#23760-a-JKK 

2006 SD 94 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, 

 v. 

ALEMU TADELE BERHANU, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE SECOND JUDICIAL CIRCUIT 

MINNEHAHA COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE GLEN A. SEVERSON 

Judge 

* * * * 

LAWRENCE E. LONG 

Attorney General 

ANN C. MEYER 

Assistant Attorney General Attorneys for plaintiff 

Pierre, South Dakota and appellee. 

SCOTT B. CARLSON Attorney for defendant 

Sioux Falls, South Dakota and appellant. 

* * * * 

 

 ARGUED ON OCTOBER 3, 2006 

 OPINION FILED 11/01/06 
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KONENKAMP, Justice 

[¶1.] Defendant appeals his convictions for attempted first degree murder 

and two counts of aggravated assault. We affirm. 

Background 

[¶2.] Abraham Sandal was scheduled to work at Wal-Mart in Sioux Falls, 

South Dakota, at 11:00 p.m. on January 7, 2005. He decided to go to work around 

10:00 p.m. that evening because he wanted an extra hour of work. After he arrived 

and parked his vehicle in the Wal-Mart parking lot, he began walking toward the 

store entrance. At the same time, defendant Alemu Berhanu, a fellow employee 

and former friend, sat in his parked car just a few spaces away from where Sandal 

had parked. 

[¶3.] As Sandal was walking toward the store, Berhanu pulled out of his 

parking space and drove toward Sandal. Berhanu accelerated and ran his vehicle 

into him. The impact of the collision caused Sandal’s body to bounce off the front of 

Berhanu’s car. Sandal rolled off and got caught underneath. Berhanu continued 

driving forward with Sandal still pinned underneath his car. He drove between two 

concrete-based poles used to designate handicap parking. The right side of his car 

grazed one pole, yet Berhanu continued to drive toward the front of the Wal-Mart 

store. He did not stop until he ran into a car occupied by George Zahn. Zahn was 

parked in front of the store waiting for his wife to return. The collision sandwiched 

Zahn’s vehicle between Berhanu’s car and the Wal-Mart store, thereby pinning 

Zahn inside his vehicle. Sandal was still trapped underneath Berhanu’s car. 
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[¶4.] Berhanu got out of his car and began to walk away. Moments later, a 

bystander who witnessed him driving over Sandal, stopped Berhanu and restrained 

him until law enforcement officers arrived. Thereafter, Berhanu was taken into 

custody and charged with (1) attempted first-degree murder of Sandal, (2) 

aggravated assault on Sandal, (3) aggravated assault with a dangerous weapon 

against Zahn, and (4) violation of a protection order. 

[¶5.] At the close of his jury trial, Berhanu moved the court for a judgment 

of acquittal, claiming that the evidence was insufficient to establish guilt for 

attempted murder and two counts of aggravated assault. The trial court denied 

Berhanu’s motion, and the jury found him guilty of all four charges. He was 

sentenced to twenty-five years for attempted first-degree murder, fifteen years for 

the aggravated assault against Zahn, and one year for violating a protection order. 

The court did not impose a sentence for the aggravated assault on Sandal. The 

fifteen and twenty-five year sentences were ordered to be served consecutively, with 

the one year sentence to be served concurrently. The court also ordered restitution 

of $458,084.94 for Sandal’s medical expenses. 

[¶6.] On appeal, Berhanu asserts that (1) there was insufficient evidence to 

support the jury’s verdict beyond a reasonable doubt, and (2) his consecutive 

sentences amount to cruel and unusual punishment. 

Standard of Review 

[¶7.] “In measuring evidentiary sufficiency, we ask ‘whether, after viewing 

the evidence in the light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond a reasonable doubt.’” 
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State v. Disanto, 2004 SD 112, ¶14, 688 NW2d 201, 206 (quoting Jackson v. 

