#24721-aff in pt, rev in pt & rem-GAS 2009 SD 67 IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA * * * * STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v. ANTHONY CLIFFORD JOHNSON, Defendant and Appellant. * * * * APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BEADLE COUNTY, SOUTH DAKOTA * * * * HONORABLE JON R. ERICKSON Judge * * * * LAWRENCE E. LONG Attorney General ANN C. MEYER Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee. JASON R. ADAMS of Tschetter & Adams Law Office, PC Sioux Falls, South Dakota Attorneys for defendant and appellant. * * * * ARGUED APRIL 29, 2009 OPINION FILED 

### 07/29/09-1- #24721 SEVERSON, Justice. [¶1.] The circuit court admitted into evidence certain statements to which Anthony Johnson objected. Johnson was su bsequently found guilty of distribution of one ounce or less of marijuana and possessi on of two ounces or less of marijuana. He appeals. We affirm in part, reve rse in part, and remand for retrial. FACTS [¶2.] On April 3, 2007, Otto Lewis was at the Huron Police Department (Police Department) on a shoplifting charge. 1 Detective Jamie Gogolin previously used Lewis as an informant to aid in controlled drug purchases. When Lewis initially agreed to be an informant, he ag reed to make four controlled buys for the Police Department. As of April 3, 2007, Lewis had only completed three of the buys. Detective Gogolin reminded Lewis of thei r agreement. Lewis offered to purchase drugs from Anthony Johnson at 360 Fran k Avenue Southeast in Huron, South
Dakota. 2 [¶3.] Detective Gogolin and Lewis decided to complete the controlled buy on the same date. Detective Gogolin asked Le wis to call Johnson to see if he had any marijuana for sale. Because Lewis did no t know whether Johnson had a phone or what his phone number was, Lewis offered to drive to Johnson’s house to ask him.

1 . Lewis was never prosecuted for this charge. 2 . Detective Gogolin testified he never directed any of hi s informants from whom to buy drugs “[b]ecause [he] want[s] [the informants] to feel comfortable in the situation they are in when they have a wire on them. And by going back to the same person they have bought drugs from in the past, they are comfortable with that. And th ey know the terminology that people use, because different people talk about drugs in different ways.”#24721

-2- Followed by Detective Gogolin, Lewis drove to the residence, went inside, and after a few minutes came out and returned to the Police Department. At the Police Department, Lewis stated that Johnson had marijuana to sell. Subsequently, Lewis’s person and vehicle were searched for drugs and money, a wire transmitter was placed on him, and he was given $50 3 to purchase the marijuana. [¶4.] Lewis returned to the address in question. Detective Gogolin, along with Chief Deputy Douglas Solem of th e Beadle County Sheriff’s Office, also returned and parked the patrol car aro und the corner, out of sight from the
residence. 4 Neither Detective Gogolin nor Chief Deputy Solem could see inside the house. Detective Gogolin testified that wh ile at the residence, no one other than Lewis entered or exited the house, nor did an y vehicles stop at the residence. From the patrol car, Detective Gogolin and Chie f Deputy Solem listened to and recorded the conversation transpiring in the residenc e. Three voices were identified on the recording, and Detective Gogolin testifie d they belonged to Lewis, Johnson, and Johnson’s wife, Vanessa. 5 However, Detective Gogolin was uncertain as to whether anyone else was present in the house while Lewis was there.

(continued . . .) 3 . Detective Gogolin made a photocopy of the $50 bill, and testified this was customary practice for controlled buys because it enabled him to later identify the bill by its serial number. 4 . As backup, Detective Gene Mille r of the Huron Police Department was within the vicinity of the residence, but out of the view of the resident occupants. His car was similarly equipped with a monitor, allowing him to hear the conversation within the house. He was unable to see into the residence. 5 . Based on his prior contact with Johnson and Vanessa, Chief Deputy Solem testified that he could also identify their voices on the audio recording, but#24721

