#27869-a-SRJ 2018 S.D. 13
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
**** STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
CHRISTOPHER DEAN KRYGER, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA
THE HONORABLE MARK E. SALTER Judge
MARTY J. JACKLEY Attorney General
ANN C. MEYER Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
MARK KADI and AUSTIN VOS of Minnehaha County Office of the Public Advocate Sioux Falls, South Dakota Attorneys for defendant and appellant.
ARGUED ON JANUARY 9, 2018 OPINION FILED 02/07/18 #27869
JENSEN, Justice
[¶1.] Christopher Dean Kryger appeals his convictions for first-degree
murder, first-degree burglary, and second-degree rape. He claims the circuit court
erred in ruling on a number of issues and that these errors, both separately and in
the aggregate, entitle him to a new trial. We affirm.
Background
[¶2.] At approximately 10:00 p.m. on Friday, March 14, 2014, Kari
Kirkegaard returned to her home on South Garfield Avenue in Sioux Falls after
having supper with her family. On Sunday, March 16, 2014, Kirkegaard’s son’s
fiancée, Paetyn Haemze (Haemze), went to Kirkegaard’s home after failed attempts
to reach her via phone. Haemze noticed Kirkegaard’s blue SUV parked in the
driveway of the home and that the back door was unlocked. Upon entering the
home, Haemze heard water running. She investigated the bathroom and found
Kirkegaard’s body lying naked on her side in a full bathtub with the water running.
[¶3.] Haemze first called Kirkegaard’s son and then called 911. Sioux Falls
Police Officer Pat Mertes responded to the scene and noted Kirkegaard’s body in the
bathtub facing toward the door. Officer Mertes did not notice anything else
unusual. Additional fire, ambulance, and police personnel arrived shortly
thereafter. Police took photographs of Kirkegaard’s body, drained the bath water,
removed the body, and checked the rest of the home. They found no apparent signs
of forced entry, foul play, or physical trauma. None of the first responders reported
any smell of bleach.
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[¶4.] After emergency personnel left, Kirkegaard’s brother, Brian Johnson
(Johnson), punched a hole in the wall of Kirkegaard’s bathroom. Family members
noticed that Kirkegaard’s bedsheets, purse, SUV keys, and towels and rugs from the
bathroom were missing. They also noticed a strong smell of bleach. Police were
called back to the scene approximately one hour after they had left. This time,
officers interviewed family and friends present at the scene. The officers also noted
a strong odor of bleach in the home at this time. Law enforcement then began a
homicide investigation.
[¶5.] During police interviews, Kirkegaard’s friends and family members
described her as a homebody who stuck within a small circle of friends and family.
Kirkegaard had previous romantic interests, but she was not in any relationships at
the time of her death. It was soon discovered that a mosque located two lots north
of Kirkegaard’s home possessed camera surveillance footage between March 14,
2014, and March 16, 2014. The mosque’s camera faced southeast and had captured
a view of Kirkegaard’s front lawn, driveway, Garfield Avenue, and Garfield
Elementary School.
[¶6.] The footage showed Kirkegaard’s SUV returning to her home on the
night of March 14 after she had supper with her family. It also showed a bicyclist
riding past Kirkegaard’s residence heading north at 11:30 p.m. that evening. The
bicyclist doubled back on the sidewalk of Kirkegaard’s home, then slowed down. A
person was seen crossing the street in front of the mosque around 2:30 a.m. on
March 15. The person was wearing a plaid flannel coat, jeans, and dark shoes, and
appeared to have a shiny object in their hands. The person’s face was not visible.
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After the individual left the view of the camera, Kirkegaard’s vehicle was seen
leaving her driveway and travelling north with the headlights off. Kirkegaard’s
SUV returned about an hour later, at 3:30 a.m. The driver missed Kirkegaard’s
driveway, then turned around in the parking lot of Garfield Elementary School.
The SUV parked in Kirkegaard’s driveway, and the same individual was seen
leaving on a bicycle. None of the camera footage captured who was in the vehicle or
showed anyone entering or leaving Kirkegaard’s residence.
[¶7.] Police eventually released the mosque video to the public. After
receiving several tips, they were led to interview Kryger’s friend Michael Miller,
Kryger’s fiancée, Lori Nagel, and Kryger’s uncle and employer Richard Foster.
