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Judge: O’Connell Threw Beer But Didn’t Mean It, Did Not Throw Racial Insults

Magistrate Judge Eric J. Strawn has acquitted Trace O’Connell of disorderly conduct. Rapid City had charged O’Connell for allegedly throwing beer and racial insults at American Indian children at a Rush hockey game in January.

Judge Strawn concludes that beer was involved in the events of January 24, 2015:

The Phillip [sic] group consisted of about fifteen people…. The Phillip group traveled to Rapid City on the day of the game and made several stops along the way. At each stop the group consumed some alcohol…. The Eagle Sales suite offered beer as part of the suite accommodations…. The Phillip group, and specifically the Defendant, did consume alcohol offered at the suite.

…[T]he girls and many others were sprayed with beer…. [T]he only person who could have delivered the sprayed beer was the Defendant…. Defendant’s own witness testified it was Trace O’Connell…. This Court finds… that the Defendant, at the time when a score by the Rush just prior to the score that tied the game, joined with the crowd in celebration and making a movement like he was roping, sprayed many in his suite including [five children], Ms. Means, and quite possible more students… [Magistrate Judge Eric Strawn, Memorandum of Decision and Findings of Fact and Conclusions of Law, State of South Dakota, County of Pennington, City of Rapid City v. Trace O’Connell, 2015.08.31].

To find O’Connell not guilty of throwing beer, Judge Strawn relies on the well-worn legal principle that says making a vigorous roping gesture with a can of beer in one’s hand is a spontaneous gesture of celebration, not reckless abuse of others, at least when something as important as a hockey game is on the line:

The Court concludes that Defendant’s actions of spraying beer were the result of an excited reaction to a very important score in the Rapid City Rush hockey game. Not only the defendant, but the who arena erupted when the score occurred…. This Court has reasonable doubt that the Defendant’s celebratory roping reaction to the score was consciously done. A majority of the arena, including the children, stood up and demonstrated elation. The action was not the result of an unjustifiable disregard of a substantial risk to the children’s safety. The action was a celebration, a knee-jerk reaction to an exciting event in a close hockey game. The Court notes that even Krya thought the action was celebratory and not on purpose…. The Court concludes that the action was involuntarily made. The action falls more in line with a negligent action rather than a reckless action.

…[T]his Court concludes that the actions of the Defendant were an involuntary reaction to an important score in the hockey game. Defendant did not intentionally do a physical act of spraying beer; but, rather he reacted to a score by making a celebratory roping movement with his arm and unfortunately, he had a beer in his hand [Strawn, 2015.08.31].

The judge heard a lot more than I did, and heard it directly. But I have to question his judgment on this point. Leaping up and throwing one’s hands in the air in elation differs psychologically from deciding to make a display of one’s elation by pretending to hold a lasso in a hand that already holds a real, open can of beer and pretending to twirl that rope in an arc marked by real beer spilling all around.

The judge’s rejection of this portion of beer-throwing charge (like my disagreement with his rejection) is based on practicing psychology without a license. The judge’s rejection of alleged beer pouring and racial insults is based on firmer jurisprudential grounds of scant and inconsistent testimony. One child seated farther from the Philip suite and one adult chaperone, Consuelo Means, said men poured beer from above, but two girls closer to the alleged action said the men above were only teasing and that one man tilted a can over the edge of the suite above the children but did not pour any beer. And that man was not O’Connell.

One witness, Consuelo Means, testified to hearing O’Connell utter racial slurs. The Court finds Means’s testimony “less than convincing”:

Ms. Means claims that in just that brief encounter with the Philip hockey group in a hockey game filled with hundreds of people all cheering, talking and chanting, she recognized one single voice out of the entire crowd…. The testimony throughout the proceedings demonstrated that Britt Miller and/or Brian Kuchenbecker were the ones who spoke the most as they were the ones interacting with the students and pounding on the walls….

