#26695-aff in pt & rem-SLZ

2014 S.D. 7

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

RICHARD W. GUTHMILLER, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SEVENTH JUDICIAL CIRCUIT

PENNINGTON COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE THOMAS L. TRIMBLE

Judge

* * * *

MARTY J. JACKLEY

Attorney General

ANN F. MINES

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff 

and appellee. 

JOHN S. RUSCH of

Rensch Law, Prof. LLC

Rapid City, South Dakota Attorneys for defendant 

and appellant.

* * * *

CONSIDERED ON BRIEFS 

ON JANUARY 14, 2014

OPINION FILED 02/12/14
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ZINTER, Justice

[¶1.] A jury found Richard Guthmiller guilty of eight counts of making false 

or fraudulent sales tax returns. On appeal, Guthmiller argues that the circuit court 

erred in denying his Batson challenges to three peremptory strikes exercised by the 

State. He also argues that the court erred in denying his motion for judgment of 

acquittal. We affirm the circuit court’s denial of the motion for judgment of 

acquittal, but we remand for the court to undertake the required Batson analysis.

Facts and Procedural History

[¶2.] In 1995, Richard Guthmiller moved to Rapid City where he worked for 

automotive body repair businesses. In January 2008, he started his own 

automotive body repair business. That same month, he applied for and received a 

sales tax license from the South Dakota Department of Revenue. The Department 

cancelled his license in October 2008 because Guthmiller indicated on his sales tax 

return that he was “out of business.” In March 2009, the Department discovered

that Guthmiller was still operating his business and informed him that he needed 

to reapply. Guthmiller reapplied and was reissued a license.

[¶3.] While operating his business during eight tax-reporting periods, 

Guthmiller filed sales tax returns. He reported sales on each return, but he 

indicated that his sales were exempt. A subsequent investigation led the

Department to believe that Guthmiller was filing false or fraudulent returns. 

Guthmiller was indicted on eight counts of making false or fraudulent sales tax 
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returns in an attempt to defeat or evade the tax in violation of SDCL 10-45-27.3 and 

SDCL 10-45-48.1(1).1

[¶4.] Guthmiller moved to dismiss the indictment. He claimed that under 

the terms of the Fort Laramie Treaty of 1868, Rapid City was located in Indian 

Country. Based on this claim and on his tribal membership, Guthmiller argued 

that South Dakota did not have authority to tax his Rapid City business. The 

motion was denied. After Guthmiller’s unsuccessful petition for an intermediate 

appeal before this Court, his case proceeded to trial.

[¶5.] During voir dire, Guthmiller’s attorney asked the veniremembers for a 

“show of hands of anybody . . . who’s partially even in the smallest amount Native 

American.” Although the record does not reflect the actual number of Native 

American veniremembers, the circuit court stated that “there [were] at least five 

identified.” No other questions were asked about race.

[¶6.] Following voir dire, the State exercised its peremptory strikes. 

Guthmiller objected to three of those strikes, arguing that they violated Batson v. 

Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). In response, the 

 

1. As is relevant here, SDCL 10-45-27.3 provides:

Any person who holds a license issued pursuant to this chapter

[retail sales and service tax] or who is a person whose receipts 

are subject to the tax imposed by this chapter shall, except as 

otherwise provided in this section, file a return, and pay any tax 

due, to the Department of Revenue on or before the twentieth 

day of the month following each monthly period. The return 

shall be filed on forms prescribed and furnished by the 

department.

SDCL 10-45-48.1(1) provides: “Any person who: (1) Makes any false or 

fraudulent return in attempting to defeat or evade the tax imposed by this 

chapter [retail sales and service tax] is guilty of a Class 6 felony[.]”
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State tendered its reasons for the strikes. After brief remarks, the circuit court

summarily denied Guthmiller’s Batson challenges without giving a reason for its 

decision. 