-3- ________________________ (. . . continued) [¶5.] The audio recording reveals no sp ecific mention of drugs, marijuana or money during the conversation. There was no negotiation as to price or amount of marijuana. However, there was a question , by a male voice (later identified as Johnson’s), about who “it” was for and a reference by the same voice about “it” being “juiced up a little.” Detective Gogolin testified that, based on his experience and training, this was a reference to drugs. He further testified that participants in a drug transaction rarely discuss the ev ents transpiring. Detective Gogolin explained, “If [a confidential informant] went into the place and walked up and introduced [himself] and said hi to the pers on [he was] buying from and [said] that [he was] there to get a controlled drug, the [seller] would be very suspicious that the [buyer] had a wire on and wouldn’t sell to [him].” [¶6.] After leaving the residence, Lewis returned to the Police Department and turned over a plastic bag containing 0.12 ounces of marijuana. He was debriefed by Detective Gogolin as to the specifics of what transpired within the residence. Lewis and his vehicle were sea rched a second time. No other drugs were discovered and the $50 was not found. Detective Gogolin testified he made no attempt to recover the $50 from Johnson or his residence. He explained this was normal because it allowed for the informants’ identities to remain confidential so they could be used in the future.

admitted he was not a voice identification expert, nor received any training in voice identification.#24721

-4- [¶7.] On June 22, 2007, Johnson was charged with distribution of one ounce or less of marijuana in violation of SDCL 22-42-7, and possession of two ounces or less of marijuana in violation of SDCL 22- 42-6. Prior to the motions hearing and jury trial, Lewis died from circumstances unrelated to this case. He was never subjected to cross-examination. [¶8.] Johnson filed two motions in limin e, a motion to suppress the evidence, and a motion to dismiss the case. These motions related to Lewis’s conversations with Detective Gogolin after the alleged controlled buy and the audio recording of the conversation that transpired between Lewis, Johnson, and Vanessa. Johnson’s motion to suppress the evidence and motion in limine were denied, but the motion to dismiss was taken under advisement. In its memorandum op inion, the circuit court suppressed the conversation betwee n Lewis and Detective Gogolin after the alleged buy, but allowed the jury to hear the recorded conversation between Lewis, Johnson, and Vanessa. [¶9.] The trial commenced on September 13, 2007. Immediately before voir dire, the court ruled that Detective Gogolin could testify that Lewis told him that he could purchase drugs from Jo hnson. During trial, Johnson stipulated that he and his family lived at the address in question , and that Lewis had returned from that address with a bag of marijuana, weighing 0.12 ounces. At the close of the State’s case, the court denied Johnson’s motion for a judgment of acquittal. The jury returned guilty verdicts. Johnson pleaded guilty to being a habitual offender and was sentenced to four years in prison for th e distribution charge, and to time served for the possession charge. Johnson appeals, raising two issues:#24721

-5- 1. Whether Johnson’s Sixth Amendment right to confront witnesses was violated when statements we re admitted into evidence even though the declarant was unavailable and Johnson had no opportunity to cross-examine him.
2. Whether there was sufficient eviden ce presented to prove beyond a reasonable doubt the elements of dist ribution of one ounce or less of marijuana and possession of marijuana. STANDARD OF REVIEW [¶10.] We review an assertion of a vi olation of a constitutional right under the de novo standard of review. State v. Selalla, 2008 SD 3, ¶18, 744 NW2d 802, 807 (citation omitted). We review the sufficiency of the evidence under the following standard: “In determining the sufficiency of the evidence on appeal in a criminal case, the issue before this Court is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt.” In making that determination, “w e accept the evidence and the most favorable inferences fair ly drawn therefrom, which will support the verdict.” Moreover, “the jury is . . . the exclusive judge of the credibility of the wi tnesses and the weight of the evidence.” Therefore, this Court does not resolve conflicts in the evidence, or pass on the credibili ty of witnesses, or weigh the evidence. State v. LaPlante , 2002 SD 95, ¶19, 650 NW2d 305, 310 (internal citations omitted). Thus, “[a] guilty verdict will not be set aside if the state’s evidence and all favorable inferences that can be drawn therefrom support a rational theory of guilt.” State v. Jones, 521 NW2d 662, 673 (SD 1994) (citation omitted). State v. Mulligan, 2007 SD 67, ¶7, 736 NW2d 808, 812-13 (quoting State v. Pasek, 2004 SD 132, ¶7, 691 NW2d 301, 305). [¶11.] 1. Whether Johnson’s Sixth Amendment right to confront witnesses was violated when statements were admitted into evidence even though the declarant was unavailable and Johnson had no opportunity to cross-examine him.#24721