The Court finds Ms. Means testimony regarding identifying Defendant through his voice is not credible. When Ms. Means claimed a person was “standing in the corner over Mikayla” and was “pouring the beer on her”, she testified that “I couldn’t hear” because it was pretty loud in there…. Either it was so loud she could not hear what the individuals were saying in the Suite, or she could hear the Defendant and was mistaken about how loud it was in the arena. This inconsistent testimony demonstrates her inability to correctly recall the facts. Moreover, the beer pouring has been demonstrated to be inaccurate and uncorroborated.

…Aside from the unreliable testimony of Ms. Means, not one person testified to having identified the Defendant as having uttered any racially charged words nor provoke aggression toward any adult in the arena [Strawn, 2015.08.31].

According to the facts and conclusions of Judge Strawn, Trace O’Connell did indeed throw beer around at the Rush hockey game. Judge Strawn and I disagree on whether such irresponsible management of an adult beverage crosses a legal threshold (though I’d like to think Budweiser would back me up with a reminder to “Drink Responsibly™.” But I have to agree with Judge Strawn’s conclusion that the prosecution failed to present sufficient, consistent evidence to convict O’Connell of intimidating the children from the American Horse school with racial slurs.

35 Comments

  1. mike from iowa 2015-09-02 07:38

    The whole arena erupted when RC scored? I doubt the opposing team and their supporters erupted and threw beer in a roping motion. I say guilty as charged. Now-Hang him from the suite railing as a reminder to all.

  2. Troy 2015-09-02 07:47

    I am with you CH if I understand what you are saying.

    In my mind, what appears to be a person extremely drunk, he violated a public drunkenness ordinance and was a public nuisance. As a child of an alcoholic, I believe public drunkenness needs to be enforced strictly.

  3. happy camper 2015-09-02 08:17

    Everyone should read the judge’s memorandum. He breaks this down in to multiple events. It’s the second accusation of beer being thrown that Cory addresses above, but two things are especially important. Consuelo Means was the only person who said she saw beer intentionally poured on the kids (supposed first spill), and she then told Poor Bear who acted on her false communication. The kids however (who the judge said are very credible) said the guys were friendly and that no beer was even poured on them. And they said they believed the second spill was not intentional.

    Why were these kids not believed initially?
    Why was such a poor chaperon chosen?

    If you read her interview with police it’s clear she’s a jumbled mess but I suppose political correctness will never hold her accountable for the ensuing disaster she caused. She’s the one actually guilty of a crime of false reporting, tarnishing reputations, and causing unnecessary racial unrest.

    We have to go with the evidence, not the emotion my atheist friends. We’ve just talked about that. If you’re not atheist, you still gotta be logical and fair in a court of law.

  4. crossgrain 2015-09-02 08:36

    There’s enough racism in South Dakota without having to resort to inventing incidents. When (not if) Ms. Means is a victim of racism, I hope she hasn’t damaged her reputation such that folks don’t believe her.

  5. jerry 2015-09-02 08:43

    Drinking and driving to the game, some 100 miles, is now okay as you are going to the game. Arriving at the game drunk after driving the 100 miles, indeed okay as long as you are going to the game. Drinking more alcohol while drunk, as long as it is served by the City of Rapid City, okay. Public intoxication at the game and acting like an ass, is okey dookey as well, as long as you are in sky box sponsored by a wealthy business.
    I wonder if an intoxicated Native would have been so well received if that person would have celebrated the goal with a roping action that tossed beer on white folks. Would that have just been overlooked as celebrating the gladiators or would there have been violence directed at the group? All this shows is that privilege, both on the beer tosser and on the owners of the booth, rules. America is in reverse when it comes to the rights of others that are less privileged. We are not created equal in the eyes of South Dakota law so unless we want it to change, we will continue on the road over the cliff.

  6. caheidelberger Post author | 2015-09-02 09:24

    Yes, Troy, I do think you understand me correctly. Waving a beer around and splashing people with your barley pop constitutes a public nuisance. Unfortunately, this one bit of bad behavior established beyond a reasonable doubt in the testimony did not rise in Judge Strawn’s eyes to a violation of Rapid City’s disorderly conduct ordinance (9.08.030), which makes it unlawful to “intentionally, knowingly or recklessly… utter any words or perform any acts which physically abuse or threaten any person or persons in any public place, or which otherwise place the person or persons in fear of safety of life, limb, health or property.” Perhaps the city would have had more luck prosecuting O’Connell under the dsitrubing the peace ordinance (9.08.040), which outlaws “any conduct tending toward disturbing the peace of any other person,” without any reference to acting “intentionally, knowingly or recklessly,” which was the phrase that allowed Judge Strawn to accuse O’Connell’s imaginary rope trick.

