The South Dakota Supreme Court has upheld the conviction of a Sioux Falls man whose victim, his girlfriend, did not testify against him at trial.
The prosecution presented the testimony of investigators and medical personnel, as well as phone conversations between the offender and victim recorded while he was in jail awaiting trial.
This report relies on information from the unanimous Supreme Court opinion, authored by Justice Janine Kern.
On Feb. 20, 2019, Sioux Falls police officers responded to a report of a stabbing and found Melissa Greenwalt lying on the kitchen floor of her Sioux Falls home. She had an open cut in her abdomen, with contents spilling out. She was transported by ambulance to a hospital.
Robert Harold Loeschke, who had an intimate relationship with Greenwalt, was on the scene and spoke with Officer Greg Logan. Loeschke told Logan that Greenwalt’s injury was an accident.
After investigators gathered evidence and interviews, Loeschke was later taken into custody and advised of his Miranda rights. He waived and spoke with Detective Adam Zishka. The interview was videorecorded.
Loeschke said that on the night Greenwalt was cut, he had slipped and fallen on ice, and when Greenwalt bent down to assist him, she must have stabbed herself.
He also said he suffered from blackouts when angry and couldn’t remember how Greenwalt’s injury happened, but if she said he did it, that must be true.
During the investigation, law enforcement officers learned that Greenwalt had been assaulted eight months earlier, resulting in a broken jaw, but refused to name her assailant. When Zishka asked Loeschke about it, he admitted doing it but said he had “barely punched her.”
Loeschke was indicted by a grand jury for 11 counts of aggravated assault and 16 counts of simple assault for the 2018 broken jaw, the 2019 stabbing, and two other assaults in between.
While he was in jail awaiting trial, Loeschke called Greenwalt a number of times, violating a no-contact order. The jail recorded the conversations.
Loeschke went to trial in January 2020, and Greenwalt was there. But before she could testify, Second Circuit Judge Susan Sabers declared a mistrial because of a problem with video evidence.
At a jury trial in August 2020, Greenwalt was not present. She had not been located to be served a subpoena.
The state presented testimony from the police officers who responded to the stabbing incident, a forensic expert who tested the knife found at the scene, the detective who interviewed Greenwalt after the stabbing and learned of the broken jaw, the emergency room physician who treated the broken jaw, and the detective who interviewed Loeschke after the stabbing. The jury also watched a videorecording of the interview.
The jury also heard parts of the recorded conversation between Loeschke and Greenwalt while he was in jail. The couple had attempted to obscure the conversation by pretending Loeschke was talking to some other woman and referring to the victim in third person.
In one segment of conversation from March 8, 2020, Greenwalt said she still loved Loeschke and it was killing her. She also said after she was stabbed, her intestines were hanging out, and he replied, “No, that was not intestines, that was fat.”
She responded, “Whatever it was, it was hanging out.”
In another segment from March 14, 2020, Greenwalt said she didn’t understand why Loeschke stabbed her, and he replied that he didn’t mean to. This transcribed segment, along with others, is included in the Supreme Court opinion:
Loeschke: It didn’t happen how it looked like it happened. Okay, let’s put it, put it this way—it left my hands, went into somebody else’s hands, and I ended back up with it. I don’t know if it got caught on the coat, and pulled out of my hands.
Greenwalt: She never touched it though.
Loeschke: Somebody else did.
Greenwalt: There was nobody else there.
Loeschke was found guilty of aggravated assault for the stabbing but acquitted of breaking Greenwalt’s jaw.
He appealed his conviction to the state Supreme Court, citing two issues: that Judge Sabers erred by combining the two events—the stabbing and the broken jaw allegations—into one trial, and that the judge should have rejected Greenwalt’s statements in the recorded jailhouse conversations as hearsay.
The Supreme Court did not find that the judge erred by combining both charges before the same jury. The Court lays out the circumstances when it’s allowed to join offenses, including when the acts are closely related in time, location, and manner of execution and they are connected, constituting a common scheme or plan.
Loeschke claimed that the two offenses were not close in time. The broken jaw assault occurred in June 2018, and the stabbing happened in February 2019. (The jury didn’t hear evidence about the allegations of two assaults that occurred in between.)
Loeschke said the locations were not the same. The first assault happened in a storage shed; the second occurred at the victim’s house.
He said the weapons were different: a fist in one, a knife in the other.
And he said the first incident was self-defense and the stabbing was an accident.
But the state said the crimes were incidents of domestic violence with the same victim and same offender in an ongoing relationship.
In its opinion, the Supreme Court notes that precedent supports invoking a couple’s history in domestic violence cases, with the close relationship, prior aggression, and threats or abusive treatment by the offender showing a common plan or scheme.
The Court says the state is allowed to present evidence of other bad acts, and so if the stabbing case had been tried on its own, the prosecutor still could have told the jury about the victim’s broken jaw.
The opinion notes that Loeschke was convicted of the stabbing but acquitted of the other assault, indicating the jury had not been prejudiced.
As for the jailhouse conversations, the state alleged that Greenwald’s part of certain conversations was included to put Loeschke’s statements in context, not to prove the truth of the matter.
But Loeschke said Greenwalt’s comments did not fit any hearsay exception because they included factual accusations that Loeschke disputed.
The Supreme Court found that the trial judge did err by allowing the jury to hear some parts of Greenwalt’s statements because, as a result, the jury heard testimony from the victim, and the defense was not able to cross-examine her.
But the Supreme Court determined that even without the recorded conversation, the jury had more than enough evidence to find Loeschke guilty of stabbing Greenwalt.
The Court writes, “Based on our review of the record, we conclude that there is no reasonable probability that the jury would have reached a different result had Greenwalt’s statements been excluded.”
According to state Department of Corrections records, Robert Loeschke, now 33 years old, is serving time in the South Dakota State Penitentiary. He was sentenced to almost 14 years for aggravated assault, with five years suspended, and in a different transaction for witness tampering, he was sentenced on the same day to serve 10 years with seven years suspended. He comes up for initial parole on June 19, 2026.