-6- [¶12.] Prior to trial, Johnson filed several motions concerning the audio recording of the conversation at Johnson’s residence during the alleged controlled buy and the conversation between Detective Gogolin and Lewis at the Police Department following the alleged buy. In its written opinion, the circuit court suppressed the latter portion of the audi o recording involving the conversation between Detective Gogolin and Lewis, but allowed the remainder of the recording involving the conversation that transpired within Johnson’s residence. Following voir dire but prior to opening statements, Johnson made an oral motion in limine seeking to preclude Detective Gogolin from testifying as to anything Lewis told Detective Gogolin. In response, the court limited Detective Gogolin’s testimony as follows: [Detective] Gogolin can testify th at [Lewis] was an informant. That [Lewis] came to him and sa id I can make a buy from Mr. Johnson. That is it. He can test ify that he followed him over to the house and all of that, but he can’t testify about anything else that was said to him. . . . Th e only statement he can make is the informant volunteered that he could make a buy from the defendant. Accordingly, Detective Gogolin testified that Lewis told him he was going to buy drugs from Johnson, and the audio recordin g was played to the jury, revealing the conversation that transpired within Johnson’s residence. Johnson alleges that admitting these statements violated his constitutional right to confrontation pursuant to the Sixth Amendment and Crawford v. Washington , 541 US 36, 124 SCt 1354, 158 LEd2d 177 (2004). The State asserts Johnson waived this issue because his motions were predicated upon hearsay and inadmissible evidence grounds, rather than Confrontation Clause grounds. Alternatively, should this#24721

-7- Court address the issue, the State maintains that the statements were appropriately admitted. [¶13.] We first consider the State’s argu ment that Johnson waived this issue. Johnson contends that his argument to the circuit court asserting his inability to cross-examine Lewis was sufficient to pres erve the Confrontation Clause issue for appeal. Moreover, he argues that pursuant to SDCL 19-9-3, he was not required to object during trial or make an offer of proof to preserve the issue for appeal because the circuit court previously made a defini tive ruling regarding admissibility of the

statements. [¶14.] With respect to the audio record ing, the written motions filed prior to trial sought to exclude the audio recording, or portions thereof, on several grounds, including hearsay, prejudice, irrelevanc e, and the right to confront and crossexamine witnesses. Admittedly, Johnson di d not allege each of these grounds in each motion. Nonetheless, he asserted the general right to confrontation with respect to all of the motions during the August 28, 2007 motions hearing. In its memorandum opinion, the court, discussi ng Johnson’s right to cross-examine his witnesses, suppressed a portion of the audio recording deeming it to violate Crawford , but ultimately allowed the remainde r of the recording. SDCL 19-9-3 (Rule 103(a)) provides in part: “Once th e court makes a definitive ruling on the record admitting or excluding evidence, eith er at or before trial, a party need not renew an objection or offer of proof to preserve the claim of error for appeal.” Although, no federal or state case law defining “definitive” was discovered, the dictionary definition provides in part , “[d]etermining finally; decisive . . .#24721

-8- [a]uthoritative and complete.” Am. Heri tage Dictionary 375 (2ded 1991). The court’s ruling to admit certain evidence and exclude other evidence was a final and authoritative determination regarding admission of this evidence; it was definitive. Therefore, the ruling preserved for appeal Johnson’s Confrontation Clause claim regarding the audio recording. [¶15.] Regarding Lewis’s statement to Detective Gogolin, Johnson did not move to preclude this statement until immedi ately prior to voir dire. The following exchange took place: Defense counsel: [I]n the pretrial motions hearing, Officer Gogolin talked a lot about the [confidential informant (CI)] telling him that he would be able to make a buy from the defendant, etc., I would – based on the Court’s opinion, it’s my understanding that anything that the confidential informant told Officer – or Officer Gogolin is excluded. And so I’m making a motion in limine that Detective Gogolin not be allowed to testify as to things the CI told him before the buy. At the pretrial motions hearing, we talked about he went to the house, and he would be able to make this buy with the defendant. And I’m asking that that be excluded. State’s Attorney: Well, Your Honor, obviously, we would like to offer that testimony. And I would base my objection to the motion on the fact that I don’t believe it fits within what it’s being offered for, to prove the truth of the matter asserted. I – it’s more – goes to both the informant and the detective’s state of mind. And that is an exception to hearsay. Defense counsel: Your Honor, it’s clearly hearsay; that the defense is not going to be able to cross-examine the confidential informant on – relative to his motivation, his intentions, his biases, what his reason was for doing the buy. A number of things. So again, I would ask for a motion in limine that the Court instruct the State not to allow Officer Gogolin to testify to anything at this point, anything the CI has said to the officer. I think the CI – th e only thing we should hear#24721

