#24927-a-DG 

2009 SD 65 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, 

 v. 

SEAN RICHARD CARTER, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE FOURTH JUDICIAL CIRCUIT 

BUTTE COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE JOHN W. BASTIAN 

Judge 

* * * * 

LAWRENCE E. LONG 

Attorney General 

FRANK GEAGHAN 

Assistant Attorney General 

Pierre, South Dakota Attorneys for plaintiff 

and appellee. 

STACY L. REINDL 

Spearfish, South Dakota Attorney for defendant 

and appellant. 

* * * * 

CONSIDERED ON BRIEFS 

ON APRIL 27, 2009 

 OPINION FILED 07/22/09 
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GILBERTSON, Chief Justice 

[¶1.] Defendant was convicted of aggravated assault based on the testimony 

of his co-perpetrators and an eye witness who placed him at the scene of the crime. 

On appeal, Defendant alleges the trial court erred when it did not permit him to 

impeach the eye witness who placed him at the scene after she testified consistently 

with her prior statements to police. Defendant also contends that there was 

insufficient evidence to support the conviction. Finally, Defendant argues that the 

trial court’s use of an aiding and abetting instruction was without support in the 

evidence. We affirm. 

FACTS 

[¶2.] On October 27, 2007, Justin Scott (Scott), Ivan Rosander (Rosander), 

and Ryan Ollerich (Ollerich) ended their day working cattle by having dinner in 

Belle Fourche, South Dakota. The three men then went to the Cowboy Back Bar for 

drinks where they met Libby Huber (Huber). Huber invited the men to a house 

party approximately two to three blocks from the bar. Huber, Scott, Rosander, and 

Ollerich along with Huber’s friends Bobbi Satzinger (Bobbi) and her husband Jim 

Satzinger (Jim), and Dee Dee Farghali (Farghali) arrived at the house party a little 

after 2 a.m. They immediately recognized that they did not fit in with the others in 

attendance. The other attendees were later described as being “goths,” as well as 

much younger than the late arrivals.1 In addition, Scott and Ollerich were wearing 

 (continued . . .) 

1. “Goth” is described as “a style of fashion characterized by black clothes, heavy 

silver jewelry, black eye make-up and lipstick, and often pale face makeup.” 

Boroff v. Van Wert City Bd. of Educ., 220 F3d 465, 466 (6thCir 2000) (quoting 
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________________________ 

(. . . continued) 

cowboy hats that made them stand out in the crowd as being cowboy or rancher 

oriented. 

[¶3.] At the party, words were exchanged between the “cowboys” and the 

“goths,” and it appeared that a fight might break out due to the conflict between the 

two groups. Scott and Ollerich testified that they had remained at the front door 

most of the time they were at the party with Huber, the Satzingers, and Farghali 

due to their discomfort with the atmosphere and the prospect of a fight. Finally, the 

“goths” demanded the “cowboys” leave the party. 

[¶4.] After the “cowboys” left the party, a small fire was discovered in the 

backyard, which the “goths” alleged the “cowboys” had started. Several of those in 

attendance at the party decided to pursue the “cowboys.” Sean Richard Carter 

(Defendant) and another man, Courtney Rodriguez (Rodriguez), led the way as they 

and Orin Schulze (Orin) and his brother Jeffery Schulze (Jeffery) chased after Scott, 

Rosander, Ollerich, and Huber in order to confront them about the fire. 

[¶5.] Jim and Bobbi Satzinger left at the same time as the others, but they 

stopped to visit with some acquaintances who lived nearby and who were out on 

their lawn. The rest of the “cowboy” group proceeded down Railroad Street toward 

the Cowboy Back Bar parking lot to get Huber’s car. As Jim and Bobbi were 

visiting, Bobbi saw a group of about four or five people from the party run past her 

along the path taken by Scott, Rosander, Ollerich, and Huber. Among the pursuers, 

Encarta World English Dictionary (2000), http://dictionary.msn.com/ 

find/entry.asp?search= goth). 
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Bobbi saw a tall white man wearing a black t-shirt on which the word “Security” 

was printed in big white letters. Bobbi had noticed the man earlier that evening 

first at the Outlaw Bar where she had previously been and again later at the house 

party. She also noticed a short, Hispanic man wearing glasses among the group. 

Bobbi had also observed the Hispanic man become confrontational and belligerent 

with the “cowboys” at the house party, and she thought he was looking for an excuse 

to start a fight. 

[¶6.] Soon after Bobbi noticed the men from the party running toward the 

Cowboy Back Bar and her friends, Scott heard someone shouting from behind him. 

Scott was walking with Rosander and was about 100 feet behind Ollerich and 

Huber in the vicinity of Railroad Street and 4th Street. Scott turned around and 

saw four figures he assumed were men closing in on him. Huber turned around at 

the time the attack began and saw a “large, tall, white person” involved in an 

assault on Scott as well as a “little short Hispanic person with glasses on and two 

other people” involved in assaulting Scott and Rosander. As Ollerich turned to look 

back at the assault, he saw a police cruiser in the adjacent alley, ran to it, and 

reported the fight. As the fight was dispersing, law enforcement arrived on the 

scene. 

