#29878-aff in pt & rev in pt-PJD 2023 S.D. 15
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
JAY JOSEPH PENEAUX, Defendant and Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA
THE HONORABLE CRAIG A. PFEIFLE Judge
TODD A. LOVE Rapid City, South Dakota Attorney for defendant and appellant.
MARTY J. JACKLEY Attorney General
JONATHAN K. VAN PATTEN Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
CONSIDERED ON BRIEFS OCTOBER 3, 2022 OPINION FILED 03/15/23 #29878
DEVANEY, Justice
[¶1.] Jay Peneaux was charged with multiple offenses relating to the assault
of his ex-wife, Brittany, and his later efforts to get the pending charges dismissed.
After the close of the State’s evidence during a jury trial, Peneaux moved for a
judgment of acquittal on all charges. The circuit court denied the motion, and the
jury found Peneaux guilty on all counts. Peneaux appeals, arguing that there was
insufficient evidence for the jury to find him guilty of aggravated assault and
threatening and harassing conduct. We affirm in part, reverse in part, and vacate
the conviction on the threatening and harassing conduct charge.
Factual and Procedural Background
[¶2.] Peneaux and Brittany began their relationship in 2006. At the time,
Peneaux was 22 years old, and Brittany was 14 years old. Brittany became
pregnant and gave birth to the couple’s first child in 2007. They were married in
2014, and Brittany gave birth to two additional children, one in 2015 and one in
2018. Throughout their marriage, Brittany was subjected to emotional abuse from
Peneaux. According to Brittany, this abuse was especially prevalent when Peneaux
was drinking or getting high. In addition to emotional abuse, Brittany claimed
Peneaux physically abused her multiple times throughout their marriage.
[¶3.] Evidence of prior acts of abuse was admitted at trial. One such act
occurred during the summer of 2018 when, after a night of drinking at a bar,
Peneaux pulled Brittany’s hair, threw her on the ground, and jumped on top of her
during an argument outside their home. She did not call the police, explaining that
Peneaux provided the family’s only source of income. In another incident in
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December 2018, after an argument during which Brittany was attempting to get
her car keys back from Peneaux, he started choking her and then threw her off the
porch. This time Brittany did call the police.
[¶4.] Trial testimony was also presented regarding an incident occurring in
November 2019. During this incident, Peneaux grabbed a knife from the kitchen
after arguing with Brittany and threatened to kill her and her family. Upon seeing
their daughter, who was recording the incident, Peneaux turned the knife on
himself and threatened suicide. He left the home when Brittany’s mother arrived.
Her mother called the police to report what had happened, and charges were filed
relating to this incident. But after receiving numerous threatening text messages
from Peneaux, Brittany complied with his instructions and wrote a letter to the
judge handling the case asking that the charges be dismissed. Brittany testified
that during each of the above altercations, she believed Peneaux to be intoxicated
from either drugs or alcohol.
[¶5.] In late 2019, Brittany decided to initiate divorce proceedings, and the
divorce was finalized approximately one year later. After the divorce, Peneaux was
living with his parents, but in April 2021, Brittany allowed him to stay at her home.
Peneaux had informed Brittany that he had a job lined up and that he was trying to
work on his sobriety. He explained that it was difficult for him to stay sober at his
parents’ home. According to Brittany, although they no longer had a romantic
relationship, she allowed Peneaux to stay at her home in the hope that he would
stay sober and reconnect with their children. Peneaux slept in the children’s room
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while staying in her home. She was aware that Peneaux had a girlfriend named
Janelle Fisher who was in jail at the time.
[¶6.] On April 27, 2021, Peneaux informed Brittany that he would be
leaving indefinitely to work at a construction site out of town. He also mentioned
that Janelle had gotten out of jail, and he was going to go see her before leaving
town. Peneaux left Brittany’s home, and when he returned, Brittany thought he
appeared to be high because he was acting aggressive and talking about things that
did not make sense. This behavior upset Brittany, and they then had an argument
about Peneaux’s role as a father. The argument ended when Peneaux asked for
Brittany’s keys, so he could collect his things from her vehicle. Once he collected his
belongings, he left Brittany’s keys on the driver’s seat of her vehicle and got into his
own vehicle and sped off.