Virginia, 443 US 307, 319, 99 SCt 2781, 2789, 61 LEd2d 560 (1979)). We will set 

aside a jury verdict only “where the evidence and all reasonable inferences to be 

drawn therefrom fail to sustain a rational theory of guilt.” State v. Hage, 532 

NW2d 406, 410 (SD 1995) (citations omitted). 

 The denial of a motion for judgment of acquittal presents a 

question of law, and thus our review is de novo. See United 

States v. Staula, 80 F3d 596, 604 (1stCir 1996). We must decide 

anew whether the evidence was sufficient to sustain a 

conviction. SDCL 23A-23-1 (Rule 29(a)); State v. Guthrie, 2001 

SD 61, ¶47, 627 NW2d 401, 420-21; see also 2 Steven Alan 

Childress & Martha S. Davis, Federal Standards of Review § 

9.10 (3d ed 1999) (citing United States v. Scott, 437 US 82, 100 

n13, 98 SCt 2187, 2198 n13, 57 LEd2d 65 (1978)). 

Disanto, 2004 SD 112, ¶14, 688 NW2d at 206. See also State v. Tofani, 2006 SD 63, 

¶35, 719 NW2d 391, 399. Whether a sentence is cruel and unusual in violation of 

our state and federal constitutions is a question of law reviewed de novo. State v. 

Smiley, 2004 SD 119, ¶4, 689 NW2d 427, 429; State v. Bonner, 1998 SD 30, ¶17, 

577 NW2d 575, 580. 

Analysis and Decision 

[¶8.] Berhanu argues that the State failed to produce sufficient evidence 

establishing each element of attempted first-degree murder. He maintains that he 

did not intend to kill Sandal, but only meant to scare him. Moreover, he claims that 

the State failed to present evidence establishing his state of mind, and therefore, 

did not prove beyond a reasonable doubt that he had a “premeditated design to 

effect the death” of Sandal. In response, the State argues that at the very least 

Berhanu formed the intent to kill Sandal moments before he intentionally drove his 
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car over him. This conclusion, the State contends, is supported by witness 

testimony and from the Wal-Mart surveillance video, showing that Berhanu 

intentionally drove into Sandal. Moreover, the State asserts that because of 

Berhanu and Sandal’s troubled relationship, there is further evidence to support an 

intent to kill Sandal. 

[¶9.] At trial, the State offered the testimony of Detective Bruce Millikan 

from the Sioux Falls Police Department. Detective Millikan interviewed Berhanu 

after he was arrested. The interview was recorded and the tape was entered into 

evidence at trial. The tape was not played in open court, but Detective Millikan 

summarized for the jury the substance of the interview.1 He stated that Berhanu 

told him how he and Sandal had both immigrated to the United States from 

Ethiopia. They had become friends about nine years ago when they worked 

together at John Morrell. Sandal eventually left Morrell and began working at WalMart, and Berhanu left to work in Omaha, Nebraska. A short time later, however, 

Sandal convinced Berhanu to join him in Sioux Falls. He had told Berhanu he 

would get him a job at Wal-Mart and that Berhanu could live with him. 

[¶10.] Berhanu told Detective Millikan that he came to Sioux Falls and began 

living with Sandal and working at Wal-Mart. It was at some point after this move 

that Sandal and Berhanu’s friendship deteriorated. Detective Millikan testified 

that Berhanu had several different stories on why the two began having problems. 

 

 (continued . . .) 

1. The Detective testified that the video of the interview was difficult to 

understand because several times there would be more than one person 

talking at a time. But, the detective took notes immediately after the 
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In one version, Berhanu said that Sandal wanted him to marry his sister who was 

still in Ethiopia so she could come to America. Then, because Berhanu did not want 

to, Sandal got upset. Berhanu also told the detective that Sandal started 

“intimidating him” by saying he got him the job at Wal-Mart, so he owed him a 

favor, and also threatened that he could get him fired. 