[¶7.] During its case-in-chief, the State called the Department employee 

who investigated Guthmiller. The investigator presented evidence indicating that

Guthmiller performed taxable services during each tax-reporting period but failed 

to remit sales tax. Although Guthmiller ostensibly reported all his gross sales 

during each period, the investigator also presented evidence indicating that

Guthmiller underreported his sales on all returns. 

[¶8.] Another Department employee provided evidence relating to 

Guthmiller’s knowledge of sales tax laws. The employee testified that she had 

explained to Guthmiller how sales tax applied to his business. She testified that 

she specifically told him “all [his] customers were subject to sales tax unless he was 

given an exemption certificate.” According to her, Guthmiller seemed to understand 

her explanation. In addition to her conversations with Guthmiller, the employee 

testified that she also provided him with publications explaining how sales tax

applied to his business. 

[¶9.] At the close of the State’s case-in-chief, Guthmiller moved for judgment 

of acquittal. He argued that the State had failed to prove that he had the specific

intent to defeat or evade sales tax. The circuit court denied the motion. 

[¶10.] Guthmiller then presented a defense that he lacked the specific intent 

to defeat or evade sales tax. He testified that he believed Rapid City was located in 
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Indian Country, and therefore, as a tribal member, his sales were exempt from state 

tax laws. The jury ultimately returned a guilty verdict on all counts.

Decision

[¶11.] On appeal, Guthmiller raises two issues. He first argues that the 

circuit court’s Batson analysis was incomplete, thus necessitating remand to allow 

the court to engage in the missing analysis.2

[¶12.] Under Batson and its progeny, a three-step analysis is used to 

determine whether peremptory strikes were based on purposeful racial 

discrimination. 

First, the defendant must make out a prima facie case by 

showing that the totality of the relevant facts gives rise to an 

inference of discriminatory purpose. Second, once the defendant

has made out a prima facie case, the burden shifts to the State

to explain adequately the racial exclusion by offering 

permissible race-neutral justifications for the strikes. Third, [i]f 

a race-neutral explanation is tendered, the trial court must then 

decide . . . whether the opponent of the strike has proved 

purposeful racial discrimination.3

 

2. We review the circuit court’s application of the law under Batson de novo. 

State v. Scott, 2013 S.D. 31, ¶ 9 n.1, 829 N.W.2d 458, 461 n.1. We review a 

circuit court’s findings on purposeful racial discrimination for clear error. Id.

3. While the normal course in a Batson analysis is to take each step in order, 

the first step becomes moot if the circuit court rules on the ultimate issue of 

purposeful racial discrimination. See Hernandez v. New York, 500 U.S. 352, 

359, 111 S. Ct. 1859, 1866, 114 L. Ed. 2d 395 (1991) (plurality opinion) (“Once 

a prosecutor has offered a race-neutral explanation for the peremptory 

challenges and the trial court has ruled on the ultimate question of 

intentional discrimination, the preliminary issue of whether the defendant 

had made a prima facie showing becomes moot.”).
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State v. Scott, 2013 S.D. 31, ¶ 16, 829 N.W.2d 458, 465-66 (alteration in original) 

(quoting Johnson v. California, 545 U.S. 162, 168, 125 S. Ct. 2410, 2416, 162 L. Ed. 

2d 129 (2005)) (internal citations and quotation marks omitted).

[¶13.] In this case, the following dialogue is the entire record of the Batson

challenge and the circuit court’s analysis.

Defense Counsel: Judge, at this time, the Defense moves to 

challenge the exclusion of all minorities from the jury pool. 

Prior to the selection process, there was at least three minorities 

that were physically identifiable, those being [S.A.], [J.H.]

appeared to be black, and [D.B.], who appeared to be black, all of 

which have been struck.

Ultimately, following the selection process, there appears not to 

be a single minority on the jury panel, despite the fact that at 

the beginning of the panel there were several individuals that 

indicated minority status.

Court: [State].

State: Okay. You had [D.B.]? I did not know that he was a 

minority. I will give you my reasons for all three, okay?

