# 26695

- aff in pt & rem

- SLZ
201 4 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 At torney s 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# 26695

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- ZINTER, Justice [¶ 1. ] A jury found Richard Guthmiller guilty of eight counts of making false or fraudulent sales tax return s . 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 analys is

. Facts and Procedural History [¶ 2. ] In 1995, Richard Guthmiller moved to Rapid City where he worked for automotive body repair business es . In January 2008, he started his own automotive body repair business

. That same month, he applied for a nd 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 retu rn s . 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# 26695

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- return s in an attempt to defeat or evade the tax in violation of SDCL 10

- 45

- 27.3 and
SDCL 10

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- 48.1(1). 1 [¶ 4. ] Guthmiller moved to dismiss the indictment. He claimed that under the terms of the Fort Laramie Treaty of 186 8, 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. ” Alt hough 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 th ose 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

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- 27 .3 provides: Any pers on 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 t he department. SDCL 10

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- 48.1(1) provides: “Any person who: (1) Makes any false or fr audulent 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[.]”# 26695

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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. T he investigator presented evid ence indicating that Guthmiller performed taxable services during each tax

- reporting period but failed to remit sales tax

. Although Guthmiller ostensibly report ed all his gross sales during each period, t he 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 law s . 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 a n exemption certificate.” According to her, Guthmiller seemed to understand her explanation. In addition to her conversati ons 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 t hat 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 lack ed the specific intent to defeat or evade sales tax . He testified that he believed Rapid City was located in# 26695

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- Indian Country, and therefore, as a tribal member, h is 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 strike s 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, o nce 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 cou rt’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 finding s 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 c ourt 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 pere mptory 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.” ).# 26695

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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 thi s 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 proces s, 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 indic ated 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 roo m [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. A s 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 wo rd the entire morning. I didn’t even see him shake his hea d 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 fo llow 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 o ther, so it was kind of conspicuous. That’s why I exercised on tho se three.# 26695

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- Court : All right. Well, when the question was asked whether ther e [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 peo ple 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 d on’ 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 questi on. But I’m going to deny your motion. [¶ 14. ] The St ate 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 claim ed 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 discrimin ation. 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# 26695

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- implicitly conducts [the required] analysis when it accepts or rejects the State’s explanations for use of its pere mptory 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 challenge s 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. ] O n remand, the court should first determine whether Guthmiller “satisfie[d] the req uirements 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 Su preme 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 int ent is inherent in the

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. 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. 4 00, 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] Sta te used its peremptory challenges for race

- based reasons.” Id. (citing Powers , 499 U.S. at 416, 111 S. Ct. at 1373

- 74).# 26695

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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 pr oving purposeful [racial] discrimination.” See Scott , 2013 S.D. 31, ¶ 21, 829 N.W.2d at 466 (citing Snyder v. Louisiana , 5 5 2 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 17 71 ))

. 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 fo r 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. D retke , 545 U.S. 231, 251

- 52, 125 S. Ct. 2317, 2331

- 32, 162 L. Ed. 2d 196 (2005)).# 26695

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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

c ourt concludes that [Guthmiller] proved purposeful [racial] discrimination

. . . , [Guthmiller’s] conviction [s] should be vacated and a new trial ordered.” See i d. ¶ 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 omitte d). O ur 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, afte r 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 al l 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 belief s negate specific intent. Guthmiller misconstrues Cheek

.# 26695

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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 assert s that Cheek require d the jury to find that his claimed good

- faith belief negate d his specific intent

. Cheek does not dem and that re sult

. [¶ 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 20 3 (“[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 disbe lieve 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 under stand 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 , t he State presented evidence that a rational juror could find sufficient to demonstrate# 26695

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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 can celled. 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

. S ee 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 t he evidence was sufficient to sustain the convictions , we affirm the circuit court’s denial of Guthmiller’s motion for judgment of acquittal

.# 26695

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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.