State v. Johnson

#24721-aff in pt, rev in pt & rem-GAS

2009 SD 67

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

ANTHONY CLIFFORD JOHNSON, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE THIRD JUDICIAL CIRCUIT

BEADLE COUNTY, SOUTH DAKOTA

* * * *

HONORABLE JON R. ERICKSON

Judge

* * * *

LAWRENCE E. LONG

Attorney General

ANN C. MEYER

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff

and appellee.

JASON R. ADAMS of

Tschetter & Adams Law Office, PC

Sioux Falls, South Dakota Attorneys for defendant

and appellant.

* * * *

ARGUED APRIL 29, 2009

OPINION FILED 07/29/09

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SEVERSON, Justice.

[¶1.] The circuit court admitted into evidence certain statements to which

Anthony Johnson objected. Johnson was subsequently found guilty of distribution

of one ounce or less of marijuana and possession of two ounces or less of marijuana.

He appeals. We affirm in part, reverse in part, and remand for retrial.

FACTS

[¶2.] On April 3, 2007, Otto Lewis was at the Huron Police Department

(Police Department) on a shoplifting charge. 1 Detective Jamie Gogolin previously

used Lewis as an informant to aid in controlled drug purchases. When Lewis

initially agreed to be an informant, he agreed to make four controlled buys for the

Police Department. As of April 3, 2007, Lewis had only completed three of the buys.

Detective Gogolin reminded Lewis of their agreement. Lewis offered to purchase

drugs from Anthony Johnson at 360 Frank Avenue Southeast in Huron, South

Dakota. 2

[¶3.] Detective Gogolin and Lewis decided to complete the controlled buy on

the same date. Detective Gogolin asked Lewis to call Johnson to see if he had any

marijuana for sale. Because Lewis did not know whether Johnson had a phone or

what his phone number was, Lewis offered to drive to Johnson’s house to ask him.

1. Lewis was never prosecuted for this charge.

2. Detective Gogolin testified he never directed any of his informants from

whom to buy drugs “[b]ecause [he] want[s] [the informants] to feel

comfortable in the situation they are in when they have a wire on them. And

by going back to the same person they have bought drugs from in the past,

they are comfortable with that. And they know the terminology that people

use, because different people talk about drugs in different ways.”

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Followed by Detective Gogolin, Lewis drove to the residence, went inside, and after

a few minutes came out and returned to the Police Department. At the Police

Department, Lewis stated that Johnson had marijuana to sell. Subsequently,

Lewis’s person and vehicle were searched for drugs and money, a wire transmitter

was placed on him, and he was given $50 3 to purchase the marijuana.

[¶4.] Lewis returned to the address in question. Detective Gogolin, along

with Chief Deputy Douglas Solem of the Beadle County Sheriff’s Office, also

returned and parked the patrol car around the corner, out of sight from the

residence. 4 Neither Detective Gogolin nor Chief Deputy Solem could see inside the

house. Detective Gogolin testified that while at the residence, no one other than

Lewis entered or exited the house, nor did any vehicles stop at the residence. From

the patrol car, Detective Gogolin and Chief Deputy Solem listened to and recorded

the conversation transpiring in the residence. Three voices were identified on the

recording, and Detective Gogolin testified they belonged to Lewis, Johnson, and

Johnson’s wife, Vanessa. 5 However, Detective Gogolin was uncertain as to whether

anyone else was present in the house while Lewis was there.

3. Detective Gogolin made a photocopy of the $50 bill, and testified this was

customary practice for controlled buys because it enabled him to later

identify the bill by its serial number.

4. As backup, Detective Gene Miller of the Huron Police Department was within

the vicinity of the residence, but out of the view of the resident occupants.

His car was similarly equipped with a monitor, allowing him to hear the

conversation within the house. He was unable to see into the residence.

5. Based on his prior contact with Johnson and Vanessa, Chief Deputy Solem

testified that he could also identify their voices on the audio recording, but

(continued . . .)

