State v. Dunkelberger

#28245-a-SLZ
2018 S.D. 22

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

JASON WAYNE DUNKELBERGER, Defendant and Appellant.

****

APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

****

THE HONORABLE RODNEY J. STEELE
Retired Judge

****

MARTY J. JACKLEY
Attorney General

QUINCY R. KJERSTAD
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.

BEAU J. BLOUIN of
Minnehaha County
Public Defender’s Office
Sioux Falls, South Dakota Attorneys for defendant
and appellant.

****

CONSIDERED ON BRIEFS
FEBRUARY 12, 2018
OPINION FILED 03/07/18
#28245

ZINTER, Justice

[¶1.] Jason Wayne Dunkelberger was convicted of first-degree robbery.

Much of the evidence directly implicating him was elicited from an accomplice. On

appeal, Dunkelberger argues that the circuit court erred in admitting a surveillance

video of him and the accomplice the day before the robbery. Dunkelberger contends

that without the video, there was insufficient evidence to corroborate the

accomplice’s testimony. We disagree and affirm.

Facts and Procedural History

[¶2.] Lynde Miller was working at Jackson’s Casino, located at the corner of

Minnesota Avenue and 17th Street in Sioux Falls, during the early morning hours

of December 9, 2015. At approximately 1:30 a.m., while Miller was counting money

from the till, the casino’s doorbell rang. Miller went to the door and was confronted

by a man wearing a heavy coat over a hooded sweatshirt. The man’s face was

covered by the hood, heavily tinted sunglasses, and a mask or bandana. He forced

himself into the casino, placed his hand in his right pocket, and demanded money.

Miller observed a “bulge” in the man’s pocket, which she believed was a gun.

[¶3.] Miller gave the robber the money she was counting, which was

bundled together with either paperclips or rubber bands. She also gave him money

from the safe. The robber then told her to “sit” as he left the casino. Miller

activated the panic button and watched him walk east down 17th Street and get

into the passenger side of a light-colored sedan located a block away.

[¶4.] Law enforcement arrived a few minutes later. Miller described the

robber and said he was about 5′5″ or 5′6″ tall. Officer Matt Vandervelde walked

-1-
#28245

toward the area where the robber went and discovered a pair of wet footprints that

were headed in the direction of the casino. He did not observe any other footprints

in the area.

[¶5.] Detective Chris Bauman started an investigation. He noted that the

description provided by Miller, as well as that shown in the casino’s surveillance

video, matched the description of an individual from another robbery. It also

matched the description of an individual, later identified as Dunkelberger, who had

been dropped off at the Truck Towne Plaza gas station in Beresford the night before

the Jackson’s Casino robbery. Video surveillance from Truck Towne Plaza showed

Dunkelberger getting out of the passenger door of a white sedan and walking inside.

He was wearing a heavy coat with the hood up and a mask or bandana covering

most of his face. Dunkelberger grabbed a few items, approached the counter, and

lowered the mask to reveal his face. He purchased the items and left as a passenger

in the white sedan.

[¶6.] Detective Bauman interviewed Dunkelberger concerning his possible

involvement in the robbery. Dunkelberger indicated that he “was at the end of his

rope” and could not make enough money to support his family. But he denied

involvement in the casino robbery. The detective showed Dunkelberger still images

from the Truck Towne Plaza video. Dunkelberger admitted that it was him in the

video and that the white car belonged to his babysitter Mandy Konop.

[¶7.] Detective Adam Zishka interviewed Konop. Konop implicated both

herself and Dunkelberger. Dunkelberger was subsequently indicted for first-degree

-2-
#28245

robbery. Konop received a lesser charge in exchange for cooperating with law

enforcement and agreeing to testify against Dunkelberger.

[¶8.] During trial, Konop described in detail what occurred during the

robbery. She testified that she drove Dunkelberger to Jackson’s Casino in her white

car, circled the block several times, and parked facing the casino a “block or two”

away on the north side of 17th Street. She testified that Dunkelberger went into

the casino and returned five minutes later with money that was “paper-clipped

together in little bundles.” She also testified that Dunkelberger said the casino

employee “was so dumb, he didn’t even have to show her the gun.”

[¶9.] Miller informed the jury that the man who robbed the casino was 5′5″

or 5′6″ tall, which matched Dunkelberger, who was 5′6″ tall. She also testified that

she never actually saw a gun and that the money she gave the robber was bundled

with either paperclips or rubber bands.

[¶10.] During Detective Bauman’s direct examination, the State moved to

introduce the surveillance video from Truck Towne Plaza. Dunkelberger objected

for lack of foundation. The circuit court overruled the objection and admitted the

video, which was then shown to the jury. The video showed both Dunkelberger

getting out of Konop’s white vehicle and his appearance inside the Beresford gas

station the night before the robbery.

