IN THE MINNEHAHA COUNTY CIRCUT COURT

STATE OF SOUTH DAKOTA

 

Mag. 19-4742

 

CITY OF SIOUX FALLS,
Plaintiff/Appellee,

VS.

MARK ALLEN BURGESS,
Defendant/ Appellant.

 

PRELIMINARY STATEMENT

Defendant and Appellant, Mark Allen Burgess, will be referred to throughout this
brief as ?Burgess? ?Mark? or ?Appellant?. The Appellee, City of Sioux Falls, will be
referred to as ?City? or ?Appellee?.

The transcript of the Court Trial of March 9, 2020 will be referred to as All
transcript citations shall be followed by the appropriate page and line number(s).

JURISDICTIONAL STATEMENT

A Complaint was filed by the City of Sioux Falls on August 21, 2019 charging
Burgess with Count I: Delay, obstruct and/or resist a public officer in the discharge or
attempted discharge of any duty of his or her office in Violation of Section 130.009 of the
Code of Ordinances of Sioux Falls, South Dakota', and Count II: Flee from a uniformed
law enforcement officer in Violation of Section 131.021 of the Code of Ordinances of
Sioux Falls, South Dakota.

Burgess was arraigned on said Complaint and entered a Not Guilty plea to all charges.
A Court Trial was held before the Honorable Patrick Schroeder on March 9, 2020. The

trial court returned the following verdict Count I: Delay, obstruct and/or resist a public
1

Filed: 5/18/2020 1:59 PM CST Minnehaha County, South Dakota 49MAG19-004742

officer in the discharge or attempted discharge of any duty of his or her office in Violation
of Section 130.009 of the Code of Ordinances of Sioux Falls, South Dakota 
and Count II: Flee from a uniformed law enforcement officer in Violation of Section
131.021 of the Code of Ordinances of Sioux Falls, South Dakota NOT GUILTY.
The Honorable Patrick Schroeder, on March 9, 2020, pronounced Judgment and
Sentence as follows $87.50 fine and $62.50 court costs.
Notice of Appeal was filed on March 11, 2020. This Court has jurisdiction pursuant
to SDCL 15-38-22.
STATEMENT OF LEGAL ISSUES
1. The trial court erred when it found the City had proven Burgess Guilty of
violating Section 130.009 of the Code of Ordinances of Sioux Falls, South
Dakota.
Florida 12. Royer, 460 US 49] (1983)
State v. Hauge, 829 145 (SD 2013)
State v. Sullivan, 6 73 W2cl 288 (SD 2003)
PROCEDURAL STATEMENT
A Complaint was filed by the City of Sioux Falls on August 21, 2019 charging
Burgess with Count I: Delay, obstruct and/or resist a public officer in the discharge or
attempted discharge of any duty of his or her office in Violation of Section 130.009 of the
Code of Ordinances of Sioux Falls, South Dakota', and Count II: Flee from a uniformed
law enforcement officer in Violation of Section 131.021 of the Code of Ordinances of
Sioux Falls, South Dakota.
Burgess was arraigned on said Complaint and entered a Not Guilty plea to all charges.
A Court Trial was held before the Honorable Patrick Schroeder on March 9, 2020. The
trial court returned the following verdict Count I: Delay, obstruct and/or resist a public

officer in the discharge or attempted discharge of any duty of his or her office in Violation
2

Filed: 5/18/2020 1:59 PM CST Minnehaha County, South Dakota 49MAG19-004742

of Section 130.009 of the Code of Ordinances of Sioux Falls, South Dakota 
and Count II: Flee from a uniformed law enforcement officer in violation of Section
131.021 of the Code of Ordinances of Sioux Falls, South Dakota NOT GUILTY.

The Honorable Patrick Schroeder, on March 9, 2020, pronounced Judgment and
Sentence as follows $87.50 fine and $62.50 court costs.

Notice of Appeal was filed on March 11, 2020. This Court has jurisdiction pursuant
to SDCL 15-38-22.

