#25918-a-DG 

2011 S.D. 93

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, 

 v. 

JASON THOMAS LARSEN-SMITH, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT 

OF THE SECOND JUDICIAL CIRCUIT 

MINNEHAHA COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE JOSEPH NEILES 

Judge 

* * * * 

MARTY J. JACKLEY 

Attorney General 

MAX A. GORS 

Assistant Attorney General 

Pierre, South Dakota Attorneys for plaintiff 

 and appellee. 

MICHELLE M. THOMAS 

Minnehaha County Public 

 Defender’s Office 

Sioux Falls, South Dakota Attorneys for defendant 

 and appellant. 

* * * * 

 CONSIDERED ON BRIEFS 

 ON NOVEMBER 14, 2011 

 OPINION FILED 12/21/11
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GILBERTSON, Chief Justice 

[¶1.] Jason Thomas Larsen-Smith appeals his sentence for manslaughter in 

the first degree. Larsen-Smith was sentenced to life without parole. Larsen-Smith 

argues the sentence amounts to cruel and unusual punishment in violation of the 

Eighth Amendment. Because the sentence is within the statutory maximum and 

does not appear to be grossly disproportionate, the sentence is affirmed. 

Facts 

[¶2.] In the early morning hours of December 18, 2009, Steven Schade of the 

South Dakota Highway patrol observed Larsen-Smith’s vehicle cross over the center 

line on 41st Street in Sioux Falls. When Schade activated his lights Larsen-Smith 

attempted to outrun him. Schade pursued. The pursuit continued through Sioux 

Falls, reaching speeds of 90 miles per hour. At the intersection of 12th Street and 

Ellis Road, Larsen-Smith ran a red light and collided with a Ford Ranger that was 

proceeding through the intersection in the other direction. The driver of the Ford 

Ranger died at the scene. Larsen-Smith was taken to the hospital, where a blood 

draw, taken at least one hour after the accident, established his blood alcohol level 

to be .12 percent. 

[¶3.] Larsen-Smith was charged by indictment with second-degree murder, 

first-degree manslaughter, aggravated eluding, driving while revoked, driving 

under the influence, and possession of two ounces or less of marijuana. A part two 

information alleged the DUI was a fifth offense. Larsen-Smith later entered a 

guilty plea to first degree manslaughter (SDCL 22-16-15(1)) and DUI; Larsen-Smith 
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also admitted the part two information. The circuit court ordered a presentence 

investigation (PSI). 

[¶4.] At sentencing, the wife and stepdaughter of the decedent read 

prepared statements on how the death had devastated their lives. The sentencing 

court addressed Larsen-Smith, and sentenced him to life without the possibility of 

parole on the manslaughter conviction and a consecutive ten-year sentence on the 

DUI conviction. Larsen-Smith appeals the sentence. 

Analysis 

[¶5.] Larsen-Smith challenges the constitutionality of his sentence. He 

argues that life without parole is disproportionate to his crime, and therefore 

violates the Eighth Amendment’s prohibition against cruel and unusual 

punishment. 

It is well-settled that we employ very limited principles in our 

constitutional review of sentences. These principles include 

giving substantial deference to the legislature’s broad authority 

to determine the types and limits of punishment; and the notion 

that the Eighth Amendment does not mandate adoption of any 

one penological theory. Consequently, a sentence within the 

statutory maximum will rarely be disturbed. This Court applies 

the gross disproportionality test when assessing the 

constitutionality of a particular sentence. 

State v. Iannarelli, 2008 S.D. 121, ¶ 12, 759 N.W.2d 122, 125 (citations and internal 

quotation marks omitted). 

[¶6.] “[T]o assess a challenge to proportionality we first determine whether 

the sentence appears grossly disproportionate. To accomplish this, we consider the 

conduct involved, and any relevant past conduct, with utmost deference to the 

Legislature and the sentencing court. If these circumstances fail to suggest gross 
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disproportionality, our review ends.” State v. Bonner, 1998 S.D. 30, ¶ 17, 577 

N.W.2d 575, 580. “It is a rare case in which a threshold comparison of the crime 

committed and the sentence imposed leads to an inference of gross 

disproportionality.” Iannarelli, 2008 S.D. 121, ¶ 12, 759 N.W.2d at 125 (citation 

and internal quotation marks omitted). 

[¶7.] First-degree manslaughter in violation of SDCL 22-16-15(1) is a Class 

C felony. The maximum penalty for a Class C felony is life imprisonment. SDCL 

22-6-1(3). Larsen-Smith’s sentence is within the statutory maximum. 

[¶8.] To arrive at an appropriate sentence: “the sentencing court should 

‘acquire a thorough acquaintance with the character and history of the man before 

it.’ This study should examine a defendant’s ‘general moral character, mentality, 

habits, social environment, tendencies, age, aversion or inclination to commit crime, 

life, family, occupation, and previous criminal record.’” Bonner, 1998 S.D. 30, ¶ 19, 

577 N.W.2d at 580 (citations omitted). 

[¶9.] The sentencing court acquired an appropriate acquaintance with 

Larsen-Smith. At the time of this offense, Larsen-Smith was nearly 31 years old. 

