# 27194

- a - SLZ
201 6 S.D. 11
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
* * * * STATE OF SOUTH DAKOTA , Plaintiff and Appellee ,

v. TROY LEE REINHARDT , Defendant and Appellant

. * * * *
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA
* * * *
THE HONORABLE MARK SALTER Judge
* * * *
MARTY J. JACKLEY Attorney General
JOHN M. STROHMAN Assistant Attorney General Pierre , South Dakota Attorneys for plaint iff and appellee

.

KRISTI JONES Minnehaha County

Public Advocates Office Sioux Falls , South Dakota Attorneys for defendant and appellant

. * * * *
CONSIDERED ON BRIEFS ON JANUARY 11, 2016
OPINION FILED 

### 02 / 03 / 16#27194

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- ZINTER, Justice [¶ 1. ] Troy Reinhardt was convicted of simple assault. He appeals the circuit
court’s refusal to give a definitive ruling , at the close of the State’s evidence, on his request for a self

- defense jury instruction

. Reinhardt also contends that the admission of certified copies of his fingerprint cards from prior arrests in Iowa and
Nebraska violated his Sixth Amendment right of confrontation in a subsequent
court trial on a habitual criminal information

. We affirm.
Facts and Pr ocedural History [¶ 2. ] Reinhardt ’ s assault charge arose out of an incident in which he punched another person while in the lobby of the Minnehaha County Jail. D uring a
two

- day jury trial, the State elicited testimony from the victim, eyewitnesse s , and jail personnel. After the State rested its case, the court distributed its proposed jury
instructions. The court did not include Reinhardt’s requested self

- defense instruction. The following morning, the court inquired whether Reinhardt was going to testify. Reinhardt’s counsel stated that if the court was still not inclined to give a self

- defense instruction , Reinhardt would testify. The court indicated the
State ’ s evidence was insufficient to support such an instruction. Reinhardt then
took t he stand and testified that he was defending himself in the incident

. He alleged that he punched the victim in response to being pushed. At the conclusion
of all the evidence , the court gave the jury a self

- defense instruction. The jury returned a guilt y verdict. [¶ 3. ] A court trial was subsequently held on the habitual criminal
i nformation. The information alleged that Reinhardt had been convicted of two#27194

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- prior assaults: one on August 12, 2003 , in Woodbury County, Iowa ; and another on Septem ber 12, 2008, in Douglas County, Nebraska. During that trial, over Reinhardt ’ s objection, the State introduced certified fingerpint cards it acquired
from Iowa and Nebraska agencies that had fingerprints relating to Reinhardt ’s
convictions in those jurisd ictions

. Marc Toft , of the Sioux Falls Crime Laboratory , testified that he compared the fingerprints on the fingerprint cards with the fingerprints taken from Reinhardt following the assault in South Dakota . Toft opined that all three sets of fingerprint s were taken from Reinhardt

. The circuit

court found that Reinhardt had been convicted of all three offenses , and the court
sentenced him as a habitual offender . This appeal followed.
Decision [¶ 4. ] Reinhardt first argues that the circuit cou rt erred in denying his request for a self

- defense instruction at the close of the S tate’s evidence

. He alleges prejudice because, without a commitment to give the instruction at that time , he
had to testify thereby opening the door to evidence of his pri or crimes of dishonesty. [¶ 5. ] Reinhardt was not entitled to a determinative ruling on the self

defense instruction at the close of the State’s case. “Instructions shall be settled out of the presence of the jury at the close of the evidence but prior to final argument.”
SDCL 23A

- 25

- 4 (emphasis added)

. Reinhardt’s authorities do not address this rule.
Reinhardt received a self

- defense instruction at the close of the evidence, and he
was not entitled to settlement of that instruction mid

- trial. The circuit court did not
err in the manner in which it instructed on self

