#29549-a-SRJ 2022 S.D. 20
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
KADIR HUSSEIN AHMED, Defendant and Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA
THE HONORABLE CAMELA THEELER Judge
JASON R. ADAMS of Tschetter & Adams Law Offices, P.C. Sioux Falls, South Dakota Attorneys for defendant and appellant.
JASON R. RAVNSBORG Attorney General
CHELSEA WENZEL Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
CONSIDERED ON BRIEFS FEBRUARY 14, 2022 OPINION FILED 04/06/22 #29549
JENSEN, Chief Justice
[¶1.] Kadir Hussein Ahmed was charged with multiple counts arising from
two separate incidents involving an alleged shooting and a later confrontation
between Ahmed and two men. A jury found Ahmed guilty of seven counts,
including aggravated assault by physical menace with a dangerous weapon and
grand theft by receiving stolen property. Ahmed appeals both convictions arguing
that the circuit court erred when it denied his motion for judgment of acquittal
because there was insufficient evidence to support the convictions. We affirm.
Facts and Procedural History
[¶2.] On July 25, 2020, Angela Graham was awakened around 5:00 a.m. by
“some ruckus” and pounding at her door. After the pounding stopped, Graham
claimed she walked outside and saw Ahmed. Graham alleged that Ahmed shot a
gun three times, forcing her to retreat to her apartment and call the police. During
the 911 call, Graham identified the shooter as Ahmed, who was driving a black
vehicle. Graham recognized Ahmed as a friend of her oldest daughter.
[¶3.] Law enforcement responded to the call. Upon arrival and a brief
inspection of the scene, the officers were unable to observe any evidence of a
shooting and left the scene. Shortly after law enforcement left, Graham made a
second 911 call stating that Ahmed had returned to her apartment door.
[¶4.] Officer Andrew Parrot responded to the second 911 call. Officer Parrot
inspected the apartment and discovered bullet holes in and around the apartment.
He believed the interior bullet holes were fresh, however no bullets or casings were
found.
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[¶5.] Graham identified Ahmed by his nickname, “K.D.,” and shared
Ahmed’s Facebook profile with law enforcement. Graham also directed law
enforcement to an apartment complex in Sioux Falls where Ahmed was staying.
Law enforcement also discovered that Ahmed was driving his aunt’s black Nissan
Versa. Detectives Pat Mertes and Logan Eilers were dispatched to the apartment
complex where Ahmed was believed to be staying and located the vehicle registered
to Ahmed’s aunt in the parking lot. The detectives parked along the street to
observe the vehicle. After a few minutes, Ahmed exited his apartment building and
left in the vehicle. The detectives attempted to follow Ahmed but lost sight of him.
[¶6.] The detectives returned to Ahmed’s apartment complex and observed
Ahmed come out of an apartment building and approach a woman later identified
as Racquel Jellis. Jellis was visiting her brother-in-law, Heath Range, and her
boyfriend, Mitchell Erickson. Jellis testified that she had never met Ahmed but
noticed him approaching her once she arrived at the apartment complex. Jellis
became scared of Ahmed’s presence and began to quickly walk away from him as he
followed her into the apartment building. Once inside Range’s apartment, Jellis
informed both Erickson and Range that a man had followed her into the building.
[¶7.] Range and Erickson exited the apartment building to confront Ahmed
about his interaction with Jellis. Range asked Ahmed, “What’s going on man. That
ain’t your girlfriend.” Range testified that Ahmed then pulled out a silver revolver
from the front of his waistband and responded, “don’t worry about it,” and “you
don’t want none of this smoke [N-Word]. You don’t want none of this smoke.” Upon
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seeing the gun, Range and Erickson retreated into the apartment building and
Ahmed walked away from the building.
[¶8.] The detectives observed the confrontation but due to a privacy fence
between the detectives and the three individuals, they could only see the men’s
faces and top portion of their shoulders. Detective Eilers observed Range and
Erickson show surprise or fear during the confrontation and retreat into the
apartment building. Detective Eilers did not see a gun.
