#27791-a-DG

2016 S.D. 81

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

MARLIN WAYNE GREENWOOD, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE ROBIN J. HOUWMAN

Judge

* * * *

MARTY J. JACKLEY

Attorney General

JOHN M. STROHMAN

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff

and appellee.

BEAU J. BLOUIN of

Minnehaha County Public

 Defender’s Office

Sioux Falls, South Dakota Attorneys for defendant

and appellant.

* * * *

CONSIDERED ON BRIEFS 

ON NOVEMBER 7, 2016

OPINION FILED 11/22/16
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GILBERTSON, Chief Justice

[¶1.] Marlin Greenwood appeals from a conviction for aggravated assault, in 

violation of SDCL 22-18-1.1(1) and SDCL 22-18-1.1(4). Greenwood argues that the 

circuit court erred by allowing testimony of a nurse practitioner, who opined about 

the seriousness of the victim’s injuries. Greenwood contends that such error was 

plain and violated his Fifth and Sixth Amendment rights to a fair trial by jury. We 

affirm.

Background 

[¶2.] On April 3, 2015, Damon Fabre hosted an evening social gathering at 

his Sioux Falls apartment in Minnehaha County. Marlin Greenwood, as well as 

four other individuals—Martin, J.R., Twila, and Detroit—attended. The group 

consumed alcohol including beer and vodka. 

[¶3.] Some twenty minutes after Martin’s arrival, Fabre accused Twila of 

stealing his cell phone. Twila argued with Fabre and then left with J.R. Detroit 

had departed prior to the argument. Fabre, lying down on the couch and still upset, 

asked Martin and Greenwood to leave as well. Martin refused, as he had just 

opened his second beer. Martin observed that Greenwood was “extremely irritated”

and “went berserk,” and he began “kick[ing] [Fabre] in the face . . . seven times” 

before “punch[ing] him seven or eight times.” The kicks were “flat-faced . . . 

[Greenwood] didn’t use his heel or his toe.” Fabre did not appear to fight back, or 

offer any verbal resistance. 

[¶4.] Martin asked Greenwood what he was doing, prompting Greenwood to 

cease for “about two to three minutes.” Greenwood, however, then resumed kicking 
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Fabre’s face six more times. Martin, who was on blood thinners and thus prone to 

bleeding, did not intervene, fearing that Greenwood would retaliate if he did so.

[¶5.] After the second assault, Greenwood again seemed to compose himself. 

But “for some reason he got back up and . . . gave [Fabre] three more kicks.” At this 

point Martin observed that Greenwood had “kind of wore himself out.” Martin then 

found a cell phone and used it to call the police.

[¶6.] Sioux Falls Police Officers Justin Reiter and Paul Frerichs were the 

first respondents to the scene. Officer Reiter indicated that Fabre “was covered in 

blood” and “his face was unrecognizable as a human face to [him].” Officer Reiter 

requested a supervisor in his belief that “it was going to be a homicide.”

[¶7.] Officer Peter Blankenfeld was dispatched to Fabre’s residence. Other 

law enforcement officers and paramedics were present when Officer Blankenfeld 

arrived on the scene. While medical staff attended Fabre, Officer Blankenfeld 

attempted to speak with Greenwood, who was seated in the apartment. Officer 

Blankenfeld observed that Greenwood “became disorderly when being asked 

questions about what had occurred[.]” Photographs of the crime scene taken by 

Officer Matthew Wolfe depicted blood splatters traveling up against the wall and on 

the cushions of the couch. According to Officer Reiter, the blood went “almost all 

the way up to the ceiling.” 

[¶8.] Fabre was taken to Avera McKennan Hospital (Avera). Fabre 

remained in the hospital for four days. Fabre’s face and neck experienced 

significant tissue swelling, and a risk for airway compromise existed. Fabre was 
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concussive, and a rapid response team responded the first night of his stay due to 

Fabre seizing and having difficulties with his breathing.

[¶9.] An indictment against Greenwood was filed on August 15, 2015. It 

charged Greenwood with two counts of aggravated assault, in violation of SDCL 22-

18-1.1(1), -1.1(4), and three counts of simple assault, in violation of SDCL 22-18-

1(1), -1(2), -1(5). Greenwood pleaded not guilty to all charges, and a two-day trial 

commenced December 2.

[¶10.] Rebecca Ann Nichols testified at trial as a State witness. Nichols is a 

nurse practitioner who helped care for Fabre during his treatment at Avera. 

