#24607-a-RWS 

2008 SD 94 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, 

 v. 

ZACHARIAH PALMER RYAN, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE FIFTH JUDICIAL CIRCUIT 

ROBERTS COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE JON S. FLEMMER 

Judge 

* * * * 

LAWRENCE E. LONG 

Attorney General 

CRAIG M. EICHSTADT 

Assistant Attorney General 

Pierre, South Dakota Attorneys for plaintiff 

and appellee. 

TERRY J. SUTTON of 

Sutton Law Offices, PC 

Watertown, South Dakota Attorney for defendant 

and appellant. 

* * * * 

CONSIDERED ON BRIEFS 

ON AUGUST 26, 2008 

 OPINION FILED 10/08/08 
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SABERS, Justice 

[¶1.] After a consent search revealed tablets of hydrocodone with 

acetaminophen and Ritalin, and a pen tube encrusted with pill residue, Zachariah 

Palmer Ryan was charged with three drug-related offenses. A jury found him guilty 

of two charges, but acquitted him of the other. Ryan appeals, alleging a Batson

violation and insufficient evidence to sustain the jury’s verdict. We affirm. 

FACTS 

[¶2.] At 1:30 a.m. on October 1, 2006, Ryan was riding as a passenger in a 

white Chevrolet Beretta in Sisseton, South Dakota. Trooper Larry Englund of the 

South Dakota Highway Patrol observed the car make a sharp turn causing the right 

front wheel to go off the road. He also noticed an exhaust leak and heard an 

exhaust sound coming from under the vehicle. Trooper Englund followed the 

vehicle for about a block and then signaled the vehicle to stop. 

[¶3.] Upon the stop, Trooper Englund noticed the strong odor of patchouli 

oil, which, in his training and experience, he knew to be a strong scent used to mask 

marijuana odors. He had the driver, Victoria White, accompany him to his car and 

obtained her permission to search her car.1 He also spoke with Ryan and obtained 

his consent to search his person. In Ryan’s front pocket, Trooper Englund found a 

metal cylinder with a screw-on lid that contained various prescription tablets. Ryan 

explained that the pills were hydrocodone and Ritalin and he had a prescription for 

both, the former for back pain and the latter for attention deficient hyperactivity 

1. Trooper Englund did not find anything illegal during the search of White’s 

car. 
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disorder. The search also revealed a pen tube that had been cut off and contained 

what appeared to be pill residue. Based on Trooper Englund’s training and 

experience, he thought the pen tube may have been used for snorting or ingesting 

either methamphetamine or cocaine. 

[¶4.] Ryan was placed under arrest and charged with three drug-related 

offenses: (1) ingestion of a substance other than alcohol for the purpose of becoming 

intoxicated; (2) unauthorized possession of a controlled substance (Hydrocodone); 

and (3) possession of drug paraphernalia. A trial was held on July 9 and 10, 2007. 

During voir dire, the State used four peremptory challenges to excuse four of the 

five Native Americans on the potential jury panel. Ryan objected to the peremptory 

challenges, claiming the State violated Batson. The State gave reasons for the 

peremptory challenges and the trial court found the State had nonracial reasons for 

using the peremptory challenges. 

[¶5.] At the close of trial, the jury found Ryan guilty of unauthorized 

possession of a controlled substance and possession of drug paraphernalia. 

However, he was acquitted of ingestion of a substance other than alcohol for the 

purpose of becoming intoxicated. The trial court sentenced Ryan to ten years with 

four suspended upon certain conditions. He was sentenced to thirty days in the 

county jail for the misdemeanor possession of drug paraphernalia charge. This 

sentence was to run concurrently with the sentence for unauthorized possession. 

However, these sentences were to run consecutively to the sentence Ryan was 

currently serving for a third offense driving under the influence charge. Ryan 

appeals raising the following issues: 
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1. Whether the trial court abused its discretion in denying 

Ryan’s Batson motion. 

2. Whether the trial court erred in denying Ryan’s motion for 

directed verdict based on insufficiency of the evidence. 

 

STANDARD OF REVIEW 

[¶6.] “[T]he finding of intentional discrimination is a factual determination.” 

State v. Owen, 2007 SD 21, ¶11, 729 NW2d 356, 362 (citing State v. Martin, 2004 

SD 82, ¶¶13, 16, 683 NW2d 399, 403, 405). Accordingly, we review an appeal 

alleging a Batson violation for the State’s use of peremptory challenges for clear 

error. Id. 