[D.B.] and [S.A.] each had prior convictions. I had them marked 

before we came into the jury room [sic]. [S.A.] actually had both. 

He was convicted and had family members convicted. I didn’t 

have access to Triple I’s. I don’t know what those crimes are, if 

egregious or something minor. That was a red flag for me, and 

so that’s why I exercised.

As for [J.H.], [J.H.] I guess concerned us. I didn’t have anything 

marked on him. I was neutral coming in. During voir dire, I did 

not see him respond to any question. I didn’t hear him say a 

word the entire morning. I didn’t even see him shake his head 

or nod his head during -- while I was questioning.

I’m not sure if he gestured or responded while [Defense Counsel] 

was up there. I did not see that he did. And there were even 

times, you know, where I asked for assurances, can you follow --

can you follow the law? Can you give each side a fair shake? 

And you could see the entire body of the jury shaking their head 

except for [S.A.] actually, and [J.H.], who were sitting next to 

each other, so it was kind of conspicuous. That’s why I exercised 

on those three. 
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Court: All right. Well, when the question was asked whether 

there [were] any Native Americans here, I saw at least five 

hands go up, and I’m not sure if there were more, but I counted 

five for sure. They were not up very long. They were not

identified. I don’t know whether or not defense or plaintiffs 

struck the people that were up. But I know there was at least 

five identified. And I guess there’s two that we don’t know 

anything about.

I’m assuming Mr. Guthmiller is Native American. I don’t know 

what his percentage is. I have no idea. It’s not part of the 

record at this time.

Guthmiller: Under Federal Guidelines, I’m recognized.

Court: I’m just saying. That’s my question. But I’m going to 

deny your motion. 

[¶14.] The State contends that the circuit court resolved the Batson 

challenges under step one, finding that Guthmiller had not established a prima 

facie case. But during the Batson dialogue, the State never claimed that Guthmiller 

failed to establish his prima facie case. Instead, the State tacitly accepted 

Guthmiller’s prima facie showing and proceeded to step two, explaining its reasons 

for striking the three minority veniremembers. 

[¶15.] Thereafter, the court’s questions suggested that it may have been

considering whether Guthmiller satisfied his prima facie case. But the court did not

indicate whether it found that Guthmiller failed to establish his prima facie case or

whether he failed to carry his ultimate burden to prove purposeful racial 

discrimination. The court denied the challenges without analysis or explanation.

[¶16.] Under this record, we are unable to determine the circuit court’s 

reason for denying the Batson challenges. We acknowledge that there are no 

“‘magic words’ the trial court must use in order to fulfill a Batson analysis.” State v. 

Ryan, 2008 S.D. 94, ¶ 13, 757 N.W.2d 155, 159. For example, “a trial court 
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implicitly conducts [the required] analysis when it accepts or rejects the State’s 

explanations for use of its peremptory challenges.” Id. (emphasis added). However, 

the circuit court did not indicate whether it had accepted the State’s reasons for its 

strikes. The court simply denied the Batson challenges without explanation.

Absent the required Batson analysis, “limited remand is required to allow the 

circuit court to engage in the missing analysis.” Scott, 2013 S.D. 31, ¶ 22, 829 

N.W.2d at 467 (citations omitted).

[¶17.] On remand, the court should first determine whether Guthmiller 

“satisfie[d] the requirements of Batson’s first step by producing evidence sufficient 

to permit the [court] to draw an inference that [racial] discrimination has 

occurred.”4 Johnson, 545 U.S. at 170, 125 S. Ct. at 2417. If the court determines 

that Guthmiller satisfied step one, it must then proceed to step two.

[¶18.] Under step two, the circuit court must determine whether the record 

shows that the State offered facially race-neutral justifications for its strikes. The 

bar to meet step two is not high. As the Supreme Court explained: 

The second step of [Batson] does not demand an explanation 

that is persuasive, or even plausible. “At this [second] step of 

the inquiry, the issue is the facial validity of the prosecutor’s 

explanation. Unless a discriminatory intent is inherent in the 

 

4. The circuit court questioned Guthmiller’s race. “[A] criminal defendant may 

object to race-based exclusions of [veniremembers]” regardless of whether 

“the defendant and the excluded [veniremember] share the same race.” 

