#28886-a-JMK 2020 S.D. 4
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
CHANCE GLENN HARRUFF, Defendant and Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT GREGORY COUNTY, SOUTH DAKOTA
THE HONORABLE BOBBI J. RANK Judge
RALEIGH HANSMAN CLINT SARGENT of Meierhenry Sargent, LLP Sioux Falls, South Dakota Attorneys for defendant and appellant.
JASON R. RAVNSBORG Attorney General
QUINCY R. KJERSTAD Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
ARGUED SEPTEMBER 30, 2019 OPINION FILED 01/29/20 #28886
KERN, Justice
[¶1.] A jury found Chance Harruff guilty of second-degree murder (SDCL
22-16-7) for the death of Kristi Olson. The circuit court sentenced Harruff to life in
prison. On appeal Harruff argues the court erred by admitting other acts testimony
from three witnesses over Harruff’s objection that the testimony was cumulative in
violation of SDCL 19-19-403. He also contends that the court erred in denying his
motion for judgment of acquittal arguing there was insufficient evidence to sustain
the conviction. We affirm.
Background
[¶2.] Kristi Olson was discovered unconscious in her Dallas, South Dakota
home on June 1, 2017 at 7:00 a.m. by Samantha York, Kristi’s eldest daughter.1
York lived in a nearby home on the same property. She had called her mother
several times that morning, but received no answer. York knew Kristi should have
been awake because she planned to leave her home at 6:00 a.m. to drive to Sioux
Falls to trade in her truck. When York received no answer, she began to worry, so
she walked over to her mother’s house and noticed the truck still in the driveway.
She entered Kristi’s home through the front door, which she unlocked, and went
downstairs to Kristi’s room. There, she found Kristi lying in bed, unresponsive.
York frantically called 911 and woke up everyone in the home.
[¶3.] Layne Olson, Kristi’s eldest son, moved Kristi from her bed into the
living room and placed her on the floor to perform CPR. Kristi’s mother, Gay Lynn
1. Dallas is a small town in Gregory County located along route U.S. 18 about five miles west of Gregory.
-1- #28886
Barry, and Layne performed CPR until an ambulance arrived at the home. When
medical professionals arrived, they observed abrasions and discoloration around
Kristi’s neck. The ambulance transported Kristi to a hospital in Gregory. Shortly
thereafter, doctors at the hospital pronounced her dead.
[¶4.] The Gregory County Sheriff’s Office, with assistance from the South
Dakota Division of Criminal Investigation, immediately began investigating Kristi’s
death. When Kristi’s children noticed that their mother’s cell phone was missing,
they relayed that information to the officers. The children mentioned Chance
Harruff, Kristi’s most recent boyfriend, who was known for having a tumultuous
relationship with Kristi and taking her cell phone. Law enforcement quickly
identified Harruff as a person of interest.
[¶5.] Harruff and Kristi had a history of verbal arguments and physical
altercations, but Kristi refused to report the domestic violence to law enforcement.
However, Kristi did confide in family and friends about the various acts of physical
abuse caused by Harruff and shared photos of her injuries. A major source of
contention in their relationship centered around phone calls and text messages
Kristi received from other men. Kristi assigned separate ringtones to text messages
and calls received from her former boyfriends. When Harruff heard the sound of
these ringtones, he knew that other men were contacting Kristi and the couple
would fight. On several occasions during their arguments, Harruff destroyed her
cell phones.
[¶6.] Several hours after York discovered Kristi’s body, law enforcement
asked Harruff to come in for questioning, and he did so voluntarily. During his first
-2- #28886
interview, Harruff provided the officers with an account of his whereabouts on the
previous day. Harruff told the officers he spent the day with Kristi in Sioux Falls
helping her purchase a new truck. The two returned to Kristi’s home in Dallas in
the evening and had supper with her family. Harruff told officers that the last time
he saw Kristi was around 6:00 p.m. when he left her house. According to Harruff,
he went to Mr. G’s Convenience Store in Gregory, talked with a friend who worked
there, Kristin Wallace, and then went to his apartment. After Wallace finished
work, she came to Harruff’s apartment for a few beers. Around 12:30 a.m., Harruff
and Wallace stepped out to get cigarettes. They returned to the apartment, and
Wallace stayed about 20 minutes before leaving. Harruff told the officers he stayed
home for the rest of the night.
