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State of South Dakota v Guthmiller

Case No. 26695 (SD S.Ct., Feb. 12, 2014)

A jury found Richard Guthmiller guilty of eight counts of making false or fraudulent sales tax returns. On appeal, Guthmiller argues that the circuit court erred in denying his Batson challenges to three peremptory strikes exercised by the State. He also argues that the court erred in denying his motion for judgment of acquittal. We affirm the circuit court’s denial of the motion for judgment of acquittal, but we remand for the court to undertake the required Batson analysis.

Facts and Procedural History



In 1995, Richard Guthmiller moved to Rapid City where he worked for automotive body repair businesses. In January 2008, he started his own automotive body repair business. That same month, he applied for and received a sales tax license from the South Dakota Department of Revenue. The Department cancelled his license in October 2008 because Guthmiller indicated on his sales tax return that he was “out of business.” In March 2009, the Department discovered that Guthmiller was still operating his business and informed him that he needed to reapply. Guthmiller reapplied and was reissued a license.

While operating his business during eight tax-reporting periods, Guthmiller filed sales tax returns. He reported sales on each return, but he indicated that his sales were exempt. A subsequent investigation led the Department to believe that Guthmiller was filing false or fraudulent returns. Guthmiller was indicted on eight counts of making false or fraudulent sales tax returns in an attempt to defeat or evade the tax in violation of SDCL 10-45-27.3 and SDCL 10-45-48.1(1).

Guthmiller moved to dismiss the indictment. He claimed that under the terms of the Fort Laramie Treaty of 1868, Rapid City was located in Indian Country. Based on this claim and on his tribal membership, Guthmiller argued that South Dakota did not have authority to tax his Rapid City business. The motion was denied. After Guthmiller’s unsuccessful petition for an intermediate appeal before this Court, his case proceeded to trial.
 

 

Judge(s): Steven Zinter
Jurisdiction: South Dakota Supreme Court
Related Categories: Criminal Justice
 
Supreme Court Judge(s)
David Gilbertson
John Konenkamp
Glen Severson
Lori Wilbur
Steven Zinter

 
Trial Court Judge(s)
Thomas Trimble

 
Appellant Lawyer(s) Appellant Law Firm(s)
John Rusch Rensch Law Prof LLC

 
Appellee Lawyer(s) Appellee Law Firm(s)
Marty Jackley Office of the South Dakota Attorney General
Ann Mines Office of the South Dakota Attorney General

 