-9- from the CI is on the tape, rela tive to what happened in the house or didn’t happen in the house. Thereafter, the court limited Detective Gogolin’s testimony, only allowing him to testify that Lewis was an informant and that Lewis told Detective Gogolin that he could purchase marijuana from Johnson. Th e court did not specify on what grounds it was limiting the testimony. [¶16.] A motion in limine is at the threshold of proceedings and relates to preliminary matters. See Black’s Law Dictionary 803 (8thed 2004). It can be an objection to the admissibility of evidence. See United States v. Flenoid, 415 F3d 974, 976 (8thCir 2005). “‘Generally, parties mu st object to specific court action and state the reason underlying their object ion so that the circuit court has an opportunity to correct any error.’” Stat e v. Divan, 2006 SD 105, ¶9, 724 NW2d 865, 869 (quoting State v. McCrary, 2004 SD 18, ¶15, 676 NW2d 116, 121). This Court has held that “a hearsay objection at trial is not sufficient to preserve a confrontation clause objection on appeal.” Id. (citation omitted). The facts of Divan reveal that hearsay was the sole ground alleged to prevent admission of the statement at issue therein. Admittedly, Jo hnson’s counsel did not specifically allege a “confrontation rights” or “Sixth Amendment” violation as grounds for the motion; however, he did express his inability to cro ss-examine Lewis, and further referenced the memorandum opinion, which discussed the defendant’s constitutional right to confront the witnesses against him. Althou gh not an ideal example of a motion, it was sufficient to make the court aware of his concerns regarding Johnson’s confrontation rights with respect to this statement. Moreover, the court’s ruling, which limited the witness’s testimony, was a definitive ruling to admit this#24721

-10- statement. See United States v. Malik, 345 F3d 999, 1001 (8thCir 2003). Therefore, this issue was preserved for ap peal. Accordingly, we reach the merits of this issue as to both statements. Audio Recording [¶17.] Johnson contends that admitting the audio recording of the conversation that transpired within his re sidence into evidence violated his Sixth Amendment right to confrontation beca use Lewis was unavailable at trial and Johnson had no prior opportunity to cross-examine him. [¶18.] The Confrontation Clause of the Sixth Amendment of the United States Constitution provides: “In all cri minal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]” 6 US Const amend VI. In Crawford , the United States Supreme Cour t held that this provision bars “admission of testimonial statements of a witness who did not appear at trial unlesshe was unavailable to testify, and the defendant had a prior opportunity for crossexamination.” 7 541 US at 53-54, 124 SCt at 1365, 158 LEd2d 177. [¶19.] Crawford did not precisely articulate what is considered “testimonial,” but it provided some guidance. At a mi nimum, the Court announced, “testimonial”

6 . Article VI, section 7 of the South Dako ta Constitution similarly provides, “In all criminal prosecutions the accused shall have the right . . . to meet the witnesses against him face to face [.]” SD Const art VI, sec 7. 7 . The United States Supreme Court recently extended this core holding of Crawford to certificates of state laboratory analysts identifying the material seized by police and connected to the defendant as cocaine of a certain quantity. Melendez-Diaz v. Massac husetts, 129 SCt 2527, 2009 WL 1789468 (2009).#24721

