C.’s letter was cumulative

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impeachment evidence and did not reveal new evidence that would be material to

Timmons’s conviction. See Zephier, 2012 S.D. 16, ¶ 20, 810 N.W.2d at 774 (denying

a new trial because the evidence would be used to impeach the witness and was

cumulative).

[¶27.] Additionally, Timmons’s request for a new trial was properly denied

because he failed to show that the alleged coercion by the State could not have been

discovered before trial through reasonable diligence. See Corean, 2010 S.D. 85, ¶

18, 791 N.W.2d at 51. Despite the no contact order, Timmons and K.C. remained in

contact throughout the case and communicated about how to get his charges

dropped. Further, Timmons had the ability to discover any alleged threats by the

State from K.C. by inquiring into her meetings with the State during his cross-

examination of K.C.

[¶28.] Timmons also argues that K.C.’s letter suggests that she testified

falsely. This Court has explained “[i]f the court believes that the testimony given by

a material witness was false, that without such false testimony the jury might

reach a different conclusion, and that the party seeking a new trial was taken by

surprise by the false testimony or did not learn of its falsity until after trial, then it

would be the duty of the court to set aside the verdict and grant a new trial.”

Stabler v. First State Bank of Roscoe, 2015 S.D. 44, ¶ 34, 865 N.W.2d 466, 483

(quoting Pickering v. State, 260 N.W.2d 234, 235 (S.D. 1977)). However, Timmons

identifies nothing in the letter that recants K.C.’s testimony or conveys that she

testified falsely. Rather, the letter communicates her regret for testifying, asks the

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court to impose a lenient sentence, and explains her personal belief that both her

and Timmons were at fault in the altercation.

[¶29.] Finally, the circuit court did not abuse its discretion in concluding that

the letter would not have probably produced an acquittal. See State v. Feuillerat,

292 N.W.2d 326, 332–33 (S.D. 1980) (finding that the evidence that a witness

allegedly perjured himself did not warrant a new trial because “there was no new

evidence which would convince the trier of facts that a different verdict would

probably result”). In addition to K.C.’s testimony, the jury saw photos of K.C.’s

injuries, watched her interview with Officer Brill where she described the

altercation and appeared shaken up. The jury also heard K.C.’s 911 call and

testimony from the 911 operator describing K.C.’s report of the altercation, and

heard from two other witnesses on Timmons’s attempted manipulation of K.C. The

letter did not reveal any new evidence that would have probably led to an acquittal

in light of the evidence presented at trial. As such, the circuit court did not abuse

its discretion in denying the motion for a new trial.

[¶30.] We affirm.

[¶31.] KERN, SALTER, and MYREN, Justices, concur.

[¶32.] DEVANEY, Justice, deeming herself disqualified, did not participate.

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