[¶7.] Harruff further explained that after receiving numerous text messages
from Kristi, he decided to call her at 2:45 a.m. The conversation was about their
relationship and the texts she received from other men, but was not an argument.
Harruff ended the call so that he could talk with his new girlfriend in Colorado on
and off until morning. When asked, Harruff denied driving to Dallas or leaving his
apartment. Officers questioned Harruff about Kristi’s missing cell phone. He
informed the officers that he did not know where it was, but that Kristi must have
had it since she spoke on it and texted him well into the night. Harruff claimed the
last time he saw the phone it was in Kristi’s possession when he left her home for
the evening.
[¶8.] Officers contacted Kristi’s cell phone provider for the last known
information on her cell phone and discovered that a ping was emitted from the
-3- #28886
phone, somewhere between Dallas and Gregory, around 4:00 a.m. A review of
surveillance videos from various businesses in Gregory around that time frame
revealed further evidence of Harruff’s whereabouts. Footage from Mr. G’s
Convenience Store showed Harruff’s car driving into Gregory from the east and
parking near the dumpster at Mr. G’s. Harruff briefly got out of his vehicle and
then drove in the direction of his apartment. Officers searched the dumpster and
found a broken purple iPhone in a white kitchen trash bag. Witnesses identified
the phone as Kristi’s cell phone.
[¶9.] Later that evening, officers interviewed Harruff a second time to
confront him with the cell phone information. After giving several conflicting
explanations, Harruff admitted that he traveled to Kristi’s home around 4:00 a.m.
just to “see who was at the house.” Kristi’s home had a walkout basement and her
bedroom was on the lower level just beyond the living room. Harruff said that he
went to the door facing east on the lower level and spoke with her at the doorway.
While they were talking at the walk-out basement door, Kristi’s phone received a
text message from one of her male friends. The two had a verbal disagreement
about the message, and he grabbed her cell phone out of her hand. Harruff claimed
that Kristi hit him and in response, he shoved her in the chest with the heel of his
hand “pretty hard.” The punch knocked her back two steps, and she landed on a
knee.
[¶10.] He told the officers that he didn’t intend to hit her that hard, but he
was known for his unique ability to strike hard punches with the strength of a mule
kick, so much so that his former boxing coaches nicknamed him “The Mule.”
-4- #28886
Harruff claimed Kristi got up, slammed the door in his face and locked it, so he
drove back towards his home. When he arrived in Gregory, he tossed Kristi’s phone
in the dumpster at Mr. G’s and went home. Harruff claimed that he never entered
Kristi’s home during the confrontation, remaining only in the doorway, and that she
was alive when he left.
[¶11.] At the State’s request, Dr. Kenneth Snell performed an autopsy on
Kristi’s body. He concluded that the cause of Kristi’s death was asphyxia due to
manual strangulation and that her death was a homicide. A Gregory County grand
jury indicted Harruff for alternative counts of first-degree murder, second-degree
murder, and first-degree manslaughter.
[¶12.] During an eight-day jury trial, sixteen witnesses testified for the State,
including DCI Agents, EMTs, medical professionals, forensic pathologists, and
several of Kristi’s relatives and friends. The testimony of Gay Lynn Barry and
Samantha York focused on the events of June 1, and the conflicts between Kristi
and Harruff that occurred during their relationship. Additionally, Kristi’s friends
Marissa Bridges, Kristin Wallace, and Melvin Vosika testified regarding other acts
of domestic abuse, including Kristi’s statements describing her relationship with
Harruff. At the close of the State’s case-in-chief, Harruff moved for judgment of
acquittal. The circuit court denied the motion. Harruff called one witness in his
defense, a forensic pathologist, who testified that Kristi’s death did not appear to be
caused by strangulation, but instead could have resulted from her preexisting
medical conditions.
-5- #28886
[¶13.] The jury found Harruff guilty of second-degree murder in violation of
SDCL 22-16-7. After the trial, Harruff renewed his motion for a judgment of
acquittal, which the circuit court denied. The court sentenced Harruff to life in
prison. On appeal, Harruff raises two issues which we restate as follows:
1. Whether the circuit court abused its discretion by admitting the testimony of Wallace, Bridges, and Vosika in violation of SDCL 19-19-403.
