#27473-a-JMK

2016 S.D. 93

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

CHRISTOPHER DAVID UHING, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE JONI M. CUTLER

Judge

* * * *

MARTY J. JACKLEY

Attorney General

GRANT FLYNN

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff 

and appellee. 

WANDA HOWEY-FOX of

Harmelink, Fox & Ravnsborg

Yankton, South Dakota Attorneys for defendant 

and appellant.

* * * *

CONSIDERED ON BRIEFS 

ON AUGUST 29, 2016

OPINION FILED 12/14/16
#27473

-1-

KERN, Justice

[¶1.] Defendant was indicted for eight drug-related offenses in March 2014. 

He was convicted of seven of the eight counts, six of which were felonies. The trial 

court sentenced him to an aggregated total of 45 years in the penitentiary and 30

days in the county jail. The court suspended all but 6 years and 30 days of the 

prison sentence and ordered that the county jail sentence run concurrently. On 

appeal, defendant contends he is entitled to a new trial because there was 

insufficient evidence to convict him at trial. He also alleges that his sentence 

constituted cruel and unusual punishment under the Eighth Amendment. We 

affirm.

Background 

[¶2.] Christopher Uhing resided in Sioux Falls with his girlfriend, Brooke 

Schrempp. The residence was located within a drug-free zone near an elementary 

school. Sioux Falls Area Drug Task Force Detective John Spaeth received 

numerous tips that the occupants of the residence were dealing drugs. Officers 

began surveillance on the home and observed a number of vehicles associated with 

drug trafficking stopping at the home for short intervals. Officers conducted a 

traffic stop of one vehicle after it left the residence. A search of the driver revealed 

nearly a gram of hashish and an ounce of marijuana. The following day, Detective 

Spaeth obtained a warrant for the search of the home. During the search, officers 

found evidence of drug use and distribution including more than one-half pound of 

marijuana, drug paraphernalia, pipes, a digital scale, jeweler’s baggies, and a safe 

containing money, drugs, and another digital scale. Additionally, the officers found 
#27473

-2-

equipment and supplies for a marijuana growing operation. The officers also 

discovered items used to manufacture hashish. Such supplies included two capped 

tubes with holes drilled through the caps. One was packed with compressed 

marijuana. The search also revealed 44 empty cans of butane and large bags with 

mesh bottoms used to filter marijuana to make hashish. 

[¶3.] Uhing and Schrempp were indicted as codefendants and charged with 

eight drug-related offenses: (1) possession of one-half pound but less than one pound

of marijuana, a class 5 felony, in violation of SDCL 22-42-6; (2) possession of onehalf pound but less than one pound of marijuana with the intent to distribute or 

dispense marijuana, a class 4 felony, in violation of SDCL 22-42-7 (minimum 

mandatory sentence of thirty days); (3) possession of a controlled substance, to wit 

hashish, a class 5 felony, in violation of SDCL 22-42-5; (4) possession of a controlled 

substance, to wit cocaine, a class 5 felony, in violation of SDCL 22-42-5; (5) keeping 

or maintaining a place where controlled substances are kept, used or sold, a class 5 

felony, in violation of SDCL 22-42-10; (6) possession of one-half pound but less than 

one pound of marijuana with the intent to distribute or dispense marijuana within 

one thousand feet of an elementary school, a class 4 felony, in violation of SDCL 22-

42-19 (minimum mandatory sentence of five years to run consecutively to the 

sentence for the principal felony); (7) possession with intent to manufacture, 

distribute, or dispense a controlled drug or substance listed in schedule I, to wit

hashish, a class 4 felony, in violation of SDCL 22-42-2 (minimum mandatory one 

year sentence); and (8) possession with intent to use drug paraphernalia, a class 2 

misdemeanor, in violation of SDCL 22-42A-3. 
#27473

-3-

[¶4.] The day prior to Uhing and Schrempp’s joint trial, the State moved to 

amend the indictment as to Counts 3 and 7, removing the word “hashish” and 

replacing it with “Delta-9-tetrahydrocannibinol AKA hashish.” Uhing, having 

previously agreed to stipulate to the amendment, did not object to the State’s 

request. 