Nagel and Miller indicated that the person seen in the video could have been
Kryger, as the person had a similar gait and wore similar clothing. They also
confirmed Kryger typically used his bicycle for transportation around Sioux Falls.
Nagel told police that she and Kryger had an argument the night of March 14. She
stated Kryger returned to her home around 4:30 a.m. to reconcile. Miller stated
that he ran into Kryger on March 15, and the pair visited Walmart where Kryger
bought an engagement ring for Nagel, a new cell phone, and a cell phone plan.
[¶8.] Kryger was contacted by police and taken to the Sioux Falls law
enforcement center for an interview. In the interview, Kryger stated he became
upset with Nagel on the night of March 14 and decided to go on a long bike ride
around Sioux Falls. Kryger claimed that during this ride, he was nearly struck by
an SUV without its headlights on just north of Kirkegaard’s home. He also stated
that later in the evening, his bike slid into the river. Kryger maintained that he
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returned home to wash his dirty clothes and called Nagel to reconcile. He stated he
then rode his bike to Nagel’s home and remained there until morning. Kryger
discussed seeing Miller on March 15 and confirmed that the pair had gone shopping
at Walmart. Kryger denied ever having sex with Kirkegaard. Kryger also made
comments about having a “criminal mind.”
[¶9.] Police collected hundreds of items in the course of their investigation of
Kirkegaard’s death. Only some of the items were tested. An autopsy performed on
Kirkegaard’s body revealed ligature furrows across her neck in two parallel lines,
petechial hemorrhages, numerous small abrasions, a fractured hyoid bone, and
fractured thyroid cartilage. The examination also revealed small abrasions on the
outside wall of Kirkegaard’s vaginal vault. The coroner was unable to pinpoint a
time of death but concluded Kirkegaard was asphyxiated and that the manner of
death was homicide. A rape kit conducted on Kirkegaard’s body tested positive for
Kryger’s sperm cell DNA.
[¶10.] Kryger was arrested and indicted on five counts of first-degree murder,
one count of second-degree murder, one count of second-degree rape, one count of
third-degree rape, and two counts of first-degree burglary. The jury convicted
Kryger on all counts except third-degree rape. On February 25, 2016, Kryger was
sentenced to life in prison for first-degree murder, 50 years for second-degree rape,
and 25 years for first-degree burglary to run concurrently with the first-degree
murder sentence, but consecutive to the sentence for second-degree rape. Kryger
appeals his conviction and sentence, raising several issues for our review, which we
combine and restate as follows:
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1. Whether the circuit court erred by precluding questioning of Johnson concerning his bias against Kryger.
2. Whether the circuit court erred by admitting expert testimony expressed in terms of possibilities.
3. Whether the circuit court erred by admitting irrelevant evidence without a foundation of physical evidence from the State’s investigation of Kryger.
4. Whether the circuit court erred by admitting Kryger’s statements that he has a criminal mind.
5. Whether the circuit court erred by denying Kryger’s motions for mistrial.
6. Whether the circuit court erred by denying Kryger’s proposed jury instructions regarding Kryger’s statements about his criminal mind, speculation and conjecture, and an alibi defense.
7. Whether the circuit court erred by denying Kryger’s motion for judgment of acquittal.
8. Whether the accumulation of the errors claimed by Kryger constitute reversible error.
Analysis
1. Whether the circuit court erred by precluding questioning of Johnson concerning his bias against Kryger.
[¶11.] Kryger argues he was deprived of his due process and Confrontation
Clause rights when the circuit court denied Kryger the opportunity to cross-
examine Johnson concerning threats Johnson made toward Kryger and defense
counsel prior to trial. This included a threat to defense counsel at the conclusion of
a pretrial hearing where Johnson stated words to the effect that defense counsel
had better be a light sleeper. Johnson also made comments to the media that he
would torture and kill Kryger if Kryger were released or not convicted. On
Facebook, Johnson suggested he would harm or kill Kryger and defense counsel.
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Johnson’s actions prompted the circuit court to exclude Johnson from Kryger’s trial,
but the State was allowed to call Johnson as a witness.