[¶9.] Ahmed then ran to his vehicle and attempted to leave the apartment
complex parking lot. Officers Trent Ehler and Scott Hildebrand arrived at the
apartment complex and initiated a traffic stop in the parking lot. As Officer Ehler
exited his patrol vehicle, he heard someone yell, “he’s got a gun.” Ahmed exited his
vehicle and ran toward the apartment buildings while holding the front of his
waistband. At trial, Officer Ehler explained that based on his training and
experience, he believed Ahmed was attempting to stabilize a firearm as he ran.
Ahmed ran into an apartment building and locked himself in the apartment for
several minutes. Additional officers arrived and directed Ahmed to exit the
apartment. Another occupant came out of the apartment first. A few minutes later,
Ahmed exited, told the officers that they needed a warrant to search his apartment,
and law enforcement detained him without further incident.
[¶10.] Detective Eilers interviewed Ahmed, who was unable to provide a
consistent timeline of his day leading up to his arrest. Ahmed claimed that he was
having trouble recalling his day because he had been drinking. Ahmed denied any
involvement in the shooting earlier that day and denied threatening Range and
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Erickson with a gun. Ahmed also asked Detective Eilers several times if she saw
him pull a gun while motioning as if he were pulling out a gun from his waistband
from the front of his pants. However, Ahmed denied that he had a gun during the
confrontation. Ahmed stated that he ran from the officers because he had been
drinking and believed an individual named Shalice had called the police on him.
[¶11.] Law enforcement later executed a search warrant for Ahmed’s
apartment. Officers found several unspent bullet rounds in different locations
throughout the apartment, including in the pockets of a pair of pants that contained
his personal identification card. The officers also discovered a black bumper in the
apartment that matched the vehicle Ahmed was driving. In the apartment
bathroom, Detective Mertes found a silver revolver wrapped in a white cloth hidden
inside the garbage basket. Inside the revolver was one unspent bullet round,
matching the other bullets found inside the apartment. Detective Mertes ran the
serial number on the revolver, which revealed that the firearm was reported as
stolen. At trial, Cory Burrell testified that in June 2020 his Silver Taurus .38
Special Ultralight revolver was stolen from his vehicle and he identified the gun
found in Ahmed’s apartment as his gun.
[¶12.] A grand jury indicted Ahmed on multiple counts stemming from the
shooting at Graham’s apartment and the later confrontation at Ahmed’s apartment.
Count 7 of the indictment charged Ahmed with a Class 3 felony for aggravated
assault by physical menace with a deadly weapon pursuant to SDCL 22-18-1.1(5),
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stemming from the confrontation with Erickson outside the apartment. 1 Count 11
charged Ahmed with a Class 6 felony for grand theft by receiving stolen property
pursuant to SDCL 22-30A-17(2) and SDCL 22-30A-7, stemming from the firearm
recovered at his apartment. At trial, Ahmed moved for a judgment of acquittal on
all charges. The court took the motion for judgment of acquittal on Count 11 under
advisement but denied the motion as to all other counts. 2 The jury found Ahmed
guilty on seven of the fourteen counts, including Counts 7 and 11. The convictions
on seven of the charges all arose from the events at Ahmed’s apartment complex.
The jury found Ahmed not guilty on all the charges arising from the alleged
shooting earlier in the day at Graham’s apartment.
[¶13.] Ahmed appeals his convictions for aggravated assault by physical
menace against Erickson in Count 7 and for grand theft by receiving stolen property
in Count 11 arguing that the circuit court erred in denying his motion for judgment
of acquittal.
Analysis and Decision
[¶14.] “[A] motion for judgment of acquittal attacks the sufficiency of the
evidence, which is a question of law whether the motion is considered before or after
the jury’s verdict.” State v. Wolf, 2020 S.D. 15, ¶ 12, 941 N.W.2d 216, 220. “A
question regarding the sufficiency of the evidence to sustain a conviction is reviewed
1. Count 8 of the indictment alleged a separate charge for aggravated assault by physical menace with a deadly weapon as to Heath Range. Ahmed was convicted of Count 8 but does not challenge this conviction on appeal.
