#30754-a-JMK 2026 S.D. 16
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
CHRISTIAN ELLIOTT CLIFFORD Defendant and Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA
THE HONORABLE SANDRA H. HANSON Judge
KYLIE BECK JACOB CARSTEN of Minnehaha County Public Defender’s Office Sioux Falls, South Dakota Attorneys for defendant and appellant.
MARTY J. JACKLEY Attorney General
ANGELA R. SHUTE Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
ARGUED JUNE 3, 2025 OPINION FILED 03/11/26 #30754
KERN, Retired Justice
[¶1.] Christian Clifford was convicted, after a jury trial, of aggravated
eluding, reckless driving, driving under suspension, and failing to stop at a stop
sign, stemming from events that occurred on April 6, 2023. During trial, the State
elicited testimony from law enforcement officers concerning a telephonic report
received earlier in the day on April 6, 2023. The report alleged that Clifford had
been involved in a family dispute and was driving a red Toyota Camry. Officers
patrolled the area of the reported incident and saw a red Toyota Camry. When an
officer attempted to stop the vehicle, the driver fled at high speeds through
residential neighborhoods. Pursuant to department policy, the officers did not
pursue the vehicle. Prior to trial, Clifford moved to exclude the caller’s statements
through the testimony of the responding officers, asserting that the information
contained in the call was hearsay and violated SDCL 19-19-401 and 19-19-404. The
court denied the motion and defense counsel requested a “continuing objection
under Crawford [v. Washington],” without further reference or proceedings on this
issue. Clifford appeals, claiming the circuit court erred by admitting testimonial
hearsay in violation of his Sixth Amendment right to confrontation. We affirm.
Factual and Procedural Background
[¶2.] On April 6, 2023, law enforcement received a call requesting assistance
because of a family dispute at 316 South Prairie Avenue in Sioux Falls. The
reporting party, a woman later identified to be either Anna Hall or Lindsey Hall,
alleged that Christian Clifford was involved in the dispute and was driving a red
Toyota Camry. Law enforcement issued a “be on the lookout” bulletin (BOLO), and
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several officers responded to the area. Around 2:00 p.m., Detective Christian
O’Brien with the Sioux Falls Police Department observed a red Toyota Camry
backing out of the alley next to 316 South Prairie Avenue and identified “a native or
Hispanic male with short hair in the driver’s seat.”
[¶3.] Detective O’Brien followed the Camry as it turned to travel south on
South Prairie Avenue. After passing through the intersection of South Prairie
Avenue and West 12th Street, Detective O’Brien activated his emergency lights.
Initially, the driver turned on the right blinker and appeared to be pulling over.
But the driver continued driving forward until the next intersection, where the
driver made a left turn onto West 13th Street and rapidly sped up. Detective
O’Brien followed the Camry onto West 13th Street and observed a cloud of dust that
had been spun up into the air. He realized that the Camry had already traveled at
least two blocks down the street. To make such progress, the Camry passed
another vehicle and failed to stop at a stop sign. Detective O’Brien did not pursue
the vehicle, in accordance with department policy prohibiting pursuit unless the
suspect in the vehicle is about to commit a dangerous felony and is an ongoing
threat to society.
[¶4.] Several officers were present in the area in response to the BOLO,
including Officer Carlos Puente, Detective Nelson Leacraft, and Officer Scott
Hildebrand. Officer Puente observed the Camry as it crossed the intersection of
South Prairie Avenue and West 12th Street and viewed the driver through the
driver’s window. Officer Puente identified Clifford as the driver based on prior
knowledge of his appearance through a known photograph. Detective Leacraft was
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parked south of the South Prairie Avenue/West 13th Street intersection facing
north in an unmarked truck as the Camry approached the intersection. Detective
Leacraft viewed the driver through the windshield and identified Clifford as the
driver based on prior knowledge of his appearance through photos and from in-
person surveillance involving another matter. A warrant was issued for Clifford’s
arrest in May 2023, and he was charged by complaint with a number of driving
related violations.