[¶7.] Shortly after Peneaux left, Brittany went to retrieve her keys from her
vehicle. While doing so, she noticed that the glove compartment and center console
were left open. She then discovered that Peneaux had taken money from the center
console and her handgun from the glove compartment. Brittany kept the magazine
for the handgun at the bottom of the center console, and it was still there.
[¶8.] Later that same evening, Brittany drove to the trailer home owned by
Peneaux’s parents to retrieve the gun from him. When Brittany confronted
Peneaux, they argued about the gun and about how his behavior affected their
children. Peneaux refused to give the gun back. According to Brittany, he was
yelling loudly, he shoved her, and she shoved him back. He also threw a beer in her
face. Peneaux told her to leave the property immediately and mentioned that his
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brother Heath who was at his parents’ home, was “wanted.” Brittany then left and
went home to put her kids to bed.
[¶9.] Brittany explained that later that night, she could not go to sleep
because she was upset about Peneaux’s actions and with herself for letting him back
into their children’s lives. She also felt unsafe and wanted her gun back. She was
afraid, given her perception of Peneaux being high, that he might pawn her gun like
he had done with other possessions when their marriage ended. Accordingly, in the
early morning hours of April 28, 2021 (around 2:00 a.m.), Brittany returned to the
trailer home to retrieve her gun.
[¶10.] The events that occurred in front of Peneaux’s parents’ home during
this second visit were captured on a neighbor’s security camera. The silent video
footage shows Brittany getting out of her car and walking toward the front of the
trailer home. Unbeknownst to Brittany, Peneaux was sitting in his pickup truck,
which was parked on the backside of the home in an area that cannot be seen on the
video. According to Brittany, once Peneaux noticed her, he got out of his truck and
confronted her. He was very angry and began yelling at her because she had come
back despite him previously telling her to leave the property. While he was yelling
at her, Brittany could see someone who looked like his girlfriend, Janelle, in the
driver’s seat of Peneaux’s truck.
[¶11.] Thereafter, things escalated. Brittany claimed that Peneaux grabbed
her gun from his truck and asked her if this was the gun she wanted. She stated
that he then threatened to “take [her] out and [her] family” so she “just ran.” The
video footage shows Brittany running back to the front of the home and getting
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inside her vehicle. It also shows Peneaux running around the opposite side of the
garage to the front of the home and approaching Brittany’s vehicle. The video
shows him punching the passenger-side windows. Brittany then gets out of the
vehicle and walks toward the front of her car where Peneaux confronts her and
physically takes her to the ground.
[¶12.] It is very difficult to discern on the video what is occurring while they
are on the ground. According to Brittany, while Peneaux had her pinned to the
ground, he grabbed the gun from his waistband and asked her if she wanted to end
up like her brother who had passed away just a month prior. In an effort to get
away, Brittany bit Peneaux, grabbed the gun, and tried to pull it away from him.
She claims that he then punched her on the side of her head and called for his
brother, Heath, who can be seen on the video walking over to Peneaux and Brittany
while they are on the ground wrestling. The video shows Heath lean down toward
Brittany and Peneaux and remove the gun as they continue to wrestle. It is not
clear from the video whether the gun was handed to Heath or whether he pulled it
away from them. However, the video shows Heath walking away, after which
Peneaux draws his arm back and punches Brittany two more times. Brittany
testified that she blacked out at this point.
[¶13.] Directly after striking Brittany, Peneaux can be seen getting up and
walking away. A few seconds later, the video shows Brittany get up and walk
toward Peneaux and other members of his family who were standing nearby
watching the altercation occur. At trial, Brittany explained that Peneaux’s family
members told her to leave because they did not want the police to come. Brittany
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could not find her keys and the video shows her looking for them in the area
surrounding her vehicle and in the driveway. Brittany later discovered her keys in
the pocket of the sweatshirt she was wearing under her coat.
[¶14.] A neighbor witnessed the altercation and called 911. Shortly
thereafter, law enforcement arrived at the scene and found Brittany sitting outside
on the curb crying. Officers observed swelling, redness, and blood on Brittany’s
face. They also noticed that her nose appeared to be deformed. After the officers
spoke with Brittany about what had happened, a paramedic with the fire
department evaluated Brittany at the scene. The paramedic observed bruising
across the bridge of her nose but could not ascertain if it was broken. After this
assessment, the paramedic determined that she did not need emergency care. 1
[¶15.] Although the officers attempted to apprehend Peneaux, they were
unsuccessful due to their inability to enter the trailer home. After knocking and
receiving no answer, law enforcement discovered that the entrances had been
barricaded. Given the concern that Peneaux might be inside with a gun, along with
his brother who had outstanding warrants, the officers elected not to attempt a
forced entry at that time.