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Click the maroon box above for a formatted PDF of the decision.
explanation. unless a discriminatory intent is inherent in the state: okay. you had [d.b.]? i did not know that he was a state presented evidence that a rational juror could find sufficient to demonstrate proving purposeful [racial] discrimination.” (quoting purkett, 514 u.s. at 768, 115 s. (“[b]elief [is] characteristically [a] question[] for the factfinder, in this case the [¶4.] guthmiller moved to dismiss the indictment. he claimed that under #26695 hands go up, and i’m not sure if there were more, but i counted except for [s.a.] actually, and [j.h.], who were sitting next to tax, it was within the jury’s prerogative to disbelieve his contention and find that he #26695 guthmiller’s motion for judgment of acquittal. i’m assuming mr. guthmiller is native american. i don’t know return that he was “out of business.” in march 2009, the department discovered -9- sufficient to sustain the convictions, we affirm the circuit court’s denial of guthmiller objected to three of those strikes, arguing that they violated batson v. a race-neutral explanation is tendered, the trial court must then prior to the selection process, there was at least three minorities u.s. 472, 477, 128 s. ct. 1203, 1208, 170 l. ed. 2d 175 (2008)); see also johnson, ryan, 2008 s.d. 94, ¶ 13, 757 n.w.2d 155, 159. for example, “a trial court considered on briefs was evidence that guthmiller misled the department investigator regarding the [¶26.] in addition to evidence of guthmiller’s knowledge of tax laws, the guthmiller’s prima facie showing and proceeded to step two, explaining its reasons that all his customers were subject to sales tax, unless the customer gave him an discrimination. the court denied the challenges without analysis or explanation. automotive body repair business. that same month, he applied for and received a the second step of [batson] does not demand an explanation * * * * [¶23.] guthmiller correctly notes that a good-faith belief, even if objectively so that’s why i exercised. sales tax license from the south dakota department of revenue. the department court: all right. well, when the question was asked whether -7- 825 (“[i]n reviewing the sufficiency of the evidence . . . [we] ‘will not usurp the jury’s [¶8.] another department employee provided evidence relating to in the supreme court state of south dakota, plaintiff and appellee, #26695 claimed belief and find that he had the specific intent to defeat or evade sales tax. as for [j.h.], [j.h.] i guess concerned us. i didn’t have anything 1. as is relevant here, sdcl 10-45-27.3 provides: otherwise provided in this section, file a return, and pay any tax -10- decide . . . whether the opponent of the strike has proved challenge the exclusion of all minorities from the jury pool. facts and procedural history purposeful racial discrimination. see hernandez v. new york, 500 u.s. 352, function in resolving conflicts in the evidence, weighing credibility, and sorting out have been granted because the state failed to prove that he had the specific intent court: [state]. the beginning of the panel there were several individuals that actually collected sales tax but did not remit it to the department. finally, there for striking the three minority veniremembers. state v. scott, 2013 s.d. 31, ¶ 16, 829 n.w.2d 458, 465-66 (alteration in original) had made a prima facie showing becomes moot.”). necessary to commit the crimes. he contends that he held a good-faith belief that court concludes that [guthmiller] proved purposeful [racial] discrimination . . ., of the for his license until he was contacted by the department. the state also presented determine whether peremptory strikes were based on purposeful racial sdcl 10-45-48.1(1) provides: “any person who: (1) makes any false or appeal from the circuit court of #26695 applied to his business. ct. at 1373-74). appeal before this court, his case proceeded to trial. favorable to the state, was sufficient for a rational juror to disbelieve guthmiller’s 604, 112 l. ed. 2d 617 (1991), to support his contention that good-faith beliefs the races of the defendant and the struck veniremember are, however, not see him respond to any question. i didn’t hear him say a struck the people that were up. but i know there was at least duties imposed by south dakota tax laws. a department employee testified that challenges should be denied. [retail sales and service tax] or who is a person whose receipts ‘any purportedly race-neutral reason that a skilled attorney can conjure up in veracity of the state’s race-neutral” justifications for its strikes and to determine 545 u.s. at 171, 125 s. ct. at 2418 (“it is not until the third step that the [¶15.] thereafter, the court’s questions suggested that it may have been circuit court’s batson analysis was incomplete, thus necessitating remand to allow cancelled his license in october 2008 because guthmiller indicated on his sales tax v. dowty, 2013 s.d. 72, ¶ 15, 838 n.w.2d 820, 825 (quoting state v. roubideaux, -2- credibility, and sort out the truth. see dowty, 2013 s.d. 72, ¶ 15, 838 n.w.2d at object to race-based exclusions of [veniremembers]” regardless of