2. Whether the circuit court erred in denying Harruff’s motion for judgment of acquittal.
Standard of Review
[¶14.] Evidentiary rulings are reviewed for abuse of discretion. State v.
Stone, 2019 S.D. 18, ¶ 22, 925 N.W.2d 488, 497. An abuse of discretion is “a
fundamental error of judgment, a choice outside the range of permissible choices, a
decision, which, on full consideration is arbitrary or unreasonable.” State v.
Kvasnicka, 2013 S.D. 25, ¶ 17, 829 N.W.2d 123, 127–28 (quoting State v. Lemler,
2009 S.D. 86, ¶ 40, 774 N.W.2d 272, 286). Under the abuse of discretion standard,
“not only must error be demonstrated, but it must also be shown to be prejudicial.”
Stone, 2019 S.D. 18, ¶ 22, 925 N.W.2d at 497 (quoting State v. Bausch, 2017 S.D. 1,
¶ 12, 889 N.W.2d 404, 408).
[¶15.] The denial of a motion for judgment of acquittal is a question of law we
review de novo. State v. Brim, 2010 S.D. 74, ¶ 6, 789 N.W.2d 80, 83. The standard
is “whether the evidence was sufficient to sustain a conviction.” State v. Klaudt,
2009 S.D. 71, ¶ 14, 772 N.W.2d 117, 122 (quoting State v. Tofani, 2006 S.D. 63, ¶ 24,
719 N.W.2d 391, 398). When measuring the sufficiency of the evidence, “we ask
‘whether, after viewing the evidence in the light most favorable to the prosecution,
-6- #28886
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” Id. “We accept the evidence and the most favorable
inferences fairly drawn therefrom, which will support the verdict.” Brim, 2010 S.D.
74, ¶ 6, 789 N.W.2d at 83 (quoting State v. Jensen, 2007 S.D. 76, ¶ 7, 737 N.W.2d
285, 288). “This Court will not resolve conflicts in the evidence, assess the
credibility of witnesses, or evaluate the weight of the evidence.” Id.
Analysis
1. Whether the circuit court abused its discretion by admitting the testimony of Wallace, Bridges, and Vosika in violation of SDCL 19-19-403.
[¶16.] Harruff acknowledged at the beginning of the trial that his
relationship with Kristi was a “volatile one,” and that both parties struck each other
during verbal arguments. He does not contend that the “other acts testimony”
provided by Wallace, Bridges, and Vosika about Kristi’s reports of domestic abuse
standing alone was unfairly prejudicial. Rather, Harruff argues that the testimony
was needlessly cumulative to the testimony of Barry and York, and that the circuit
court admitted other acts evidence in such quantity that it rose to the level of
character evidence prohibited by SDCL 19-19-404(a).2
[¶17.] Pursuant to SDCL 19-19-403, a “court may exclude relevant evidence if
its probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” The rule “favors the
2. “Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.” SDCL 19-19-404(a).
-7- #28886
admission of evidence in the absence of strong considerations to the contrary.” State
v. Wright, 1999 S.D. 50, ¶ 15, 593 N.W.2d 792, 799 (citation omitted).3
[¶18.] Prior to trial, the parties sought various pretrial rulings regarding the
admissibility of several types of evidence. Principal to many of the State’s pre-trial
motions was its request that the circuit court admit evidence concerning Kristi’s
and Harruff’s tumultuous domestic relationship. As part of this strategy, the State
moved the court to admit statements which contained a detailed list of Kristi’s
conversations with relatives, medical professionals, and friends. It also filed a
notice of intent to introduce other acts evidence under SDCL 19-19-404(b). Harruff
filed a motion to exclude other acts evidence pursuant to Rule 404(b).