2. The court did not formally rule on the motion for judgment of acquittal as to Count 11 but submitted the charge to the jury and imposed a sentence on the conviction after the guilty verdict was entered. -5- #29549
de novo.” State v. McReynolds, 2020 S.D. 65, ¶ 11, 951 N.W.2d 809, 814. When
reviewing the sufficiency of the evidence, the Court considers “[w]hether there is
evidence in the record which, if believed by the fact finder, is sufficient to sustain a
finding of guilt beyond a reasonable doubt.” Wolf, 2020 S.D. 15, ¶ 13, 941 N.W.2d at
220 (citation omitted). On review, the Court “accept[s] the evidence and the most
favorable inferences that can be fairly drawn from it that support the verdict.” Id.
(quoting State v. Carter, 2009 S.D. 65, ¶ 44, 771 N.W.2d 329, 342). This Court does
not “resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh
the evidence on appeal. If the evidence including circumstantial evidence and
reasonable inferences drawn therefrom sustain a reasonable theory of guilt, a guilty
verdict will not be set aside.” Id. (quoting Carter, 2009 S.D. 65, ¶ 44, 771 N.W.2d at
342).
I. Count 7 – Aggravated Assault by Physical Menace against Mitchell Erickson.
[¶15.] Any individual who “[a]ttempts by physical menace with a deadly
weapon to put another in fear of imminent serious bodily harm . . . is guilty of
aggravated assault.” SDCL 22-18-1.1(5). “The gravamen of the offense is the
attempt to put a person in fear of imminent serious bodily harm. Actual fear of
imminent serious bodily harm is not an essential element of the offense.” State v.
LaCroix, 423 N.W.2d 169, 170 (S.D. 1988). “Physical menace ‘requires more than
words: there must be some physical act on the part of the defendant.’” State v.
Scott, 2019 S.D. 25, ¶ 19, 927 N.W.2d 120, 127 (quoting In re R.L.G., 2005 S.D. 119,
¶ 10, 707 N.W.2d 258, 261).
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[¶16.] Ahmed argues his conviction for aggravated assault against Erickson
is not supported by sufficient evidence because he never pointed the gun at Erickson
and his singular use of the N-Word indicates the threatening act was solely directed
towards Range. Ahmed also argues that because Erickson did not testify at trial
and the detectives’ view was obstructed, the evidence was insufficient to show that
Erickson had an actual fear of imminent serious bodily harm. The State responds
that Ahmed’s act of brandishing a firearm in Erickson’s proximity and his
threatening statements are sufficient to sustain the conviction.
[¶17.] This Court has previously affirmed a circuit court’s denial of a motion
for judgment of acquittal on a charge for aggravated assault by physical menace
despite the absence of any evidence that the defendant directly pointed a gun at the
victim. State v. Schmiedt, 525 N.W.2d 253, 255 (S.D. 1994). In Schmiedt, this
Court found a defendant’s command to a law enforcement officer not to come any
closer, combined with the defendant suddenly grabbing a loaded firearm and
keeping the firearm at his side, supported a conviction for aggravated assault by
physical menace. Id. Furthermore, in discussing the factual basis for a charge
under SDCL 22-18-1.1(5), we have stated that whether the defendant “pointed [a
gun] at the victims and [whether] it was loaded or unloaded makes no difference.”
See State v. Waters, 529 N.W.2d 586, 588 (S.D. 1995) (affirming the circuit court’s
decision to reject a lesser included instruction for simple assault because the
defendant used “a deadly weapon for the purpose of this offense, during this
incident”); see also State v. Schumacher, 2021 S.D. 16, ¶ 31, 956 N.W.2d 427, 435
(finding sufficient evidence to support a conviction under SDCL 22-18-1.1(5) when
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the defendant held a gun on her shoulder, pointed it in the air, and later pointed the
barrel in the general direction of two law enforcement officers as she was setting it
down).