    Or how about 9.16.010 on endangering the life, health or morals of minors:

    It is unlawful for any person having the care, custody, control or confidence of, or influence over, any child to wilfully cause or permit the life of the child to be endangered, or the health of the child to be injured, or the morals of the child to be impaired; or to wilfully cause or permit the child to be placed in the a situation, business or occupation that its life, health or morals shall be endangered; or to wilfully abandon the child; or to torture, torment, cruelly punish or wilfully or negligently deprive of necessary food, clothing or shelter, or in any other manner injure the child unnecessarily.

    Of course, one might creatively apply that statute to the chaperones who would take children into a gladiatorial arena filled with rowdy drunks.

    No, Jerry, don’t worry: I’m not seriously going to blame the victims here. The burden of proof was applied strictly here, and the city failed to present strong enough evidence to warrant conviction. We can only hope judges will apply the same strict standards to cases brought against Indian defendants.

  7. Bob Newland 2015-09-02 09:28

    A week before he died, O’Connell’s lawyer, Pat Duffy, characterized the audience at a Rush game to me as the “intellectual anus of Rapid City.” He further said, “That crowd makes the buffet line at Pizza Ranch look like an Albert Camus discussion group.”

  8. Troy 2015-09-02 09:32

    Bob, thanks for mentioning Pat. Not because it relates to this issue but because Pat is a person missed in this world.

  9. happy camper 2015-09-02 10:18

    But what victims Cory? I would say they are victims of the aftermath. Unnecessary ugliness. How are they victims? In this case I see you slightly like Larry, Lynn and Bob: not able to see straight. Your posts have been prejudicial to varying degrees. From the last Rapid City Journal article:

    In the “pouring” event, two female students testified that a man above them in the suite was pretending to pour beer toward them, but he had a hand over the glass so that no liquid could escape.

    According to quoted testimony, one of the girls said both she and her friend were laughing at the man, and when questioned if she thought the man was “teasing or joking,” she said, “Yeah.”

    The other girl said the man did not pour out any beer.

    http://rapidcityjournal.com/news/local/o-connell-not-guilty-in-beer-spilling-incident-at-rush/article_3b70cd68-77ff-5f52-85be-ae8893b790de.html

  10. Donald Pay 2015-09-02 10:20

    As far as I can tell, the people who behaved honorably in this entire scenario were the kids. They endured some bad behavior from some drunken adults and didn’t overreact. They told the truth to authorities, even when some sober adults may have embellished their description of the events.

    I don’t know why people think they have to get liquored up to watch sporting events. It always struck me as bad policy to allow liquor sales at such events, but the almighty dollar wins out over good sense every time.

  11. Troy 2015-09-02 10:54

    Good point Don. Those are some good kids.

  12. Craig 2015-09-02 11:13

    This entire event just goes to show how some quickly respond to hearsay and rumor rather than awaiting facts.

    What a waste of taxpayer dollars – and at the end of the day the only thing really harmed here were the reputations of the accused and the accuser.

    If we are going to expect criminal charges every time someone spills a beer, or a soda, or a cup of water… we will need to start building a few dozen new courthouses tomorrow. However before we go that far, let’s try to use some common sense and stop with the knee-jerk reactions to every event before we know all the facts.

    Granted even after the facts are in we still have those like jerry who make accusations of drinking and driving or public intoxication. Although the group did admit to consuming alcohol, I must have missed the part where the driver(s) were said to have been drinking or where it was listed that members of the group were intoxicated (“drunk”) but continued to consume alcohol while at the game. Perhaps we should just stop twisting statements to suit our own version of events and stick to the actual testimony.