- defense

.#27194

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- [¶ 6. ] Reinhardt also argues that the admission of the fin gerprint cards from
Iowa and Nebraska violated the Sixth Amendment’s Confrontation Clause.
Reinhardt contends he was entitled to confront and cross - examine Iowa and
Nebraska officials about the method ology and machinery used to collect the fingerprints

. The circuit court ruled that the fingerprint records were non

testimonial, thus not subject to the Co nfrontation Clause. 1 We agree. [¶ 7. ] The Sixth Amendment provides , “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]”
U.S. Const. amend. VI. In Crawford , the Supreme Co urt held that the Sixth Amendment prohibits the introduction of a statemen t by a non

- testifying witness “unless he was unavailable to testify, and the defendant had had a prior opportunity for cross

- examination.” Crawford v. Washington , 541 U.S. 36, 54, 1 24 S. Ct. 1354, 1365, 158 L. Ed. 2d 177 (2004). However, the prohibition only applies to testimonial evidence, which “is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Id

. at 51, 124 S. Ct. at
13 64

. [¶ 8. ] Fingerprint cards are not a solemn declaration or affirmation made for the purpose of establishing or proving some fact

. They are physical evidence generated primarily as an administrative s tep in the booking process a s standard
pract ice incident to arrest. See Maryland v. King ,

__ _ U.S.

_ __, 133 S. Ct. 1958,
197 7 , 186 L. Ed. 2d 1 (2013) ( describing fingerprinting as a “routine administrative

1

. The circuit cou rt admitted the fingerprint cards under SDCL 19

- 19

- 803(6), the business records exception to the rule against hearsay.#27194

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- step incident to arrest[.]”) Thus , fingerprint cards themselves do not serve a prosecutorial function : absent analysis and testimony , a fingerprint card cannot implicate a defendant

. See id. at 1972 ( analogizing DNA samples and fingerprints , stating “ Like a fingerprint, [DNA samples] are not themselves evidence of any particular crime, in the wa y that a drug test can by itself be evidence of illegal
narcotics use. ” ). Additionally , the fingerprint cards in this case were taken in 2003
and 2008

. They were not taken to prove some fact in this 2013 assault case. Therefore, like other courts that h ave considered this question, we conclude that the
admission of fingerprint cards does not violate the Confrontation Clause because they are not testimonial

. See United States v. Williams , 720 F.3d 674, 699 (8th Cir. 2013) (holding that fingerprint cards are business records and the introduction of the fingerprints into evidence does not violate the Confrontation Clause); United
States v. Dale , 494 Fed. App ’ x 317, 318 (4th Cir. 2012) (holding that a fingerprint
card is not testimonial and therefore does no t implicate the Confrontation Clause );
United States v. Thornton , 209 Fed. App ’ x 297, 299 (4th Cir. 2006) (same)

. 2

2

. We also disagree with Reinhardt ’ s argument that fingerprint cards present the same Confrontation Clause concerns as the forensic analysis at issue in Melendez

- Diaz v. Massachusetts , 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009) , and Bullcoming v. New Mexico , __

_ U.S.

_ __, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011)

. In each of those cases , evidence was analyzed and a conclu sion was admitted for prosecution purposes

. See Bullcoming ,

___ U.S. at _

__ , 131 S. Ct. at 2709 ( involving admission of a forensic report determining the defendant ’ s blood alcohol level); Melendez

- Diaz, 557 U.S. at 308, 129 S. Ct. at 2527 ( involving admiss ion of a fore n sic report determining the chemical composition of a seized substance). In this case, the Iowa and Nebraska custodians of the fingerprints neither conducted analysis nor drew conclusions from the fingerprints. They simply provided copies of physical evidence ( Reinhardt ’ s fingerprints ) they had in their custody . Furthermore, (continued . . .)#27194

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- [¶ 9. ] Affirmed. [¶ 10. ] GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN, Justices, concur.

_____________________ (. . . continued) the person who conducted analysis of the fingerprints testified and was subject to cross

- examin atio n at trial

.