Honomichl v. Leapley, 498 N.W.2d 636, 639 (S.D. 1993) (citing Powers v. 

Ohio, 499 U.S. 400, 402, 111 S. Ct. 1364, 1366, 113 L. Ed. 2d 411 (1991)). 

The races of the defendant and the struck veniremember are, however, 

relevant “circumstances for the trial court to consider in determining whether 

[a] defendant raised an inference that [the] State used its peremptory 

challenges for race-based reasons.” Id. (citing Powers, 499 U.S. at 416, 111 S. 

Ct. at 1373-74).
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prosecutor’s explanation, the reason offered will be deemed race 

neutral.”

Purkett v. Elem, 514 U.S. 765, 767-68, 115 S. Ct. 1769, 1771, 131 L. Ed. 2d 834 

(1995) (per curiam) (second alteration in original) (quoting Hernandez, 500 U.S. at 

360, 111 S. Ct. at 1866 (plurality opinion)) (citing Hernandez, 500 U.S. at 374, 111 

S. Ct. at 1874 (O’Connor, J., concurring in judgment)). If the circuit court 

determines that the State offered facially race-neutral justifications for its strikes,

the court must proceed to step three.

[¶19.] It is within step three that the circuit court has “the duty to assess the 

veracity of the State’s race-neutral” justifications for its strikes and to determine 

whether Guthmiller “met his burden of proving purposeful [racial] discrimination.” 

See Scott, 2013 S.D. 31, ¶ 21, 829 N.W.2d at 466 (citing Snyder v. Louisiana, 552 

U.S. 472, 477, 128 S. Ct. 1203, 1208, 170 L. Ed. 2d 175 (2008)); see also Johnson, 

545 U.S. at 171, 125 S. Ct. at 2418 (“It is not until the third step that the 

persuasiveness of the justification becomes relevant—the step in which the trial 

court determines whether the opponent of the strike has carried his burden of 

proving purposeful [racial] discrimination.” (quoting Purkett, 514 U.S. at 768, 115 S. 

Ct. at 1771)). In performing that analysis, the court “should not supinely accept 

‘any purportedly race-neutral reason that a skilled attorney can conjure up in 

response to a Batson challenge,’ but must decide if the reason offered for the strike 

was ‘merely a pretext designed to mask the improper consideration of race to 

exclude’ a [veniremember].” Scott, 2013 S.D. 31, ¶ 19, 829 N.W.2d at 466 (quoting 

Coombs v. Diguglielmo, 616 F.3d 255, 261 n.5 (3d Cir. 2010)) (citing Miller-El v. 

Dretke, 545 U.S. 231, 251-52, 125 S. Ct. 2317, 2331-32, 162 L. Ed. 2d 196 (2005)).
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[¶20.] We remand on the Batson issue to allow the circuit court to perform 

the required analysis on the existing record in accordance with this opinion. “If the 

court concludes that [Guthmiller] proved purposeful [racial] discrimination . . ., 

[Guthmiller’s] conviction[s] should be vacated and a new trial ordered.” See id. ¶ 23 

(citation omitted). If Guthmiller failed to make his required showings, his 

challenges should be denied.

[¶21.] Guthmiller also appeals the denial of his motion for judgment of 

acquittal. We review the denial of a motion for judgment of acquittal de novo. State 

v. Danielson, 2012 S.D. 36, ¶ 8, 814 N.W.2d 401, 405 (citation omitted). Our task is 

to determine “whether the evidence was sufficient to sustain the conviction.” State 

v. Dowty, 2013 S.D. 72, ¶ 15, 838 N.W.2d 820, 825 (quoting State v. Roubideaux, 

2008 S.D. 81, ¶ 13, 755 N.W.2d 114, 118). To do so, 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.” 

Id. (quoting State v. Plenty Horse, 2007 S.D. 114, ¶ 5, 741 N.W.2d 763, 765). 