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[¶5.] The audio recording reveals no specific mention of drugs, marijuana or

money during the conversation. There was no negotiation as to price or amount of

marijuana. However, there was a question, by a male voice (later identified as

Johnson’s), about who “it” was for and a reference by the same voice about “it” being

“juiced up a little.” Detective Gogolin testified that, based on his experience and

training, this was a reference to drugs. He further testified that participants in a

drug transaction rarely discuss the events transpiring. Detective Gogolin

explained, “If [a confidential informant] went into the place and walked up and

introduced [himself] and said hi to the person [he was] buying from and [said] that

[he was] there to get a controlled drug, the [seller] would be very suspicious that the

[buyer] had a wire on and wouldn’t sell to [him].”

[¶6.] After leaving the residence, Lewis returned to the Police Department

and turned over a plastic bag containing 0.12 ounces of marijuana. He was

debriefed by Detective Gogolin as to the specifics of what transpired within the

residence. Lewis and his vehicle were searched a second time. No other drugs were

discovered and the $50 was not found. Detective Gogolin testified he made no

attempt to recover the $50 from Johnson or his residence. He explained this was

normal because it allowed for the informants’ identities to remain confidential so

they could be used in the future.

________________________

(. . . continued)

admitted he was not a voice identification expert, nor received any training in

voice identification.

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[¶7.] On June 22, 2007, Johnson was charged with distribution of one ounce

or less of marijuana in violation of SDCL 22-42-7, and possession of two ounces or

less of marijuana in violation of SDCL 22-42-6. Prior to the motions hearing and

jury trial, Lewis died from circumstances unrelated to this case. He was never

subjected to cross-examination.

[¶8.] Johnson filed two motions in limine, a motion to suppress the evidence,

and a motion to dismiss the case. These motions related to Lewis’s conversations

with Detective Gogolin after the alleged controlled buy and the audio recording of

the conversation that transpired between Lewis, Johnson, and Vanessa. Johnson’s

motion to suppress the evidence and motion in limine were denied, but the motion

to dismiss was taken under advisement. In its memorandum opinion, the circuit

court suppressed the conversation between Lewis and Detective Gogolin after the

alleged buy, but allowed the jury to hear the recorded conversation between Lewis,

Johnson, and Vanessa.

[¶9.] The trial commenced on September 13, 2007. Immediately before voir

dire, the court ruled that Detective Gogolin could testify that Lewis told him that he

could purchase drugs from Johnson. During trial, Johnson stipulated that he and

his family lived at the address in question, and that Lewis had returned from that

address with a bag of marijuana, weighing 0.12 ounces. At the close of the State’s

case, the court denied Johnson’s motion for a judgment of acquittal. The jury

returned guilty verdicts. Johnson pleaded guilty to being a habitual offender and

was sentenced to four years in prison for the distribution charge, and to time served

for the possession charge. Johnson appeals, raising two issues:

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1. Whether Johnson’s Sixth Amendment right to confront witnesses

was violated when statements were admitted into evidence even

though the declarant was unavailable and Johnson had no

opportunity to cross-examine him.

2. Whether there was sufficient evidence presented to prove beyond a

reasonable doubt the elements of distribution of one ounce or less of

marijuana and possession of marijuana.

STANDARD OF REVIEW

[¶10.] We review an assertion of a violation of a constitutional right under

the de novo standard of review. State v. Selalla, 2008 SD 3, ¶18, 744 NW2d 802,

807 (citation omitted). We review the sufficiency of the evidence under the

following standard:

“In determining the sufficiency of the evidence on appeal in a

criminal case, the issue before this Court is whether there is

evidence in the record which, if believed by the jury, is sufficient

to sustain a finding of guilt beyond a reasonable doubt.” In

making that determination, “we accept the evidence and the

most favorable inferences fairly drawn therefrom, which will

support the verdict.” Moreover, “the jury is . . . the exclusive

judge of the credibility of the witnesses and the weight of the

evidence.” Therefore, this Court does not resolve conflicts in the

evidence, or pass on the credibility of witnesses, or weigh the

evidence. State v. LaPlante, 2002 SD 95, ¶19, 650 NW2d 305,

310 (internal citations omitted). Thus, “[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. Jones, 521 NW2d 662, 673 (SD 1994)

(citation omitted).

State v. Mulligan, 2007 SD 67, ¶7, 736 NW2d 808, 812-13 (quoting State v.

Pasek, 2004 SD 132, ¶7, 691 NW2d 301, 305).