[¶12.] Before Johnson’s testimony, the State orally moved to preclude Kryger
from referencing any threatening comments made by Johnson. The circuit court
precluded Kryger from cross-examining Johnson about the threats. Kryger claims
the circuit court’s ruling totally deprived him of the ability to effectively cross-
examine Johnson. He argues Johnson’s bias created a motive for Johnson to
fabricate and exaggerate his testimony. Kryger maintains that without the ability
to question Johnson regarding his bias, he was denied the right to a fair trial.
[¶13.] “We review a circuit court’s evidentiary rulings under an abuse of
discretion standard with a presumption that the rulings are correct.” State v.
Birdshead, 2015 S.D. 77, ¶ 36, 871 N.W.2d 62, 75-76. A circuit court’s decision to
limit cross-examination will be reversed only if there is both an abuse of discretion
and a showing of prejudice to the defendant. State v. Carter, 2009 S.D. 65, ¶ 31,
771 N.W.2d 329, 338. Prejudice exists only when “a reasonable jury probably would
have a significantly different impression if otherwise appropriate cross-examination
had been permitted.” Birdshead, 2015 S.D. 77, ¶ 36, 871 N.W.2d at 76 (quoting
State v. Johnson, 2007 S.D. 86, ¶ 35, 739 N.W.2d 1, 13).
[¶14.] Because a defendant’s right to present a defense is fundamental, we
review limitations on cross-examination under the Confrontation Clause. See id.
¶ 37. “The Confrontation Clause of the Sixth Amendment to the United States
Constitution, as applied to South Dakota through the Fourteenth Amendment,
requires that in all criminal cases, the defendant has the right ‘to be confronted
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with the witnesses against him.’” State v. Spaniol, 2017 S.D. 20, ¶ 24, 895 N.W.2d
329, 338 (quoting U.S. Const. amend. VI). The Confrontation Clause applies to
witnesses testifying at trial, and is “generally satisfied when the defense is given a
full and fair opportunity to probe and expose a witness’ infirmities through cross-
examination, thereby calling to the attention of the factfinder the reasons for giving
scant weight to the witness’ testimony.” Id. (quoting State v. Carothers, 2006 S.D.
100, ¶ 16, 724 N.W.2d 610, 617).
[¶15.] In limiting Kryger’s cross-examination, the circuit court recognized
that the threats went to bias but had a “marginal degree of relation [to] this case.”
The court noted that Johnson’s direct testimony was likely to be narrow and factual,
and pertain only to the investigatory timeline of Kirkegaard’s death. Indeed,
Johnson’s testimony was short and limited to describing Johnson’s relationship with
Kirkegaard and Johnson’s factual observations immediately after Kirkegaard’s body
was discovered. The circuit court also concluded that Johnson’s threats were not
contemporaneous with the events Johnson was testifying about, and that the jury
would be cognizant of Johnson’s bias because of Johnson’s close familial relationship
with Kirkegaard. The circuit court noted that Kryger’s counsel could still impeach
Johnson on bias or factual issues if there was a concern that Johnson was
fabricating his story. After determining the threats had marginal relevance, the
circuit court conducted a balancing test under SDCL 19-19-403. Under this test,
the court determined the marginal probative value of the threats was substantially
outweighed by the danger of unfair prejudice—including the possibility of jury
confusion of the issues and a waste of time.
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[¶16.] The circuit court limited cross-examination only with respect to the
specific threats made toward Kryger and his counsel, and Johnson’s belief of
Kryger’s guilt. Kryger was not precluded from asking if Johnson held any bias
against Kryger because of Johnson’s family relationship with Kirkegaard. Further,
the jury heard about Johnson’s emotional reaction of punching the bathroom wall in
Kirkegaard’s home immediately after learning of her death. Finally, Kryger also
had the opportunity to question Johnson on any factual matters that were allegedly
fabricated without referencing Johnson’s threats. “An individual is only guaranteed
‘an opportunity for effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense might wish.’”
Spaniol, 2017 S.D. 20, ¶ 29, 895 N.W.2d at 340 (emphasis omitted) (quoting
Milstead v. Smith, 2016 S.D. 55, ¶ 13, 883 N.W.2d 711, 717).