[¶11.] Berhanu recalled for the detective two instances where he and Sandal 

fought publicly. The first was at a restaurant in Sioux Falls, where words were 

exchanged and drinks might have been thrown or spilled. The second was at a 

different restaurant, where the two again had a verbal disagreement. Berhanu 

explained that it was after this incident that Sandal sought and obtained a 

protection order against him. As a result of the protection order, Wal-Mart had to 

schedule Berhanu and Sandal for different work shifts. Berhanu told Detective 

Millikan how after the protection order was issued, Sandal began belittling him, 

calling him names at work, and telling coworkers and common friends that 

Berhanu was trying to kill him. This frustrated Berhanu, and Detective Millikan 

testified that “the overall attitude that I was picking up from my interview with 

Berhanu—[he was] frustrated with the courts, frustrate[d] with the lawyers, 

frustrated with [the] employer.” 

__________________ 

(. . . continued) 

interview. Jurors were allowed to view the interview videotape in the jury 

room if they so desired.
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[¶12.] Detective Millikan asked Berhanu about the evening of January 7, 

2005, and why he ran his automobile into Sandal. According to the detective, 

Berhanu had several versions of how and why it happened: 

 One of the investigations was that Mr. Berhanu had gone to the 

store, [Wal-Mart], [to] check his schedule, his work schedule and 

that when he left the store, he was sitting in his car and saw 

that Abraham Sandal had come into the parking lot early, 

wasn’t suppose [sic] to be there that early and that Abraham 

Sandal looked at Berhanu and then that Abraham Sandal 

approached Mr. Berhanu and yelled at him, you are not suppose 

[sic] to be here and the next version was that Abraham Sandal 

actually walked from Sandal’s car to the [front] of Berhanu’s car 

and said if you’re going to hit me, go ahead and hit me, I’m not 

moving—called him on. 

 Another version was that Mr. Berhanu didn’t feel like he had 

any other alternative but to run him over because he was 

blocking the roadway and Berhanu didn’t want to back up and 

go out a different way because he didn’t want to hit somebody 

else in the parking lot or back into a car. He then even went so 

far as to say this was the normal way he always drove out of the 

parking lot. 

Detective Millikan had watched the Wal-Mart surveillance video tape, which 

recorded the entire incident in the parking lot, and knew that Sandal did not 

approach Berhanu or yell at him. He showed Berhanu the tape and then confronted 

him on his inconsistent stories. Berhanu’s only response was, “If that’s what you 

want to believe, that’s what you must believe.” 

[¶13.] The State also called Sandal, who explained the nature and history of 

Berhanu and Sandal’s relationship. Sandal told the jury that the problems started 

after he and his girlfriend decided to get married, moved out of the apartment, and 

purchased a home. He disagreed with Berhanu’s statement to Detective Millikan 

that their problems arose because he wanted Berhanu to marry his sister. His 
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sister, Sandal explained, is married, has been for 22 years, and has seven children. 

Nonetheless, he agreed that their friendship did deteriorate and that he did request 

and obtain a protection order against Berhanu in December 2004. 

[¶14.] As for the evening of January 7, 2005, Sandal could not recall all the 

circumstances of the incident. He testified that he remembered parking his car and 

walking toward the entrance of Wal-Mart, when a car “was screaming behind” him. 

He turned back and looked at the car, but did not recognize it, because “[w]ithin a 

short time he was—within a second, the car was jumped at me—jumped on top of 

my whole body. . . .” Beyond that rendition, Sandal remembered nothing else. 

However, the State offered the testimony of several witnesses, who saw Berhanu 

run into Sandal. Each witness explained how they saw Berhanu’s vehicle accelerate 

and proceed directly toward Sandal, which led each of them to believe that Berhanu 

had deliberately driven into Sandal. 

[¶15.] First-degree murder is “perpetrated without authority of law and with 

a premeditated design to effect the death of the person killed or of any other human 

being. . . .” SDCL 22-16-4. 