[¶11.] 1. Whether Johnson’s Sixth Amendment right to confront

witnesses was violated when statements were admitted

into evidence even though the declarant was unavailable

and Johnson had no opportunity to cross-examine him.

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[¶12.] Prior to trial, Johnson filed several motions concerning the audio

recording of the conversation at Johnson’s residence during the alleged controlled

buy and the conversation between Detective Gogolin and Lewis at the Police

Department following the alleged buy. In its written opinion, the circuit court

suppressed the latter portion of the audio recording involving the conversation

between Detective Gogolin and Lewis, but allowed the remainder of the recording

involving the conversation that transpired within Johnson’s residence. Following

voir dire but prior to opening statements, Johnson made an oral motion in limine

seeking to preclude Detective Gogolin from testifying as to anything Lewis told

Detective Gogolin. In response, the court limited Detective Gogolin’s testimony as

follows:

[Detective] Gogolin can testify that [Lewis] was an informant.

That [Lewis] came to him and said I can make a buy from Mr.

Johnson. That is it. He can testify that he followed him over to

the house and all of that, but he can’t testify about anything else

that was said to him. . . . The only statement he can make is

the informant volunteered that he could make a buy from the

defendant.

Accordingly, Detective Gogolin testified that Lewis told him he was going to buy

drugs from Johnson, and the audio recording was played to the jury, revealing the

conversation that transpired within Johnson’s residence. Johnson alleges that

admitting these statements violated his constitutional right to confrontation

pursuant to the Sixth Amendment and Crawford v. Washington, 541 US 36, 124

SCt 1354, 158 LEd2d 177 (2004). The State asserts Johnson waived this issue

because his motions were predicated upon hearsay and inadmissible evidence

grounds, rather than Confrontation Clause grounds. Alternatively, should this

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Court address the issue, the State maintains that the statements were

appropriately admitted.

[¶13.] We first consider the State’s argument that Johnson waived this issue.

Johnson contends that his argument to the circuit court asserting his inability to

cross-examine Lewis was sufficient to preserve the Confrontation Clause issue for

appeal. Moreover, he argues that pursuant to SDCL 19-9-3, he was not required to

object during trial or make an offer of proof to preserve the issue for appeal because

the circuit court previously made a definitive ruling regarding admissibility of the

statements.

[¶14.] With respect to the audio recording, the written motions filed prior to

trial sought to exclude the audio recording, or portions thereof, on several grounds,

including hearsay, prejudice, irrelevance, and the right to confront and cross-

examine witnesses. Admittedly, Johnson did not allege each of these grounds in

each motion. Nonetheless, he asserted the general right to confrontation with

respect to all of the motions during the August 28, 2007 motions hearing. In its

memorandum opinion, the court, discussing Johnson’s right to cross-examine his

witnesses, suppressed a portion of the audio recording deeming it to violate

Crawford, but ultimately allowed the remainder of the recording. SDCL 19-9-3

(Rule 103(a)) provides in part: “Once the court makes a definitive ruling on the

record admitting or excluding evidence, either at or before trial, a party need not

renew an objection or offer of proof to preserve the claim of error for appeal.”

Although, no federal or state case law defining “definitive” was discovered, the

dictionary definition provides in part, “[d]etermining finally; decisive . . .

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[a]uthoritative and complete.” Am. Heritage Dictionary 375 (2ded 1991). The

court’s ruling to admit certain evidence and exclude other evidence was a final and

authoritative determination regarding admission of this evidence; it was definitive.

Therefore, the ruling preserved for appeal Johnson’s Confrontation Clause claim

regarding the audio recording.

[¶15.] Regarding Lewis’s statement to Detective Gogolin, Johnson did not

move to preclude this statement until immediately prior to voir dire. The following

exchange took place:

Defense counsel: [I]n the pretrial motions hearing, Officer

Gogolin talked a lot about the [confidential informant (CI)]

telling him that he would be able to make a buy from the

defendant, etc., I would – based on the Court’s opinion, it’s

my understanding that anything that the confidential

informant told Officer – or Officer Gogolin is excluded.

And so I’m making a motion in limine that Detective

Gogolin not be allowed to testify as to things the CI told him

before the buy. At the pretrial motions hearing, we talked

about he went to the house, and he would be able to make

this buy with the defendant. And I’m asking that that be

excluded.