STATEMENT OF FACTS

On August 9, 2019, Officer Gino Maule (hereinafter ??Maule?) was on patrol for the
City of Sioux Falls Police Department. Around 6:30 o?clock pm. Maule was dispatched
to the area by the Fry?N Pan and BP gas station on 41St Street. Transcript ofCourr Trial,
pg. I 5, lines 13?18. Maule was given information that one male was videotaping another
male swearing. Id. at lines 22?25. Maule was given no information that the individual
who was videotaping the other male had called the police. Id. at pg. 16, lines 11?13.

When Maule arrived on the scene, he pulled up in front of the BP gas station. Id. at
lines 14?16. Maule saw Burgess standing on the sidewalk in front of the gas station. Id.
at lines I 7?19. Maule did not witness Burgess threatening the individual recording him
in any manner when he arrived on scene. Id. at lines 20?25. Further, Maule did not see
Burgess with any weapons, nor did he see the individual with the video equipment
gesture to him for help. Id. at pg. I 7, lines 1?9. In fact, what Maule saw was Burgess
gesturing the camera and ??ipping it off and saying some words that he couldn?t hear,
while the other individual stood about ten (10) feet away from Burgess and recorded him.
Id. at pg. 18, lines 1?24. (It should also be noted that there were other officers and

medical personnel in the immediate area tending to a vehicle accident and none of them

Filed: 5/18/2020 1:59 PM CST Minnehaha County, South Dakota 49MAG19-004742

were trying to keep Burgess and the individual with the video camera apart or paying
attention to them in any fashion).

While Maule was parking his patrol vehicle, Burgess was ??ipping off the - - towards
my patrol vehicle.? Id. arpg. I 9, lines I. Burgess did not say anything threatening to
Maule when he arrived on scene. Id. at lines I 

After parking his patrol vehicle, Maule got out and walked towards Burgess and said
?hello?. Id. at Zines Burgess replied by saying ?don?t fucking talk to me?. Id. at
lines I Maule then asked burgess ?what was going on?, to which Burgess replied,
?back the fuck away from me?. Id. at lines I 9?25. At about the same time Burgess says
?back the fuck away from me? Maule tried to grab Burgess?s arm. Id. arpg. 20, lines 
3. Burgess pulled his arm away from Maule. Id. at Zines 4?5. At no point prior to trying
to grab Burgess?s arm did Maule tell him he was detaining him or that he was under
arrest. Id. at Zines I. Maule testified that he was detaining Burgess for ?officer safety,
and for the safety of the scene, based off . . . [Maule?s] concerns that his agitation level
was going to pour out in to some type of physical altercation.? Id. arpg. 2I, lines I 
Maule further testified that he was ?guessing? that Burgess?s agitation level would pour
out in to something worse and that at the point he tried to grab Burgess?s arm no crime
had been committed by Burgess. Id. at lines 20?25.

After Maule tried to grab Burgess?s arm and he pulled it back, Burgess then started
backing up and walking away toward the gas pumps at the BP station. Id. at pg. 22, lines
I 9?25. Maule and two other officers took Burgess to the ground and tried to place
Burgess in handcuffs. Id. at pg. 23, lines 0. Even at this point, Maule did not tell
Burgess he was under arrest or being detained. Id. at lines I I 5. Burgess was ultimately

arrested and charged with the two above-mentioned crimes.

Filed: 5/18/2020 1:59 PM CST Minnehaha County, South Dakota 49MAG19-004742

LEGAL ANALYSIS
1. The trial court erred when it found the City had proven Burgess Guilty of'
violating Section 130.009 of' the Code of' Ordinances of' Sioux Falls, South
Dakota.

?Whether the . . . [City] has provided suf?cient evidence to sustain the conviction is a

question of law reviewed de novo.? State v. auge, 829 145, 149 (SD 2013).

In reviewing the suf?ciency of the evidence, this Court considers:
[W]hether there is evidence in the record which, if believed by the fact
?nder, is suf?cient to sustain a ?nding of guilt beyond a reasonable
doubt. . . . On review, we accept the evidence and the most favorable
inferences that can be fairly drawn from it that support the verdict. We
do not resolve con?icts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence on appeal. If the evidence including
circumstantial evidence and reasonable inferences drawn therefrom
sustain a reasonable theory of guilt, a guilty verdict will not be set
aside.