[¶17.] We conclude that the circuit court did not abuse its discretion in
limiting cross-examination on the specific threats made by Johnson toward Kryger
and his counsel. We also determine that Kryger did not suffer any prejudice
because of the circuit court’s decision to limit cross-examination. Johnson’s
testimony was mostly limited to the events immediately after Kirkegaard’s body
was found and the circumstances leading law enforcement to begin a homicide
investigation. Other friends and family members testified to many of the same
facts: namely, that they had smelled bleach or a very clean smell after police had
left, that no one had done any cleaning after police had left, and that they noticed
Kirkegaard’s purse and other items from the house were missing. Further, none of
the threats related to the subject areas of Johnson’s testimony.
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2. Whether the circuit court erred by admitting expert testimony expressed in terms of possibilities.
[¶18.] Before trial, Kryger filed a motion in limine seeking to prevent Dr.
Kenneth Snell, the county coroner who performed Kirkegaard’s autopsy, from giving
an opinion that the injuries to Kirkegaard’s vaginal area were indicative of those
received from either consensual or non-consensual sex. The circuit court permitted
Dr. Snell to testify that the trauma to Kirkegaard’s vaginal area could have been
the result of either rough consensual intercourse or a sexual assault. Kryger claims
this testimony was not relevant; it confused the jury and invited the jury to
speculate as to Kryger’s guilt. Kryger also argues that Dr. Snell’s conclusion was
not proper opinion testimony because it was phrased only as a possibility, and not to
a reasonable degree of probability. He reasons that because Dr. Snell could not
state definitively that the trauma was the result of or consistent with a sexual
assault, it should have been excluded.
[¶19.] “We afford broad discretion to circuit courts in deciding whether to
admit or exclude evidence.” State v. Patterson, 2017 S.D. 64, ¶ 12, 904 N.W.2d 43,
48 (quoting Kurtz v. Squires, 2008 S.D. 101, ¶ 3, 757 N.W.2d 407, 409). Thus, a
circuit court also has broad discretion in deciding whether to admit expert
testimony. Id. ¶ 22, 904 N.W.2d at 50.
[¶20.] A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) The testimony is based on sufficient facts or data; (c) The testimony is the product of reliable principles and methods; and -9- #27869
(d) The expert has reliably applied the principles and methods to the facts of the case.
SDCL 19-19-702. “There are no ‘magic words’ needed to express an expert’s degree
of medical certainty, and the test is only whether the expert’s words demonstrate
that he or she was expressing an expert medical opinion.” Stormo v. Strong,
469 N.W.2d 816, 824 (S.D. 1991).
[¶21.] Here, the circuit court heard Kryger’s motion in limine at a pretrial
hearing. After arguments from counsel, the court opted not to rule fully on the
motion until hearing Dr. Snell’s testimony at trial. At trial, Dr. Snell testified that
based upon his autopsy, Kirkegaard’s injuries “would have been due to some object
being forcibly put into the vaginal area.” Because laboratory testing subsequently
found the presence of semen in Kirkegaard’s vagina, Dr. Snell also opined that the
injuries were likely caused by intercourse. Dr. Snell concluded that these injuries to
Kirkegaard’s vaginal area were due to either “rough intercourse or an assault” and
not to what the prosecutor classified as “normal, consensual sex.” During cross-
examination, Dr. Snell acknowledged that he could not determine whether or not
the sexual intercourse was consensual or nonconsensual because he was not present
during the commission of the act.
[¶22.] Dr. Snell’s medical opinions in his testimony were clear and were
based upon a reasonable degree of medical certainty. His opinion was supported by
an adequate foundation in the record and assisted the jury in considering the
evidence presented in the case. Thus, Dr. Snell’s challenged testimony was
admissible and there was no abuse of discretion.
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3. Whether the circuit court erred by admitting irrelevant evidence without a foundation of physical evidence from the State’s investigation of Kryger.
[¶23.] During the investigation of Kirkegaard’s death, police were alerted to
the presence of a burn pit in Sioux Falls, which law enforcement believed to be
connected to Kryger. The State presented testimony describing the burn pit and
how it was investigated, and showed photographs to the jury. Kryger objected to
that evidence on foundation and relevance grounds, arguing that neither the burn
pit nor any items found there were forensically tested to determine any connections
to him. Kryger claims that by permitting this evidence, the circuit court misapplied
the rules of relevant evidence and abused its discretion.