-11- includes statements made during police interrogations and prior testimony at a preliminary hearing, before a gran d jury, or at a former trial. Id. at 68, 124 SCt at 1374, 158 LE2d 177. In describing testim onial statements, the Court also noted that testimony is typically “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Id. at 51, 124 SCt at 1364, 158 LE2d 177. Further, the Court offered a non-excl usive list of “formulations” of the term “testimonial”: (1) “ex parte in-court testimon y or its functional equivalent – that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine . . . ;” (2) “extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions;” and (3) statements made under circumstances that would lead an objective witness reasonably to believe th at the statement would be available for use at a later trial. Id. at 51-52, 124 SCt at 1364, 158 LE2d 177 (internal citations omitted). [¶20.] The substance of the conversati on on the audio recording is betweenJohnson and his wife. Johnson’s statements constitute admissions by a partyopponent and, as such, are by definition not hearsay under Federal Rule of Evidence 801(d)(2)(A). Because the prohibition annunciated in Crawford applies to hearsay statements, that prohibition does not cover Johnson’s statements on the recording. Despite this, neit her Johnson’s nor his wife’s st atements are testimonial. An objective witness in thos e circumstances would not have reason to believe that the statements would be available for us e at a later trial, as there was no realization that he or she was speaking to a government informant. See Crawford ,#24721

-12- 541 US at 51-52, 124 SCt at 1364, 158 LE2d 177. The Supreme Court specifically stated in Davis v. Washington , that statements made “unwittingly” to a government informant are “clearly nontestimonial.” 8 547 US 813, 825, 126 SCt 2266, 2275, 165 LEd2d 224 (2006) (citing Bourjaily v. Un ited States, 483 US 171, 181-84, 107 SCt 2775, 2782-83, 97 LEd2d 144 (1987 )). “It is the testimonial character of the statement that separates it from other he arsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” Davis , 547 US at 821, 126 SCt at 2273, 165 LEd2 d 224. Therefore, admission of neither Johnson’s nor his wife’s statem ents violate Johnson’s Sixth Amendment right to confront his witnesses. [¶21.] Lewis’s statements on the reco rding are responses to questions posed by Johnson. The only statement made by Lewis pertinent to this case is Lewis’s response that “it” is for a friend. However, the veracity of this statement, or any of Lewis’s other recorded statements, was completely irrelevant to the case. Therefore, the statements were not hearsay, as they were not being offered for the truth of the matter asserted. Admission of Lewis’s responses provided context for Johnson’s admissible statements, making them intelligible for the jury.

8

. See also Unites States v. Graham, 2008 WL 5424142, at *11 (DSD 2008). “For the statement to be ‘testimonial,’ the declarant himself must expect that the statement will be used as eviden ce in a later formal proceeding.” Id. (citing United States v. Hendri cks, 395 F3d 173, 182-83 (3rdCir 2005) (holding that neither Crawford nor the Confrontation Clause bars wiretap evidence or statements made to a confidential informant)). See also United States v. Saget, 377 F3d 223, 229 (2ndCir 2004) (holding that audio-taped statements made to confidential info rmant, whose true status was unknown to declarant, do not constitute testimony within the meaning of Crawford ), cert. denied, 543 US 1079, 125 SCt 938, 160 LEd2d 821 (2005).#24721

-13- “Statements providing context for other admissible statements are not hearsay because they are not offered for their tr uth.” United States v. Tolliver, 454 F3d 660,666 (7thCir 2006) (citation omitted). Th erefore, because Lewis’s statements merely provided the framework or context within which Johnson’s statements could be understood, Lewis’s statements were properly admitted at trial. Accordingly, we affirm the circuit court’s decision to admi t this portion of the audio recording into evidence. Lewis’s Statement that He Could Buy Marijuana from Johnson [¶22.] At the Police Department, Lewis informed Officer Gogolin that he could purchase marijuana from Johnson. Jo hnson contends that admission of this statement similarly violated his constitu tional rights under the Sixth Amendment and Crawford . The State maintains that the circuit court properly allowed this statement “to establish background, contex t, and how events had unfolded.” [¶23.] Under the teachings of Crawford , an objective witness acting as a government informant would believe his st atement to law enforcement, regarding the ability to purchase drugs from a certain person, would be available for use at a later trial. See Crawford , 541 US at 51-52, 124 SCt at 1364, 158 LE2d 177. Accordingly, Lewis’s statement was test imonial. The Supreme Court noted, however, that the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establis hing the truth of the matter asserted.” Id. at 59 n9, 124 SCt at 1369 n9, 158 LEd2d 177 (citation omitted). When out-ofcourt statements are not offered to prov e the truth of the matter asserted, the Confrontation Clause is satisfied if th e defendant had the opportunity to cross-#24721