State 12. Carter, 771 329, 342 (SD 2009).

While this case did not revolve around a suppression motion on a Fourth Amendment
violation, counsel believes that the caselaw involving the same is relevant to the ultimate
issue of whether Burgess was guilty of obstructing.

In Florida 12. Royer, the United States Supreme Court announced that an involuntary
detention, however brief, is not permissible even if the citizen acts in a way to avoid such
contact:

The person approached need not answer any question put to him',
indeed, he may decline to listen to the questions at all and may go on
his way. He may not be detained even momentarily without reasonable,
objective grounds for doing so; and his refusal to listen or answer does
not, without more, furnish those grounds.
Florida 12. Rover, 460 US 49], 498 (1983).
In State v. Hodges, 631 206 (SD 200]), the South Dakota Supreme Court

analyzed a case where a passenger in a vehicle got out of the car and walked away. She
5

Filed: 5/18/2020 1:59 PM CST Minnehaha County, South Dakota 49MAG19-004742

was instructed four (4) times to remain at the vehicle and told at least twice to stop
walking away. She entered a casino restroom and the officer followed her and ordered
her to show her hands. She did not comply. The officer ordered her, after going into a
stall believing she was attempting to hide contraband, to pull up her pants; she failed to
do so, and the officer pulled them up for her. He then ordered her again to show her
hands and there was a brief struggle while the officer attempted to get her to show her
hands. She was ultimately arrested for obstructing a law enforcement officer and a
search of her person incident to arrest yielded a controlled substance.

In upholding the detention, the South Dakota Supreme Court ?recogniz [ed] that in an
everyday encounter, a citizen has the right to: choose to not speak with police officers,
decline to listen to them and instead go about their business just as they would with any
other person.? Id. at 209. A citizen ?may not be detained even momentarily without
reasonable, objective grounds for doing so.? Id. The Court noted, ?[h]owever, the
situation is different when the setting of that encounter changes.? Id. at 210.

The Court went on to cite caselaw that indicated a passenger in a legally stopped
vehicle is in a different situation than a person walking down the street. passenger in a
vehicle justifiably detained by law enforcement is in a much different situation then a
mere passerby on the street.? Id. (quoting, Maryland 12. Wilson, 519 US 408, 415, (1997).
?As recognized by the United States Supreme Court:

Danger to an officer from a traffic stop is likely to be greater when
there are passengers in addition to the driver in the stopped car. While
there is not the same basis for ordering the passengers out of the car as
there is for ordering the driver out, the additional intrusion on the
passenger is minimal. We therefore hold that an officer making a traffic
stop may order passengers to get out of the car pending completion of

the stop.?

Id.

Filed: 5/18/2020 1:59 PM CST Minnehaha County, South Dakota 49MAG19-004742

The Supreme Court stated the ?standard for determining whether [the officer] had a
reasonable suspicion for further investigation is an objective one. Whether reasonable
suspicion exists when the stop was made is a determination based on an objective
standard: would the facts observable to the law enforcement officer at the time of the stop
entitle an officer of reasonable caution to believe the action taken was appropriate?? State
v. Vento, 604 468, 470 (SD 1999). A subjective belief is not the proper standard.
Id. (quoting, Whren v. United States, 5] 7 US 806, 813 (1996) ?subj ective intentions play
no role in ordinary, probable cause Fourth Amendment analysis?).

The Supreme Court held that the officer ?was entitled to require the passenger to
remain at the scene. This limited detention is a right to temporarily freeze the situation.
Exercising this right, [the officer] requested Hodges to remain at the vehicle four times, at
least twice yelling a stop command to Hodges with no response. At this point, the brief
detention to control the scene began to change as [the officer] witnessed events which
created ?a reasonable suspicion supported by articulable facts that criminal activity may
be afoot.? State v. Hodges, 631 at 210. (quoting, United States v. Sokolow, 490
US 1, 7 (1989)).