[¶24.] “Evidence is relevant if: (a) It has any tendency to make a fact more or
less probable than it would be without the evidence; and (b) The fact is of
consequence in determining the action.” SDCL 19-19-401. “It is well settled that
photographs are generally admissible where they accurately portray anything that
a witness may describe in words . . . [and] when they are helpful in clarifying a
verbal description of objects and conditions. They must, however, be relevant to
some material issue.” State v. Hemminger, 2017 S.D. 77, ¶ 33, 904 N.W.2d 746, 757
(quoting State v. Owens, 2002 S.D. 42, ¶ 89, 643 N.W.2d 735, 756-57).
[¶25.] Here, evidence of the burn pit was relevant, as it made it more
probable that Kryger had destroyed evidence associated with Kirkegaard’s murder.
Police became aware of the burn pit when they responded to a tip from a concerned
member of the public shortly after the crime had occurred. The witness indicated
he had seen the burn pit in a remote area near the Big Sioux River and that “fabric
in the fire” had caught his attention, so he contacted police. Miller testified that -11- #27869
Kryger told him he burned his plaid flannel jacket after the mosque video footage
had been released to the public. Further, the photographs of the burn pit portrayed
what police and other witnesses had seen during their investigation of Kryger.
Sioux Falls Police Officer Chad Winkel testified he had investigated the burn pit,
that he believed it was fresh, but he noted police could not determine a source or
identify any items that had been burned as belonging to Kryger. The fact that none
of the items related to the burn pit were forensically tested went to the weight of
this evidence, not its admissibility. The evidence revealed a sufficient link between
Kryger and the burn pit, and therefore, the circuit court did not abuse its discretion
in admitting it.
4. Whether the circuit court erred by admitting Kryger’s statements that he has a criminal mind.
[¶26.] During the investigation, Kryger was interviewed by Sioux Falls Police
Detectives Robert Forster and Martin Hoffman. In both interviews, Kryger made
references about having “a criminal mind.” In the interview with Detective Forster
on March 16, 2014, Kryger expressed concern for the safety of his fiancée living in
the area where Kirkegaard had been killed. In response, Detective Forster told
Kryger that law enforcement was advising people to lock their doors and use the
buddy system for protection. Kryger then stated he did not believe that would work
because “if I actually have a criminal mind . . . if I want to get into a place, I’ll just
kick the door in . . . and . . . that’s not stopping [inaudible] nobody.” During the
interview with Detective Hoffman on March 20, 2014, Kryger was asked about
whether he could identify the SUV that he claimed almost ran into him with its
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lights off. Kryger responded that he had “a criminal mind” and did not pay
attention to those things.
[¶27.] Before trial, Kryger moved to exclude both statements on the basis
that they were inadmissible character evidence. The State argued Kryger’s
statements were admissible to prove Kryger had the requisite intent or state of
mind. The circuit court denied Kryger’s motion, holding the statements were not
character evidence, but rather, statements against interest. The circuit court
reasoned that because the statements were Kryger’s own voluntary admissions,
they did not pertain to character and the jury could consider them as evidence of his
involvement. The circuit court also balanced the statements under Rule 403 and
determined their relevance was not substantially outweighed by the danger of
unfair prejudice.
[¶28.] In determining that these statements were admissions against interest
by Kryger, the circuit court did not explain why they were probative to the case.
Kryger asserts that if the statements were admissions, they were admissions about
his character, which were inadmissible under SDCL 19-19-404(a)(1). See also State
v. Janis, 2016 S.D. 43, ¶ 38 n.3, 880 N.W.2d 76, 87 n.3. Kryger also argues the
probative value of these statements were outweighed by the danger of unfair
prejudice toward him and that the jury confused his statement as admitting the
mens rea elements of the crimes with which he was charged. The State responds
that the circuit court correctly allowed the statements as admissions that the jury
could consider and that they were relevant to the crimes charged.
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[¶29.] Kryger’s statement to Detective Forster appears to be stated
hypothetically that precautions recommended by law enforcement would not protect
against himself or someone with a criminal mind from committing the offense. In
the interview with Detective Hoffman, Kryger directly stated he had a criminal
mind. The statements are ambiguous in their meaning. It is possible that the jury
could have considered the statements as evidence that Kryger knew something
about the crime or how to commit the crime. However, it is also possible that the
jury may have considered the statements as admissions by Kryger about his
character; that he was the kind of person who would have committed this crime.
[¶30.] Kryger claims the admission of these statements is reversible error.