[¶7.] By this time, Bobbi had walked down toward the corner of Railroad 

Street to see what was happening. Before she reached the corner, she saw some of 

the individuals who had pursued the “cowboys” running back toward the house 

party. Bobbi noticed the short Hispanic man again, but did not see the tall white 

man in the “Security” t-shirt. Those returning to the house party were saying 
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things like “that’s what you get, that’s what you get,” and laughing. Bobbi returned 

to her husband and Farghali picked them up in her van and drove to the location of 

the fight to provide assistance. 

[¶8.] After the assault ended, Rosander was unable to identify his attackers 

to the police. He was also not able to identify which of the attackers assaulted 

Scott. He was, however, able to describe Scott’s injuries. Rosander noted that 

Scott’s face and eyes were bloody and swollen, and that his leg was at a ninety 

degree angle at the ankle. Scott was face down in the street, conscious but unable 

to focus on what had happened, or provide any information about his condition or 

the attack. 

[¶9.] Officers with the Belle Fourche Police Department arrived on the scene 

shortly after the attackers dispersed. Shortly before 4 a.m., police began looking for 

the men who had assaulted Scott and Rosander based on the descriptions provided 

at the scene. One of the suspects was reported to be wearing a camouflage jacket, 

and one was reported to be wearing a black t-shirt with the word “Security” printed 

on it in white letters. Several minutes after the fight, Officer William Earl (Earl) 

located three males walking approximately one- to one-and-half blocks away from 

the intersection where the fight occurred. Earl questioned the men as to whether 

they had any knowledge of the assault. One man, the Defendant, stopped to speak 

with Earl while the other two walked away from the encounter. Earl radioed to 

another officer to stop the pair and attempt to engage them in conversation. 

[¶10.] Defendant was wearing a camouflage jacket with a black t-shirt. Earl 

immediately noticed that Defendant’s t-shirt was inside out and he could see that 
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something was printed on it. Earl asked Defendant to turn his shirt right side out 

and the word “Security” was visible in bold white lettering. There was no blood or 

other evidence of a fight visible on the t-shirt. Earl asked to see the Defendant’s 

hands, which he determined did not have any cuts or bruises that indicated a recent 

fight. A small bruise and scratch on Defendant’s arm were determined to be a prior 

injury that Defendant claimed was work related. Defendant denied any 

involvement in the assault and claimed he had no knowledge that a fight had 

occurred. Earl was unable to detain Defendant based on the information he had at 

the time or to examine Defendant’s shoes. 

[¶11.] Defendant’s companions were intercepted by another officer and later 

questioned by Earl. They gave their names as Orin Schulze and Jeffery Schulze. 

Jeffery had a broken right hand as well as cuts and dried blood on his hand. The 

brothers were taken to the police station where they admitted they had been in the 

fight with the “cowboys,” but that they had acted in self defense. Orin eventually 

gave a written statement that indicated he had struck Rosander. Jeffery’s 

statement indicated that he had broken his hand while fighting with Scott. The 

brothers were issued tickets for disorderly conduct and released. 

[¶12.] Scott was taken to the Spearfish hospital. His injuries included a 

dislocated ankle and broken fibula that required surgery and several months off of 

work, as well as injuries to his face and head. One of Scott’s eyes was completely 

swollen shut and so large that when looking at his face straight on his ear was not 

visible. Scott was not able to identify his attackers as he had little memory of the 

attack. 
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[¶13.] A few days later, Orin and Jeffery were asked to return to the police 

station to provide further information. Their stories remained the same or very 

close to their stories on the morning of the attack. However, during a third police 

interview, Orin told Officer Larry Rohlf (Rohlf) that he ran into Rosander and began 

throwing punches, which Rosander returned and that they knocked each other to 

the ground. While the two were exchanging punches, Orin stated he heard his 

brother call out to him that Jeffery had lost his glasses. Orin stated he then 

disengaged with Rosander, found Jeffery’s glasses, pulled him off of Scott, and the 

two ran away. 

[¶14.] Jeffery gave a similar statement. Jeffery recounted how he had 

thrown a flying “superman” style punch at Scott’s head and knocked him to the 

ground. The two began wrestling and punching each other. Jeffery believed he had 

broken his hand when he attempted to punch Scott in the face and instead hit the 

pavement. Neither brother gave police any information regarding Defendant’s 

participation. 

[¶15.] Huber was contacted by Rohlf by telephone and asked to describe the 

attackers and the events she recalled. Huber placed Defendant at the scene. An 

individual statement from Huber was not included in the original police report from 

the date of the attack. Instead, Rohlf’s notes from the supplemental case report, 

which was not offered at trial, indicated that Rohlf had telephoned several 

witnesses on October 31, 2007. That report stated: 

[Bobbi] Satzinger, Huber, and Ollerich . . . state that they were 

all about one and a half blocks ahead of where the fight 

happened and could not see who was fighting for sure. It was 
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too dark and they were too far ahead. They could only tell there 

was a fight happening.2 

[¶16.] On either November 1 or 2, Rohlf asked Defendant to return to the 

police station to provide additional information about the assault. Defendant 

voluntarily agreed to provide a videotaped statement. He explained that he had 

taken off running toward the Cowboy Back Bar after Scott, Rosander, and Ollerich, 

along with a tall blond man with a ponytail, a little guy with a bald head and 

glasses, and a tall man wearing a camouflage jacket.3 Defendant told Rohlf that he 

had been at the fight scene but did not participate in the assault. Defendant said 

he was unable to give Rohlf any names because he was relatively new to the area 

and did not know the names of the individuals with whom he had run after the 

“cowboys.” Defendant stated that the tall man in the camouflage jacket and the 

short man with the glasses jumped the “cowboys.” 