Lastly, the Court held that the arrest of Hodges for obstructing was constitutional:

?If during or after a Terry stop an officer learns facts rising to the level
of probable cause the arrest is constitutionally firm. (citation omitted)
Hodges refusal to comply with the order to show her hands and attempt
to avoid the officer culminated in probable cause for her arrest for
obstruction of a law enforcement officerState v. Sullivan, 6 73 288 (SD 2003), the South Dakota Supreme Court was

asked to consider whether the State had proven Sullivan guilty of obstructing beyond a

reasonable doubt. The Court held:

Filed: 5/18/2020 1:59 PM CST Minnehaha County, South Dakota 49MAG19-004742

?This Court most recently outlined the principles applicable to a law
enforcement officer's investigative stop of a citizen in State v. Hodges .
. . In Hodges, the Court clearly indicated that, in an everyday
encounter, a citizen has the right to choose not to speak with an officer,
to decline to listen to the officer, and to go about his or her business
just as the citizen would do with any other person. However, the Court
also indicated that reasonable, objective grounds to suspect a violation
of law may justify a brief detention of an individual in order to
determine identity or to maintain the status quo while more information
is obtained. The Court further recognized that, ?circumstances
surrounding an unprovoked flight may provide an officer with a
reasonable suspicion for further investigation. Hodges, 631 at
210 (citing Illinois 12. Wardlow, 528 US 119, I24 (2000)).

All of these factors were present here. A complaint that juveniles were
causing a disturbance at a trailer court was lodged with law
enforcement. Consequently, Deputy Robertson was dispatched to the
scene to investigate, and the juveniles disbursed immediately upon
Robertson's arrival. This complaint and the unprovoked ?ight clearly
provided Robertson with reason to suspect that a violation of law might
have occurred. Under these circumstances, Robertson had the authority
to brie?y detain the juveniles to determine their identities and maintain
the status quo while he obtained more information. Thus,

Robertson's attempts to speak to Sullivan's son were clearly taken under
color of his official authority notwithstanding the son's expressions of
unwillingness to speak to Robertson. The trial court did not err in
denying Sullivan's acquittal motion for obstructing a law enforcement
officer.

State v. Sullivan, 6 73 at 293.

In the case at hand, Officer Maule was dispatched to the location in question because
one male was videotaping another male who was yelling and swearing towards him.
Transcript ofCoari Trial, pg. 5, lines I 5?20. Officer Maule testified that the individual
with the video camera had not called the police, he had not been dispatched for
individuals fighting, nor was he dispatched for an individual needing assistance. Id. at
pgs. I 7, lines I I ?25. Officer Maule further testified that up to the point he grabbed
Mark?s arm, Mark had committed no crime. Id. at pg. lines 23?25. In fact, Officer
Maule agreed that he was ?guessing that . . . [Mark?s] agitation level would pour out in to
something worse? and that is why he was detaining him. Id. at lines 20?21.

8

Filed: 5/18/2020 1:59 PM CST Minnehaha County, South Dakota 49MAG19-004742

 police have a reasonable suspicion, grounded in specific and articulable facts,
that a person they encounter was involved in or is wanted in connection with a completed
felony, then a Terry stop may be made to investigate that suspicion." United States v.
Hensley, 469 US 22], 229 (1985). "[A]lthough a mere 'hunch' does not create reasonable
suspicion, the level of suspicion the standard requires is 'considerably less than proof of
wrongdoing by a preponderance of the evidence,? and 'obviously less' than is necessary
for probable cause." State 12. Chase, 919NW2cl 207, 210 (SD 2018). Therefore, it is
certainly far less than proof beyond a reasonable doubt.

SD Pattern Jury Instruction (Criminal) 2-5-4 provides:

A reasonable doubt is a doubt based upon reason and common sense-
the kind of doubt that would make a reasonable person hesitate to act.
Proof beyond a reasonable doubt, therefore, must be proof of such a
convincing character that a reasonable person would not hesitate to rely
and act upon it. However, proof beyond a reasonable doubt does not
mean proof beyond all possible doubt.