Nichols explained that a nurse practitioner is “like a combination of taking a 

registered nurse and a doctor and kind of smashing them together,” and that they 

possess “the ability to diagnose and treat illness.” She provided her educational 

background, which includes a bachelor’s degree in nursing from South Dakota State 

University and a master’s degree in nursing from University of Nebraska Medical 

Center. In her capacity at Avera, Nichols helped provide “acute care surgery 

services . . . as well as [treat] general trauma.” 

[¶11.] Nichols opined that she “absolutely” considered Fabre’s condition to be 

a “serious bodily injury” because his airway was “questionable or compromised[.]” 

When asked by the prosecution if “being kicked in the head is a dangerous 

proposition,” Nichols answered “yes.” While reviewing photographs taken of Fabre’s 

condition, Nichols testified that it looked as though he had suffered “blunt force 

trauma to the face and the neck and the front of the chest[.]” The defense did not 

raise any objections during Nichols’s testimony. Cross-examination consisted of 
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questions related to Fabre’s physical condition. Nichols testified that Fabre had 

high levels of alcohol in his blood. The defense asked whether the seizure Fabre 

had suffered the first night of his stay was related to alcohol withdrawal. Nichols 

responded, “That was the feeling, yes.”

[¶12.] On redirect, the prosecution asked Nichols whether she believed that 

Fabre’s injuries resulted from his drunkenness. Nichols answered “no.” When 

asked again if the assault had compromised his airway and “put him in a situation 

where he had a serious bodily injury,” Nichols answered in the affirmative. Nichols 

also affirmed that “it [is] true that people that are alcoholics . . . have a propensity 

to bleed and not clot if they start bleeding[.]” However, Nichols reiterated her 

agreement with the prosecution’s observation that “what put [Fabre] in peril was 

the beating and not that he was drunk[.]”

[¶13.] After the State rested, the defense moved for a judgment of acquittal, 

citing “the lack of serious bodily injury in this case.” The circuit court denied the 

motion, stating that “the motion for a judgment of acquittal is properly denied if 

there is some evidence that would leave the jury to determine . . . that the 

defendant may be guilty of the crimes charged.” The court referred to the jury 

instruction defining a serious bodily injury as that “which is grave and not trivial 

and which gives rise to apprehension of danger of life, health, or limb.” The court 

observed that, per Nichols, Fabre “was seen by speech therapy[ and] physical 

therapy,” and that he had suffered “blunt force trauma to the face, neck, and chest,” 

requiring “hospitalization and medical care for four days.” Based on that definition 
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and testimony, the circuit court believed the “jury could reasonably find the 

defendant guilty of the crime charged[.]”

[¶14.] The jury returned guilty verdicts on both counts of aggravated assault. 

On February 10, 2016, Greenwood received a sentence of twenty years in the state 

penitentiary. Greenwood appeals, alleging that the court erred by allowing Nichols 

to give her opinion regarding the seriousness of Fabre’s injuries. 

Standard of Review

[¶15.] “A trial court’s decision regarding the qualification of experts and the 

admission of their testimony will only be reversed upon a showing of an abuse of 

discretion.” State v. Well, 2000 S.D. 156, ¶ 11, 620 N.W.2d 192, 195 (quoting State 

v. Spaans, 455 N.W.2d 596, 599 (S.D. 1990)). 

Analysis

[¶16.] Greenwood acknowledges that he failed to preserve this issue on 

appeal by not objecting at trial. Nevertheless, Greenwood argues that plain error 

analysis is available. Plain error review must be “applied cautiously and only in 

exceptional circumstances.” State v. Beck, 2010 S.D. 52, ¶ 10, 785 N.W.2d 288, 293. 

To establish plain error, an appellant must show “(1) error, (2) that is plain, (3) 

affecting substantial rights; and only then may this Court exercise its discretion to 

notice the error if (4) it seriously affects the fairness, integrity, or public reputation 

of judicial proceedings. State v. Buchhold, 2007 S.D. 15, ¶ 22, 727 N.W.2d 816, 822 

(quoting State v. Nelson, 1998 S.D. 124, ¶ 8, 587 N.W.2d. 439, 443). Additionally, 

“[w]ith plain error analysis, the defendant bears the burden of showing the error 
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was prejudicial.” Beck, 2010 S.D. 52, ¶ 10, 785 N.W.2d at 293 (quoting Nelson, 1998 

S.D. 124, ¶ 7, 587 N.W.2d at 443).

[¶17.] The circuit court properly admitted testimony by Nichols that Fabre 

had suffered a serious bodily injury. SDCL 22-18-1.1(1) reads in part that:

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 seriously bodily injury; . . . 

is guilty of aggravated assault. 