[¶16.] Later that morning, an arrest warrant for Peneaux was issued. When
law enforcement executed a search warrant on the home to arrest Peneaux and
1. Photographs taken by law enforcement at the scene and later at the police department depicted bruising on Brittany’s body and around both of her eyes. She testified at trial that after the assault, she experienced headaches and confusion. However, she explained that she did not go to a doctor for follow- up care, as suggested, because she does not have health insurance.
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locate the gun, no one was inside. They did not locate Brittany’s gun during the
search; however, Peneaux’s mother later brought the gun to the police department.
[¶17.] On May 2, 2021, Peneaux contacted Brittany via telephone twice. In
the first call, he told her to drop the charges or he would hurt her and her family.
In the second call, he said, “Watch this[,]” which Brittany perceived as a threat.
Peneaux was subsequently arrested on May 4, 2021, after Peneaux’s mother
allowed law enforcement to enter the Peneaux home to search for him. While
searching, officers found Peneaux hiding inside a zippered mattress. As a condition
of the bond set after he was arrested, Peneaux was ordered to have no contact with
Brittany.
[¶18.] On May 20, 2021, an information was filed containing two counts of
aggravated assault for the events that occurred on April 28, 2021, one charging
Peneaux with a violation of SDCL 22-18-1.1(1) (extreme indifference to human life)
and the other charging a violation of SDCL 22-18-1.1(5) (physical menace with a
deadly weapon). The information also contained charges of witness tampering in
violation of SDCL 22-11-19 and threatening or harassing conduct in violation of
SDCL 49-31-31(1) based on statements Peneaux made to Brittany during the May 2
phone calls. On August 11, 2021, a grand jury issued an indictment charging
Peneaux with the same four offenses. The indictment contained an additional
charge of felony stalking in violation of SDCL 22-19A-1(3) and SDCL 22-19A-2
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based on texts Peneaux sent to Brittany on June 30, 2021, while the order
prohibiting contact was in place. 2
[¶19.] On November 1, 2021, a three-day jury trial commenced. In addition
to the video of the assault and Brittany’s testimony detailing the above-described
events, the State called several other witnesses, including law enforcement officers;
Brittany’s mother, who testified about past abuse; and Brittany and Peneaux’s
daughter, who witnessed Peneaux take something out of the console of Brittany’s
car when he left Brittany’s home on April 27. At the close of the State’s evidence,
Peneaux moved for a judgment of acquittal on all counts. As to the first aggravated
assault charge, he argued that the State did not present evidence that Brittany
suffered serious bodily injury. As to the second aggravated assault charge, he
offered arguments similar to those he now makes on appeal with respect to the
element regarding the use of a deadly weapon. He argued that this element could
not be met because Brittany knew the gun was unloaded. Peneaux did not present
any argument with respect to the threatening and harassing contact charge at issue
in this appeal. The circuit court denied Peneaux’s motion as to all counts except for
the second aggravated assault charge, which the court took under advisement.
2. Peneaux was later indicted via a superseding indictment issued on September 15, 2021, charging, in addition to the existing five counts, one count of solicitation of perjury in violation of SDCL 22-4A-1, SDCL 22-29-1 and SDCL 22-29-5(2) and one count of solicitation to be an accessory after the fact in violation of SDCL 22-4A-1, SDCL 22-3-5, and SDCL 22-3-3.1. These solicitation charges stemmed from a July 8, 2021 phone call between Peneaux and his mother in which he asked her to testify that she was the one sending some of the text messages underlying the pending stalking charge. On Peneaux’s motion, the solicitation to be an accessory charge was dismissed prior to trial. The remaining solicitation charge is not at issue in this appeal.
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[¶20.] In his defense, Peneaux called several witnesses, including multiple
family members who were at the home during the incident and his girlfriend,
Janelle, who was with Peneaux in his truck when Brittany came back the second
time. According to the defense witnesses, Brittany was the one who brought the
gun to confront Peneaux at his parents’ home. Janelle testified that Brittany began
hitting the windows of Peneaux’s pickup with the gun shortly after arriving. She
claimed that Peneaux ran after Brittany in order to disarm her. According to
Janelle, Peneaux was not the aggressor and he never threatened Brittany. Janelle
also testified about screenshots of text messages Brittany purportedly sent to
Peneaux earlier that evening expressing that she hated him and that she wanted to
die because she wanted him and her family back.