[¶17.] Defendant was eventually charged with one count of aggravated 

assault in violation of SDCL 22-18-1.1(1), a Class 3 Felony, and in the alternative 

2. The report appears to be mistaken as to Bobbi’s physical location at the time 

of the fight. She was not with Huber and ahead of Scott when the assault 

occurred. She was behind the two groups and arrived at the scene of the fight 

after it was over and never saw the fight itself. 

 

3. The short man with glasses was also identified by Huber as being Hispanic. 

This individual was eventually identified as Courtney Rodriguez. Rodriguez 

was prosecuted separately for his participation in the attack. 
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one count of aggravated assault in violation of SDCL 22-18-1.1(4).4 Jeffery and 

Orin were also charged with aggravated assault for their part in the attack on Scott. 

Trial on the charges against Defendant was held on April 28, 2008. 

[¶18.] Huber testified at trial that she had observed Defendant at the Outlaw 

Bar where she had been prior to arriving at the Cowboy Back Bar. She also 

testified that she saw Defendant at the house party and again during the assault. 

Although she did not know his name at the time, she remembered Defendant by the 

black t-shirt he was wearing with the word “Security” in bold white letters printed 

on it. Huber identified Defendant in the court room as the man she saw that night 

wearing the “Security” t-shirt. She also testified she saw Defendant “hollering at 

Justin [Scott],” and then she saw Rosander push the attackers away from him. She 

further testified that she saw the Defendant assault Scott. The following questions 

were asked of Huber by the state’s attorney on direct examination: 

Q. And what was he doing? 

A. Assaulting him. 

Q. Assaulting Justin [Scott]? 

A. Yes. 

Q. Was he kicking him? 

4. SDCL 22-18-1.1 provides in relevant part: 

Any person who: 

(1) Attempts to cause serious bodily injury to another, or 

causes such injury, under circumstances manifesting 

extreme indifference to the value of human life; 

. . . 

(4) Assaults another with intent to commit bodily injury 

which results in serious bodily injury; . . . 

is guilty of aggravated assault. Aggravated assault is a Class 3 

felony. 
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A. Yes. 

Counsel for Defendant immediately objected to the question as leading and moved 

to strike. Counsel’s objection was sustained. The state’s attorney then continued: 

Q. What was he doing? 

A. Pushing him, beating him physically, harming him. 

Q. Was he doing anything with his foot? 

A. I didn’t see that. 

Q. Did you see any kind of motion with his leg? 

A. No, because at that time my distraction was on Ivan [Rosander] 

and there was another distraction, the cops came down the alley 

way, too. 

. . . 

Q. Do you recall having a phone conversation with Officer Rohlf? 

A. No, I don’t. 

Q. You don’t remember talking to him at all? 

A. No. 

[¶19.] On cross-examination, Defendant’s counsel asked Huber the following: 

Q. So is it your testimony today that you don’t recall telling 

Officer Rohlf that you could not see who was fighting for 

sure?5

Before Huber answered, the State objected based on Huber’s previous answer that 

she did not recall the conversation with Rohlf and, therefore, could not possibly 

recall the context. The trial court sustained the objection. Defendant’s counsel then 

asked whether Huber recalled having a conversation with Defendant’s private 

investigator. After Huber’s answer in the affirmative, Defendant’s counsel then 

asked “And do you recall telling the private investigator . . .?” and the State 

5. The wording of this question to Huber posed by Defendant’s attorney appears 

to have been taken directly from Rohlf’s notes in the supplemental case 

report. Rohlf’s case report did not attribute the words to Huber as a direct 

quote, but rather the statement was used to summarize the information 

given by the three witnesses interviewed by Rohlf. 
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objected once again, this time on the basis of hearsay. The trial court sustained the 

objection. 

[¶20.] The State also called Jeffery as a witness. Jeffery testified that he was 

one of the four men who pursued the “cowboys” from the house party, and that he 

had punched Scott in the head and then fought with him on the ground. Jeffery 

testified that he had entered into a plea agreement with the State, and in exchange 

for testifying truthfully at Defendant’s trial Jeffery would enter a plea of guilty to 

one charge of aggravated assault. The plea agreement required the State to 

withdraw any additional charges as well as a Part II Information against Jeffery 

that was based on a sealed conviction. The State further agreed to remain silent 

regarding any request for a suspended execution of sentence and not ask for a 

particular sentence. The State remained free to comment on the facts of the case 

against Jeffery. Jeffery was required to pay restitution to Scott as part of the plea 

agreement. 

[¶21.] Jeffery testified that he was the tall man in glasses involved in the 

altercation, that his brother Orin was the tall man in the camouflage jacket, that 

Rodriguez was the short bald man in glasses, and that Defendant was the fourth 

assailant described as a tall man wearing a black t-shirt with the word “Security” 

printed on it in bold white letters. Jeffery further testified that Rodriguez and 

Rosander got into an argument and a bit of pushing at the house party as the 

“cowboys” were about to leave. Jeffery and Orin then followed the Defendant and 

Rodriguez after they began pursuing the “cowboys.” Defendant and Rodriguez were 

in the lead at first, but Orin was the first to engage with Rosander. Orin collided 
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with Rosander and the two ended up on the ground. Jeffery then “superman” 

punched Scott in the head or face, and Scott went down with Jeffery on top of him. 