whether kentucky, 476 u.s. 79, 106 s. ct. 1712, 90 l. ed. 2d 69 (1986). in response, the guthmiller underreported his sales on all returns. during each period, the investigator also presented evidence indicating that the evidence in the light most favorable to the prosecution, any rational trier of fact egregious or something minor. that was a red flag for me, and what his percentage is. i have no idea. it’s not part of the decision. returns in an attempt to defeat or evade the tax in violation of sdcl 10-45-27.3 and [¶1.] a jury found richard guthmiller guilty of eight counts of making false [¶2.] in 1995, richard guthmiller moved to rapid city where he worked for to explain adequately the racial exclusion by offering ultimately, following the selection process, there appears not to the circuit court did not indicate whether it had accepted the state’s reasons for its [¶9.] at the close of the state’s case-in-chief, guthmiller moved for judgment that were physically identifiable, those being [s.a.], [j.h.] rensch law, prof. llc appeared to be black, and [d.b.], who appeared to be black, all of -3- decision id. (quoting state v. plenty horse, 2007 s.d. 114, ¶ 5, 741 n.w.2d 763, 765). (quoting johnson v. california, 545 u.s. 162, 168, 125 s. ct. 2410, 2416, 162 l. ed. can you follow the law? can you give each side a fair shake? judge motion was denied. after guthmiller’s unsuccessful petition for an intermediate whether guthmiller “met his burden of proving purposeful [racial] discrimination.” deny your motion. -5- #26695 explained to guthmiller how sales tax applied to his business. she testified that testified that she also provided him with publications explaining how sales tax “satisfie[d] the requirements of batson’s first step by producing evidence sufficient v. danielson, 2012 s.d. 36, ¶ 8, 814 n.w.2d 401, 405 (citation omitted). our task is “show of hands of anybody . . . who’s partially even in the smallest amount native defense counsel: judge, at this time, the defense moves to shall be filed on forms prescribed and furnished by the guthmiller: under federal guidelines, i’m recognized. (citation omitted). if guthmiller failed to make his required showings, his [¶5.] during voir dire, guthmiller’s attorney asked the veniremembers for a fraudulent return in attempting to defeat or evade the tax imposed by this ann f. mines circuit court to engage in the missing analysis.” scott, 2013 s.d. 31, ¶ 22, 829 the inquiry, the issue is the facial validity of the prosecutor’s [¶3.] while operating his business during eight tax-reporting periods, #26695 #26695-aff in pt & rem-slz 2014 s.d. 7 #26695 indicated minority status. #26695 * * * * explanations for use of its peremptory challenges.” id. (emphasis added). however, court: i’m just saying. that’s my question. but i’m going to acquittal. we review the denial of a motion for judgment of acquittal de novo. state -11- period, he also underreported his gross sales for each period; and in one case, he 360, 111 s. ct. at 1866 (plurality opinion)) (citing hernandez, 500 u.s. at 374, 111 purkett v. elem, 514 u.s. 765, 767-68, 115 s. ct. 1769, 1771, 131 l. ed. 2d 834 determines that the state offered facially race-neutral justifications for its strikes, #26695 to remit sales tax. although guthmiller ostensibly reported all his gross sales that guthmiller was still operating his business and informed him that he needed before we came into the jury room [sic]. [s.a.] actually had both. i’m not sure if he gestured or responded while [defense counsel] [¶18.] under step two, the circuit court must determine whether the record [d.b.] and [s.a.] each had prior convictions. i had them marked exempt from tax “did not make him per se immune from prosecution[.]” instead, it -12- the court must proceed to step three. dretke, 545 u.s. 231, 251-52, 125 s. ct. 2317, 2331-32, 162 l. ed. 2d 196 (2005)). permissible race-neutral justifications for the strikes. third, [i]f see scott, 2013 s.d. 31, ¶ 21, 829 n.w.2d at 466 (citing snyder v. louisiana, 552 bar to meet step two is not high. as the supreme court explained: which caused his license to be temporarily cancelled. yet during the time his the terms of the fort laramie treaty of 1868, rapid city was located in indian and appellee. guthmiller was indicted on eight counts of making false or fraudulent sales tax [¶22.] guthmiller argues that his motion for judgment of acquittal should be a single minority on the jury panel, despite the fact that at to permit the [court] to draw an inference that [racial] discrimination has [¶11.] on appeal, guthmiller raises two issues. he first argues that the [a] defendant raised an inference that [the] state used its peremptory state. he also argues that the court erred in denying his motion for judgment of or evade sales tax. he relies on cheek v. united states, 498 u.s. 192, 111 s. ct. #26695 359, 111 s. ct. 1859, 1866, 114 l. ed. 2d 395 (1991) (plurality opinion) (“once sdcl 10-45-48.1(1).1 [¶21.] guthmiller also appeals the denial of his motion for judgment of indian country, and therefore, as a tribal member, his sales were exempt from state which have been struck. [guthmiller’s] conviction[s] should be vacated and a new trial ordered.” see id. ¶ 23 the seventh judicial