[¶5.] Clifford was indicted on July 26, 2023, on four counts: (1) aggravated
eluding in violation of SDCL 32-33-18.2; (2) reckless driving in violation of SDCL
32-24-1; (3) operating a motor vehicle with a suspended driver’s license in violation
of SDCL 32-12-65(2); and (4) failure to stop at a stop sign in violation of SDCL 32-
29-2.1.1 The State also filed a part II information alleging that Clifford had been
convicted of two prior felonies.
[¶6.] Clifford filed a motion in limine on March 14, 2024, seeking to exclude,
inter alia, the following evidence:
• “Any reference, mention, or inference of any BOLO’s made in regard[] to the Defendant;”
• “Any reference, mention, or inference . . . to any persons by the name of Anna Hall or Lindsey Hall;” and
• “Any reference, mention, or inference of the Defendant being associated with a red Toyota Camry[.]”
In support of the written motion in limine, Clifford argued such evidence was
“inadmissible to prove character,” relying exclusively on SDCL 19-19-404.
1. SDCL 32-33-18.2 was amended in 2024 and is now separated into first-degree eluding and second-degree eluding, rather than aggravated eluding. -3- #30754
[¶7.] A two-day jury trial was held on March 18 and 19, 2024. Before
selecting the jury, the circuit court considered the various motions in limine filed by
the parties, including Clifford’s motion to exclude specific prior wrongs or acts
pursuant to SDCL 19-19-404. Included within this motion was Clifford’s request to
exclude statements regarding the BOLO alert. Clifford argued that the use of the
word “BOLO” was unduly prejudicial, and Clifford’s counsel suggested that the
officers could instead testify that they “were looking to speak with [Clifford] in
regard to a police matter.” The State argued that defense counsel’s suggestion was
unacceptable because the existence of the BOLO created a legal basis to stop the
Camry, whereas law enforcement’s desire to speak to someone about a pending
matter did not.2 Further, the State asserted that the evidence was properly
considered as res gestae because it explained the circumstances leading up to the
attempt to stop the vehicle and the subsequent flight. The circuit court denied the
motion, reasoning that because law enforcement was legally permitted to stop the
vehicle because of the BOLO, its existence was part of the circumstances leading up
to the attempted stop and the officers should be permitted to explain why they were
trying to stop the car.
[¶8.] Clifford also argued that any reference to him being associated with a
red Toyota Camry should be excluded. In addition to the initial basis for exclusion
under SDCL 19-19-404 contained in the written motion in limine, counsel for
2. The State also informed the circuit court that it instructed the subpoenaed officers that they could not mention the underlying facts leading to the issuance of the BOLO or any details about the BOLO aside from the fact that a BOLO had been issued. -4- #30754
Clifford orally argued that such statements were precluded by SDCL 19-19-401, as
irrelevant; SDCL 19-19-403, as more prejudicial than probative; and SDCL 19-19-
801 through 803, as inadmissible hearsay. Counsel asserted that the statements
were uncorroborated “out-of-court statements used to associate Mr. Clifford with
the Toyota Camry.” He argued that “allowing that to come in as the officers were
looking for him in that vehicle without actual proper foundation or any actual
connection to the vehicle through proper testimony would impermissibly push the
jury towards consider[ation] of an improper association as actual evidence.”
Counsel told the court that Clifford did not own the vehicle or have any association
with it aside from the information provided by the caller. Notably, counsel did not
present any argument, facts, or circumstances regarding the Confrontation Clause,
particularly whether the caller’s statement about the red Toyota Camry relayed in
the BOLO was testimonial.
[¶9.] In response, the State argued that the description given by the caller,
including the information that Clifford was driving a red Toyota Camry, was
admissible for its “effect on the listener,” or, in other words, to explain why law
enforcement officers were looking for a red Toyota Camry in the area. The circuit
court denied Clifford’s motion, rejecting the three bases for exclusion that defense
counsel orally advanced—that the statement about the red Toyota Camry was
irrelevant, was more prejudicial than probative, and was inadmissible hearsay. The
court stated:
The motion will be denied. Although the Court’s not fully aware of all the circumstances of the case, it does appear to me that a red Toyota Camry and the defendant allegedly driving it is certainly relevant to the charges against him. It does not
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appear to me to be a matter of unfair prejudice to him at all that a red Toyota Camry be mentioned in association with him. I do understand defense is arguing that hearsay was what led officers to look for that vehicle in the first place, but I don’t believe that the fact that hearsay is ultimately inadmissible in court means that law enforcement officers can’t rely upon out-of- court statements when making their investigations. It’s just that when they come to present their testimony, they can’t do so in the terms of presenting hearsay evidence to, you know, outright testifying as to hearsay, put . . . that [] in front of the jury. So this motion will be denied.