[¶5.] At trial, Detective Spaeth testified regarding his investigation and the 

various methods of manufacturing hashish. He described one method of making 

hashish which involves flushing a solvent, such as butane, over marijuana placed in 

a container. The solvent causes the concentrated marijuana to liquefy so that it can 

be filtered. Officers also discovered a glass jar containing a filter with fine green 

powder at the bottom. Detective Matia testified that this jar and filter were 

consistent with another method of manufacturing hashish using dry ice. The empty 

tube, green powder, and the bags found in the residence tested positive for Delta-9-

Tetrahydrocannibinol. Detective Spaeth also testified that some of the items found 

in the residence were indicative of distribution including the jeweler’s bags and 

digital scales containing marijuana residue. He told the jury that digital scales 

were commonly used to weigh marijuana before packaging. He estimated the street 

value of the .53 pounds of marijuana found in the house at $2,400. He also testified 

about his interview with Schrempp shortly after her arrest. Schrempp admitted to 

Detective Spaeth that she sold marijuana from the residence to someone who was 

“busted” the day before the search. Detective Spaeth also testified about finding a 

message on Schrempp’s phone from someone who “need[ed] a bag.” Schrempp did 

not testify at trial. 
#27473

-4-

[¶6.] Uhing did testify, however, and told the jury that he smoked 

marijuana and hashish and knew both substances were in the residence. He 

testified that he previously lived in Colorado and had a license to grow marijuana 

for medical use and had made hashish using the “ice water” method. He explained 

that the items found in the house were supplies from his activities in Colorado. He 

denied growing marijuana, manufacturing hashish, or selling either substance in 

South Dakota. Uhing stated that he bought marijuana in bulk, usually in quarter 

pound increments, for his own personal use as he received a better price by buying 

larger quantities. The scales were only to verify that he received the amount of 

marijuana that he paid for in his drug transactions. 

[¶7.] At the close of the State’s case, Uhing moved for a judgment of 

acquittal, which the trial court denied. During jury deliberations, the jury 

submitted a written question to the court stating, “Can we get the portion of 

Detective Spaeth’s testimony regarding [Schrempp’s] initial interview after arrest?” 

The trial court did not notify the parties that it had received a question from the 

jury. Instead, the court sent the jury the preliminary jury instructions highlighting 

a portion of Instruction Number 4. The highlighted portion read, “At the end of the 

trial, you must make your decision based upon what you recall of the evidence. You 

will not have the written transcript to consult, and the court reporter will not be 

required to read back lengthy testimony. Therefore, you should pay close attention 

to the testimony as it is presented.” After the jury reached a verdict, the trial court 

informed counsel on the record of the question and the court’s method of answering 

the question. Uhing did not object to the action taken by the trial court. 
#27473

-5-

[¶8.] The jury convicted Uhing on all counts except for Count 4, possession 

of cocaine. The court sentenced Uhing for the seven offenses to an aggregated total 

of 45 years in the state penitentiary and 30 days in the county jail. However, the 

court suspended all but 6 years and 30 days of the penitentiary sentence and 

ordered that Uhing’s 30-day jail sentence be served concurrently. 

[¶9.] Uhing appeals his conviction and sentence, arguing five issues: 

1. Whether the trial court erred by denying Uhing’s motion

for acquittal at the close of the State’s case.

2. Whether the trial court erred by allowing the State to 

amend the indictment the day prior to trial. 

3. Whether the trial court erred by not instructing the jury 

as to specific intent. 

4. Whether the trial court erred by failing to notify the 

parties of the jury question. 

5. Whether Uhing’s sentence violates the Eighth 

Amendment to the United States Constitution. 

Decision

Insufficiency of the evidence

[¶10.] Uhing first argues that the State failed to present sufficient evidence 

to sustain a conviction and that the court erred in denying his motion for acquittal. 

The standard of review for denial of a motion for judgment of acquittal is de novo. 

State v. Doap Deng Chuol, 2014 S.D. 33, ¶ 36, 849 N.W.2d 255, 264. In reviewing 

this ruling, we determine “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.” State v. Plenty Horse, 2007 S.D. 