However, “[t]o obtain a new trial due to erroneously admitted evidence, ‘a defendant
must prove not only that the trial court abused its discretion in admitting the
evidence, but also that the admission resulted in prejudice.’” Patterson, 2017 S.D.
64, ¶ 13, 904 N.W.2d at 48 (quoting State v. Reay, 2009 S.D. 10, ¶ 31, 762 N.W.2d
356, 366). Prejudice must have produced an effect on the final result of a trial and
affected the rights of the party claiming the prejudice. Id.
[¶31.] Kryger has failed to show prejudice in the admission of these
statements. Both statements were general in nature and were not expounded on
further during either interview. The statements were made without any context as
to whether Kryger had committed similar offenses or had ever been previously
convicted of any crime. Although the State referenced Kryger’s statements in
closing arguments, such argument was limited and was neither the theme nor
central focus. Most importantly, there was substantial independent evidence, apart
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from the two statements, establishing Kryger’s guilt. Kryger has failed to show
that the admission of his two voluntary statements had an effect on the outcome of
the verdict. Thus, there was no prejudice.
5. Whether the circuit court erred by denying Kryger’s motions for mistrial.
[¶32.] Prior to trial, the circuit court granted several of Kryger’s motions to
exclude any evidence or reference to his criminal record or incarceration status.
Kryger claims that the circuit court’s pretrial orders were violated on three
occasions during the trial. First, Detective Forster testified he had received
Kryger’s cell phone number from Kryger’s parole officer. Second, as the jury was
hearing an audio recording of a phone call between Kryger and Nagel, it also heard
an automated message indicating that Kryger was incarcerated. Finally, Kryger
accidentally encountered the jury while being escorted by two officers after trial
proceedings had concluded for the day. Kryger claims the circuit court’s refusal to
grant a mistrial for each of these errors deprived him of his right to a fair trial.
[¶33.] “Motions for mistrial are within the discretion of the trial judge.” State
v. Ball, 2004 S.D. 9, ¶ 16, 675 N.W.2d 192, 197 (quoting State v. Johnson, 2001 S.D.
80, ¶ 9, 630 N.W.2d 79, 82). Therefore, “denial of a motion for mistrial will not be
overturned unless there is an abuse of discretion.” Id. Here, the circuit court
reserved ruling on each of the motions for mistrial until the conclusion of the case so
that the court could consider the potential impact of any violations in light of the
entire record.
[¶34.] The circuit court immediately addressed Detective Forster’s reference
to Kryger’s parole officer during the trial. The circuit court acknowledged that the
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testimony was a violation (although unintentional) of the court’s order. To
neutralize the impact of the testimony, the court instructed the jury to disregard
the source of Kryger’s cell phone number; and the court warned Detective Forster in
chambers not to make any more references to Kryger’s parole status, prison time, or
criminal history. At the end of the trial, the court denied the motion for mistrial,
reasoning that a mistrial would be an extreme remedy in light of the innocuous
nature of Detective Forster’s remark and its limited potential to influence the jury.
[¶35.] The circuit court also considered Kryger’s motion for mistrial
concerning the automated portion of the phone call improperly played for the jury.
The circuit court noted the mechanized voice message did not specifically mention
why Kryger was incarcerated, the nature of Kryger’s past involvement with the
criminal justice system, or any inadmissible other-acts evidence. The circuit court
also presented a limiting instruction to the jury directing it to disregard the entire
automated portion of the message.
[¶36.] Finally, the circuit court considered the encounter between Kryger and
the jury. The circuit court heard in-chambers testimony from the bailiff present
during the incident. The bailiff indicated the meeting was accidental and had
occurred when the jury stopped in an elevator on the same floor as Kryger as he was
waiting for a ride. The two deputies who were escorting Kryger were wearing
civilian clothes and were not armed or carrying restraints. The circuit court noted
Kryger was in civilian clothes and was not visibly restrained. Additionally, the
circuit court drew attention to the fact that the encounter was after hours and that
the jurors were accustomed to seeing participants in the case. The court also stated
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that the jury could already draw a reasonable inference that Kryger was being
escorted by law enforcement given the nature of the case.