[¶10.] Following the court’s ruling, defense counsel stated: “We would just
note a continuing objection under Crawford3 of . . . any out-of-[court] testimony in
regard to prior associations with that red Camry.” No further reference to or
discussion of Crawford occurred.
[¶11.] The State called three witnesses in its case-in-chief: Detective O’Brien,
Detective Leacraft, and Officer Puente. The State also offered a certified copy of
Clifford’s driving record, showing that his driver’s license was suspended at the
time of the incident, and three dash camera videos from Detective O’Brien, Officer
Puente, and Officer Hildebrand, which showed the officers’ view of the vehicle as
they observed it.4
3. Defense counsel’s reference is to Crawford v. Washington, 541 U.S. 36, 59 (2004), in which the United States Supreme Court addressed the Confrontation Clause, stating, “[t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.”
4. Detective O’Brien provided the foundation for the admission of Officer Hildebrand’s dash camera video. -6- #30754
[¶12.] Detective O’Brien testified that he was in the area responding to
a BOLO when he observed a red Toyota Camry pulling out of the alley next to
the reported address. The State asked:
Q: And you kind of answered it there, but why was that red Toyota Camry something of interest to you?
A: The reporting party that called in stated that Christian Clifford was in a red Toyota Camry.
Q: And you then observed said Camry; correct?
A: Yes.
Detective O’Brien testified that he followed the Camry through the intersection of
South Prairie Avenue and West 12th Street before activating his emergency lights
to initiate a traffic stop. Instead of stopping, the Camry turned left onto West 13th
Street and fled at a “high speed, passing a vehicle, and going through a stop sign
without yielding.” Detective O’Brien estimated that the Camry was traveling
between 60 and 65 miles per hour in a residential area with a speed limit of 25
miles per hour and described the driving as “[e]xtremely fast and erratic” and
dangerous.
[¶13.] The State next called Detective Leacraft, who testified that he
responded to “a call for service” on April 6, 2023, “stating that a subject by the name
of Christian was there in a red Toyota Camry, which was the subject that [Detective
Leacraft’s] unit was previously aware of and looking for.” Detective Leacraft
testified that he was familiar with Clifford and identified him in the courtroom.
The State asked, “And what other information did you receive that day with
regard[] to a one Mr. Christian Clifford?” Detective Leacraft responded that “[t]he
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information was that he was at that current location and driving a red Toyota
Camry.” Detective Leacraft then testified that he observed the Camry as it
approached the intersection of South Prairie Avenue and West 13th Street and saw
the driver, whom he identified as Clifford. When Detective O’Brien activated his
emergency lights, Detective Leacraft observed Clifford look into the rearview mirror
while pulling the vehicle to the side of the road before turning onto West 13th Street
and fleeing at a high rate of speed.
[¶14.] The State inquired about the circumstances surrounding Detective
Leacraft’s identification:
Q: And was there anything blocking your view from seeing the driver of that vehicle?
A: No, there wasn’t.
Q: No tinted windows on that vehicle?
A: I was looking straight through the windshield, and the windshield obviously was not tinted.
Q: And the sun wasn’t in your eyes, anything like that?
A: No.
Q: So nothing obstructed your view.
Detective Leacraft testified that he was familiar with Clifford’s appearance from
observing “him in person on surveillance” and in photos. He described Clifford’s
driving during this attempt to flee from law enforcement as “highly dangerous.”