As Jeffery and Scott were punching each other on the ground, Jeffery saw a big kick 

come in and make contact with Scott’s head, which then bounced around from the 

force of the kick. Jeffery looked up and saw Defendant stepping in for another kick. 

While Defendant delivered somewhere between four and seven kicks to Scott, Scott 

grabbed onto Jeffery and would not let go. Jeffery further testified that the kicks 

were very hard, full football kicks to Scott’s head, and possibly to other parts of his 

body. Jeffery also testified that his glasses fell off, and that he called out to his 

brother to find them. Orin disengaged with Rosander, retrieved Jeffery’s glasses, 

and the two brothers ran off. 

[¶22.] Jeffery then testified that the three men went to his house where 

Defendant tried to pull Jeffery’s broken fingers and dislocated hand back into place. 

The three men then decided to walk to a convenience store for drinks and cigarettes. 

The three were stopped by Earl on their way back to Jeffery’s home. Jeffery 

admitted he had withheld the truth from Earl that evening that Defendant was 

involved in the fight, and again when Jeffery was interviewed at the police station 

on two other occasions. Jeffery further admitted that it was not until his testimony 

at trial that he told the full truth for the first time. Jeffery also testified that he 

would be required to pay restitution to the victim for his role in the attack. 

[¶23.] Orin was also offered a plea agreement. In exchange for his testimony, 

Orin agreed to plead guilty to one count of simple assault for his role in attacking 

Rosander. He was not called as a witness for the State. Orin was, however, called 
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as a witness for Defendant. Orin testified that he saw Defendant kick Scott in the 

head just as if Defendant were kicking a ball. Orin also testified that Defendant 

was wearing a black t-shirt with the word “Security” printed on it. He further 

testified that on the way back from the convenience store, that Orin had given 

Defendant the camouflage jacket to wear as it was cold outside. 

[¶24.] Finally, Rohlf testified to the details of his investigation. On crossexamination, Defendant’s counsel asked Rohlf if he had interviewed Huber. Using 

the transcript of Rohlf’s October 31, 2007, telephone interview of Huber to refresh 

Rohlf’s memory, Defendant’s counsel asked: “As you wrap up your follow up 

investigation, Mr. Rohlf, what did you conclude regarding the multiple number of 

witnesses that were asked about whether [Defendant] kicked Mr. Scott in the 

head?”6 The State objected on the basis of speculation. The trial court sustained 

the objection. Defendant’s counsel made an offer of proof outside the presence of the 

jury. Counsel offered the testimony of Rohlf to impeach the testimony of Huber as 

to the details of her conversation with Rohlf, a conversation that Huber was unable 

to recall while testifying the day before. 

[¶25.] The trial court refused the offer based on a hearsay objection by the 

State. The trial court found that Huber did not testify that Defendant had kicked 

Scott, but rather that Huber had testified she saw Defendant shouting, pushing, 

and physically assaulting Scott. After finding that Huber did not testify in a 

manner inconsistent with her statement to Rohlf during the investigation, the trial 

6. The transcript of Rohlf’s telephone interview with Huber was not contained 

in the record. 
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court noted that Huber could not recall the conversation with Rohlf. The trial court 

also refused the offer of the police report as hearsay to which the business record 

exception did not apply. 

[¶26.] At the close of evidence, the trial court instructed the jury on 

aggravated assault. It also instructed the jury on aiding and abetting under SDCL 

22-3-3. That statute provides: “Any person who, with the intent to promote or 

facilitate the commission of a crime, aids, abets or advises another person in 

planning or committing the crime, is legally accountable, as a principal to the 

crime.” SDCL 22-3-3. Defendant’s objection to the aiding and abetting instruction 

was overruled. The verdict form did not specify whether the jury had a choice 

between convicting and acquitting Defendant as a principal for actually 

participating in the assault or as a principal under the aiding and abetting 

instruction. Instead, the verdict form provided only the choice between guilty and 

not guilty to the single count of aggravated assault in violation of SDCL 22-18-

1.1(1). 

[¶27.] The jury returned a verdict of guilty. Defendant was sentenced to 

serve twelve years in the State Penitentiary with four years suspended on condition 

that Defendant pay court costs, prosecution costs, court-appointed attorney fees, 

and restitution to Scott. Restitution totaled almost $29,000; Defendant was ordered 

jointly and severally liable for it along with Orin and Jeffery. Defendant was also 

ordered to complete alcohol treatment and successfully complete anger management 

classes. 
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[¶28.] Defendant appeals raising the following issues: 

1. Whether the trial court erred in limiting cross-examination of a 

witness Defendant’s counsel sought to impeach. 

2. Whether the evidence was sufficient to sustain the verdict of 

guilty to the charge of aggravated assault. 

3. Whether the trial court erred when it instructed the jury on 

aiding and abetting. 

DECISION AND ANALYSIS 

[¶29.] 1. Whether the trial court erred in limiting cross- 

 examination of a witness Defendant’s counsel sought to 

 impeach. 