114, ¶ 5, 741 N.W.2d 763, 765; see also State v. Shaw, 2005 S.D. 105, ¶ 19, 705 
#27473

-6-

N.W.2d 620, 626. “If the evidence, including circumstantial evidence and 

reasonable inferences drawn therefrom sustains a reasonable theory of guilt, a 

guilty verdict will not be set aside.” State v. Hauge, 2013 S.D. 26, ¶ 12, 829 N.W.2d 

145, 149. 

[¶11.] Uhing repeatedly asserts that there was no proof presented at trial of 

his intent to distribute illegal drugs, nor was there any evidence that he was 

engaged in manufacturing illegal drugs. However, “[t]he State may . . . prove all 

elements of an offense through circumstantial evidence.” State v. Fischer, 2016 S.D. 

1, ¶ 26, 873 N.W.2d 681, 692. This case is similar to our decision in State v. 

Overbey, where we upheld a conviction for possession with the intent to distribute 

based on the quantities of the drugs found and the presence of a digital scale. 2010 

S.D. 78, ¶ 29, 790 N.W.2d 35, 43. In this case, the police found items in Uhing’s 

house that are commonly used both for distribution and the manufacture of 

hashish. As evidence of distribution, law enforcement discovered digital scales 

covered with marijuana residue and jeweler’s baggies. Uhing also admitted to 

possessing large amounts of marijuana; and Schrempp, Uhing’s girlfriend, admitted 

to police that she had sold both hashish and marijuana from the residence the day 

before the warrant was executed.1 Meanwhile, the presence of the 44 empty cans of 

butane, large bags with mesh bottoms, the glass jar containing a filter, and capped 

tubes with holes serve as evidence of manufacturing. Detective Spaeth testified 

 

1. Schrempp actually told Detective Spaeth that both she and Uhing sold drugs. 

But to avoid any issues regarding the admissibility of interlocking 

confessions of codefendants under United States v. Bruton, 391 U.S. 123, 88 

S. Ct. 1620, 20 L. Ed. 2d 476 (1968), the trial court excluded any reference to 

Uhing in Schrempp’s statements offered at trial. 
#27473

-7-

that such items are used in the manufacture of hashish, and forensic testing by the

State’s expert revealed hashish residue on these items. Uhing further testified that 

he had previously grown marijuana and manufactured hashish in Colorado.

[¶12.] Uhing’s testimony that the items were used exclusively in Colorado 

presented a credibility determination for the jury’s resolution. “[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.’” State v. 

Guthmiller, 2014 S.D. 7, ¶ 27, 843 N.W.2d 364, 372 (quoting State v. Dowty, 2013 

S.D. 72, ¶ 15, 838 N.W.2d 820, 825). While it may be true that the State did not 

present any direct evidence indicating Uhing’s intent to distribute marijuana or

manufacture hashish, the State did present a substantial amount of circumstantial 

evidence from which the jury could have deduced Uhing’s guilt. There was 

sufficient evidence to sustain the convictions. The court did not err by denying 

Uhing’s motion for acquittal. 

 Amendment of the Indictment

[¶13.] Uhing next argues that the court should not have permitted the State 

to amend the indictment the day prior to trial. However, Uhing agreed to this 

amendment at trial and offered no objection. Nor does he argue on appeal that the 

court’s failure to do so was plain error. As Uhing failed to raise the issue below, he 

waives its consideration on appeal. State v. Miller, 2014 S.D. 49, ¶ 9 n.1, 851 

N.W.2d 703, 705, n.1 (quoting State v. Roach, 2012 S.D. 91, ¶ 27, 825 N.W.2d 258, 

266) (“[F]ailure to object at trial constitutes a waiver of that issue on appeal.”). 
#27473

-8-

Specific Intent Instruction

[¶14.] Uhing argues that the court should have instructed the jury that the 

offenses of possession with intent to distribute marijuana and possession with 

intent to manufacture, distribute, or dispense a controlled drug or substance, listed 

in schedule I were specific intent crimes. In support of this argument, Uhing draws 

our attention to State v. Liaw, 2016 S.D. 31, 878 N.W.2d 97. However, that case is 

distinguishable. Importantly, the defendant in Liaw requested and proposed in 

writing an alternative jury instruction on specific intent preserving the issue for 

appeal. Id. ¶ 6. Uhing, however, made no such request either orally or in writing. 