circuit (1995) (per curiam) (second alteration in original) (quoting hernandez, 500 u.s. at n.w.2d at 467 (citations omitted). due, to the department of revenue on or before the twentieth facie case. but during the batson dialogue, the state never claimed that guthmiller wilbur, justices, concur. evidence showing that guthmiller not only failed to pay sales tax each reporting richard w. guthmiller, defendant and appellant. understand her sales-tax explanation. moreover, guthmiller was given and you could see the entire body of the jury shaking their head each other, so it was kind of conspicuous. that’s why i exercised 2008 s.d. 81, ¶ 13, 755 n.w.2d 114, 118). to do so, we ask “whether, after viewing “‘magic words’ the trial court must use in order to fulfill a batson analysis.” state v. her explanation. in addition to her conversations with guthmiller, the employee country. based on this claim and on his tribal membership, guthmiller argued acquittal, but we remand for the court to undertake the required batson analysis. on those three. any person who holds a license issued pursuant to this chapter zinter, justice acquittal. we affirm the circuit court’s denial of the motion for judgment of there [were] any native americans here, i saw at least five exclude’ a [veniremember].” scott, 2013 s.d. 31, ¶ 19, 829 n.w.2d at 466 (quoting summarily denied guthmiller’s batson challenges without giving a reason for its state tendered its reasons for the strikes. after brief remarks, the circuit court five identified. and i guess there’s two that we don’t know opinion filed 02/12/14 guthmiller’s knowledge of sales tax laws. the employee testified that she had that guthmiller intended to defeat or evade sales tax. the state’s evidence showed [¶12.] under batson and its progeny, a three-step analysis is used to has made out a prima facie case, the burden shifts to the state she specifically told him “all [his] customers were subject to sales tax unless he was [¶24.] as guthmiller acknowledges, his claimed belief that his sales were pennington county, south dakota american veniremembers, the circuit court stated that “there [were] at least five could have found the essential elements of the crime beyond a reasonable doubt.” [¶29.] gilbertson, chief justice, and konenkamp, severson, and publications that described how sales tax applied to his business. 3. while the normal course in a batson analysis is to take each step in order, john s. rusch of discrimination. [¶17.] on remand, the court should first determine whether guthmiller who investigated guthmiller. the investigator presented evidence indicating that specific intent. cheek does not demand that result. identified.” no other questions were asked about race. the taxability of his sales. cheek required the jury to find that his claimed good-faith belief negated his v. have access to triple i’s. i don’t know what those crimes are, if of acquittal. he argued that the state had failed to prove that he had the specific [¶16.] under this record, we are unable to determine the circuit court’s [¶20.] we remand on the batson issue to allow the circuit court to perform tax laws. the jury ultimately returned a guilty verdict on all counts. day of the month following each monthly period. the return prosecutor’s explanation, the reason offered will be deemed race that guthmiller satisfied step one, it must then proceed to step two. [¶27.] ultimately, it was for the jury to resolve the factual conflicts, weigh #26695 reason for denying the batson challenges. we acknowledge that there are no on january 14, 2014 negate specific intent. guthmiller misconstrues cheek. purposeful racial discrimination.3 persuasiveness of the justification becomes relevant—the step in which the trial -6- unreasonable, “provide[s] an evidentiary basis upon which the jury could find that was ‘merely a pretext designed to mask the improper consideration of race to the necessary element of specific intent had not been proven beyond a reasonable the honorable thomas l. trimble had the specific intent to defeat or evade sales tax. because the evidence was to reapply. guthmiller reapplied and was reissued a license. coombs v. diguglielmo, 616 f.3d 255, 261 n.5 (3d cir. 2010)) (citing miller-el v. the court to engage in the missing analysis.2 and appellant. considering whether guthmiller satisfied his prima facie case. but the court did not erred in denying his batson challenges to three peremptory strikes exercised by the [¶6.] following voir dire, the state exercised its peremptory strikes. shows that the state offered facially race-neutral justifications for its strikes. the inference of discriminatory purpose. second, once the defendant [¶28.] affirmed in part and remanded for further proceedings in conformance the state presented evidence showing that guthmiller was aware of the legal [¶19.] it is within step three that the circuit court has “the duty to assess the challenge and the circuit court’s analysis. showing that the totality of the relevant facts gives rise to an intentional discrimination, the preliminary issue of whether the defendant state of south dakota identified. i don’t know whether or not defense or plaintiffs assistant attorney general [¶25.] in this case, the