[¶30.] Defendant argues that the trial court denied him the right to confront 

Huber and impeach her testimony when it sustained the State’s objection to the 

question posed to Huber as to whether she remembered telling Rohlf that she could 

not see who was fighting for sure. He also argues that the State’s hearsay objection 

to the question as to whether Huber recalled telling Defendant’s private 

investigator that she did not see Defendant kick Scott during the attack also served 

to deny him the opportunity to impeach Huber by showing an inconsistent prior 

statement and bias. Defendant further argues that the trial court erred when it did 

not permit him to elicit testimony from Rohlf that Huber stated during her 

telephone interview on November 1, 2007, that she did not see Defendant kick 

Scott. That question was precluded by a hearsay objection by the State. Defendant 

argues that the answers to these three questions would have shown that Huber 

testified inconsistently with her prior statements. 

[¶31.] “A trial court’s evidentiary rulings ’are presumed correct and are 

reviewed under an abuse of discretion standard.’” State v. Karlen, 1999 SD 12, ¶6, 
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589 NW2d 594, 597 (quoting State v. Larson, 1998 SD 80, ¶10, 582 NW2d 15, 17). 

A trial court’s rulings on limiting cross-examination will be reversed on appeal only 

when there is a clear abuse of discretion as well as a showing of prejudice to the 

defendant. State v. Koepsell, 508 NW2d 591, 595 (SD 1993) (citing United States v. 

Crump, 934 F2d 947, 951 (8thCir 1991); State v. Bogenreif, 465 NW2d 777, 783 (SD 

1991); State v. Honomichl, 410 NW2d 544, 548 (SD 1987)). Prejudice results when 

“a reasonable jury probably would have a significantly different impression if 

otherwise appropriate cross-examination had been permitted.” State v. Johnson, 

2007 SD 86, ¶35, 739 NW2d 1, 13. The trial court may limit cross-examination 

when a question has been asked and answered. Koepsell, 508 NW2d at 595 (citing 

SDCL 19-14-18). The trial court also has considerable discretion in determining 

whether testimony is “inconsistent” with prior statements. State v. Shaw, 2005 SD 

105, ¶36, 705 NW2d 620, 631. 

[¶32.] “The right to confront witnesses is guaranteed by the Sixth 

Amendment to the United States Constitution and by Article VI, section 7 of the 

South Dakota Constitution.” Johnson, 2007 SD 86, ¶35, 739 NW2d at 12 (citing 

State v. Walton, 1999 SD 80, ¶25, 600 NW2d 524, 530). “This right is ‘generally 

satisfied when the defense is given a full and fair opportunity to probe and expose a 

witness’ infirmities through cross-examination, thereby calling to the attention of 

the factfinder the reasons for giving scant weight to the witness’ testimony.’” State 

v. Carothers, 2006 SD 100, ¶16, 724 NW2d 610, 617 (quoting United States v. 

Owens, 484 US 554, 558, 108 SCt 838, 841, 98 LEd2d 951 (1988)(quoting Delaware 

v. Fensterer, 474 US 15, 21-22, 106 SCt 292, 295, 88 LEd2d 15 (1985))). Moreover, 
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Confrontation Clause errors are subject to harmless error analysis under the 

following test: 

The correct inquiry is whether, assuming that the damaging 

potential of the cross-examination were fully realized, a 

reviewing court might nonetheless say that the error was 

harmless beyond a reasonable doubt. Whether such an error is 

harmless in a particular case depends upon a host of factors, all 

readily accessible to reviewing courts. These factors include the 

importance of the witness’ testimony in the prosecution’s case, 

whether the testimony was cumulative, the presence or absence 

of evidence corroborating or contradicting the testimony of the 

witness on material points, the extent of cross-examination 

otherwise permitted, and, of course, the overall strength of the 

prosecution’s case. 

Koepsell, 508 NW2d at 595 (quoting Delaware v. Van Arsdall, 475 US 673, 684, 106 

SCt 1431, 1438, 89 LEd2d 674 (1986) (citing Harrington v. California, 395 US 250, 

89 SCt 1726, 23 LEd2d 284 (1969))). 

[¶33.] In the instant case, the trial court found that Huber did not testify 

inconsistently with her prior statements to Rohlf and to Defendant’s private 

investigator. In both prior statements, Huber appears to have stated that she did 

not see Defendant kick Scott. While on the stand, Huber testified that she saw 

Defendant yelling, pushing, and hitting Scott. When asked in a leading manner by 

the State whether Defendant kicked Scott, Huber testified “yes,” before Defendant 

objected to the leading question. Defendant’s objection to the question was 

sustained. Huber then testified that she did not see Defendant do anything with 

his foot because her attention was elsewhere during the attack and not specifically 

on Defendant. 

[¶34.] Even if this Court were to determine that Huber’s affirmative answer 

to the leading question of whether she saw Defendant kick Scott was not 
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disregarded by the jury after Defendant’s objection was sustained, the two 

questions immediately following the objection made it clear that Huber did not see 

Defendant kick Scott. Thus, Huber did not testify inconsistently with her prior 

statements to Rohlf and Defendant’s private investigator and there was nothing to 

impeach. 

[¶35.] Defendant appears to argue that he should have been able to impeach 

Huber on what he describes as Huber’s inconsistent statement because she was 

unable to recall speaking with Rohlf. Defendant also argues that his defense would 

have been aided by the jury hearing directly from Huber that she did not report to 

Rohlf that Defendant kicked Scott. He maintains that the jury would have been left 

with a completely different impression of her testimony. However, there was 

nothing available to impeach other than Huber’s faulty memory and sensory 

perception as to speaking with Rohlf because Huber did not testify inconsistently as 

to the issue of kicking. Huber’s statements throughout the investigation and her 

testimony at trial were that she never saw Defendant kick Scott. She appears to 

have told Rohlf in the October 31, 2007, interview that she saw Defendant assault, 

push, and yell at Scott and she testified to the same facts at trial. 