[¶19.] The circuit court held a hearing to consider these motions. It
explained that it would first rule on the other acts evidence and the domestic
relationship and then address the admissibility of Kristi’s statements under the
confrontation clause and the various hearsay exceptions. The court observed that
the State had essentially offered the entire domestic relationship between Harruff
3. Similarly, Rule 404(b) is a rule of “inclusion, not exclusion.” State v. Huber, 2010 S.D. 63, ¶ 56, 789 N.W.2d 283, 301 (quoting State v. Janklow, 2005 S.D. 25, ¶ 33, 693 N.W.2d 685, 697). Evidence of other acts is permissible “when appropriate to prove some fact other than character.” State v. Laible, 1999 S.D. 58, ¶ 20, 594 N.W.2d 328, 335. Evidence may be admissible to prove “motive, opportunity, intent, . . . identity, absence of mistake, or lack of accident.” SDCL 19-19-404(b)(2). “To determine the admissibility of other acts evidence, the court must determine: (1) whether the intended purpose is relevant to some material issue in the case, and (2) whether the probative value of the evidence is substantially outweighed by its prejudicial effect.” Huber, 2010 S.D. 63, ¶ 56, 789 N.W.2d at 301 (quoting Janklow, 2005 S.D. 25, ¶ 34, 693 N.W.2d at 697). Once the court finds the evidence relevant, “the balance tips emphatically in favor of admission[.]” Id. ¶ 59, 789 N.W.2d at 302 (quoting Janklow, 2005 S.D. 25 ¶ 34, 693 N.W.2d at 698).
-8- #28886
and Kristi as other acts evidence in addition to a series of specific instances of
physical abuse. The court, in reviewing this evidence, described the relationship as
“controlling and hostile,” fueled by Harruff’s “jealousy of Olson’s relationships with
other men.” This animosity triggered a cycle of domestic violence involving
“fighting and arguing, having make-up sex, then fighting and arguing all over
again; the fact that Kristi Olson would slap Harruff, he would slap her back.”
[¶20.] The circuit court then methodically examined the proffered evidence.
It found much of the evidence concerning the domestic relationship, including the
specific acts of abuse, probative and highly relevant to show the state of mind of
both Kristi and Harruff. The evidence was also relevant to prove Harruff’s motive,
intent, identity, and modus operandi. After conducting the requisite balancing test,
the court admitted portions of the State’s other acts evidence, concluding that “the
concerns of unfair prejudice or confusion [did not] substantially outweigh the
probative value.”
[¶21.] The circuit court held a second hearing to consider the proffered
testimony of Bridges, Barry, and York regarding the statements Kristi made to
them. Following the hearing, the court issued detailed findings of fact and
conclusions of law admitting certain statements of the decedent victim. In this
process the court carefully weighed the proffered testimony and again excluded a
number of statements and items of evidence under SDCL 19-19-403.
[¶22.] The circuit court also granted portions of Harruff’s 404(b) motion
precluding the State from needlessly referencing at trial a number of designated
acts. In its order, the court held in abeyance until trial any ruling on Harruff’s
-9- #28886
objection that some of the offered testimony was cumulative. The court also
indicated that it would give the jury an appropriate limiting instruction regarding
the appropriate weight to give the other acts evidence.
[¶23.] Review of Harruff’s argument that the testimony of Bridges, Wallace,
and Vosika was cumulative to that of Barry and York, requires analysis of their
trial testimony. We begin, as the circuit court did, with the other acts evidence
admitted through Barry. Barry testified about several text messages Kristi sent
detailing various accounts of physical abuse by Harruff. In one incident that
occurred in September 2016, Kristi told Barry she was bathing her daughters in the
bathtub when Harruff threw her phone. She stated that she slapped him in
response, and Harruff then hit her. Barry also testified about a text message in
which Kristi described Harruff’s tendency to take her phones, stating, “He’s broken
four phones in a month.” In another text, Kristi told Barry that her youngest
daughter did not “want to go to sleep because she says what if he kills you.”
[¶24.] Barry testified about other text messages where Kristi said Harruff
was unstable when he was drinking and that she was afraid of him. In one such
message, Kristi suggested having a code word she could text to Barry in case she
needed Barry to call the police for her. Within the same conversation, Kristi asked
Barry to buy a baby monitor that she could put in her room to summon help if
needed. Following Barry’s testimony, the circuit court gave the jury a limiting
instruction informing the jury that they could only consider the evidence to
determine Harruff’s intent, motive, identity and modus operandi.