[¶22.] Guthmiller argues that his motion for judgment of acquittal should 

have been granted because the State failed to prove that he had the specific intent 

necessary to commit the crimes. He contends that he held a good-faith belief that 

all his sales were exempt, and therefore, he did not have the specific intent to defeat 

or evade sales tax. He relies on Cheek v. United States, 498 U.S. 192, 111 S. Ct. 

604, 112 L. Ed. 2d 617 (1991), to support his contention that good-faith beliefs

negate specific intent. Guthmiller misconstrues Cheek. 
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[¶23.] Guthmiller correctly notes that a good-faith belief, even if objectively 

unreasonable, “provide[s] an evidentiary basis upon which the jury could find that 

the necessary element of specific intent had not been proven beyond a reasonable 

doubt.” See id. at 202. From this, however, Guthmiller incorrectly asserts that

Cheek required the jury to find that his claimed good-faith belief negated his 

specific intent. Cheek does not demand that result. 

[¶24.] As Guthmiller acknowledges, his claimed belief that his sales were 

exempt from tax “did not make him per se immune from prosecution[.]” Instead, it 

was for the jury to decide whether his belief was held in good faith. See id. at 203 

(“[B]elief [is] characteristically [a] question[] for the factfinder, in this case the 

jury.”). 

[¶25.] In this case, the totality of the evidence, when viewed in a light most 

favorable to the State, was sufficient for a rational juror to disbelieve Guthmiller’s 

claimed belief and find that he had the specific intent to defeat or evade sales tax. 

The State presented evidence showing that Guthmiller was aware of the legal 

duties imposed by South Dakota tax laws. A Department employee testified that 

she explained to Guthmiller how sales tax applied to his business. She told him 

that all his customers were subject to sales tax, unless the customer gave him an 

exemption certificate. The employee further testified that Guthmiller appeared to 

understand her sales-tax explanation. Moreover, Guthmiller was given 

publications that described how sales tax applied to his business.

[¶26.] In addition to evidence of Guthmiller’s knowledge of tax laws, the 

State presented evidence that a rational juror could find sufficient to demonstrate 
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that Guthmiller intended to defeat or evade sales tax. The State’s evidence showed 

that Guthmiller falsely indicated to the Department that he was “out of business,” 

which caused his license to be temporarily cancelled. Yet during the time his 

license was cancelled, he continued operating his business, and he did not reapply 

for his license until he was contacted by the Department. The State also presented 

evidence showing that Guthmiller not only failed to pay sales tax each reporting 

period, he also underreported his gross sales for each period; and in one case, he 

actually collected sales tax but did not remit it to the Department. Finally, there 

was evidence that Guthmiller misled the Department investigator regarding the 

existence of business records, bank accounts, and exemption certificates relating to 

the taxability of his sales.

[¶27.] Ultimately, it was for the jury to resolve the factual conflicts, weigh 

credibility, and sort out the truth. See Dowty, 2013 S.D. 72, ¶ 15, 838 N.W.2d at 

825 (“[I]n reviewing the sufficiency of the evidence . . . [we] ‘will not usurp the jury’s 

function in resolving conflicts in the evidence, weighing credibility, and sorting out 

the truth.’” (citation omitted)). The evidence presented on Guthmiller’s state of 

mind conflicted, but the jury resolved that conflict against Guthmiller. While 

Guthmiller contends that he held a good-faith belief that he was exempt from sales 

tax, it was within the jury’s prerogative to disbelieve his contention and find that he 

had the specific intent to defeat or evade sales tax. Because the evidence was 

sufficient to sustain the convictions, we affirm the circuit court’s denial of 

Guthmiller’s motion for judgment of acquittal.
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[¶28.] Affirmed in part and remanded for further proceedings in conformance 

with this opinion.

[¶29.] GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and 

WILBUR, Justices, concur.