[¶7.] When we examine a challenge claiming insufficient evidence: 

[W]e determine “whether there is sufficient evidence in the 

record which, if believed by the jury, is sufficient to sustain a 

finding of guilt beyond a reasonable doubt; in making this 

determination, the Court will accept the evidence, and the most 

favorable inference fairly drawn therefrom, which will support 

the verdict.” State v. Owen, 2007 SD 21, ¶35, 729 NW2d 356, 

367 (quoting State v. Mesa, 2004 SD 68, ¶9, 681 NW2d 84, 87). 

“A guilty verdict will not be set aside if the state’s evidence and 

all favorable inferences that can be drawn therefrom support a 

rational theory of guilt.” State v. Swalve, 2005 SD 17, ¶5, 692 

NW2d 794, 797 (quoting State v. Phair, 2004 SD 88, ¶16, 684 

NW2d 660, 665 (quoting State v. Downing, 2002 SD 148, ¶22, 

654 NW2d 793, 800)). 

State v. Gard, 2007 SD 117, ¶12, 742 NW2d 257, 260-61. 

[¶8.] 1. Whether the trial court abused its discretion in 

denying Ryan’s Batson motion. 

[¶9.] The State exercised four peremptory challenges to remove four out of 

the five Native Americans from the jury and the State concedes that Ryan has 

established a prima facie case of purposeful discrimination. See Batson v. 

Kentucky, 476 US 79, 94-95, 106 SCt 1712, 1722, 90 LEd2d 69 (1986); see also
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Owen, 2007 SD 21, ¶45, 729 NW2d at 369 (citation omitted). Once a defendant has 

established a prima facie case, the State must come forward with race neutral 

explanations for exercising peremptory challenges. Batson, 476 US at 97, 106 SCt 

at 1723, 90 LEd2d 69. In this case, the State gave race neutral explanations, which 

the trial court accepted. 

[¶10.] Juror 1. Juror S.S. was struck by the State because the State had 

prosecuted her husband, who was currently on felony probation. S.S.’s son had also 

been prosecuted by the State.2 Ryan offered nothing further after the State gave 

these reasons and the court specifically noted that it “would find that there is a nonracial reason for exercising a pre-empt in the case of [S.S.] and the challenge to that 

peremptory challenge would be denied.” 

[¶11.] Juror 2. The State’s race neutral explanation for C.I. is that the State 

recently prosecuted C.I. for third offense DUI. Juror 3. The State indicated C.S.’s 

mother worked for the State’s attorney when she worked at Legal Services and that 

C.S.’s family is a neighbor to the Ryan family. Moreover, when C.S. was a juvenile 

she was prosecuted by the State. Juror 4. Finally, the State explained it had 

prosecuted some of Juror B.W.’s children and grandchildren. In all of these cases, 

2. In Ryan’s brief, he argues that the use of a “gut feeling” is not a race neutral 

reason to exclude a juror and indicated the State simply said, “I didn’t feel 

comfortable with her being a juror on behalf of the STATE.” However, the 

record reflects that the State’s complete sentence was: “Because of those 

relationships or the past history with her family [State’s prosecution of her 

husband and son], I didn’t feel comfortable with her being a witness or a juror 

on behalf of the State. . . . I continue to have concerns about that because of 

prior history with her husband and her son.” 
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the trial court accepted these explanations as non-racially motivated and denied the 

Batson challenge. 

[¶12.] In Owen, the State removed seven out of eleven Native Americans from 

the potential jury. In that case, we noted “‘that the findings underlying a district 

court’s Batson analysis depend largely on credibility evaluations,’” which requires 

deference to the trial court. 2007 SD 21, ¶47 n9, 729 NW2d at 369 n9 (quoting 

United States v. Maxwell, 473 F3d 868, 871, 873 (8thCir 2007)). Moreover, the 

explanations found to be race neutral in Owen are similar to the explanations in 

this case. Given the record and our case law, Ryan has not demonstrated that the 

trial court was clearly erroneous when it accepted the State’s explanations as race 

neutral and found the State had not engaged in purposeful discrimination when it 

exercised its peremptory challenges. 

[¶13.] Ryan argues, however, that the trial court did not complete the third 

step of the Batson analysis: whether the prosecutor’s race neutral explanation in 

exercising its challenges provide[s] “a ‘clear and reasonably specific’ explanation of 

[the prosecutor’s] ‘legitimate reasons’ for exercising the challenges.” Batson, 476 US 

at 98 n20, 106 SCt at 1724 n20, 90 LEd2d 69 (citing Texas Dep’t of Cmty. Affairs v. 