State’s Attorney: Well, Your Honor, obviously, we would like

to offer that testimony. And I would base my objection to

the motion on the fact that I don’t believe it fits within what

it’s being offered for, to prove the truth of the matter

asserted. I – it’s more – goes to both the informant and the

detective’s state of mind. And that is an exception to

hearsay.

Defense counsel: Your Honor, it’s clearly hearsay; that the

defense is not going to be able to cross-examine the

confidential informant on – relative to his motivation, his

intentions, his biases, what his reason was for doing the

buy. A number of things.

So again, I would ask for a motion in limine that the

Court instruct the State not to allow Officer Gogolin to

testify to anything at this point, anything the CI has said to

the officer. I think the CI – the only thing we should hear

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from the CI is on the tape, relative to what happened in the

house or didn’t happen in the house.

Thereafter, the court limited Detective Gogolin’s testimony, only allowing him to

testify that Lewis was an informant and that Lewis told Detective Gogolin that he

could purchase marijuana from Johnson. The court did not specify on what grounds

it was limiting the testimony.

[¶16.] A motion in limine is at the threshold of proceedings and relates to

preliminary matters. See Black’s Law Dictionary 803 (8thed 2004). It can be an

objection to the admissibility of evidence. See United States v. Flenoid, 415 F3d

974, 976 (8thCir 2005). “‘Generally, parties must object to specific court action and

state the reason underlying their objection so that the circuit court has an

opportunity to correct any error.’” State v. Divan, 2006 SD 105, ¶9, 724 NW2d 865,

869 (quoting State v. McCrary, 2004 SD 18, ¶15, 676 NW2d 116, 121). This Court

has held that “a hearsay objection at trial is not sufficient to preserve a

confrontation clause objection on appeal.” Id. (citation omitted). The facts of Divan

reveal that hearsay was the sole ground alleged to prevent admission of the

statement at issue therein. Admittedly, Johnson’s counsel did not specifically allege

a “confrontation rights” or “Sixth Amendment” violation as grounds for the motion;

however, he did express his inability to cross-examine Lewis, and further referenced

the memorandum opinion, which discussed the defendant’s constitutional right to

confront the witnesses against him. Although not an ideal example of a motion, it

was sufficient to make the court aware of his concerns regarding Johnson’s

confrontation rights with respect to this statement. Moreover, the court’s ruling,

which limited the witness’s testimony, was a definitive ruling to admit this

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statement. See United States v. Malik, 345 F3d 999, 1001 (8thCir 2003). Therefore,

this issue was preserved for appeal. Accordingly, we reach the merits of this issue

as to both statements.

Audio Recording

[¶17.] Johnson contends that admitting the audio recording of the

conversation that transpired within his residence into evidence violated his Sixth

Amendment right to confrontation because Lewis was unavailable at trial and

Johnson had no prior opportunity to cross-examine him.

[¶18.] The Confrontation Clause of the Sixth Amendment of the United

States Constitution provides: “In all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against him[.]” 6 US Const amend

VI. In Crawford, the United States Supreme Court held that this provision bars

“admission of testimonial statements of a witness who did not appear at trial unless

he was unavailable to testify, and the defendant had a prior opportunity for cross-

examination.” 7 541 US at 53-54, 124 SCt at 1365, 158 LEd2d 177.

[¶19.] Crawford did not precisely articulate what is considered “testimonial,”

but it provided some guidance. At a minimum, the Court announced, “testimonial”

6. Article VI, section 7 of the South Dakota Constitution similarly provides, “In

all criminal prosecutions the accused shall have the right . . . to meet the

witnesses against him face to face[.]” SD Const art VI, sec 7.

7. The United States Supreme Court recently extended this core holding of

Crawford to certificates of state laboratory analysts identifying the material

seized by police and connected to the defendant as cocaine of a certain

quantity. Melendez-Diaz v. Massachusetts, 129 SCt 2527, 2009 WL 1789468

(2009).