[¶15.] The State’s final witness was Officer Puente, who testified that he
responded to a dispatch call to the area of 316 South Prairie Avenue relating to “a
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BOLO subject that we were looking for in the area.” Officer Puente identified
Clifford as the subject of the BOLO and testified that law enforcement was also
informed that “Christian was driving a newer red Toyota Camry.” Prior to arriving
on scene, Officer Puente familiarized himself with Clifford’s appearance by
reviewing a known photo. Officer Puente proceeded to the area of South Prairie
Avenue and West 12th Street and observed the Camry as it crossed the intersection
immediately before Detective O’Brien activated his emergency lights. Officer
Puente testified that he saw the driver of the vehicle and identified him as Clifford.
Officer Puente’s dash camera video, admitted as Exhibit 3, showed his view of the
Camry and driver through the driver’s side window as the vehicle slowly traveled
through the intersection.
[¶16.] Officer Puente also described the character of the neighborhood, which
was in his patrol area, as generally “there’s a lot of people walking around
sometimes during those hours, and kids outside.” Given the time of day and
residential nature of the area, Officer Puente testified that Clifford’s manner of
driving as he fled down West 13th Street was “[p]retty reckless.”
[¶17.] The State rested its case, and Clifford then testified in his own defense.
He testified that he did not recall where he was on April 6, 2023 “[b]ecause nothing
really happened important that day.” He informed the jury that he neither owned
nor had ever driven a red Toyota Camry and that the last vehicle he owned was a
white 2012 Chevy Malibu. Additionally, Clifford testified that he was not driving
because his driver’s license was suspended. When asked on direct examination, he
admitted that he had previously been convicted of two felonies, one involving a
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crime of dishonesty. Clifford denied having family in the area of 316 South Prairie
Avenue or fleeing from law enforcement in that area on April 6, 2023. Following
Clifford’s testimony, the defense rested its case.
[¶18.] On the second and final day of trial, the parties presented their closing
arguments. The State replayed Detective O’Brien’s dash camera video for the jury
and argued that it satisfied the State’s burden to prove the elements of the offenses
charged beyond a reasonable doubt. Regarding the identity of the driver, the State
highlighted Detective Leacraft’s and Officer Puente’s testimony. The State argued
that both witnesses were familiar with Clifford’s appearance and identified him as
the driver after having a clear opportunity to see him in the vehicle.
[¶19.] During its closing argument, defense counsel attacked the credibility of
the identifications, arguing that Detective Leacraft and Officer Puente had
approximately ten seconds or one block of travel to observe the driver before making
an identification. Counsel also argued that the dash camera videos did not clearly
show the driver and that the jury was unable to assess the accuracy of the known
photos of Clifford reviewed by the officers prior to traveling to the area.
[¶20.] During its rebuttal argument, the State urged the jury to review the
videos admitted into evidence and consider the distance between the officers and
the Camry when they observed the driver. The State also reminded the jury to
“remember the circumstantial and direct evidence. The direct evidence in this case
is the videos and the testimony from the officers, the eyewitnesses that were there.
The circumstantial evidence would be that the red Toyota Camry is associated with
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Christian Clifford based on the BOLO that you heard testimony to from the
officers.” The defense did not object to this statement.
[¶21.] The jury returned a guilty verdict on all four counts. The circuit court
sentenced Clifford to a term of four years in the penitentiary for aggravated eluding,
one year in the county jail for reckless driving, 30 days in jail for driving under
suspension, and 30 days in jail for the stop sign violation. All four sentences were
suspended, and the sentences for counts 2, 3, and 4 were ordered to run
concurrently with the sentence for aggravated eluding. The aggravated eluding
sentence was ordered to run consecutively to two unrelated felony sentences Clifford
was serving.
[¶22.] Clifford appeals, raising one issue, which we restate as follows:
1. Whether the circuit court erred in admitting testimonial hearsay statements in violation of Clifford’s Sixth Amendment right to confrontation.