[¶21.] Through cross-examination of Brittany and the law enforcement
officers who had interviewed her, Peneaux pointed out multiple inconsistencies in
Brittany’s initial story regarding the events surrounding the assault. In particular,
Brittany initially told law enforcement that she and Peneaux were in her vehicle
outside the Peneaux home when the argument started and that this is when he took
the gun from her car before attacking her. Brittany admitted in a later interview,
and at trial, that she had initially lied about when Peneaux took the gun because
she was ashamed and did not want anyone to know that she had let him back into
her life and let him stay in her home.
[¶22.] Prior to the defense resting, the circuit court denied Peneaux’s motion
for a judgment of acquittal on the charge of aggravated assault by physical menace
with a deadly weapon. The court concluded that there was sufficient evidence from
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Brittany’s testimony to establish the necessary element pertaining to the use of a
deadly weapon. The case was submitted to the jury, and after an overnight recess,
the jury returned a verdict on the afternoon of the second day of deliberation. The
jury found Peneaux guilty on all six counts.
[¶23.] Peneaux timely appealed, and his issues are restated as follows:
1. Whether the circuit court erred by not granting Peneaux’s motion for judgment of acquittal on the charge of aggravated assault in violation of SDCL 22-18-1.1(1).
2. Whether the circuit court erred by not granting Peneaux’s motion for judgment of acquittal on the charge of aggravated assault in violation of SDCL 22-18-1.1(5).
3. Whether the circuit court erred by not granting Peneaux’s motion for judgment of acquittal on the charge of threatening or harassing contact in violation of SDCL 49- 31-31(1).
Standard of Review
[¶24.] “This Court reviews ‘a denial of a motion for judgment of acquittal de
novo.’” State v. Timmons, 2022 S.D. 28, ¶ 14, 974 N.W.2d 881, 887 (quoting State v.
Frias, 2021 S.D. 26, ¶ 21, 959 N.W.2d 62, 68). “[A] motion for a judgment of
acquittal attacks the sufficiency of the evidence[.]” Id. (alterations in original)
(quoting State v. Wolf, 2020 S.D. 15, ¶ 12, 941 N.W.2d 216, 220). “In measuring the
sufficiency of the evidence, we ask whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Frias, 2021 S.D. 26,
¶ 21, 959 N.W.2d at 68 (quoting State v. Brim, 2010 S.D. 74, ¶ 6, 789 N.W.2d 80,
83). “[T]he jury is the exclusive judge of the credibility of the witnesses and the
weight of the evidence[,]” and “this Court will not resolve conflicts in the evidence,
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pass on the credibility of witnesses, or weigh the evidence.” Id. (first alteration in
original) (quoting State v. Bausch, 2017 S.D. 1, ¶ 33, 889 N.W.2d 404, 413).
Analysis and Decision
1. Whether the circuit court erred by not granting Peneaux’s motion for judgment of acquittal on the charge of aggravated assault in violation of SDCL 22-18-1.1(1).
[¶25.] Peneaux argues that his conviction for aggravated assault under SDCL
22-18-1.1(1) is not supported by sufficient evidence because his conduct did not rise
to the level required for a finding of “circumstances manifesting extreme
indifference to the value of human life.” 3 He highlights the video evidence showing
that he walked away directly after punching Brittany. He also claims that unlike
the scenarios presented in other aggravated assault cases considered by this Court,
no one had to interfere to stop the altercation. The State responds that Peneaux’s
act of dragging Brittany to the ground and delivering multiple punches to her head,
coupled with his threatening statements to her while holding a deadly weapon, are
sufficient to sustain the conviction.
[¶26.] “Our Legislature has not declared what circumstances constitute
extreme indifference to the value of human life under SDCL 22-18-1.1(1).” Wolf,
2020 S.D. 15, ¶ 15, 941 N.W.2d at 221. “However, it has ‘deemed significant the
nature of the assaultive act or acts themselves.’” Id. (quoting State v. Miland, 2014
S.D. 98, ¶ 18, 858 N.W.2d 328, 332). We have sustained a finding of guilt under
3. The full text of the subsection relating to this type of aggravated assault provides that any individual who “[a]ttempts to cause serious bodily injury to another . . . under circumstances manifesting extreme indifference to the value of human life . . . is guilty of aggravated assault.” SDCL 22-18-1.1(1).