[¶18.] The evidence shows Erickson and Range approached Ahmed and
confronted him about his interaction with Jellis. Range testified that, in response,
Ahmed pulled the firearm from his waistband and pointed it directly at Range’s
head. Ahmed was in close proximity to both Erickson and Range, in sole control of
the firearm, and used threatening language during the interaction. Given Ahmed’s
close proximity to Erickson and Range, and his ability to instantly utilize the
firearm against Erickson or Range, a jury could have reasonably concluded that
Ahmed attempted to put both Erickson and Range in fear of imminent serious
bodily harm.
[¶19.] Ahmed’s claim that Erickson was required to testify to show that
Erickson feared imminent harm from Ahmed also fails. “[T]he State need not prove
‘actual fear of imminent serious bodily harm.’” Scott, 2019 S.D. 25, ¶ 19, 927
N.W.2d at 127 (quoting LaCroix, 423 N.W.2d at 170). We have recognized that “an
attempt to put another in fear” is sufficient to support a conviction. Id. An attempt
includes “any act toward the commission of the crime but fails or is prevented or
intercepted in the perpetration thereof.” Id. (citation omitted). Range’s testimony
was sufficient for the jury to find that Ahmed, through his words and actions,
attempted to place both Range and Erickson in fear of imminent serious bodily
harm. Further, although it was unnecessary to prove the alleged victims were
actually afraid, Detective Eilers testified that Range and Erickson looked “surprised
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or afraid” moments before they retreated into the apartment building. Detective
Eilers also testified that Range and Erickson were shaking, anxious, and appeared
very upset when she spoke with them immediately after their encounter with
Ahmed.
[¶20.] This Court examines the evidence in its totality and does not reweigh
evidence or pass on the credibility of witnesses. Carter, 2009 S.D. 65, ¶¶ 44–45, 771
N.W.2d at 342. The evidence presented to the jury, including the testimony from
Range and law enforcement, and the reasonable inferences drawn therefrom,
support a reasonable theory of guilt. Therefore, the circuit court did not err in
denying Ahmed’s motion for judgment of acquittal on the aggravated assault by
physical menace conviction.
II. Count 11 – Grand Theft by Receiving Stolen Property.
[¶21.] SDCL 22-30A-7 provides that “[a]ny person who receives, retains, or
disposes of property of another knowing that the property has been stolen, or
believing that the property has probably been stolen, unless the property is
received, retained, or disposed of with the intent to restore the property to the
owner, is guilty of theft.” Grand theft by receiving stolen property is a Class 6
felony if the stolen property “[i]s a firearm with a value of less than or equal to two
thousand five hundred dollars[.]” SDCL 22-30A-17(2).
[¶22.] Ahmed initially argues the State failed to provide sufficient evidence
that he was ever in possession of the firearm, or that he knew or should have known
the firearm was stolen as required by SDCL 22-30A-7. Ahmed highlights that there
was no evidence that he was actually in possession of the stolen firearm, how the
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firearm ended up in the garbage basket, or any evidence of fingerprints or DNA
found on the firearm. The State points to Range’s testimony and Officer Ehler’s
dash cam footage and testimony to show that Ahmed was in possession of the
firearm just before it was found in his apartment. The State also asserts there was
sufficient evidence to support that Ahmed knew the firearm was stolen based upon
the circumstances presented at trial.
[¶23.] This Court does not “resolve conflicts in the evidence, pass on the
credibility of witnesses, or reweigh the evidence on appeal.” Wolf, 2020 S.D. 15,
¶ 13, 941 N.W.2d at 220 (citation omitted). Further, “[a]ll elements of a crime . . .
may be established circumstantially.” State v. Falkenberg, 2021 S.D. 59, ¶ 39, 965
N.W.2d 580, 591 (quoting State v. Shaw, 2005 S.D. 105, ¶ 45, 705 N.W.2d 620, 633).