-14- examine the person repeating the out-of-court statement. See Tennessee v. Street, 471 US 409, 414, 105 SCt 2078, 2081-82, 85 LEd2d 425 (1985); see also United States v. James, 487 F3d 518, 525 (7thCir 2007) (the admission of an FBI agent’s testimony about what an informant had to ld him concerning the informant’s prior drug dealings with a defendant who was being prosecuted for a drug offense did not violate the Confrontation Clause because the testimony was only admitted for the non-hearsay purpose of providing context for the government’s decision to work with the informant, and the defendant ha d the opportunity to cross-examine the agent). Here, Detective Gogolin wa s subjected to cross-examination. [¶24.] In its ruling to admit the statem ent into evidence, the circuit court did not specifically indicate the purposes fo r which the statement could be used. The State alleges the statement was not used to establish the truth of the matter asserted, but rather to establish context and background. Considering the substance of the statement at issue and the charges against Johnson, the State’s argument establishes a fine line. Even if Detective Gogolin’s trial testimony was carefully elicited for the appropriate purp ose of establishing why Johnson became the subject of police investigation, the State certainly crossed the line during its closing argument by arguing: And by the way, how do we know [Johnson] sold the drugs? Otto Lewis told the Detective, I’m going to buy marijuana from Anthony Johnson. *** Now, do you really think Otto Le wis would have said I can buy marijuana from Anthony Johnson, an d that he’d go there with a wire, that he’d take the $50, that he could come back from Anthony Johnson’s house with $50 wo rth of marijuana, give it to the police, all of this time we aring a wire knowing there’s a possibility he’s in danger if Anthony Johnson found out. That’s#24721

-15- why you have four cops there, in case something went bad because drug dealing is a danger ous business. Do you really think Otto Lewis would have done that if he wasn’t buying from Anthony Johnson. In these instances, the statement was o ffered to prove the truth of the matter asserted – that Lewis in fact purchased drugs from Johnson – and admission of the statement for this purpose was improper when the declarant was unavailable and not subjected to cross-examination. The State’s use of the statement in thismanner, without Lewis being available or Johnson having an opportunity to crossexamine him, violated Johnson’s Sixth Amendment right to confrontation. [¶25.] The State argues that even if a dmission of the statement was error, it was harmless error. The State bears the burden of proving beyond a reasonable doubt the error was harmless. “‘In determ ining whether an error is harmless, the reviewing court must take account of what the error meant to [the jury], not singled out and standing alone, but in relation to all else that ha ppened.’” State v. Zakaria, 2007 SD 27, ¶18 n5, 730 NW2d 140, 145 n5 (quo ting United States v. Hardy, 228 F3d 745, 751 (6thCir 2000)) (alteration in origin al). “In other words, we must find ‘that it was more probable than not that the error materially affected the verdict.’” Id. (quoting United States v. Trujillo, 376 F3d 593, 611 (6thCir 2004)). [¶26.] The State failed to prove beyond a reasonable doubt that admission of this statement was harmless. AccordState v. Frazier, 2001 SD 19, ¶33, 622 NW2d 246, 259 (holding that admission of hear say statements was not harmless error because “the evidence [was] not so overwh elming that [the] statements cannot be said to have weighted against [the defe ndant] in ultimately tipping the scales toward a guilty verdict”). This statement went to the heart of the State’s case.#24721

