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S.D. marijuana case goes to Supreme Court

ALEXANDRIA, S.D. -- An Alexandria man who claimed the marijuana growing in his yard was "nothing more than a patch of weeds and grasses" has lost an appeal to the South Dakota Supreme Court.

Kenneth Hauge, 61, appealed to the Supreme Court after a jury convicted him last May of possession of 1 to 10 pounds of marijuana.

The charge stems from an incident in June 2011, when Hanson County Sheriff Randy Bartlett -- acting on a tip from a Drug Enforcement Administration agent -- found marijuana plants growing in a flower bed in the yard of Hauge's home, the Supreme Court's decision says.

Hauge's explanation of how the marijuana came to be in his yard changed several times during the investigation, according to the decision.

When first questioned by Bartlett, Hauge said someone named Brenda planted the marijuana, the decision says.

"(Hauge) then remarked that 'it wasn't the good stuff' and 'that it was just some plants growing,'" and also told investigators he had previously harvested some of the marijuana and tried to use it, the decision says.

The plants ranged in size from 6 to 36 inches tall, and the flower bed itself was 14 to 15 feet long and about 3 feet wide.

Hauge then presented Bartlett and Drug Task Force Agent Dean Knippling with papers he claimed gave him permission to grow the marijuana, the decision says.

Knippling testified that those papers did not give Hauge permission to grow marijuana, and both Bartlett and Knippling testified that they never doubted during the investigation that Hauge knew the plants were marijuana.

Hauge eventually gave the officers permission to search the area and remove the marijuana plants, the decision says.

Bartlett testified that more than 200 plants were pulled before they "quit counting."

The plants were later sent to the State Health Lab for testing, where it was determined that once dried they weighed 23.8 ounces, or about 1.48 pounds, the decision says.

Once convicted of the charge, Hauge was sentenced to 10 years in prison with six years suspended. A habitual offender charge was dropped.

On appeal, Hauge argued that the prosecution failed to prove he actually possessed the marijuana. He claimed the area where the plants were growing was just a patch of weeds "with trash and junk strewn throughout," the decision says.

But the Supreme Court notes in its decision that the plants were located in a flower bed just a few feet from Hauge's back door and the area around it had been mowed.

Hauge claimed his case was also unfairly hurt by Judge Sean O'Brien. The judge denied a proposed jury instruction regarding a state law that says because marijuana grows wild in South Dakota, property owners are not required to remove it. O'Brien ruled the instruction was not relevant to Hauge's case.

Hauge also argued that the jury should have been allowed to visit his residence during the trial. O'Brien denied the request because numerous photos taken of the property were allowed into evidence and a sign posted near the property, which read "Bartlett, O'Brien and (Hanson County Deputy State's Attorney Doug) Papendick unfit for public trust," wasn't proper for the jury to see, the decision says.

Lastly, Hauge claimed O'Brien should have excused himself from the case because he had presided over a restraining order case between Hauge and his neighbor, and also sentenced Hauge's son on a marijuana charge in Davison County.

The Supreme Court rejected Hauge's arguments and affirmed his conviction.