[¶36.] Defendant was able to show through Rohlf’s testimony that Huber was 

unable to recall the telephone conversation in which she told Rohlf that she did not 

see Defendant kick Scott. Defendant successfully exposed Huber’s faulty memory 

regarding the telephone conversation, first through Huber’s testimony and later 

through Rohlf’s. There was nothing else to impeach Huber with at that point in the 

trial. The substance of her out-of-court statements to Rohlf and to Defendant’s 
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private investigator was not inconsistent with her trial testimony and would have 

been cumulative at that point. The jury heard firsthand that Huber did not see 

Defendant kick Scott. Reiteration that she told Rohlf a few days after the attack 

and the private investigator a few days before trial the same thing would not have 

greatly impacted the jury, because there was no inconsistency between Huber’s 

statements and her testimony from which the jury could draw a conclusion other 

than that Huber did not see the Defendant kick Scott. 

[¶37.] Even if this testimony had been permitted, it would not have 

accomplished anything more than Defendant was already able to do through the 

testimony of Huber and other witnesses at trial. As such, it would have been 

cumulative in nature. Defendant was able to elicit the same testimony from Huber 

at trial that Huber gave in her statements to Rohlf. Defendant was also able to 

show that no other witness testified that Defendant ever hit Scott as opposed to 

kicking him. Furthermore, Defendant was able to show that Huber’s vantage point 

was approximately 100 feet from the fight, a considerable distance that may have 

accounted for the discrepancies between her testimony and that of Orin and Jeffery. 

The testimony Defendant claims on appeal would have made the difference was 

merely cumulative, contradicted by other witnesses, and served to place Defendant 

at the scene, something he had already admitted to Rohlf. 

[¶38.] Defendant also argues he was denied the right to confront Huber due 

to the trial court’s rulings on the impeachment and hearsay objections. Defendant 

argues he should have been able at the very least to refresh Huber’s recollection. 
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He cites to United States v. Owens, 484 US 554, 108 SCt 838, 98 LEd2d 951, for that 

proposition. 

[¶39.] In Owens, John Foster, a correctional officer was severely injured in a 

prison attack by Owens a prison inmate. 484 US at 556, 108 SCt at 840, 98 LEd2d 

951. Shortly after the attack and while in the hospital, Foster was unable to 

remember his attacker due to a severe head injury that impaired his memory. Id. 

108 SCt at 840-41, 98 LEd2d 951. Approximately three weeks after the attack, 

Foster was able to identify Owens as his assailant from a photo array and described 

the attack to investigators. Id., 108 SCt at 840, 98 LEd2d 951. At trial, Foster was 

able to testify that he clearly remembered telling investigators about the assault 

three weeks after he was injured and identifying Owens as his attacker from the 

photo array. Id. Foster also admitted at trial he could not remember actually 

seeing his attacker at the time he was assaulted. Id. Owens’ defense counsel 

unsuccessfully tried to refresh Foster’s recollection using hospital records in order to 

ask whether Foster remembered if any hospital visitors might have suggested 

Owens as the assailant, and whether he remembered, as was noted in his hospital 

records, that Foster had at one point attributed the assault to another person. Id. 

On appeal, Owens argued that the Constitution and the Federal Rules of Evidence 

prohibited the admission of Foster’s out-of-court identification because Foster was 

unable to recall the basis of the identification due to his memory loss. Id. at 556, 

108 SCt at 840, 98 LEd2d 951. Owens sought to have Foster’s out-of-court 

identification excluded as a hearsay statement lacking any indicia of reliability or 

trustworthiness. Id. at 555, 108 SCt at 840, 98 LEd2d 951. The United States 
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Supreme Court held that the Confrontation Clause is satisfied by “an opportunity

for effective cross-examination, not cross-examination that is effective in whatever 

way, and to whatever extent, the defense might wish.” Id. at 559, 108 SCt at 842, 

98 LEd2d 951. As such, the Confrontation Clause is satisfied “when a witness 

testifies as to his current belief but is unable to recollect the reason for that belief” 

and “the defendant has the opportunity to bring out such matters as the witness’s 

bias, his lack of care and attentiveness, his poor eye sight, and even . . . the fact of a 

bad memory.” Id. That Court further held that when a hearsay witness is available 

at trial and is subjected to unrestricted examination as to his faulty memory, the 

Confrontation Clause does not require additional examination under the hearsay 

rule for “indicia of reliability,” or “particularized guarantees of trustworthiness” 

before the out-of-court statement can be admitted. Id. at 560, 108 SCt at 843, 98 

LEd2d 951. 

[¶40.] In the instant case, Defendant asks this Court to admit an out-of-court 

statement made by Huber, which she could not recall having made to either Rohlf 

or Defendant’s private investigator, in order to impeach her in-court testimony. 