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includes statements made during police interrogations and prior testimony at a

preliminary hearing, before a grand jury, or at a former trial. Id. at 68, 124 SCt at

1374, 158 LE2d 177. In describing testimonial statements, the Court also noted

that testimony is typically “[a] solemn declaration or affirmation made for the

purpose of establishing or proving some fact.” Id. at 51, 124 SCt at 1364, 158 LE2d

177. Further, the Court offered a non-exclusive list of “formulations” of the term

“testimonial”: (1) “ex parte in-court testimony or its functional equivalent – that is,

material such as affidavits, custodial examinations, prior testimony that the

defendant was unable to cross-examine . . . ;” (2) “extrajudicial statements contained

in formalized testimonial materials, such as affidavits, depositions, prior testimony,

or confessions;” and (3) statements made under circumstances that would lead an

objective witness reasonably to believe that the statement would be available for

use at a later trial. Id. at 51-52, 124 SCt at 1364, 158 LE2d 177 (internal citations

omitted).

[¶20.] The substance of the conversation on the audio recording is between

Johnson and his wife. Johnson’s statements constitute admissions by a party-

opponent and, as such, are by definition not hearsay under Federal Rule of

Evidence 801(d)(2)(A). Because the prohibition annunciated in Crawford applies to

hearsay statements, that prohibition does not cover Johnson’s statements on the

recording. Despite this, neither Johnson’s nor his wife’s statements are testimonial.

An objective witness in those circumstances would not have reason to believe that

the statements would be available for use at a later trial, as there was no

realization that he or she was speaking to a government informant. See Crawford,

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541 US at 51-52, 124 SCt at 1364, 158 LE2d 177. The Supreme Court specifically

stated in Davis v. Washington, that statements made “unwittingly” to a government

informant are “clearly nontestimonial.” 8 547 US 813, 825, 126 SCt 2266, 2275, 165

LEd2d 224 (2006) (citing Bourjaily v. United States, 483 US 171, 181-84, 107 SCt

2775, 2782-83, 97 LEd2d 144 (1987)). “It is the testimonial character of the

statement that separates it from other hearsay that, while subject to traditional

limitations upon hearsay evidence, is not subject to the Confrontation Clause.”

Davis, 547 US at 821, 126 SCt at 2273, 165 LEd2d 224. Therefore, admission of

neither Johnson’s nor his wife’s statements violate Johnson’s Sixth Amendment

right to confront his witnesses.

[¶21.] Lewis’s statements on the recording are responses to questions posed

by Johnson. The only statement made by Lewis pertinent to this case is Lewis’s

response that “it” is for a friend. However, the veracity of this statement, or any of

Lewis’s other recorded statements, was completely irrelevant to the case.

Therefore, the statements were not hearsay, as they were not being offered for the

truth of the matter asserted. Admission of Lewis’s responses provided context for

Johnson’s admissible statements, making them intelligible for the jury.

8. See also Unites States v. Graham, 2008 WL 5424142, at *11 (DSD 2008).

“For the statement to be ‘testimonial,’ the declarant himself must expect that

the statement will be used as evidence in a later formal proceeding.” Id.

(citing United States v. Hendricks, 395 F3d 173, 182-83 (3rdCir 2005)

(holding that neither Crawford nor the Confrontation Clause bars wiretap

evidence or statements made to a confidential informant)). See also United

States v. Saget, 377 F3d 223, 229 (2ndCir 2004) (holding that audio-taped

statements made to confidential informant, whose true status was unknown

to declarant, do not constitute testimony within the meaning of Crawford),

cert. denied, 543 US 1079, 125 SCt 938, 160 LEd2d 821 (2005).

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“Statements providing context for other admissible statements are not hearsay

because they are not offered for their truth.” United States v. Tolliver, 454 F3d

660,666 (7thCir 2006) (citation omitted). Therefore, because Lewis’s statements

merely provided the framework or context within which Johnson’s statements could

be understood, Lewis’s statements were properly admitted at trial. Accordingly, we

affirm the circuit court’s decision to admit this portion of the audio recording into

evidence.

Lewis’s Statement that He Could Buy Marijuana from Johnson

[¶22.] At the Police Department, Lewis informed Officer Gogolin that he

could purchase marijuana from Johnson. Johnson contends that admission of this

statement similarly violated his constitutional rights under the Sixth Amendment

and Crawford. The State maintains that the circuit court properly allowed this

statement “to establish background, context, and how events had unfolded.”