Because Uhing failed to preserve this question by requesting a proposed jury 

instruction for the court’s consideration, the issue is waived on appeal. State v. 

Talarico, 2003 S.D. 41, ¶ 33, 661 N.W.2d 11, 23 (holding an issue regarding jury 

instructions waived when the party did not propose an alternative instruction at 

trial). As with the preceding issue, Uhing did not argue that the trial court’s 

decision to give a general intent instruction was plain error. 

Jury Question

[¶15.] Uhing argues that the court erred by failing to notify the parties of the 

jury’s question. However, when the trial court made a record regarding the jury’s 

question, Uhing failed to object. Although Uhing argues that the manner in which 

the court handled the question constitutes plain error, he cites no authority in 

support of this assertion. Accordingly, Uhing has waived consideration of this issue 

on appeal. State v. Golliher-Weyer, 2016 S.D. 10, ¶ 17, 875 N.W.2d 28, 34 (citing 
#27473

-9-

State v. Pellegrino, 1998 S.D. 39, ¶ 22, 577 N.W.2d 590, 599 (failure to cite authority 

waives the issues)).

Cruel and Unusual Punishment

[¶16.] Lastly, Uhing argues that his sentence was cruel and unusual in 

violation of the Eighth Amendment to the United States Constitution. Our review 

of an Eighth Amendment challenge consists of comparing the gravity of the offense 

to the harshness of the penalty. State v. Traversie, 2016 S.D. 19, ¶ 16, 877 N.W.2d 

327, 332. “This comparison rarely ‘leads to an inference of gross disproportionality’ 

and typically marks the end of our review[.]” State v. Chipps, 2016 S.D. 8, ¶ 38, 874 

N.W.2d 475, 489 (quoting State v. Garreau, 2015 S.D. 36, ¶ 9, 864 N.W.2d 771, 775).

But “[i]f the penalty imposed appears to be grossly disproportionate to the gravity of 

the offense, then we will compare the sentence to those ‘imposed on other criminals 

in the same jurisdiction’ as well as those ‘imposed for commission of the same crime 

in other jurisdictions.’” Id. (quoting Solem v. Helm, 463 U.S. 277, 291, 103 S. Ct. 

3001, 3010, 77 L. Ed. 2d 637 (1983)).

[¶17.] First, we examine the gravity of the offense, i.e., “the offense’s relative 

position on the spectrum of all criminality.” Id. ¶ 35. Uhing was convicted of one 

misdemeanor and six felony drug crimes including possession with the intent to 

manufacture and distribute a schedule I controlled drug. While these crimes are 

classified as nonviolent in nature, they are nonetheless serious felonies. “Selling 

drugs is a harsh and unsavory business. . . . Drug abuse has devastated countless 

American youth to include young South Dakotans. Drugs are a peril to our society. 

Our [L]egislature, recognizing this, made [manufacture and distribution of certain 
#27473

-10-

controlled substances and marijuana] a felony—a harsh crime.” See State v. Pettis, 

333 N.W.2d 717, 720 (S.D. 1983). Additionally, “the circumstances of the crime of 

conviction affect the gravity of the offense.” Chipps, 2016 S.D. 8, ¶ 36, 874 N.W.2d 

at 488. Here, there was substantial evidence that the defendant was distributing 

marijuana and involved in the manufacture and distribution of controlled 

substances, and, to make matters worse, all within a few hundred feet of an 

elementary school. Uhing’s offenses are serious crimes on the spectrum of 

criminality.