Defendant attempts to use the rule in Owens to force Huber to adopt a hearsay 

statement which she did not recall making and admit that statement at trial 

through a different witness, Rohlf. Owens does not provide support for Defendant’s 

proposition. Even if this Court were to agree with Defendant that the trial court 

should have allowed Defendant to refresh Huber’s memory with Rohlf’s report, 

Defendant never requested the opportunity to do so with Huber on the stand. 
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Defendant used the report to refresh Rohlf’s recollection and then attempted to 

introduce Huber’s statement through Rohlf. 

[¶41.] The fact that the trial court did not allow Defendant to introduce 

Huber’s out-of-court statements to Rohlf or to Defendant’s private investigator did 

not hamper Defendant’s ability to cross-examine Huber’s faulty memory and her 

testimony that she did not see Defendant kick the victim. Defendant did not 

attempt to refresh Huber’s memory after his first and second failed attempts to get 

the statements in through Huber. Defendant then placed himself in a double 

hearsay situation with Rohlf on the stand and did not pursue any other means of 

introducing the evidence. No relevant authority has been offered by Defendant to 

suggest the trial court erred. 

[¶42.] 2. Whether the evidence was sufficient to sustain the 

 verdict of guilty to the charge of aggravated assault. 

[¶43.] Defendant argues that the testimony of Huber, Orin, and Jeffery 

cannot be reconciled, as none of the three witnesses ever told anyone prior to trial 

that Defendant had assaulted Scott. Defendant also points to the plea agreements 

reached between the State and Orin and Jeffery as further evidence that shows 

their testimony could not support a verdict of guilty. 

[¶44.] This Court’s standard of review of an appeal based on the sufficiency of 

the evidence is “whether 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.” Shaw, 

2005 SD 105, ¶19, 705 NW2d at 626 (quoting State v. Buchholz, 1999 SD 110, ¶33, 

598 NW2d 899, 905). “On review, we accept the evidence and the most favorable 

inferences that can be fairly drawn from it that support the verdict.” Id. We do not 
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resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the 

evidence on appeal. Id. If the evidence including circumstantial evidence and 

reasonable inferences drawn therefrom sustain a reasonable theory of guilt, a guilty 

verdict will not be set aside. Id. 

[¶45.] A conviction may be supported by circumstantial evidence even when 

all the elements of the crime are established circumstantially. Id. ¶45, 705 NW2d 

at 633 (citing State v. Guthrie, 2001 SD 61, ¶48, 627 NW2d 401, 421). “The State is 

not required ‘to exclude every hypothesis of innocence’ in order to support a 

conviction based on circumstantial evidence.” Id. On review, this Court examines 

the evidence as a whole “to see whether in its totality it is enough to rule out any 

reasonable hypothesis of innocence.” Id. (citing Guthrie, 2001 SD 61, ¶48, 627 

NW2d at 421 (citing State v. Hage, 532 NW2d 406, 411 (SD 1995))). 

[¶46.] Defendant argues that because the testimony of Huber, Orin, and 

Jeffery cannot be reconciled, the only possible conclusion that could be drawn from 

the evidence presented at trial was that Defendant was at the scene but did not 

participate in the assault. If this Court were to completely disregard the testimony 

of these three witnesses because it was not internally consistent and conflicts in the 

evidence existed, we would be acting well outside the standard of review we set 

forth above. We must review the testimony of these witnesses as presented without 

passing judgment on their credibility, or reweighing the evidence. 

[¶47.] Three witnesses, Orin, Jeffery, and Bobbi, testified that Defendant ran 

toward Scott, Rosander, Ollerich, and Huber in an effort to chase them down and 

confront them in some fashion. This evidence placed Defendant at the scene and 
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engaged in conduct that suggested he was eager to participate in a fight with the 

“cowboys.” This evidence was not disputed at trial and in fact was conceded by 

Defendant during his interview at the police station. 

[¶48.] In addition, Huber testified that Defendant was the most aggressive of 

the group in hurting Scott during the assault. Orin and Jeffery also testified that 

Defendant’s conduct was the most aggressive in that Defendant’s effort to hurt 

Scott far exceeded what anyone else did. 

[¶49.] Huber’s testimony was in conflict with Orin’s and Jeffery’s as to how 

Defendant assaulted Scott, specifically as to whether Defendant kicked versus hit 

Scott. In addition, her credibility, memory, and ability to see clearly what 

transpired 100 feet ahead of her in the dark with only a street light to illuminate 

the scene was explored during cross-examination. Despite any inconsistency in 

Huber’s testimony and the distance and lighting, the jury appears to have found her 

to be a credible witness. 

[¶50.] Orin’s and Jeffery’s motivation to pin the crime on Defendant was also 

thoroughly explored at trial. The Defendant attempted to show that Jeffery was 

motivated to fabricate testimony against Defendant at trial and place some of the 

blame on Defendant in order to reduce his share of the restitution owed to Scott. He 

then attempted to show Orin was motivated to lie in order to help his brother 

because at that time it was uncertain whether Orin would be subject to paying 

restitution to Scott after entering his guilty plea to simple assault for his conduct 

toward Rosander. The restitution amounted to almost $29,000. The jury appears to 

have considered and rejected Defendant’s theory that Jeffery was motivated to lie 
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about Defendant’s conduct in order to obtain a reduced share of the restitution or 

that Orin was lying in order to help his brother reduce his share of the restitution. 