[¶23.] Under the teachings of Crawford, an objective witness acting as a

government informant would believe his statement to law enforcement, regarding

the ability to purchase drugs from a certain person, would be available for use at a

later trial. See Crawford, 541 US at 51-52, 124 SCt at 1364, 158 LE2d 177.

Accordingly, Lewis’s statement was testimonial. The Supreme Court noted,

however, that the Confrontation Clause “does not bar the use of testimonial

statements for purposes other than establishing the truth of the matter asserted.”

Id. at 59 n9, 124 SCt at 1369 n9, 158 LEd2d 177 (citation omitted). When out-of-

court statements are not offered to prove the truth of the matter asserted, the

Confrontation Clause is satisfied if the defendant had the opportunity to cross-

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examine the person repeating the out-of-court statement. See Tennessee v. Street,

471 US 409, 414, 105 SCt 2078, 2081-82, 85 LEd2d 425 (1985); see also United

States v. James, 487 F3d 518, 525 (7thCir 2007) (the admission of an FBI agent’s

testimony about what an informant had told him concerning the informant’s prior

drug dealings with a defendant who was being prosecuted for a drug offense did not

violate the Confrontation Clause because the testimony was only admitted for the

non-hearsay purpose of providing context for the government’s decision to work

with the informant, and the defendant had the opportunity to cross-examine the

agent). Here, Detective Gogolin was subjected to cross-examination.

[¶24.] In its ruling to admit the statement into evidence, the circuit court did

not specifically indicate the purposes for which the statement could be used. The

State alleges the statement was not used to establish the truth of the matter

asserted, but rather to establish context and background. Considering the

substance of the statement at issue and the charges against Johnson, the State’s

argument establishes a fine line. Even if Detective Gogolin’s trial testimony was

carefully elicited for the appropriate purpose of establishing why Johnson became

the subject of police investigation, the State certainly crossed the line during its

closing argument by arguing:

And by the way, how do we know [Johnson] sold the drugs? Otto

Lewis told the Detective, I’m going to buy marijuana from

Anthony Johnson.

***

Now, do you really think Otto Lewis would have said I can buy

marijuana from Anthony Johnson, and that he’d go there with a

wire, that he’d take the $50, that he could come back from

Anthony Johnson’s house with $50 worth of marijuana, give it to

the police, all of this time wearing a wire knowing there’s a

possibility he’s in danger if Anthony Johnson found out. That’s

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why you have four cops there, in case something went bad

because drug dealing is a dangerous business. Do you really

think Otto Lewis would have done that if he wasn’t buying from

Anthony Johnson.

In these instances, the statement was offered to prove the truth of the matter

asserted – that Lewis in fact purchased drugs from Johnson – and admission of the

statement for this purpose was improper when the declarant was unavailable and

not subjected to cross-examination. The State’s use of the statement in this

manner, without Lewis being available or Johnson having an opportunity to cross-

examine him, violated Johnson’s Sixth Amendment right to confrontation.

[¶25.] The State argues that even if admission of the statement was error, it

was harmless error. The State bears the burden of proving beyond a reasonable

doubt the error was harmless. “‘In determining whether an error is harmless, the

reviewing court must take account of what the error meant to [the jury], not singled

out and standing alone, but in relation to all else that happened.’” State v. Zakaria,

2007 SD 27, ¶18 n5, 730 NW2d 140, 145 n5 (quoting United States v. Hardy, 228

F3d 745, 751 (6thCir 2000)) (alteration in original). “In other words, we must find

‘that it was more probable than not that the error materially affected the verdict.’”

Id. (quoting United States v. Trujillo, 376 F3d 593, 611 (6thCir 2004)).

[¶26.] The State failed to prove beyond a reasonable doubt that admission of

this statement was harmless. Accord State v. Frazier, 2001 SD 19, ¶33, 622 NW2d

246, 259 (holding that admission of hearsay statements was not harmless error

because “the evidence [was] not so overwhelming that [the] statements cannot be

said to have weighted against [the defendant] in ultimately tipping the scales

toward a guilty verdict”). This statement went to the heart of the State’s case.