“Direct and circumstantial evidence have equal weight. In fact, in some instances
circumstantial evidence may be more reliable than direct evidence.” Id. (quoting
State v. Riley, 2013 S.D. 95, ¶ 18, 841 N.W.2d 431, 437).
[¶24.] From our review of the record, there was sufficient evidence supporting
the jury’s determination that Ahmed had possession of the firearm and the requisite
knowledge that the firearm was stolen. Range testified that Ahmed pulled a silver
revolver from his waistband. Additionally, Officer Ehler’s dash cam showed Ahmed
running to his apartment building while holding onto the front of his waistband,
which Officer Ehler testified is a common running position used to secure a firearm.
Inside Ahmed’s apartment, law enforcement found a firearm matching the one
described by Range at the bottom of a garbage basket wrapped in a cloth. Law
enforcement also found a pair of pants that contained Ahmed’s personal
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identification card and bullets for the firearm. The owner of the firearm testified
that the firearm found in Ahmed’s apartment was stolen from his vehicle
approximately a month earlier. Accepting this evidence and the most favorable
inferences drawn therefrom, the evidence supports the jury’s determination that
Ahmed was in possession of the firearm and knew or believed that it was stolen.
[¶25.] Ahmed also argues that the State was required to present evidence of
the value of the firearm to prove that he was guilty of a Class 6 felony under SDCL
22-30A-17(2). He claims that the value of the firearm was an essential element of
the offense. Grand theft is a Class 6 felony if the stolen property “[i]s a firearm with
a value of less than or equal to two thousand five hundred dollars[.]” SDCL 22-30A-
17(2). Under SDCL 22-30A-17, the State is required to prove the value of the stolen
property beyond a reasonable doubt, but the exact value of the property is not
important unless the value of the item stolen is close to the relevant statutory
amount or level. State v. Iron Necklace, 430 N.W.2d 66, 81 (S.D. 1988).
[¶26.] SDCL 22-30A-17(2) provides that the theft of a “firearm with a value of
less than or equal to two thousand five hundred dollars” is a Class 6 felony.
(Emphasis added.); see State ex rel. Dep’t. of Transp. v. Clark, 2011 S.D. 20, ¶ 10,
798 N.W.2d 160, 164 (“In matters of statutory interpretation, [this Court begins]
with the plain language and structure of the statute.” (citation omitted)). Under the
plain language of the statute, a theft of any firearm, regardless of value, is at least a
Class 6 felony. Therefore, the State did not have to present evidence of the
firearm’s exact value in order for the jury to find Ahmed guilty of a Class 6 felony
for receiving stolen property.
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[¶27.] Another jurisdiction applying similar statutory language reached a
similar conclusion. See generally Blair v. State, 562 S.W.3d 261 (Ark. Ct. App.
2018). In Blair, the defendant was charged with theft by receiving stolen property,
a Class D felony, under a statute with nearly identical language to SDCL 22-30A-
17(2), which states that “theft by receiving is a class D felony if the property is a
firearm valued at less than $2500.” Id. at 264 (emphasis added); see also Ark. Code.
Ann. § 5-36-1-6(e)(3)(B)(iii). The prosecution did not present any evidence of the
value of the firearm. Id. The court affirmed the defendant’s conviction finding that
“[t]heft by receiving of a firearm is at least a Class D felony regardless of the
weapon’s value, and the State is not required to establish the value of the firearm in
order to obtain a conviction.” Id.
[¶28.] At trial, the jury was shown pictures of the firearm, and heard
testimony from the owner that he purchased the firearm from Gary’s Gun Shop and
that the firearm had been stolen. Therefore, the jury was reasonably able to
conclude that the firearm had been stolen and had some value less than $2,500.
Based on the evidence presented and the reasonable inferences drawn therefrom,
there was sufficient evidence to support the jury’s guilty verdict of grand theft by
receiving a stolen firearm.
[¶29.] We affirm the circuit court’s denial of the motion for judgment of
acquittal on both counts.
[¶30.] KERN, SALTER, DEVANEY, and MYREN, Justices, concur.
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