-10- #28886
[¶25.] The State called York next. She, like Barry, testified about several
text message conversations she exchanged with Kristi regarding Harruff’s physical
abuse. Kristi also texted York about the incident where Harruff hit Kristi while she
was bathing her daughters in the bathtub. During her conversation with York,
Kristi sent her a picture of her face stating, “This is what Chance just did to me.”
When York asked additional questions about the incident, Kristi said, “He hit me
hard . . . I think just a slap but I still can’t feel my face or hear out that side.” With
this foundation, the photo was introduced into evidence.
[¶26.] York also testified about a time when Kristi was hospitalized in Sioux
Falls in October 2016 and asked her to come to her hospital room right away. After
she arrived, York learned that hospital staff had escorted Harruff out of the
building because he slapped Kristi. York also described Kristi’s report of an
incident of abuse that had occurred during Christmas 2016. Kristi told York that
she received a text message from an ex-husband wishing her Merry Christmas.
This upset Harruff, and Kristi woke up to Harruff choking her. He then took her
phone. Eventually Kristi’s children discovered the burnt remnants of her phone in
the wood stove in the house.
[¶27.] York testified about taking Kristi to the hospital on another occasion
because Kristi was feeling ill and believed Harruff was drugging her. The
toxicology report from the hospital revealed that Kristi had methadone in her
system. York testified that she was not aware of any prescription her mother had
for methadone. Following York’s testimony, the circuit court again read the
-11- #28886
cautionary instruction to the jury advising them of the proper way to consider the
other acts evidence.
[¶28.] As the trial progressed, Harruff reiterated his objections to duplicitous
and cumulative testimony. The State notified the court of its plan to call Erin Cole
to offer other acts testimony involving Facebook messages she received from Kristi.
Because Cole did not testify at the pretrial hearings, the State proffered her
testimony for the circuit court’s consideration during a recess. The court excluded
the evidence, finding that Cole’s testimony was hearsay not within any exception
and cumulative to other evidence already received into evidence.
[¶29.] On the fifth day of trial, the circuit court permitted the State to elicit
the testimony of Wallace, Bridges, and Vosika. In addition to Wallace’s testimony
about her interactions with Harruff on the night of May 31 and the early morning
hours of June 1, Wallace testified that a few weeks prior to her death, Kristi
contacted Wallace and asked to talk to her. Wallace joined Kristi on her mail route
where Kristi confided in her about her relationship with Harruff, how she was
scared and worried, and that she believed Harruff was drugging her.
[¶30.] When Bridges took the stand, she explained to the jury that she was
living in an upstairs bedroom in Kristi’s house. On one occasion, Kristi asked her
whether she could hear Kristi screaming for help in the basement during her
arguments with Harruff. Kristi told Bridges that Harruff had banged her head
against a door and that she had called for help, but there was no response. Bridges
testified that in April 2017, she put a baby monitor in Kristi’s room so that she
could hear Kristi if she yelled for help. A month later, while she was in Kristi’s
-12- #28886
room, Bridges noticed that the monitor was unplugged. Other than Harruff,
Bridges was also the last person to see Kristi alive on the evening of May 31.
Bridges testified that she stopped by Kristi’s bedroom around 11:00 p.m. According
to Bridges, Kristi was calm and watching TV.
[¶31.] Vosika told the jury that he and Kristi were long-term friends and that
she confided in him about the ongoing physical abuse she suffered from Harruff.
According to Vosika, Kristi was afraid to call law enforcement because she said that
if Harruff got out of jail, he would kill her. Vosika explained that Harruff would
shove, choke, and beat her until he got his way. Vosika testified that, one night,
Kristi could not go to a movie because she was arguing with Harruff. Kristi stated
she didn’t want to set off Harruff and couldn’t “take the physical anymore.” Vosika
asked if Harruff was hitting Kristi and she said yes, but she would deal with it.
Later that evening, Vosika and Kristi ended up going to the movie. While there,
Kristi stated she wanted Harruff gone, but didn’t know how to get him to leave.
[¶32.] Following the testimony of Wallace, Bridges, and Vosika, the circuit
court again gave the jury a limiting instruction. Prior to closing argument, as an
additional precaution, the court advised counsel that although it gave the limiting
instructions three times during the trial, they were not to argue in closing that this
instruction was more significant or should be given greater weight than any other
instruction.