 The term, premeditated design to effect the death, means an 

intention, purpose, or determination to kill or take the life of the 

person killed, distinctly formed and existing in the mind of the 

perpetrator before committing the act resulting in the death of 

the person killed. A premeditated design to effect death 

sufficient to constitute murder may be formed instantly before 

committing the act. 

SDCL 22-16-5 (emphasis added). To be guilty of attempted first-degree murder, the 

State was required to prove beyond a reasonable doubt that Berhanu (1) had the 

specific intent to kill Sandal, (2) committed a direct act toward killing Sandal, and 
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(3) failed or was prevented or intercepted in the perpetration of the crime. See 

Disanto, 2004 SD 112, ¶15, 688 NW2d at 206 (citations omitted); State v. Scherr, 

2002 SD 140, ¶15, 654 NW2d 220, 223; SDCL 22-4-1. 

[¶16.] Based on our review of the evidence, we conclude that a rational trier 

of fact could have found the essential elements of attempted first-degree murder 

and aggravated assault against Sandal beyond a reasonable doubt. The evidence 

presented by the State and reasonable inferences to be drawn therefrom support the 

verdict. See Hage, 532 NW2d at 410; see also State v. Motzko, 2006 SD 13, ¶6, 710 

NW2d 433, 436-37. Although there is no evidence that Berhanu made any 

advanced preparation to kill Sandal, “extensive planning and calculated 

deliberation need not be shown to establish premeditation.” See State v. Owens, 

2002 SD 42, ¶96, 643 NW2d 735, 758 (citations omitted). “The design to effect 

death need only exist for an instant before the commission of the crime.” Id.

(citations omitted). The video evidence reveals that Berhanu drove directly into 

Sandal and did not attempt to avoid him or stop after he hit him. Even though 

Sandal was pinned underneath, Berhanu continued driving forward. It is 

undisputed that Sandal suffered life-threatening injuries and could have been killed 

by Berhanu. 

[¶17.] Berhanu next argues that there was insufficient evidence to prove 

beyond a reasonable doubt the charge of aggravated assault with a dangerous 

weapon against Zahn. He concedes that an automobile is a dangerous weapon. 

However, he argues that the State failed to prove that he attempted to cause, or 

knowingly caused bodily injury as required under SDCL 22-18-1.1(2). Instead, he 
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claims that the evidence merely established that he drove into Zahn’s car because it 

was in his direct line of travel, not because he attempted to cause bodily injury to 

Zahn. 

[¶18.] To be guilty of aggravated assault with a dangerous weapon under 

SDCL 22-18-1.1(2), the State must prove beyond a reasonable doubt that Berhanu 

attempted to cause, or knowingly caused bodily injury to Zahn, with a dangerous 

weapon. “Knowingly” in this statute denotes “acts or circumstances where the 

result is likely to occur.” State v. Marshall, 495 NW2d 87, 89 (SD 1993), overruled 

on other grounds, State v. Giroux, 2004 SD 24, 676 NW2d 139. Berhanu was aware 

that by driving his vehicle toward the entrance of Wal-Mart, he placed in danger 

any person or vehicle parked in his line of travel. Moreover, it is clear that Berhanu 

never attempted to stop his vehicle before it hit Sandal or collided with Zahn’s car. 

While he may not have tried to hit Zahn, his “act” of intentionally driving into 

Sandal, who was walking toward the entrance of the Wal-Mart store, and not 

stopping until he crashed into Zahn’s vehicle, was a result that was “likely to occur.” 

See Marshall, 495 NW2d at 89. 

[¶19.] Berhanu’s last argument that his sentence amounts to cruel and 

unusual punishment is without merit. See State v. Bonner, 1998 SD 30, ¶17, 577 

NW2d 575, 580. 

[¶20.] Affirmed. 

[¶21.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and 

MEIERHENRY, Justices, concur.