    I accurately predicted this outcome (verdict) months ago – and I accurately predicted the response to it. It is clear to me that facts and evidence have little influence upon the court of public opinion.

  13. Bob Newland 2015-09-02 11:25

    Happy, I can see straight after I take my glaucoma meds.

  14. happy camper 2015-09-02 11:32

    What impressed me was the kids said what they did contrary to what must have been pressure they felt around them to go with the prevailing story line. And the more I think of it, if the kids don’t see themselves as victims, why do we want to encourage that? The recycle will more likely repeat.

    Everybody knows Native Americans have historically been given the shaft. The last good book I read was Unquiet Grave which left neither the FBI or the American Indian Movement in a positive light. Many want to say do not talk about anything other than this incident, but it’s the whole greater history that’s shaping how we look at these events and what we keep teaching our children.

  15. mikeyc, that's me! 2015-09-02 11:41

    Re: Pat Duffy
    Funny and true.
    I can’t imagine taking children to one of those games to begin with.

  16. caheidelberger Post author | 2015-09-02 11:54

    Hap, as Don says, the kids were victims of… something. They persevered, told what they saw, and let the judge decide.

    At the very least, I can use the term victims to describe the people who got beer chucked on them by some well-marinated yahoo. O’Connell behaved unsociably (though not illegally, according to the court); individuals around him were victims of that unsociable behavior. It would be improper of me to blame the chaperones for taking children to a public event that is open to minors but where other adults choose to act badly.

    You may also take my use of the phrase “blaming the victims” as a nod toward empathy: the folks who complained and demanded charges against O’Connell see themselves as victims, originally of bad behavior and now of a justice system that does not respond to their calls for justice. If their version of the story is true, if they are victims of more than what the facts as determined by Judge Strawn indicate, then they could turn to me and accuse me of “blaming the victims” for not working harder to provide the kind of rational, verifiable evidence that would withstand scrutiny in the formal justice system. It’s worth remembering that that blame isn’t necessarily on the Indian witnesses; it could be more on the city attorney, who was in charge of prosecuting the case, for not building a stronger case.

    But I won’t build a temple of speculation on things I don’t know about the prosecuting attorney. We have what we have on the record, and Judge Strawn says that what we have on the record doers not support conviction or punishment of the man accused of this specific crime. And I certainly won’t advocate overthrowing the criminal justice system for trial by social media lynch mob, because you are right, Hap: social media memes fly on emotion, not reason. We do get ahead of ourselves, online and off, and see the things that confirm our beliefs rather than building beliefs based on what all is out there to see. We must base justice on evidence and reason.

  17. caheidelberger Post author | 2015-09-02 11:54

    I wish we had Patrick Duffy on tape with his assessment of the hockey crowd.

  18. Douglas Wiken 2015-09-02 11:56

    Cory, you accuse the judge of playing psychologist inappropriately and then you do the same yourself. None of us know what actually happened and I am no apologist for drunken, stupid behavior. The point however was not how stupid or inappropriate was the behavior, but whether or not it was racially motivated. That was obviously not shown.

    This crap should never have gotten to court to begin with. If judges and prosecutors were not cut from the same cloth, the judge probably would have blasted the prosecutors for abusing laws in the interests of political correctness and very, very selective prosecution. And, I am not a lawyer and don’t even play one on a blog.

  19. leslie 2015-09-02 12:06

    “Court has reasonable doubt that the Defendant’s celebratory roping reaction to the score was not conscious”. This took months to write? ;) I realize cory may be responsible for some of the typos wherein, but yah never know?

    which “girls and many others” were sprayed?

    were there “5 children” in the suite? whose children? Ages? Who were the “many others ” in the suite who were sprayed? So “Means” and “quite possible [sic] more students” were sprayed?

    and the evidence really does shows the “who [sic] arena erupted” in hedonistic celebration about a puck? Or just a “majority”. What did law enforcement’s factual investigation prove, judge?

    and that means “Means” should not have been angry about her “possible” gratuitous shower. So her charge was completely legitimate. She had every right to seek justice. Her whole community had every right to make a big deal out of this. the judge didn’t think she was credible in observing the beer poured on Mikayla, or the simultaneous utterance by o’connel telling Mikayla what…?

