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State v. Buchholz8/11/1999
forth the necessity of an expert; and (4) clear in that defendant is financially unable to obtain the required service himself and that such service would otherwise be justifiably obtained were the defendant financially able." Red Star, 467 NW2d at 771 (citing State v. Stuck, 434 NW2d 43, 50-51 (SD 1988)). The trial court determined Buchholz's request did not fit the requirements of Red Star. We agree.
[ ] Buchholz requested an expert to testify that fingerprints could have been taken from the surfaces of drug paraphernalia. However, there was no necessity for an expert in this case. The chemist for the State testified that fingerprints could have been taken, but were not. Buchholz has made no showing that the trial court abused its discretion with regard to its decision not to appoint an expert witness.
[ ] 4. Whether there was sufficient admissible evidence to support a finding of guilt.
In determining the sufficiency of the evidence on review, the question presented is whether there is evidence in the record which, if believed by the fact finder, is sufficient to sustain a finding of guilt beyond a reasonable doubt. In this review, we must accept that evidence, and the most favorable inferences to be fairly drawn therefrom, which will support the verdict. In determining the sufficiency of the evidence, this Court will not resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence. No guilty verdict will be set aside if the evidence, including circumstantial evidence and reasonable inferences drawn therefrom, sustains a reasonable theory of guilt.
State v. Knecht, 1997 SD 53, § 22, 563 NW2d 413, 421 (internal citations and quotations omitted).
[ ] Buchholz argues there was insufficient evidence to convict her with possession of a controlled substance. We do not agree. Buchholz was the sole occupant of a car that contained methamphetamine. Drug paraphernalia was found amongst her luggage. The urinalysis provided information Buchholz knew of the methamphetamine and had used methamphetamine. Like Hanson, Buchholz was not charged with possession of drugs in her body (or use) but possession of the drug found in the car. () 1999 SD 9 at § 43, 588 NW2d at 894. There is more than sufficient evidence to convict her on this charge. We affirm.
[ ] 5. Whether the sentence imposed violated Buchholz's constitutional rights.
[ ] Buchholz claims that the five-year sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment. However, the record is void of a sentencing hearing transcript. Without the complete record, we will presume the trial court acted properly. D.G. v. D.M.K., 1996 SD 144, § 29, 557 NW2d 235, 240 (citing Baltodano v. North Cent. Health Services, Inc., 508 NW2d 892, 895 (SD 1993). Buchholz has not overcome this presumption in favor of the trial court. Id. (Citing Owens v. Moyes, 530 NW2d 663, 665 (SD 1995)). We affirm.
[ ] MILLER, Chief Justice, and KONENKAMP, Justice, concur.
[ ] AMUNDSON, Justice, concurs in part and Dissents in part.
[ ] SABERS, Justice, Dissents.
AMUNDSON, Justice (dissenting in part, Concurring in part).
[ ] I Dissent on issue one and would hold that the search violated Fourth Amendment protections. I concur on issues two and three.
[ ] Law enforcement lacked probable cause for the search and seizure of Bucholz's urine. Furthermore, even assuming probable cause, exigent circumstances to excuse the necessity of obtaining a warrant did not exist.
[ ] '" he definition of 'probable cause' employed by the court is a question of law, not of
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