[¶33.] Despite the cautionary instructions, Harruff contends the circuit court
erred by allowing the testimony. The party objecting “to the admission of the other
acts evidence bears ‘the burden of establishing that the trial concerns expressed in
-13- #28886
[SDCL 19-19-403] substantially outweighs the probative value of the evidence.’”
Huber, 2010 S.D. 63, ¶ 59, 789 N.W.2d at 302 (quoting Janklow, 2005 S.D. 25, ¶ 38,
693 N.W.2d at 698). The party must show that “in all probability [the evidence]
must have produced some affect upon the jury’s verdict and is harmful to the
substantial rights of the party assigning it.” Id. ¶ 37, 789 N.W.2d at 295 (quoting
State v. Michalek, 407 N.W.2d 815, 818 (S.D. 1987)).
[¶34.] In Huber, we addressed a similar argument that the circuit court erred
by admitting other acts evidence that was substantially more prejudicial than
probative in violation of Rule 403. 2010 S.D. 63, ¶ 60, 789 N.W.2d at 303. Huber,
who was tried for the shooting death of his wife, alleged that a number of
evidentiary errors occurred at his trial, including the admission of approximately
fifty of the decedent’s out-of-court statements, which he alleged unfairly prejudiced
him. These statements described, in part, the abusive nature of their marital
relationship. Id. ¶ 57, 789 N.W.2d at 301.
[¶35.] Although we reversed and remanded for a new trial on other grounds,
we affirmed the admission of the statements, noting that “evidence of past abusive
conduct in a domestic situation is highly relevant in murder cases.” Id. This is
because the jury is entitled to a complete picture of the parties’ relationship. Id.
The defendant is “certainly not entitled to have the jury decide his case on a
pretense that his behavior and feelings toward the victim are nothing but routinely
warm and affectionate.” Id. (quoting Laible, 1999 S.D. 58, ¶ 23, 594 N.W.2d at
335).
-14- #28886
[¶36.] Here, the testimonies of Wallace, Bridges, and Vosika were not
needlessly cumulative, as they provided the jury with evidence of the nature of
Kristi’s and Harruff’s relationship at different times and described varying
incidents of abuse. The conversation with Wallace that occurred shortly before
Kristi’s death involved Kristi’s ongoing fear of Harruff and her belief that Harruff
was drugging her. Similarly, Bridges’ testimony was relevant to explain that
Kristi’s screams for help went unheard, requiring Bridges to install a baby monitor
following an incident where Harruff banged Kristi’s head against a door. Vosika’s
testimony established that the abuse was ongoing, and that Kristi was afraid
Harruff would kill her if she told law enforcement. It also explained Kristi’s desire
to handle the situation herself along with her wish that Harruff stay off the
property.
[¶37.] Even if some fragments of the testimonies overlapped, they did not
constitute evidence of character in violation of SDCL 19-19-404(a). While the
testimony was damaging to Harruff’s case, it was not unfairly so. “[E]vidence is not
prejudicial ‘merely because its legitimate probative force damages the defendant’s
case.’” Huber, 2010 S.D. 63, ¶ 54, 789 N.W.2d at 300 (quoting State v. Bunger, 2001
S.D. 116 ¶ 13, 633 N.W.2d 606, 610).
[¶38.] Based on our review of the record, it is apparent from the circuit
court’s careful evaluation of the evidence that it performed the requisite balancing
tests required and excluded cumulative, prejudicial, and irrelevant evidence where
appropriate. Additionally, the court gave an “appropriate, precisely tailored
cautionary instruction” to the jury before admitting the other acts evidence and
-15- #28886
cautioned counsel not to focus on this instruction in closing. Id. ¶ 60, 789 N.W.2d at
303. Harruff has failed to establish that the admission of the challenged testimony,
in all probability, produced some affect upon the jury’s verdict that was harmful to
his substantial rights. See id. ¶ 37, 789 N.W.2d at 295. We cannot say that the
circuit court abused its discretion in admitting the evidence.
2. Whether the circuit court erred in denying Harruff’s motion for judgment of acquittal based on the insufficiency of the evidence.