Analysis and Decision
[¶23.] Clifford asserts that the circuit court erred in permitting the State’s
witnesses to testify about the contents of the call to law enforcement on April 6,
2023, particularly that the caller stated that Clifford was driving a red Toyota
Camry. Because the caller did not testify, Clifford argues the court’s evidentiary
ruling violated the rule against hearsay in SDCL 19-19-802. He also argues that
the admission of the caller’s out-of-court statements were testimonial, depriving
him of his Sixth Amendment right to confront and cross-examine the witnesses
against him. See Crawford v. Washington, 541 U.S. 36 (2004). Clifford further
contends that he was prejudiced by the court’s admission of a testimonial hearsay
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statement, and claims that because he is asserting a violation of a constitutional
right, the State bears the burden to prove beyond a reasonable doubt that the
circuit court’s error was harmless.
[¶24.] “The Sixth Amendment to the United States Constitution provides
that a criminal defendant has the right to be ‘confronted with the witnesses against
him.’” State v. Dickerson, 2022 S.D. 23, ¶ 27, 973 N.W.2d 249, 258 (citations
omitted). In Crawford v. Washington, the United States Supreme Court “instructed
that the right to confrontation guaranteed by the Sixth Amendment requires
exclusion of out-of-court testimonial statements unless: (1) the witness is declared
unavailable to testify; and (2) the defendant had a prior opportunity to cross-
examine the witness.” State v. Richmond, 2019 S.D. 62, ¶ 24, 935 N.W.2d 792, 799–
800 (citing Crawford, 541 U.S. at 68–69) (emphasis added). The Supreme Court has
made clear that the Confrontation Clause “applies only to testimonial hearsay,” a
two-word phrase that requires exclusion if the statements are (1) hearsay and (2)
testimonial. Davis v. Washington, 547 U.S. 813, 823 (2006); Smith v. Arizona, 602
U.S. 779, 784 (2024).
[¶25.] “Testimonial statements are loosely defined as ‘a solemn declaration or
affirmation made for the purpose of establishing or proving some fact.’” State v.
Little Long, 2021 S.D. 38, ¶ 45, 962 N.W.2d 237, 254 (citations omitted).
“Testimonial hearsay includes, at a minimum, police interrogations and prior
testimony at a preliminary hearing, before a grand jury, or at a former trial.” Id.
(citation modified). Whether answers to questions posed by law enforcement are
testimonial depends on the primary purpose for the questioning and the
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surrounding circumstances. Davis, 547 U.S. at 822. Therefore, the determination
of whether a statement is testimonial or nontestimonial must be made after
consideration of the unique facts of each case. But here, we are presented with a
sparse record containing little detail about the circumstances under which the
challenged statements were made.
[¶26.] Moreover, as noted above, Clifford did not raise hearsay or
Confrontation Clause objections in his written motion in limine, although, on the
morning of trial, he did orally raise a hearsay objection in his argument to the
circuit court in support of his motion. However, the only mention of Crawford
occurred after the court issued its ruling denying Clifford’s motion when his counsel
requested a continuing objection to the admission of the challenged testimony. At
no time did Clifford ask the circuit court to determine whether the challenged
statement was testimonial, nor did he present any of the facts or circumstances that
must be considered before the court could determine whether the proffered
statements were testimonial.
[¶27.] “When a party deprives the trial court an opportunity to rule on the
issue by failing to object to argument at the time the objectionable comments are
made, he waives his right to argue the issue on appeal.” Veith v. O’Brien, 2007 S.D.
88, ¶ 67, 739 N.W.2d 15, 34 (citing State v. Janklow, 2005 S.D. 25, ¶ 47, 693 N.W.2d
685, 701); State v. Corey, 2001 S.D. 53, ¶ 9, 624 N.W.2d 841, 844 (citation omitted)
(“A defendant in a criminal case must give the trial court the opportunity to make a
ruling on an issue before it will be reviewed on appeal.”). Given the state of the
record here, we decline to address Clifford’s Sixth Amendment claim because he
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failed to preserve the issue of whether the statement at issue was testimonial and
whether its admission was in violation of the Confrontation Clause. See Marquez v.
United States, 903 A.2d 815, 817 (D.C. 2006) (where defense counsel objected on
“purely evidentiary grounds” based on hearsay, the court concluded the alleged
Confrontation Clause violation was not adequately preserved for appeal).