[¶18.] Next, we examine the harshness of the penalty, i.e., “the penalty’s 

position on the spectrum of all permitted punishments.” Rice, 2016 S.D. 18, ¶ 19, 

877 N.W.2d at 82 (quoting Chipps, 2016 S.D. 8, ¶ 37, 874 N.W.2d at 488). The most 

severe punishments authorized by the Legislature include the death penalty (class 

A felonies), mandatory life in prison (class A and B felonies) and nonmandatory life 

sentences (class C felonies). Uhing argues that his aggregate prison term of 45 

years is grossly disproportionate. Initially, this Court has determined that, “[w]hen 

reviewing sentences, we evaluate the individual sentence for each count, opposed to 

scrutinizing the aggregate sentence.” State v. Dubois, 2008 S.D. 15, ¶ 41, 746 

N.W.2d 197, 210; see also State v. Buchhold, 2007 S.D. 15, ¶¶ 30-33, 727 N.W.2d 

816, 823-24.2 Moreover, Uhing does not consider the fact that the court suspended 

 

2. In Buchhold, we stated that “imposition of consecutive sentencing is a 

discretionary matter for the sentencing court[.]” Buchhold, 2007 S.D. 15, ¶ 

33, 727 N.W.2d at 824. As such, we review sentences individually rather 

than in the aggregate. Dubois, 2008 S.D. 15, ¶ 41, 746 N.W.2d at 210. To 

otherwise enable a defendant to seek review of an aggregated sentence could 

produce “the ridiculous consequence of enabling [an offender], simply by 

 (continued . . .)
#27473

-11-

most of his sentence. Uhing must serve 5 years of his 10-year sentence for Count 6 

(possession with intent to distribute in drug-free zone), one year of his 10-year 

sentence for Count 7 (possession with intent to manufacture controlled substance), 

30 days of his 10-year sentence for Count 2 (possession with intent to distribute 

more than one-half pound to one pound of marijuana), and 30 days in jail for Count 

8 (possession of drug paraphernalia). His sentences for Counts 1, 3, and 5 were 

suspended in their entirety, leaving Uhing to serve a total of 6 years and 30 days in 

the penitentiary and 30 days in the county jail to run concurrently. Uhing will be 

eligible for parole, which will reduce the amount of time he will actually serve, 

further diminishing the harshness of the sentence. See Chipps, 2016 S.D. 8, ¶ 37, 

874 N.W.2d at 488 (“The possibility of parole is also considered in judging the 

harshness of the penalty.”). Although Uhing will be under supervision for many 

years, he committed a number of serious offenses. None of the individual sentences 

are excessively harsh. When comparing the penalty to the most severe 

_________________________________

(. . . continued)

recidivating, to generate a colorable Eighth Amendment claim.” Pearson v. 

Ramos, 237 F.3d 881, 886 (7th Cir. 2001). Such a review, moreover, “would 

require us to find that virtually any sentence, however short, becomes cruel 

and unusual punishment when the defendant was already scheduled to serve 

lengthy sentences for prior convictions.” United States v. Schell, 692 F.2d 

672, 675 (10th Cir. 1982). 

Nevertheless, we do not foreclose the possibility that in an extreme case an 

aggregated sentence could be so severe as to generate an Eighth Amendment 

violation. We leave resolution of that question for an appropriate case. See

State v. Blair, 2006 S.D. 75, ¶ 78 n.22, 721 N.W.2d 55, 75 n.22 (Konenkamp, 

J., concurring in result) (“For example, consecutive sentences amounting to 

life in prison or for convictions on several offenses committed simultaneously 

may be such instances.”); see also State v. Bruce, 2011 S.D. 14, ¶ 47, 796 

N.W.2d 397, 410 (Severson, J., concurring) (“[W]e should be open to review 

aggregate penalties that conflict with constitutional principles.”)
#27473

-12-

punishments authorized by the Legislature, the harshness of the penalty received 

by Uhing is not disproportionate to the gravity of his offenses. Uhing’s sentence 

does not constitute cruel and unusual punishment under the Eighth Amendment. 

Conclusion 

[¶19.] The State presented sufficient evidence at trial to convict Uhing of the 

charges, and the trial court did not err by denying his motion for a judgment of 

acquittal. Uhing’s sentences did not violate the Eighth Amendment. Uhing failed 

to properly preserve his remaining issues for appeal.

[¶20.] Affirmed.

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

WILBUR, Justices, concur.