[¶51.] There was evidence in the record that, if believed by the jury, 

sustained a verdict of guilty beyond a reasonable doubt and permitted the jury to 

reject Defendant’s theory of defense that he was just an innocent bystander who ran 

to the scene of a fight and then stood idly by while all his cohorts participated in 

some manner. While the testimony of the witnesses was not in perfect accord, we 

have never required such a standard in order to support a conviction on review. 

There was sufficient evidence in the record from which the jury could find that 

Defendant kicked Scott in the head several times and caused serious bodily injury 

in a manner that showed an extreme indifference to the value of human life. 

[¶52.] 3. Whether the trial court erred when it instructed the jury 

 on aiding and abetting. 

[¶53.] Defendant’s final issue on appeal is that the instruction for aiding and 

abetting should not have been given to the jury. Defendant argues that the 

evidence submitted at trial left the jury with only two options: (1) that Defendant 

participated in the assault, which warranted conviction as an actual participant, or 

(2) in the alternative, that Defendant merely stood by as the assault happened and 

had no role in it, was not an aider or abetter, and should have been acquitted. 

Defendant argues that there was no evidence in the record to suggest he acted as an 

aider or abetter, and, therefore, it was error to give the instruction. 
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[¶54.] We review a trial court’s decision to grant or deny a particular jury 

instruction under the abuse of discretion standard of review.7 State v. Cottier, 2008 

SD 79, ¶7, 755 NW2d 120, 125 (quoting State v. Packed, 2007 SD 75, ¶17, 736 

NW2d 851, 856). As long as competent evidence exists in the record to support a 

particular theory of the case, an instruction is warranted.8 State v. Owen, 2007 SD 

21, ¶32, 729 NW2d 356, 367 (citing State v. Bruder, 2004 SD 12, ¶8, 676 NW2d 112, 

115) (holding that a criminal defendant is entitled to a requested jury instruction on 

the theory of his or her case if there is evidence at trial that supports that theory). 

Furthermore, “[g]enerally, ‘a trial court is not required to instruct on matters that 

find no support in the evidence.’” State v. Mulligan, 2007 SD 67, ¶43, 736 NW2d 

808, 822 (quoting State v. Kafka, 264 NW2d 702, 703 (SD 1978)). 

[¶55.] Jury instruction Number 18 stated: 

The mere presence alone of the defendant at the scene of a crime 

is not sufficient to make that person an aider and abetter. It 

makes no difference that one present remained silent, or even 

acquiesced in the commission of the offense, or even mentally 

approved of the act. 

7. Defendant argued in his brief that a trial court’s decision on how to instruct a 

jury is reviewed on appeal for reversible error. Defendant cited to State v. 

Menard, 424 NW2d 382, 384 (SD 1988) in support of his proposition. This 

Court’s statement in Menard that it was not reversible error to give a flight 

instruction in that criminal case was not a reference to the standard of 

review but rather to whether the trial court in that case erred. 

8. The State cites to an Iowa Supreme Court case, State v. Hogrefe, 557 NW2d 

871, 876 (Iowa 1996) in support of its proposition that this Court must view 

the evidence in a light most favorable to the party requesting the 

instructions. However, this Court has not adopted this as part of the test as 

to whether a trial court abused its discretion when granting or denying a 

particular jury instruction. 
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The presence of a defendant at the scene of a crime is a 

circumstance which the jury can consider with all of the other 

facts and circumstances in the case. 

The presence of an accused at the scene of a crime, together with 

evidence of companionship and conduct before and after the 

offense is committed, may warrant an inference of guilt. 

[¶56.] This Court has previously stated that “a party’s presence at the scene 

of the crime is one circumstance which tends to support a finding that he was a 

participant[,] which, along with other circumstantial evidence, can establish his 

guilt as an aider and abetter.” State v. Brings Plenty, 490 NW2d 261, 267-68 (SD 

1992) (citing State v. Ashker, 412 NW2d 97 (SD 1987)). A defendant is more than a 

bystander if he knowingly did something to assist in the commission of a crime, 

which changes his status to that of an aider and abetter. Id. (citing State v. 

Schafer, 297 NW2d 473, 476 (SD 1980)). In order to obtain a conviction under an 

aider and abetter theory, the State must prove beyond a reasonable doubt that the 

defendant “acted with intent to promote or facilitate the commission of the crime, by 

aiding, abetting or advising another person in planning or committing the crime 

alleged to have been committed.” Id. (citing SDCL 22-3-3). 

[¶57.] Bobbi’s testimony placed Defendant in the group of party goers who 

pursued the “cowboys” with the intent of catching up with them and making them 

account for the fire they supposedly set in the backyard at the house party. Her 

testimony placed Defendant in the front of the pack leading the way with Rodriguez 

to where the assault occurred. There was also evidence presented at trial that 

Defendant was at the scene of the crime at the time the assault was committed, 

which Defendant admitted to Rohlf. This was also confirmed by the testimony of 
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Huber, Orin, and Jeffery. Furthermore, Orin and Jeffery testified that Defendant 

participated in the physical assault on Scott. Defendant placed himself in the 

company of Orin and Jeffery after the assault at Jeffery’s house and on the way to 

and from the convenience store. This evidence supported the State’s aiding and 

abetting theory by showing that Defendant promoted or facilitated the crime by 

taking the lead in tracking down the victims. Defendant’s admitted presence at the 

crime scene also supported the State’s alternate theory that Defendant aided and 

abetted in the commission of the assault. 

[¶58.] Affirmed. 

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

concur.