totality of the evidence, when viewed in a light most was up there. i did not see that he did. and there were even guthmiller performed taxable services during each tax-reporting period but failed ct. at 1771)). in performing that analysis, the court “should not supinely accept indicated that his sales were exempt. a subsequent investigation led the times, you know, where i asked for assurances, can you follow -- attorney general 2. we review the circuit court’s application of the law under batson de novo. license was cancelled, he continued operating his business, and he did not reapply to defeat or evade sales tax. he testified that he believed rapid city was located in pierre, south dakota attorneys for plaintiff given an exemption certificate.” according to her, guthmiller seemed to understand that south dakota did not have authority to tax his rapid city business. the rapid city, south dakota attorneys for defendant s. ct. at 1874 (o’connor, j., concurring in judgment)). if the circuit court guthmiller contends that he held a good-faith belief that he was exempt from sales “the defendant and the excluded [veniremember] share the same race.” court determines whether the opponent of the strike has carried his burden of anything about. automotive body repair businesses. in january 2008, he started his own response to a batson challenge,’ but must decide if the reason offered for the strike all his sales were exempt, and therefore, he did not have the specific intent to defeat he was convicted and had family members convicted. i didn’t jury.”). state v. scott, 2013 s.d. 31, ¶ 9 n.1, 829 n.w.2d 458, 461 n.1. we review a minority. i will give you my reasons for all three, okay? occurred.”4 johnson, 545 u.s. at 170, 125 s. ct. at 2417. if the court determines circuit court’s findings on purposeful racial discrimination for clear error. id. challenges for race-based reasons.” id. (citing powers, 499 u.s. at 416, 111 s. * * * * absent the required batson analysis, “limited remand is required to allow the american.” although the record does not reflect the actual number of native a prosecutor has offered a race-neutral explanation for the peremptory #26695 the required analysis on the existing record in accordance with this opinion. “if the strikes. the court simply denied the batson challenges without explanation. existence of business records, bank accounts, and exemption certificates relating to indicate whether it found that guthmiller failed to establish his prima facie case or first, the defendant must make out a prima facie case by 2d 129 (2005)) (internal citations and quotation marks omitted). department to believe that guthmiller was filing false or fraudulent returns. she explained to guthmiller how sales tax applied to his business. she told him [¶13.] in this case, the following dialogue is the entire record of the batson to determine “whether the evidence was sufficient to sustain the conviction.” state department. was for the jury to decide whether his belief was held in good faith. see id. at 203 whether he failed to carry his ultimate burden to prove purposeful racial implicitly conducts [the required] analysis when it accepts or rejects the state’s exemption certificate. the employee further testified that guthmiller appeared to guthmiller filed sales tax returns. he reported sales on each return, but he five for sure. they were not up very long. they were not the first step becomes moot if the circuit court rules on the ultimate issue of marty j. jackley * * * * ohio, 499 u.s. 400, 402, 111 s. ct. 1364, 1366, 113 l. ed. 2d 411 (1991)). that guthmiller falsely indicated to the department that he was “out of business,” honomichl v. leapley, 498 n.w.2d 636, 639 (s.d. 1993) (citing powers v. that is persuasive, or even plausible. “at this [second] step of 4. the circuit court questioned guthmiller’s race. “[a] criminal defendant may record at this time. [¶14.] the state contends that the circuit court resolved the batson * * * * intent to defeat or evade sales tax. the circuit court denied the motion. -8- doubt.” see id. at 202. from this, however, guthmiller incorrectly asserts that are subject to the tax imposed by this chapter shall, except as [¶10.] guthmiller then presented a defense that he lacked the specific intent -4- marked on him. i was neutral coming in. during voir dire, i did challenges and the trial court has ruled on the ultimate question of mind conflicted, but the jury resolved that conflict against guthmiller. while [¶7.] during its case-in-chief, the state called the department employee neutral.” word the entire morning. i didn’t even see him shake his head chapter [retail sales and service tax] is guilty of a class 6 felony[.]” with this opinion. the truth.’” (citation omitted)). the evidence presented on guthmiller’s state of or nod his head during -- while i was questioning. -1- failed to establish his prima facie case. instead, the state tacitly accepted or fraudulent sales tax returns. on appeal, guthmiller argues that the circuit court challenges under step one, finding that guthmiller had not established a prima relevant “circumstances for the trial court to consider in determining whether


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