Larsen-Smith was not married and had a son. Larsen-Smith’s mother was killed by 

a drunk driver when he was two years old. He was raised by his maternal 

grandparents. When not incarcerated, it appears that Larsen-Smith had 

maintained employment. However, Larsen-Smith had spent a great deal of time 

incarcerated. 

[¶10.] Since turning 18, Larsen-Smith pleaded guilty to seven previous DUI 

charges. Larsen-Smith was first incarcerated at the penitentiary in 1999. He has 
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been paroled six times and violated each time. Five of his violations were for DUI. 

He has spent no more than ten consecutive months outside of prison since 1999. 

[¶11.] On one occasion, a Sioux Falls police officer responded to a roll-over. 

Larsen-Smith, the driver, was able to get his vehicle upright. An individual 

attempted to crawl through the vehicle’s window and remove Larsen-Smith from 

the vehicle. Larsen-Smith drove away with the person hanging from his window. 

The police reports indicate that the individual was nearly drug under the wheels of 

Larsen-Smith’s vehicle. The PSI includes reports of other incidents involving 

eluding the police. 

[¶12.] Larsen-Smith’s criminal history demonstrates his unwillingness to 

avoid alcohol, and to avoid driving after drinking. This unwillingness illustrates his 

disregard for the safety of the public. The conclusion from acquiring a thorough 

acquaintance with Larsen-Smith is that this tragic incident was highly probable as 

long as Larsen-Smith had the ability to obtain alcohol and a vehicle. 

 [¶13.] Larsen-Smith argues that the sentencing court did not give enough 

weight to his injury in considering the danger he posed to society. At sentencing, a 

neurologist testified that Larsen-Smith suffered a brain injury as a result of the 

accident. This neurologist testified that Larsen-Smith will likely suffer continued 

lack of dexterity and strength on his right side and also complications with his 

sight. Larsen-Smith argues that these physical limitations would prevent him from 

driving again, which would eliminate the concern for public safety articulated by 

the sentencing court. But the fact and degree of Larsen-Smith’s injury are 

questionable. 
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[¶14.] The neurologist agreed that Larsen-Smith’s treating physicians did not 

diagnose a brain injury. Further, the State introduced a video of Larsen-Smith 

lifting weights in the exercise yard of the penitentiary. While Larsen-Smith did not 

lift heavy weights, his agility and strength certainly did not appear so deficient as 

to physically prevent him from driving. Finally, as pointed out by the State, the 

negative effects of alcohol have not prevented Larsen-Smith from driving in the 

past, leaving little assurance that limited strength and occasional minor vision 

problems would. 

[¶15.] Larsen-Smith accuses the sentencing court of improperly ignoring 

Larsen-Smith’s prospects for rehabilitation. Larsen-Smith argues that: 

a life sentence should only be imposed when a trial court[ ] can 

determine from the facts of the principal offense and the 

previous convictions that rehabilitation is so unlikely as to be 

removed from consideration in sentencing; that the interests of 

society demand that the [defendant] be kept off the streets for 

the rest of his life . . . . 

State v. Ramos, 1996 S.D. 37, ¶ 17, 545 N.W.2d 817, 821 (citation and internal 

quotation marks omitted). Larsen-Smith has been convicted of DUI eight times. 

Larsen-Smith concedes in his brief that he has completed alcohol treatment classes 

pursuant to earlier sentences. Nothing in his history gives any hint that 

rehabilitation would work this time. Incarceration is the only thing that has 

successfully prevented Larsen-Smith from drinking and driving. His history proves 

that the interests of society demand the sentence imposed. 

[¶16.] Further, prospects for rehabilitation need not be considered each time 

a defendant receives a life sentence. State v. Milk, 2000 S.D. 28, ¶ 18, 607 N.W.2d 
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14, 20. This Court “will address this subject only if we initially determine that 

there is a gross disproportionality in the sentence.” Id. “Clearly there are some acts 

of such a criminal magnitude that they justify a life sentence whether the 

perpetrator is capable of rehabilitation or not. In such instances the sentence is not 

disproportionate to the crime.” Id. 

[¶17.] The charged conduct resulted in the death of a totally innocent man. 

The victim’s family testified at sentencing. Not only did the death cause the 

anticipated emotional devastation, but the family had to sell their home. LarsenSmith’s relevant past conduct reveals his disregard for the safety of the public and 

the authority of law. Larsen-Smith has shown no responsiveness to rehabilitation – 

too many efforts toward that goal have failed. The sentence imposed does not 

appear grossly disproportionate. This Court’s analysis need proceed no further. 

Bonner, 1998 S.D. 30, ¶ 17, 577 N.W.2d at 580. 

Conclusion 

[¶18.] The circuit court did not abuse its discretion when it sentenced LarsenSmith to life without parole. The sentence does not appear grossly disproportionate 

to the crime. Larsen-Smith received a statutorily authorized sentence for his 

conviction. The circuit court properly acquired a thorough acquaintance with 

Larsen-Smith and imposed a sentence that took into consideration the safety of the 

public and Larsen-Smith’s prospects for rehabilitation. 

[¶19.] Affirmed. 

[¶20.] KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.