[¶39.] Harruff was charged with murder in the second-degree in violation of
SDCL 22-16-7 which provides:
Homicide is murder in the second degree if perpetrated by any act imminently dangerous to others and evincing a depraved mind, without regard for human life, although without any premediated design to effect the death of any particular person, including an unborn child.
In order to successfully prosecute a suspect for murder under this statute, the
prosecution must prove that the Defendant’s conduct established that he was acting
with a depraved mind. State v. Primeaux, 328 N.W.2d 256, 258 (S.D. 1982). This
mens rea requirement involves less culpability than the element of premeditation
required for first-degree murder. State v. McCahren, 2016 S.D. 34, ¶ 10, 878
N.W.2d 586, 592.
[¶40.] Harruff contends that the State’s evidence at trial focused on his anger
and jealousy in order to prove premeditation. Because the jury acquitted Harruff of
first-degree murder he argues that the State failed to establish sufficient evidence
to support the element of a depraved mind required for second-degree murder. In
Harruff’s view, he could be convicted of first-degree murder or first-degree
-16- #28886
manslaughter, but nothing more. He argues that “second-degree murder is not and
should not be a fall back option.”4
[¶41.] We rejected a similar argument in Laible, where the State sought a
first-degree murder conviction against the defendant for the shotgun slaying of the
defendant’s mother, but the jury returned a verdict of second-degree murder. 1999
S.D. 58, ¶ 11, 594 N.W.2d at 332. The defendant argued that the bulk of the
evidence presented was offered to prove premeditation and therefore he was either
guilty of first-degree murder or manslaughter, but could not be guilty of second-
degree murder. Id. We held if “a person is able to act with ‘a lack of regard for the
life of another,’ then that person can be convicted of second degree murder.” Id. ¶
13 (quoting State v. Hart, 1998 S.D. 93, ¶ 16, 584 N.W.2d 863, 866). After reviewing
the evidence, the Court concluded there was sufficient evidence “to show that [the]
defendant committed an imminently dangerous act evincing depravity of mind,
without regard for human life.” Id. ¶ 14, 594 N.W.2d at 333.
4. Although Harruff does not specifically argue that the jury’s verdict is inconsistent, he alludes to this idea when arguing that second-degree murder is not a fall back option. We previously addressed this issue in State v. Mulligan, holding that “a criminal defendant convicted by a jury on one count can not attack that conviction because it was inconsistent with the jury’s verdict of acquittal on another count.” 2007 S.D. 67, ¶ 11, 736 N.W.2d 808, 814 (quoting United States v. Powell, 469 U.S. 57, 58, 105 S. Ct. 471, 473, 83 L. Ed. 2d 461, 464 (1984)). Juries are not required to explain their decisions. Id. “Instead of speculating whether the inconsistent verdicts are evidence of jury error, appellate courts should review the sufficiency of the evidence to support the conviction that was rendered.” Id. ¶ 12, 736 N.W.2d at 815. The jury’s finding that Harruff was not guilty of first-degree murder cannot be used to support his argument that the evidence was insufficient to support a second-degree murder conviction.
-17- #28886
[¶42.] Here, the State offered evidence that Harruff acted with a lack of
regard for the life of another by the act of strangulation. We have previously
observed that strangulation injuries indicate a deliberate use of force and that
choking another involves an imminently dangerous act that may cause death. State
v. Kryger, 2018 S.D. 13, ¶ 49, 907 N.W.2d 800, 815. Likewise, Harruff’s admission
that he struck Kristi in the chest with the force of a mule kick evinces a lack of
regard for her life in this case. Witnesses described Kristi as five-foot four-inches,
weighing 138 pounds, her body weakened from years of stomach surgeries and
ailments. In contrast, Harruff at the time of the killing was six-feet two-inches and
250 pounds. In sum, the evidence reflects that Harruff’s actions showed
indifference to human life and behavior evincing depravity.
[¶43.] Alternatively, Harruff attacks the sufficiency of the evidence
supporting his second-degree murder conviction. We note, however, that the State
offered an abundance of evidence of the verbally abusive and physically violent
nature of the relationship between Kristi and Harruff. As we have explained in
detail above, several witnesses testified about numerous occasions where Harruff
fought with Kristi and punched, slapped, pushed, and choked her.