    So the whole case comes down to “who” (not “whole”) above said “go back to the rez?”

    so the court found that maybe the [who]class of 57 were sprayed, or just their chaperone?

    And spontaneous reactions while apparently drunk are not reckless? I can pull a concealed loaded hand gun ( or open beer) and wave it around my head in drunken celebration and not be “reckless”? To what demographic does this judge belong? Forgive me for not looking up the definition of reckless.

    which “children” are we talking about?

    And who the hell is “Krya”, some confidential source of the judge?

    Finally, Happy, STFU: “kids in suite w/drunks who pour beer on class of 57” and you say they had a poor chaperone. why do you wish to smear an Adult Indian named Means? the judge at least had direct/indirect political pressure to acquit (republican judges, states attorney, county commissioners, mayor, ect).

    you, Happy, on the other hand….

    perhaps i should waste the time to look up “reckless” and not spend the rest of my life confused. there’s a soft ball for yah

    and we expect clarity in the EB5 investigation by law enforcement when a puck is over their head?

    perhaps defense counsel’s experience outweighed both the municipal lawyer’s and the new judge’s? what a complete cluster_uck. this is what appeals are for, but in the case of a class II misdemeanor, maybe not so much

  20. mike from iowa 2015-09-02 12:10

    Guilty or not-hang the SOB as a precautionary tale for the next incident.

  21. Roger Cornelius 2015-09-02 12:37

    Excuse me while I have a “nanner freakin’ nanner moment.

    I appears to me that Trace O’Connell likely paid his high priced barrister’s much more than he would have paid in any fines and court costs.

    South Dakota justice is funny.

  22. grudznick 2015-09-02 12:52

    It seems Mr. Pay and I agree yet again.

  23. happy camper 2015-09-02 13:18

    Leslie, Means testimony is conflicted by her own students. Numerous times the judge calls her not credible. Read his memorandum.

    Others who may deserve some credit here are the kids parents. They most likely had some conversations leading up to their testimony about retelling these events as they recalled them, not with what was swirling around them.

    Although kids are allowed would you let yours go? It goes to judgement.

  24. Disgusted Dakotan 2015-09-02 13:48

    The real victim in this mess? Our SD communities whose prejudices were reinforced with errors on both sides of the penalty box..

  25. mike from iowa 2015-09-02 14:50

    Roger C-some people are willing to pay a high price to be able to get intoxicated and dump beer on innocent bystanders. They may feel they have that right.

  26. caheidelberger Post author | 2015-09-02 16:24

    Douglas, I acknowledge the judge’s and my psychologizing and attempt to put it in the right place. But I can defend my position that O’Connell deserves some punishment for throwing his beer, because I contend his responsibility for not spraying others with his lasso-beer does not depend on his psychological state. I contend that anyone who picks up a beer has an obligation to keep his wits about himself and handle that beer responsibly—i.e., not spill that crap on children, no matter how excited he may be about vital matters like the hockey score. I think that’s the thinking underlying our public drunkenness laws: the drunk may not know what he’s doing, but he knew what he was doing when he started drinking and thus retains responsibility for anything that happens in that chosen altered state.

    (By the way, I don’t recall reading anything from Judge Strawn that establishes that O’Connell was indeed inebriated.)

  27. caheidelberger Post author | 2015-09-02 16:30

    Leslie, you can get drunk, tie your pistol to your lasso, and swing it around your head yelling yahoo… as long as you’re celebrating a really important athletic accomplishment.

    I can understand the notion that a suddenly excited individual might leap up, raise one’s arms above one’s head, and thus spill a beverage. I have a little difficulty ascribing spontaneity to this rather theatrical lasso gesture. Is rodeo so deeply ingrained in West River culture that guys from Philip automatically twirl an imaginary rope over their heads whenever they experience some sudden ecstasy?

