STATE OF SOUTH DAKOTA v. BROOKE ALLISON SCHREMPP

Brooke Schrempp resided in Sioux Falls with her boyfriend,

Christopher Uhing. The residence was located within a drug-free zone. Sioux Falls

Area Drug Task Force Detective John Spaeth obtained a warrant for the search of

the home after receiving numerous tips and other information that the occupants

were dealing drugs. During the search of the home, officers found evidence of drug

use and distribution. The officers found more than a half pound of marijuana, drug

paraphernalia, pipes, digital scales, jeweler’s baggies, and other packaging

materials. Additionally the officers found equipment and supplies for a marijuana

growing operation. The officers also discovered items used to manufacture hashish.

Such supplies included capped tubes with holes drilled in the caps. One tube was

packed with marijuana. The search also produced 44 empty cans of butane and

large bags used to filter marijuana to make hashish.



[¶3.] Later that day, Sioux Falls Police located Schrempp at her place of

employment and arrested her. Schrempp received and waived her Miranda rights

and told the police that she lived at the residence with her boyfriend Uhing. She

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stated that she liked to smoke marijuana and admitted that she was selling both

marijuana and hashish. During the interview Schrempp admitted that she had also

made hashish or “concentrate” and explained the process.

[¶4.] At trial Detective Spaeth testified that the active ingredient in

marijuana is Tetrahydrocannabinol (THC). Detective Spaeth explained that one

method of making hashish involved packing marijuana into tubes and flushing

butane through the leaves causing a resin or wax like substance to come out of the

bottom of the tube. The resin is known as hashish. Hashish is also referred to by

the slang terms “honey oil,” “dab,” or “concentrate.”

[¶5.] The State charged both Schrempp and Uhing as codefendants with

eight drug-related offenses: possession of one-half pound but under one pound of

marijuana (SDCL 22-42-6); possession with intent to distribute or dispense more

than one-half pound but less than one pound of marijuana (SDCL 22-42-7);

possession of a controlled substance, hashish (SDCL 22-42-5); possession of a

controlled substance, cocaine (SDCL 22-42-5); maintaining a place where drugs are

kept, sold, or used (SDCL 22-42-10); possession with intent to distribute or dispense

more than one-half pound but less than one pound of marijuana (SDCL 22-42-7) in

a drug-free zone (SDCL 22-42-19); possession with intent to manufacture controlled

substance, hashish (SDCL 22-42-2); and possession or use of drug paraphernalia,

digital scales (SDCL 22-42A-3). The case was scheduled for a three-day jury trial

beginning on February 4, 2015.

[¶6.] The day before trial, the court held a pretrial motions hearing. At this

hearing, the State noted that it had corresponded with defense counsel about an

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amendment to the indictment. After receiving the chemist’s test results, the State

discovered that Counts 3 and 7 of the indictment should have referenced “Delta-9

Tetrahydrocannabinol” instead of “hashish.” The State sought an amendment to

correct the language in these two counts. Schrempp did not object. With the

parties consent the trial court amended the counts by crossing out the word

“hashish” and adding “Delta-9-Tetrahydrocannabinol AKA Hashish” in the margins

along with the court’s initials and date.

[¶7.] The case was submitted to the jury for resolution on February 6, 2015.

During deliberations, the jury submitted a written question to the court stating,

“Can we get the portion of Detective Spaeth’s testimony regarding [Schrempp’s]

initial interview after arrest?” The trial court did not notify the parties that a

question had been received from the jury. Instead, the court sent the jury the

preliminary jury instructions highlighting a portion of Instruction Number 4. The

highlighted portion read, “At the end of the trial, you must make your decision

based upon what you recall of the evidence. You will not have the written

transcript to consult, and the court reporter will not be required to read back

lengthy testimony. Therefore, you should pay close attention to the testimony as it

is presented.” After the jury reached a verdict, the trial court informed counsel on

the record of the question and the court’s method of answering the question.

Schrempp did not object to the action taken by the trial court.

[¶8.] The jury convicted both Schrempp and Uhing on all counts with the

exception of Count 4. The court sentenced Schrempp for the seven offenses to a

combined total of 29 years in the South Dakota State Women’s Prison and 30 days

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in the Minnehaha county jail. However, the court suspended all but 6 years and 30

days of the prison sentence and ordered that Schrempp’s 30 day sentence in the

county jail be served concurrently.

[¶9.] Schrempp appeals her conviction, arguing two issues:

1. Whether the trial court erred by amending the indictment the day prior to trial.



2. Whether the trial court committed plain error by not informing the parties of the jury’s question at the time it occurred.