-16- Arguably, it was the State’s strongest piece of evidence in proving the identity of the individual who sold the marijuana, as no ne of the State’s witnesses could testify whether anyone other than Johnson and hi s wife was in the residence when Lewis was present. In addition, the State referred to this statement on more than one occasion. “The comments were . . . not benign or a ‘slip of the tongue.’ They were extensive and repetitive comments that we re more serious than a single, isolated statement.” State v. Ball, 2004 SD 9, ¶34, 675 NW2d 192, 203 (citation omitted) (holding that the State failed to prove be yond a reasonable doubt that prosecutor’s closing argument statements regarding defendant not testifying were harmless error). We hold “it was more probable than not that the error materially affected the verdict.” Zakaria , 2007 SD 27, ¶18 n5, 730 NW2d at 145 n5 (quoting Trujillo , 376 F3d at 611). We reverse and hold that Lewis’s statement that he could buy marijuana from Johnson is inadmissible. [¶27.] 2. Whether there was sufficient evidence presented to prove beyond a reasonable doubt the elements of distribution of one ounce or less of marijuana and possession of marijuana. [¶28.] Although we reverse on the Confro ntation Clause issue, it is proper to also examine Johnson’s claim that the evidence was insufficient to prove the charges beyond a reasonable doubt. See Frazier , 2001 SD 19, ¶43, 622 NW2d at 260 (reaching the judgment of acquittal issue and analyzing the sufficiency of evidence even though the circuit court’s Confrontation Clause determination was reversed). Our decision to consider this issue “res ts on double jeopardy principles.” Id. “Should we conclude that the evidence was insufficient, the State is constitutionally prohibited from retrying [the defendant]. If, on the other hand, we find the evidence#24721

-17- is sufficient, [the defendant] will be precluded from claiming double jeopardy protection at retrial.” Id. (citations omitted). [¶29.] This Court must determine “wheth er there is evidence in the record which, if believed by the jury, is sufficie nt to sustain a finding of guilt beyond a reasonable doubt.” Mulligan , 2007 SD 67, ¶7, 736 NW2d at 812-13 (citation omitted). Moreover, “the jury is . . . the exclusive judg e of the credibility of the witnesses and the weight of the evidence.” Id. (citation omitted). Thus, “[a] guilty verdict will not be set aside if the state’s evidence and all favorable inferences that can be drawn therefrom support a rational theory of guilt.” Id. (citation omitted). In addition, we must “consi der all the evidence the [jur y] had before it, including any evidence that is later determined to be inadmissible.” 9 See Frazier , 2001 SD 19, ¶45, 622 NW2d at 261. Therefore, we revi ew all the evidence admitted at trial, including Lewis’s statement that he co uld purchase marijuana from Johnson. [¶30.] Detective Gogolin testified th at it was his policy to not direct informants to purchase drugs from any part icular source. Detective Gogolin further testified to his drug training at both the state and federal levels, including his

9 . In Frazier , we noted the rationale for this rule: From a defendant’s viewpoint, if the evidence [was] determined to be sufficient, such a review would constitute an invasion of the province of the jury. Conv ersely, if the evidence were determined to be insufficient, it would be unfair to the [prosecution] because other evidence might have been produced by the [state’s] attorney at tria l if the questioned evidence had been excluded there. 2001 SD 19, ¶45, 622 NW2d at 261 (quoti ng People v. Sisneros, 44 ColoApp 65, 606 P2d 1317, 1319 (ColoApp 1980)) (alterations in original).#24721

-18- knowledge of the terminology used in conjunc tion with drug transactions. He noted that the statement on the audio recording about “juicing it up” was a reference to drugs. The voice making this statement wa s identified as Johnson’s. The other two voices heard on the recording were identified as belonging to Johnson’s wife and Lewis. [¶31.] In addition, the evidence establ ished that Lewis and his vehicle were searched before going to the address at issue. Neither search produced anything of importance. Lewis was wired with a tran smitter and given $50. He was followed by police to the address in question, and Johnson had stipulated that he lived at this address. Further, no one other th an Lewis entered or exited the residence during the surveillance, nor were any vehi cles, other than the defendant’s, parked near the residence. Thereafter, Lewis re turned to the Police Department with 0.12 ounces of marijuana, an amount worth $50. A subsequent search revealed no other drugs on Lewis’s person or in his vehicl e, and the $50 was not located. We cannot say that the evidence was so insufficient to overturn the jury verdicts. Therefore, double jeopardy does not prohibit the re trial of Johnson on these charges. We remand for a retrial in accordance with this opinion. [¶32.] GILBERTSON, Chief Justic e, and KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.