In the case at hand, the City had to prove beyond a reasonable doubt that Burgess did
?delay, obstruct and/or resist a public officer in the discharge or attempted discharge of
any duty of his or her office.? Section 130. 009 oftne Code of Ordinances of Sioux Falls,
South Dakota. The question becomes, if Maule didn?t have reasonable suspicion for a
Terry stop, which Maule admitted, how could Burgess be guilting of obstructing? What
duty was Maule performing? In Sullivan, supra, it was argued by defense counsel that the
officer was not acting under color of authority the South Dakota Supreme Court noted:
?Under these circumstances, Robertson (the officer) had the authority to brie?y detain the
juveniles to determine their identities and maintain the status quo while he obtained more
information.? In the instant case, there wasn?t even reasonable suspicion for a detention
and the officer agreed with the same so he couldn?t have been acting under color of

authority nor could he have been discharging or attempting to discharge any duty of his

9

Filed: 5/18/2020 1:59 PM CST Minnehaha County, South Dakota 49MAG19-004742

office. He simply had no authority at the time to detain Burgess, therefore Burgess can?t
be guilty of obstructing or delaying anything.
A careful reading of the trial court?s decision shows that it found Burgess guilty of
delaying the officer in the discharge of attempted discharge by ?backing away?:
?Obviously, this went very quickly. It?s like ten seconds worth. He
reaches for Burgess?s arm, pulls it away and backs upthink he was within his right to try to detain or get control of Mr.
Burgess to find out why he was yelling. . . . And part of, Ithink his job,
is to keep the peace, to try to figure out what?s going on. I don?t
necessarily agree that though that he?s guilty of ?eeing because I, I
think that?s - - everything that happened is all probably comes under
the layer obstructer resist by backing away, um, but I do think the city
has proven the obstructing. The delay in the obstructing count, so I?m
going to find him guilty of that.

Transcript ofCourr Trial, pgs. 36?3 7, lines 7? 7.

A review of the trial transcript shows that there was virtually no mention of the
officer?s duties being delayed, and if so, what duty was it? In fact, the trial court noted
that the whole incident took ?like ten seconds.?

CONCLUSION

In the case at hand, the trial court erred in finding Burgess Guilty of Count I of the
Complaint beyond a reasonable doubt. To begin with, there was absolutely no reason to
try to grab Burgess?s arm, as he had done nothing wrong and the officer admitted he was
guessing that things might escalate. Further, Burgess had no idea that he was being
detained. He was never told he was being detained or that the officer wanted to even talk
to him to gather more information. How can one knowingly obstruct when they aren?t
told anything? The incident took about ten seconds when Mark and the officer had two
exchanges of words and then the officer tried to grab Mark?s arm and he pulled it away
and backed up. He had no idea he was being detained or that the officer was going to

grab his arm. Finally, there was no evidence to find that Mark delayed the officer in the

10

Filed: 5/18/2020 1:59 PM CST Minnehaha County, South Dakota 49MAG19-004742

performance of his duties; which is what the trial court found him guilty of as best

counsel can figure out, as the officer didn?t have authority at the time to perform an

official duty. See SDCL 22?11?5.

Dated this 18th day of May, 2020.

/s/Manuel J. de Castro, Jr.
Manuel J. de Castro, Jr.
Attorney for Appellant
927 E. 811?, Suite 104
Sioux Falls, SD 57103

Ph: (605) 251-6787
Fax:(605) 427-0818

Appellant, through counsel, hereby respectfully requests oral argument in the
above?entitled matter.

CERTIFICATE OF SERVICE

The undersigned hereby certifies that he served one (1) copy of Appellant?s Brief

upon the persons herein next designated all on the date below by email to said addresses,
to wit:

Mr. Keith Allenstein
KAllenstein@sioqualls.org

which email address is the last email address of the addressee known to the subscriber.

Dated this 18th day of May, 2020.

/3Manuel J. de Castro, Jr.
Manuel J. de Castro, Jr.

11

Filed: 5/18/2020 1:59 PM CST Minnehaha County, South Dakota 49MAG19-004742