[¶37.] The circuit court’s review of these three occurrences and the decision to
deny Kryger’s motions for a mistrial were well-reasoned. The circuit court also took
adequate measures to minimize the impact of these errors and considered their
import at the conclusion of the trial in light of all the evidence. There is no showing
that any of the errors were intentional, and none of the errors went directly to the
question of Kryger’s guilt. The circuit court was in the best position to consider the
impact of these errors on the jury and determined that the errors did not deprive
Kryger of a fair trial. This decision is supported by the record, and there was no
abuse of discretion.
6. Whether the circuit court erred by denying Kryger’s proposed jury instructions regarding Kryger’s statements about his criminal mind, speculation and conjecture, and an alibi defense.
[¶38.] Kryger challenges the circuit court’s decision to reject several of his
proposed jury instructions. Kryger’s first set of proposed instructions stated:
“Evidence that the Defendant described himself as having a criminal mind does not
in itself mean the Defendant possessed a [depraved mind/premeditated design].
You must consider any such evidence in conjunction with all other evidence
presented.” Kryger claimed the instruction was needed to mitigate the statements
admitted regarding Kryger’s criminal mind.
[¶39.] Kryger also proposed five alternative jury instructions that he claimed
defined speculation and conjecture. He contended these jury instructions were
needed to respond to testimony from Dr. Snell, the testing procedures used during
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the investigation of Kirkegaard’s death, and the large number of items of evidence
collected by police during the investigation. The circuit court rejected Kryger’s
instructions, and instructed the jury as follows:
Instruction No. 58. It is your duty to decide from the evidence what the facts are and whether the defendant is guilty or not guilty of the crimes charged. You must base that decision on the facts and the law. First, you must determine the facts from the evidence received in the trial and not from any other source. You are entitled to consider the evidence in the light of your own observations and experiences in the affairs of life. You may use reason and common sense to draw deductions or conclusions from facts which have been established by the evidence. However, your verdict must not be based upon speculation, guess or conjecture. Second, you must apply the law that I state to you, to the facts, as you determine them, and in this way, arrive at your verdict. You must accept and follow the law as I state it to you, whether or not you agree with the law.
[¶40.] Finally, Kryger proposed an alibi jury instruction. The circuit court
ruled that Kryger was not entitled to an alibi instruction and instead instructed the
jury as follows:
Instruction No. 16. The indictment charges that the offense was committed “on or about” a certain date. The proof need not establish with certainty the exact date of the offense alleged. It is sufficient if the evidence establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged.
[¶41.] “A trial court has discretion in the wording and arrangement of its jury
instructions, and therefore we generally review a trial court’s decision to grant or
deny a particular instruction under the abuse of discretion standard.” Spaniol,
2017 S.D. 20, ¶ 49, 895 N.W.2d at 345 (quoting State v. Whistler, 2014 S.D. 58, ¶ 13,
851 N.W.2d 905, 910). Jury instructions are considered as a whole. State v. Jensen,
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2007 S.D. 76, ¶ 19, 737 N.W.2d 285, 291. If they “correctly state the law and inform
the jury, they are sufficient.” Id. (quoting State v. Johnston, 478 N.W.2d 281, 283
(S.D. 1991)). A circuit court does not err simply by refusing “to amplify instructions
which substantially cover the principle embodied in the requested instruction.”
State v. Klaudt, 2009 S.D. 71, ¶ 20, 772 N.W.2d 117, 123.
[¶42.] As to Kryger’s proposed state-of-mind instructions, the circuit court
pointed out that Kryger’s statements about criminal mind were couched in
ordinary, conversational terms and that Kryger’s proposed instructions would only
highlight the statements to the jury. The circuit court also noted Kryger had a full
opportunity to challenge the nature of his own remarks through the cross-
examination of Detectives Hoffman and Forster, and could further challenge these
statements in closing arguments. Moreover, the circuit court provided proper
instructions to the jury explaining the elements of the crimes and the intent
necessary for each one.
[¶43.] The circuit court rejected Kryger’s instructions on speculation and
conjecture because it believed Instruction 58 was a better and more accurate
statement of South Dakota law. The court further noted that Kryger’s proposed
instructions suggested that the amount of evidence available in a case was more
important than the force of the evidence—which the court believed to be incorrect.
Finally, the court noted Kryger could still argue to the jury that it could not or
should not speculate about evidence even without the additional instructions.