[¶28.] As to the hearsay objection that Clifford did raise below, we note that
the circuit court’s pretrial ruling was somewhat unclear as to the parameters of the
allowable testimony from the law enforcement officers when referring to
information related in the BOLO. The court acknowledged that the officers could
rely on hearsay when investigating a reported matter, but then stated that “when
they come to present their testimony, they can’t do so in the terms of presenting
hearsay evidence.” As Clifford notes on appeal, at trial, the State elicited testimony
from the officers regarding the caller’s statement that Clifford was in a red Toyota
Camry. He further notes that although the State argued such testimony was
admissible as background context explaining the officers’ actions, during the State’s
rebuttal argument in closing, the prosecutor used this testimony as substantive
evidence, offered for its truth, to prove identity. In particular, the State urged the
jury to consider the officers’ testimony “that the red Toyota Camry is associated
with Christian Clifford based on the BOLO.” However, Clifford did not object to
this statement, move to strike it from the record, or request a curative instruction.
Without an objection, “the trial court [is] not given an opportunity to consider the
objection or admonish the jury prior to submitting the case to them.” Janklow, 2005
S.D. 25, ¶ 44, 693 N.W.2d at 700.
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[¶29.] But even if the admission or use of such testimony for the truth of the
matter asserted violated the rule against hearsay, we are convinced, from our
review of the record, that Clifford has not established prejudicial error that
warrants reversal. See State v. Carter, 2023 S.D. 67, ¶ 26, 1 N.W.3d 674, 686
(citation omitted) (explaining that an error is prejudicial if there is a “reasonable
probability that, but for [the error], the result of the proceeding would have been
different”). The strongest evidence presented by the State to establish the driver’s
identity was the live testimony of two officers indicating that they were familiar
with Clifford’s appearance, had a clear opportunity to view the driver of the red
Camry, and positively identified Clifford as the driver.
[¶30.] Officer Puente’s dash camera video lends additional support to the
testimony that there was a clear opportunity to view Clifford. The video generally
depicts that it was light outside and Officer Puente’s view of the West 12th
Street/South Prairie Avenue intersection was not obstructed. Clifford drove
through the intersection in the red Camry at a low speed prior to Detective O’Brien
activating his emergency lights. Based on his position, Officer Puente had a clear
view of the side profile of the driver through the driver’s side window as the vehicle
passed through the intersection. Additionally, Officer Puente testified that he was
able to view Clifford through the windshield of the Camry as he stopped at a stop
sign prior to entering the intersection.
[¶31.] Detective Leacraft testified that he was familiar with Clifford’s
appearance, having viewed known photos of him prior to responding to the area,
and from observing Clifford on a prior occasion as part of surveillance involving
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unrelated matters. Detective Leacraft had an unobstructed view of Clifford as he
approached the intersection of West 13th Street and South Prairie Avenue. He
testified that he saw Clifford look into his rearview mirror as Detective O’Brien
attempted to initiate the stop.
[¶32.] Given this compelling testimony from the officers, the caller’s
statement was not the only evidence suggesting that Clifford was the driver and,
arguably, it was the weakest evidence on that point. The State did not mention the
caller’s statement in its initial closing argument, and, when mentioning the caller’s
statement during its rebuttal, the State reminded the jury of Detective Leacraft’s
and Officer Puente’s testimony and asked the jury to review the dash camera
footage. In light of that evidence, the caller’s statements are “merely cumulative or
corroborative of other evidence that was independently and properly admitted.”
State v. Podzimek, 2019 S.D. 43, ¶ 16, 932 N.W.2d 141, 147. Thus, Clifford has not
shown that there was error reaching a level of prejudice that “undermine[s]
confidence in the outcome.” Carter, 2023 S.D. 67, ¶ 26, 1 N.W.3d at 686 (citation
omitted). Accordingly, we affirm.
[¶33.] JENSEN, Chief Justice, and SALTER, DEVANEY, and MYREN,
Justices, concur.
[¶34.] GUSINSKY, Justice, not having been a member of the Court at the
time this action was considered by the Court, did not participate.
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