[¶44.] The State also presented substantial evidence of Harruff’s guilt arising
from his activities on the night in question. Wallace testified that she was working
at Mr. G’s Convenience Store around 9:45 p.m. when Harruff came in to buy a 12-
pack of beer. According to Wallace, Harruff was visibly upset. In fact, his anger
was so overwhelming that he punched his hand and railed about an argument he
had with Kristi earlier in the evening. Wallace testified that after she got off work,
-18- #28886
she went to his apartment to continue their discussion about Kristi. The two then
went briefly to her nephew’s home for cigarettes and returned to the apartment.
When they returned, Harruff continued to talk about Kristi’s conversations with
other men and said that he was “f * * *ing done with her.” Wallace saw Harruff
drink four or five beers before she left the apartment.
[¶45.] Harruff’s inconsistent statements to the police were also damaging to
his case. During Harruff’s first interview, he lied to the police about where he was
that night. Instead of indicating that he went to Kristi’s house, Harruff told them
he never left his apartment. Despite Harruff’s deception, the officers were able to
independently piece together evidence of his movements that night. Harruff also
attempted to cover his tracks by calling Kristi’s phone around 7:00 a.m. even though
he knew it could not be answered. During his second interview, Harruff continued
to lie even after being told the police had found Kristi’s phone. Eventually, he did
admit going to Kristi’s house and hitting her.
[¶46.] When York found Kristi’s lifeless body, she had bruising around her
neck. At trial, the State called Dr. Snell, the forensic pathologist who concluded
that she died of asphyxia caused by manual strangulation. To explain his findings,
Dr. Snell described the external and internal injuries to Kristi’s neck. He testified
that he observed abrasions on both sides of Kristi’s neck with slightly curved
abrasions on the right side consistent with the shape of a fingernail. Beneath the
abrasions, Dr. Snell found fresh internal hemorrhages in the deep musculature of
the neck consistent with having forceful pressure applied around the neck.
-19- #28886
[¶47.] Dr. Snell’s examination of Kristi’s face, eyes, lip, and upper portions of
her neck revealed the presence of petechial hemorrhages, which are ruptures of
small blood vessels due to increased pressure. The hemorrhages appeared only
above the abrasions to the neck and not below, which suggests they were caused by
pressure applied to Kristi’s neck in the area of the abrasions. Dr. Snell testified
that during strangulation, a person will become unconscious in approximately 10 to
15 seconds, and that death will occur after three to five minutes of continuous
pressure.
[¶48.] In addition to Harruff’s admissions, the record contains strong direct
and circumstantial evidence of guilt. Over the course of the eight-day trial, the jury
considered the evidence presented which included the testimonies of the witnesses,
text messages, photographs, the differing opinions of the parties’ pathologists
regarding the cause of Kristi’s death, medical reports, and lab tests. In rendering
its verdict, the jury performed its function by passing on the credibility of the
witnesses, resolving any conflicts in the evidence, and weighing the evidence. State
v. Miller, 2014 S.D. 49, ¶ 27, 851 N.W.2d 703, 709.
[¶49.] After viewing the evidence in a light most favorable to the verdict, a
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. See Klaudt, 2009 S.D. 71, ¶ 14, 772 N.W.2d at 122. Based on our
review of the record, the evidence is sufficient to support the conviction of second-
degree murder and the circuit court did not err by denying Harruff’s motion for
judgment of acquittal.
-20- #28886
Conclusion
[¶50.] The circuit court did not abuse its discretion by permitting the
testimony of Wallace, Bridges, and Vosika. Further, even if the testimony was
cumulative to some degree, Harruff has failed to establish that the challenged
evidence was unfairly prejudicial or that it affected the jury’s verdict. The evidence
presented by the State was sufficient to sustain a conviction of second-degree
murder. We affirm.
[¶51.] GILBERTSON, Chief Justice, and JENSEN and SALTER, Justices,
and KNOFF, Circuit Court Judge, concur.
[¶52.] KNOFF, Circuit Court Judge, sitting for DEVANEY, Justice,
disqualified.
-21-