Burdine, 450 US 248, 258, 101 SCt 1089, 1096 (1981)). However, a trial court 

implicitly conducts this analysis when it accepts or rejects the State’s explanations 

for use of its peremptory challenges. There are not some “magic words” the trial 

court must use in order to fulfill a Batson analysis. As demonstrated above, the 

State provided race neutral explanations for using its peremptory challenges and 

the trial court specifically noted that it accepted these explanations as race neutral. 
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[¶14.] Finally, as the State indicates, Ryan did not engage in any 

comparative analysis; nor does the record indicate anything that suggests white 

jurors, who had been prosecuted by the State, had family prosecuted by the State or 

knew the defendant were kept on the jury, while the Native American jurors who 

exhibited these characteristics were struck from the jury. See Snyder v. Louisiana, 

___ US ___, 128 SCt 1203, 1211-12, 170 LEd2d 175 (2008).3 The trial court did not 

err in denying Ryan’s Batson challenge and we affirm issue 1. 

[¶15.] 2. Whether the trial court erred in denying Ryan’s motion 

for directed verdict based on insufficiency of the 

evidence. 

[¶16.] Ryan alleges there is insufficient evidence to sustain the guilty verdict 

of unauthorized possession of a controlled substance for two reasons. First, he 

argues there was insufficient evidence the pills were a controlled substance because 

the pills were not chemically analyzed and the State chemist testified he would 

need chemical analysis in order to determine the identity of the pills. Second, Ryan 

argues he had a valid prescription for hydrocodone; therefore, he claims his use of 

the controlled substance was authorized and not in violation of the statute. 

[¶17.] There is sufficient evidence on the record for the jury to find Ryan 

guilty of the offense.4 There was testimony from pharmacists that the pills were 10 

 (continued . . .) 

3. The United States Supreme Court found a discriminatory intent by 

comparing the answers of white jurors with those of the minority juror who 

was allegedly improperly stricken from the jury. Snyder, ___ US at ___, 128 

SCt at 1211-12, 170 LEd2d 175. 

4. Ryan only challenges the sufficiency of the evidence in relation to the 

unauthorized possession of a controlled substance charge and not the 
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_________________________ 

(. . . continued) 

mg hydrocodone with 650 mg acetaminophen. Ryan had a prescription for 

Hydrocodone 7.5 mg with 500 mg acetaminophen. The testimony revealed that the 

pills dispensed to Ryan through Indian Health Services were 20 pills containing 7.5 

mg of hydrocodone and 500 mg acetaminophen. The pills in Ryan’s possession were 

stronger than the ones obtained by his prescription. He was not authorized to 

possess pills of this strength and therefore was in violation of the statute. 

[¶18.] Moreover, there is no need to chemically analyze the pills in order to 

determine whether they were hydrocodone. The pen tube residue was determined 

to be hydrocodone, Ryan admitted some of the pills were hydrocodone, and a urine 

sample taken immediately after Ryan’s arrest contained hydrocodone. A 

pharmacist testified that the pills were 10 mg hydrocodone from the stamped 

markings of “Watson 503” on the pills. The pharmacist testified that he can tell 

what substance a pill contains by observation. While the chemists may need 

chemistry to determine composition, the pharmacist testified he knows the 

substance based on observation alone. At most there may be conflicting testimony 

between the chemist and pharmacist on identification of the pills, but the jury, by 

virtue of its verdict, resolved the conflict and believed the pharmacist could identify 

the type and strength of the pills. There is more than enough evidence on the 

record for the jury to find these pills contained 10 mg hydrocodone. Hydrocodone is 

a controlled substance and 10 mg was more than Ryan’s prescription authorized 

possession of drug paraphernalia charge. The residue in the pen was 

chemically analyzed and found to be hydrocodone. 
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and more than he could obtain from Indian Health Services. It is well settled that 

we will not set aside a guilty verdict “‘if the state’s evidence and all favorable 

inferences that can be drawn therefrom support a rational theory of guilty.’” Gard, 

2007 SD 117, ¶12, 742 NW2d at 260 (quoting State v. Swalve, 2005 SD 17, ¶5, 692 

NW2d 794, 797) (citations omitted). There was sufficient evidence to find Ryan 

guilty of unauthorized possession of a controlled substance and the jury’s verdict 

stands. 

[¶19.] Affirmed. 

[¶20.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and 

MEIERHENRY, Justices, concur.