 

At the time of trial, SDCL 19-15-2 provided that “if scientific, technical, or other 

specialized knowledge will assist the trier of fact to understand the evidence or to 

determine a fact in issue, a witness qualified as an expert by knowledge, skill, 

experience, training, or education, may testify thereto in the form of an opinion or 

otherwise.”1 “We have long acknowledged that the trial court has broad discretion 

concerning the admission of expert testimony.” State v. Hill, 463 N.W.2d 674, 676

 

1. In January 2016, SDCL 19-15-2 was transferred to 19-19-702 and now 

reads:

A witness who is qualified as an expert by knowledge, skill, 

experience, training, or education may testify in the form of an 

opinion or otherwise if:

(a) The expert's scientific, technical, or other specialized 

knowledge will help the trier of fact to understand the 

evidence or to determine a fact in issue;

(b) The testimony is based on sufficient facts or data;

(c) The testimony is the product of reliable principles and 

methods; and

(d) The expert has reliably applied the principles and 

methods to the facts of the case.
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(S.D. 1990). Greenwood, however, cites State v. Lybarger, 497 N.W.2d 102, 105 

(S.D. 1993) for the proposition that it is a “clear abuse of the trial court’s discretion 

to allow [a doctor] to give his opinion of an element of [an] offense.” 

[¶18.] In Lybarger, the circuit court allowed the State’s expert witness, a 

doctor, “to give his opinion about whether [the victim’s] injuries constituted ‘serious, 

bodily injury’” after being read the legal definition thereof. 497 N.W.2d at 104. We 

held that an expert witness may not “‘usurp’ the power of the jury by giving 

opinions on the ‘ultimate issues’ of the case.” Id. (citing State v. Logue, 372 N.W.2d 

151, 156-57 (S.D. 1985)). We concluded that such testimony “went beyond medical 

matters” by opining “whether [the] legal definition had been satisfied.” Id. at 104-

05. Greenwood likens Nichols’s testimony to that given in Lybarger, contending 

that he was thus deprived of his “Fifth and Sixth Amendment rights to a fair trial 

and a jury determination of whether every element of the charges [was] satisfied 

beyond a reasonable doubt.”

[¶19.] However, the case before us is distinguishable from Lybarger. In State 

v. Well, this Court stated that “[a]lthough statements relating to . . . the cause of 

physical injuries are permissible to assist the trier of fact, they frequently exceed 

permissible medical opinion and become impermissible legal opinion.” 2000 S.D. 

156, ¶ 17, 620 N.W.2d at 196. In Well, a doctor testified that he used photographs 

taken of the victim, who the State alleged suffered from abuse or cruelty to a minor, 

to use as teaching material in his class about child abuse. We suggested that “it 

would have been preferable to exclude the statements that these injuries were 

characteristic of ‘abusive injuries’ and taken for classes on ‘child abuse.’” Id.
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Nevertheless, we held that allowing the testimony was “not impermissible or 

harmful error, especially in the absence of a motion to strike or admonish.” Id.

[¶20.] As the State argues, the statements made here by Nichols were further 

afield from touching on “an opinion of guilt or innocence” than those made by the 

doctor in Well. And unlike Lybarger, Nichols was not asked about whether Fabre’s 

injuries satisfied the legal definition provided by statute, and the prosecution made 

no attempt to define the term for her. Rather, the prosecution elicited Nichols’s own 

opinion about what she considered to be a serious injury. To this end, Nichols 

stated that a compromised airway “absolutely” would be something she considered 

to be a “serious bodily injury,” affirming that such injuries could result in the 

patient’s death. Nichols also pointed to specific details about Fabre’s injuries, such 

as the swelling of soft tissue and her observations of blunt force trauma. 

Greenwood’s analogy to Lybarger therefore collapses. Nichols’s opinion did not go 

“beyond medical matters.” See Lybarger, 497 N.W.2d at 104. Nichols “was not 

asked nor did [she] give an opinion as to [Greenwood’s] guilt or innocence,” and thus

her testimony “did not ‘invade the province of the jury.” See Well, 2000 S.D. 156, ¶ 

16, 620 N.W.2d at 195. Therefore, the circuit court did not err by permitting her 

testimony. 

Conclusion 

[¶21.] It was not error by the circuit court to permit Nichols to opine whether 

Fabre suffered a serious bodily injury, let alone plain error. Nichols’s testimony did 

not express a conclusion about an ultimate legal issue, and her observations could 
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reasonably assist a trier of fact in arriving at a verdict. Therefore, Greenwood was 

not deprived of a fair trial by jury.

[¶22.] Affirmed.

[¶23.] ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.