Decision

[¶11.] Dunkelberger argues the circuit court erred in admitting the Truck

Towne Plaza video without a proper foundation. He further argues that without the

video, there was insufficient evidence to corroborate Konop’s accomplice testimony.

-3-
#28245

Consequently, he argues that there was insufficient evidence to sustain the verdict

and that his conviction must be reversed. We disagree because even if admission of

the video was error, the error was harmless.

[¶12.] We first observe that although Dunkelberger objected to the video

because it lacked a foundation, his own admissions effectively satisfied the

foundation requirement. A foundation is necessary “to support a finding that the

item is what the proponent claims it is.” SDCL 19-19-901(a). In this case,

Dunkelberger admitted to Detective Bauman that he was the individual depicted in

the Truck Towne Plaza surveillance video and that he was at that location with

Konop on December 8, 2015. He also admitted that the white sedan was Konop’s

vehicle.

[¶13.] More importantly, the State introduced sufficient evidence to

corroborate Konop’s accomplice testimony and establish Dunkelberger’s guilt

without the video evidence. Accomplice testimony alone cannot support a conviction

“unless it is corroborated by other evidence which tends to connect the defendant

with the commission of the offense.” SDCL 23A-22-8. The corroborative evidence

must show more than just the commission or circumstances of the offense. Id.

However, “accomplice testimony need not be corroborated by evidence sufficient to

sustain a conviction.” State v. Kihega, 2017 S.D. 58, ¶ 11, 902 N.W.2d 517, 522.

“Corroboration is sufficient if it tends to affirm the accomplice’s testimony and

establish the accused’s guilt.” State v. Wheeler, 2013 S.D. 59, ¶ 9, 835 N.W.2d 871,

873. Both circumstantial evidence and the accused’s own words may provide the

necessary corroboration. Kihega, 2017 S.D. 58, ¶ 11, 902 N.W.2d at 522.

-4-
#28245

[¶14.] Here, there was direct and circumstantial evidence independent of the

Truck Towne Plaza video that tended to affirm Konop’s testimony and establish

Dunkelberger’s guilt. First, as previously noted, Dunkelberger admitted to

Detective Bauman that he rode with Konop the night before the robbery in her

white sedan in clothing similar to that worn by the robber. He also admitted he was

having financial problems, which was consistent with Konop’s testimony and

suggested a motive to commit the robbery. Thus, Dunkelberger’s own words

corroborated some of Konop’s story and provided some circumstantial evidence of

guilt.

[¶15.] Additionally, Miller corroborated numerous parts of Konop’s story.

First, Miller corroborated Konop’s story regarding the use of a gun in the robbery.

Konop testified that Dunkelberger took a gun from the car to use in the robbery but

that when he returned to the vehicle, he said he “didn’t even have to show [Miller]

the gun.” Miller confirmed that she did not actually see a gun. Second, Miller

corroborated Konop’s story concerning the money that was taken in the robbery.

Konop testified that the money Dunkelberger took was bundled in paperclips.

Miller testified that the money she gave to the robber was bundled either in

paperclips or rubber bands. Third, Miller corroborated Konop’s details of the

automobile used in the robbery. Konop testified that she parked her white car a

“block or two” away on the north side of 17th Street. Miller confirmed those facts,

noting that she observed the robber depart east down 17th Street and get into a

light-colored sedan parked on the north side of the street.

-5-
#28245

[¶16.] Finally, there was physical evidence tending to affirm Konop’s story

and establish Dunkelberger’s involvement. The jury could observe Dunkelberger’s

height, which was consistent with the physical description provided by Miller. The

jury was also able to compare the footprint photographs with Dunkelberger’s shoes

and could have reasonably inferred that Dunkelberger wore the same shoes during

the robbery.

[¶17.] In sum, there was evidence independent of the Truck Towne Plaza

surveillance video that “tend[ed] to affirm [Konop’s] testimony and establish

[Dunkelberger’s] guilt.” See Wheeler, 2013 S.D. 59, ¶ 9, 835 N.W.2d at 873.

Additionally, Dunkelberger admitted that he was the person depicted in the video.

We are satisfied “beyond a reasonable doubt” that admission of the video “was

harmless and did not contribute to the verdict obtained.” See State v. Zakaria,

2007 S.D. 27, ¶ 19, 730 N.W.2d 140, 146.

[¶18.] Affirmed.

[¶19.] GILBERTSON, Chief Justice, and SEVERSON, KERN, and JENSEN,

Justices, concur.

-6-