[¶44.] Finally, the circuit court reexamined evidence of Kryger’s whereabouts
around the time of Kirkegaard’s death to determine whether he was entitled to an
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alibi defense. Based on the mosque video, which placed Kryger in the vicinity of
Kirkegaard’s home, the fact that Kryger was only able to partially explain his
whereabouts on the night of March 14, 2014, and because Kryger had not complied
with timely notice of alibi under SDCL 23A-9-1, the court determined that the
evidence did not warrant an alibi instruction.
[¶45.] The circuit court thoroughly analyzed each of Kryger’s proposed
instructions and provided adequate reasoning for rejecting them. Additionally, the
instructions provided to the jury were proper and accurate statements of the law.
Therefore, there was no abuse of discretion by the circuit court in denying Kryger’s
proposed instructions.
7. Whether the circuit court erred by denying Kryger’s motion for judgment of acquittal.
[¶46.] Kryger claims the lack of proof present in the record demonstrated
that he was convicted in error based on speculation by the jury. Specifically, Kryger
argues the State failed to prove the premeditated design required for first-degree
murder, the depraved mind required for second-degree murder, and the intent
required for first-degree burglary. He also argues that the evidence was insufficient
for the jury to find force, coercion, or threats required for rape. He maintains the
circuit court erred in denying his motion for judgment of acquittal because “the
evidence [was] insufficient to sustain a conviction of the offense or offenses.” See
SDCL 23A-23-1.
[¶47.] We review a denial of a motion for judgment of acquittal de novo.
State v. Bosworth, 2017 S.D. 43, ¶ 11, 899 N.W.2d 691, 694.
When reviewing whether evidence is sufficient to sustain a conviction, we “consider the evidence in a light most favorable to -20- #27869
the verdict. A guilty verdict will not be set aside if the State’s evidence and all favorable inferences that can be drawn therefrom support a rational theory of guilt. We do not resolve conflicts in the evidence, pass on the credibility of the witnesses, determine the plausibility of an explanation, or weigh the evidence.”
Id. (quoting State v. Janklow, 2005 S.D. 25, ¶ 16, 693 N.W.2d 685, 693).
[¶48.] The evidence in this case does not match Kryger’s assertion that his
conviction was based on speculation and conjecture. Both direct and circumstantial
evidence existed linking Kryger to Kirkegaard’s death. Kryger’s sperm cell DNA
was found in Kirkegaard’s vagina after he initially denied knowing Kirkegaard or
having sex with her. Kirkegaard lived alone and the evidence suggested that she
did not have a relationship or any prior contact with Kryger. Further, Kirkegaard
returned home on the night of her death shortly after a family gathering,
diminishing the likelihood that she had brought Kryger into her home from another
location. Kryger admitted riding his bike during the timeframe that Kirkegaard
was killed, and he was seen on the mosque video riding his bike in the immediate
vicinity of Kirkegaard’s home around the time of Kirkegaard’s death. Three people
identified Kryger in the mosque video.
[¶49.] Kirkegaard’s autopsy revealed ligature marks indicating
strangulation. She also had numerous other traumatic injuries, including a
fractured hyoid bone and thyroid cartilage, and multiple red marks in her vagina.
These injuries indicated a deliberate use of force, as well as an imminently
dangerous act done with a depraved mind.
[¶50.] Kirkegaard’s purse was discovered missing from her home. The day
after her death, Kryger suddenly had enough money to buy an engagement ring for
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his girlfriend, a cell phone, and a calling plan. After his DNA was found on the
body, Kryger claimed in a phone call to Nagel that he had consensual sex with
Kirkegaard. However, the injuries to Kirkegaard and the circumstances
surrounding the night of Kirkegaard’s death provide no explanation or possibilities
as to how or why that consensual sex would have occurred.
[¶51.] In the aggregate, and in a light most favorable to the guilty verdict, the
evidence is sufficient to sustain Kryger’s conviction on all crimes. The State’s
evidence and all favorable inferences support a rational theory of guilt in this case
and the jury’s ability to make that determination on each of the charges. Kryger
was not entitled to a judgment of acquittal and the circuit court did not err.
Conclusion
[¶52.] The circuit court did not commit prejudicial error in any of the issues
raised by Kryger, and thus, we need not address Kryger’s final argument that
accumulation of the court’s errors warrants a new trial. The evidence in the record
is sufficient to sustain Kryger’s convictions on all counts. We affirm.
[¶53.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,
Justices, concur.
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