## Facts

- Leon L. Charger was charged with sexual contact involving Jacqueline Swimmer’s two daughters; Swimmer testified at the first trial, which ended in a hung jury.
- While jailed awaiting retrial, Charger arranged for his cellmate, Leon Norman, to contact Swimmer with a message intended to deter her from testifying.
- Charger offered Norman five dollars and submitted a jail-account cash-out request falsely describing Norman as a “cousin” needing gas money.
- Charger wrote down a telephone number he believed was Swimmer’s (it was actually the number of Swimmer’s neighbor and sister-in-law, Jacalyn Hagans, whose phone Swimmer used for messages).
- After release, Norman called the number from another person’s home and spoke with Hagans, who answered when Norman asked for “Jackie.”
- Hagans testified Norman said he had “a message from Leon” and conveyed statements implying Swimmer would be arrested if she testified or contacted the prosecutor, and that Charger had legal “protection” making prosecution unavailable; Norman confirmed to Hagans that it was a threat.
- Charger was later acquitted at the second trial on the underlying sex-offense charges but was separately tried and convicted by a jury of tampering with a witness under SDCL 22-11-19(2).
- On appeal, Charger challenged the admission of Hagans’s testimony as hearsay and argued the evidence was insufficient because the message did not reach Swimmer directly.

## Issues

1. Whether Hagans’s testimony recounting Norman’s out-of-court statements was inadmissible hearsay or admissible as non-hearsay because it was offered to prove the threatening communication occurred (a “verbal act”) and/or its effect on the listener.
2. Whether witness tampering under SDCL 22-11-19(2) requires proof that the intended witness actually received the message, as opposed to proof of an attempt to influence or intimidate.

## Decision

- The Supreme Court of South Dakota affirmed the conviction.
- The court held Hagans’s testimony was properly admitted because the statements were not offered for the truth of their content but as circumstantial proof that a threatening message was communicated as part of the alleged tampering.
- The court held the witness-tampering statute does not require proof that Swimmer actually received the message; an attempt to influence or intimidate a witness is sufficient.
- The admitted evidence, including Charger’s directions to Norman and arrangements to facilitate the call, supported the jury’s finding of witness tampering.

## Legal Principles

- An out-of-court statement is hearsay only if offered to prove the truth of the matter asserted; when offered for another purpose, it is not hearsay.
- Threats or instructions that constitute the alleged wrongful conduct may be admitted as “verbal acts” when the fact that the words were spoken is legally significant.
- Statements may be admitted to show their effect on the listener (such as intimidation), rather than to establish the truth of what was said.
- Under SDCL 22-11-19(2), the prosecution need not prove successful intimidation or actual receipt of the message by the intended witness if the evidence shows an attempt to influence or intimidate in connection with testimony in an official proceeding.

## Conclusion

The court upheld Charger’s witness-tampering conviction, ruling that the intermediary’s threatening statements were admissible as non-hearsay because the making of the threat was the relevant act, and that the statute is satisfied by an attempt to influence or intimidate a witness even if the message is not shown to have reached the witness directly.


State v. Charger, 611 N.W.2d 221 (S.D. 2000)