  28. caheidelberger Post author | 2015-09-02 16:39

    I agree with Disgusted with caution, but it does seem clear that this cause did not help bring anyone together. The Indians go home saying, “Stupid white people.” The white people go home saying, ‘Stupid Indians.” Does any good for race relations come from this verdict? Or do we content ourselves with the knowledge that the court followed the rules, heard the evidence, and declined to convict a citizen against whom the evidence did not rise above the standard of reasonable doubt?

  29. Deb Geelsdottir 2015-09-02 21:16

    The guy with the beer was a slob. I would have been angry with him too.

    I can see why they couldn’t find the guy guilty, but at least a severe public admonishing by the judge for O’Connell’s rude and sloppy behavior would have been nice.

  30. caheidelberger Post author | 2015-09-03 05:58

    The judge did pull his punches on that front, Deb. Perhaps that’s because he figured O’Connell has already paid enough in lawyer fees, as Roger suggests. Or perhaps its because the city’s case was really that weak, that O’Connell really wasn’t drunk (as Craig reminds us, the judge does not offer that conclusion), and Judge Strawn prefers to exercise judicial restraint and only work with the facts established on the record in court.

    Guilty or not—no, Mike, we never go there. We punish a citizen only if we prove him guilty. We make an example of no innocent citizen.

  31. The King 2015-09-03 07:18

    “The Court concludes that Defendant’s actions of spraying beer were the result of an excited reaction to a very important score in the Rapid City Rush hockey game.” Very important score? Hardly. IMHO no score nor anything associated with the Rush games should be considered important. The Rush represent bad minor league hockey, and a venue for adults to get pickled. The line between WWF and Rush hockey is very thin.

  32. John 2015-09-03 07:25

    The outcome is unsurprising. Often one of the hardest cases to prosecute and easiest to defend is an allegation of disorderly conduct from a drunken bar fight. Everyone saw/heard everything, no one saw/heard anything, everyone saw/heard this but didn’t see/hear that, and most memories and recall were in an alcoholic fog. Add the emotional exponential potential of ethnic differences to the cocktail and it’s correctly challenging to meet the Constitutionally required burdens of proof to convict an individual out of a crowd. Reflect for a moment that John Adams successfully defended British soldiers after the “Boston Massacre” – most were acquitted and charges were greatly reduced on two.

    There are many small tragedies from the episode at the game. The greatest perhaps will be the discouragement that Indian youth will have from watching role-models such as Winston Day Chief and others, excel in one of mankind’s greatest games. We hockey players leave nothing on the bench. Yet at the final buzzer we line up, and shake hands in an ultimate display of mutual respect.

  33. jerry 2015-09-03 08:31

    The children were not involved in mankind’s greatest games as anything other than rewarded spectators. Just before the final buzzer sounded, they witnessed a sitting judge toss an imaginary lasso to show how they were caught in a net of bull puckey. As Cory pointed out, the prosecution could have charged the defendant with a more appropriate charge rather than putting in a ringer that was sure to cause confusion. In my view, there was never a doubt that the case would not turn out the way it did with the charges that were rendered. Something else they could have done in that court would have been to announce that the city would start to monitor the events at the civic center like they do the LNI, at least then, Natives would feel secure of the police presence to prevent these kinds of issues from happening in the first place. Serve and protect should work in all ways.

  34. mike from iowa 2015-09-03 08:37

    Sorry Master,but US prisons are full of innocent people,especially minorities convicted of capital offenses they didn’t commit. People are often forced to plead to crimes they didn’t commit to keep from forced bankruptcy by over-zealous prosecutors. Ken Starr comes to mind.

  35. leslie 2015-09-09 18:55

    Happy: O’connell’s likely obvious drunkenness could have been corroborated by any of his 20 compatriots in the sky box. They were all interviewed. Were any of them asked that question, Happy Camper? Did the prosecutor ask that question on cross-examination of O’connell. Did he testify? There would be no direct evidence of O’connell’s intoxication or drug use without breath, blood and sobriety field tests. When was he first identified? A phone call up to Phillip might have secured these tests in time. Our state’s attorneys and detectives and sheriff’s investigators can get right on things when they are directed to….this from someone who never took Evidence (idiot!

    the rapid city journal (prolly tupper) said nobody knew nothing, till Sgt. Schultz read it on facebook.

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