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Arguably, it was the State’s strongest piece of evidence in proving the identity of the

individual who sold the marijuana, as none of the State’s witnesses could testify

whether anyone other than Johnson and his wife was in the residence when Lewis

was present. In addition, the State referred to this statement on more than one

occasion. “The comments were . . . not benign or a ‘slip of the tongue.’ They were

extensive and repetitive comments that were more serious than a single, isolated

statement.” State v. Ball, 2004 SD 9, ¶34, 675 NW2d 192, 203 (citation omitted)

(holding that the State failed to prove beyond a reasonable doubt that prosecutor’s

closing argument statements regarding defendant not testifying were harmless

error). We hold “it was more probable than not that the error materially affected

the verdict.” Zakaria, 2007 SD 27, ¶18 n5, 730 NW2d at 145 n5 (quoting Trujillo,

376 F3d at 611). We reverse and hold that Lewis’s statement that he could buy

marijuana from Johnson is inadmissible.

[¶27.] 2. Whether there was sufficient evidence presented to prove

beyond a reasonable doubt the elements of distribution

of one ounce or less of marijuana and possession of

marijuana.

[¶28.] Although we reverse on the Confrontation Clause issue, it is proper to

also examine Johnson’s claim that the evidence was insufficient to prove the

charges beyond a reasonable doubt. See Frazier, 2001 SD 19, ¶43, 622 NW2d at 260

(reaching the judgment of acquittal issue and analyzing the sufficiency of evidence

even though the circuit court’s Confrontation Clause determination was reversed).

Our decision to consider this issue “rests on double jeopardy principles.” Id.

“Should we conclude that the evidence was insufficient, the State is constitutionally

prohibited from retrying [the defendant]. If, on the other hand, we find the evidence

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is sufficient, [the defendant] will be precluded from claiming double jeopardy

protection at retrial.” Id. (citations omitted).

[¶29.] This Court must determine “whether there is evidence in the record

which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a

reasonable doubt.” Mulligan, 2007 SD 67, ¶7, 736 NW2d at 812-13 (citation

omitted). Moreover, “the jury is . . . the exclusive judge of the credibility of the

witnesses and the weight of the evidence.” Id. (citation omitted). Thus, “[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.” Id. (citation omitted).

In addition, we must “consider all the evidence the [jury] had before it, including

any evidence that is later determined to be inadmissible.”9 See Frazier, 2001 SD 19,

¶45, 622 NW2d at 261. Therefore, we review all the evidence admitted at trial,

including Lewis’s statement that he could purchase marijuana from Johnson.

[¶30.] Detective Gogolin testified that it was his policy to not direct

informants to purchase drugs from any particular source. Detective Gogolin further

testified to his drug training at both the state and federal levels, including his

9. In Frazier, we noted the rationale for this rule:

From a defendant’s viewpoint, if the evidence [was] determined

to be sufficient, such a review would constitute an invasion of

the province of the jury. Conversely, if the evidence were

determined to be insufficient, it would be unfair to the

[prosecution] because other evidence might have been produced

by the [state’s] attorney at trial if the questioned evidence had

been excluded there.

2001 SD 19, ¶45, 622 NW2d at 261 (quoting People v. Sisneros, 44 ColoApp

65, 606 P2d 1317, 1319 (ColoApp 1980)) (alterations in original).

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knowledge of the terminology used in conjunction with drug transactions. He noted

that the statement on the audio recording about “juicing it up” was a reference to

drugs. The voice making this statement was identified as Johnson’s. The other two

voices heard on the recording were identified as belonging to Johnson’s wife and

Lewis.

[¶31.] In addition, the evidence established that Lewis and his vehicle were

searched before going to the address at issue. Neither search produced anything of

importance. Lewis was wired with a transmitter and given $50. He was followed

by police to the address in question, and Johnson had stipulated that he lived at

this address. Further, no one other than Lewis entered or exited the residence

during the surveillance, nor were any vehicles, other than the defendant’s, parked

near the residence. Thereafter, Lewis returned to the Police Department with 0.12

ounces of marijuana, an amount worth $50. A subsequent search revealed no other

drugs on Lewis’s person or in his vehicle, and the $50 was not located. We cannot

say that the evidence was so insufficient to overturn the jury verdicts. Therefore,

double jeopardy does not prohibit the retrial of Johnson on these charges. We

remand for a retrial in accordance with this opinion.

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

MEIERHENRY, Justices, concur.

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