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SDCL 22-18-1.1(1) when “the accused’s ‘conduct was of the most threatening sort,’
such that the circumstances ‘demonstrate a blatant disregard for the risk to the
victim’s life, and the accused either attempted to or did cause serious bodily
injury[.]’” Miland, 2014 S.D. 98, ¶ 18, 858 N.W.2d at 332–33 (quoting State v.
Saucier, 512 A.2d 1120, 1125 (N.H. 1986)). “The severity of the resulting injuries
and the accused’s state of mind may be germane to the extreme indifference
question, but the main focus is on the conduct of the accused.” Id. ¶ 18, 858 N.W.2d
at 332.
[¶27.] Although Peneaux attempts to distinguish the facts in his case from
other aggravated assault cases considered by this Court, “these distinctions simply
mark differences in the factual records—not a definitive line that categorically
prevents a finding of extreme indifference where an attack abates.” Wolf, 2020 S.D.
15, ¶ 18, 941 N.W.2d at 221. Therefore, the unique facts of each case must be
evaluated on their own merits. Nevertheless, we note some similarities between the
facts here and in prior cases cited by Peneaux.
[¶28.] In State v. White Mountain, 477 N.W.2d 36, 39 (S.D. 1991), for
example, this Court upheld an aggravated assault conviction under SDCL 22-18-
1.1(1) involving circumstances analogous to those here, where the defendant
repeatedly kicked the victim in the head and stomach while she was defenseless on
the ground. During this attack, the defendant asked the victim if she wanted to die
and then told her that she was going to die. Id. at 37. The Court found this
evidence sufficient to support the jury’s finding that the defendant attempted to
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cause serious bodily injury in circumstances demonstrating extreme indifference to
the value of human life. Id. at 39.
[¶29.] Also, in Miland, we considered whether a defendant demonstrated
extreme indifference to the value of human life when, during a routine traffic stop,
he began to punch a police officer multiple times in the face. 2014 S.D. 98, ¶ 4, 858
N.W.2d at 329–30. The defendant continued this beating until he was eventually
pulled away by another officer. In affirming the conviction, the Court noted that
had the other officer not intervened, the defendant would have most certainly
continued the assault. Id. ¶ 20, 858 N.W.2d at 333.
[¶30.] More recently, the Court affirmed a conviction under SDCL 22-18-
1.1(1) in Wolf, a case in which the defendant, an inmate at the South Dakota State
Penitentiary, attacked a corrections officer by kicking and kneeing him in the face
and head for approximately 20 seconds. 2020 S.D. 15, ¶ 3, 941 N.W.2d at 218. The
defendant then put the officer in a chokehold, limiting the officer’s ability to breathe
“for a few seconds.” Id. ¶ 4. Although the officer was able to escape the chokehold
and spray the defendant with “OC spray,” the Court reasoned that the defendant
would have continued the assault but for the defensive maneuvers made by the
officer after he was attacked. Id. ¶¶ 4, 19, 941 N.W.2d at 219, 221–22.
[¶31.] Here, the video shows Brittany running toward her vehicle and
Peneaux also running, via a different route, toward the driveway where Brittany’s
vehicle was parked. After she took refuge inside her vehicle, Peneaux began
punching its windows. An altercation then ensued outside the vehicle, where
Peneaux pinned Brittany to the ground. Brittany testified that while Peneaux had
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her on the ground, he made threatening comments about “taking out” her and her
family. He also referred to Brittany “ending up like” her brother who had recently
passed away. According to Brittany, these threatening remarks were made while
Peneaux was holding Brittany’s gun.
[¶32.] In an attempt to defend herself, Brittany bit Peneaux and tried to
wrestle the gun away from him while they were on the ground. These efforts
appeared, from what the video shows, to have hindered Peneaux, at least
temporarily, from acting on his threats. Although the testimony at trial indicates
that Heath’s intervention here was at the behest of Peneaux, what transpired after
Heath removed the gun from the scenario is equally troubling. Once Heath walked
away with the gun, Brittany, who was still lying on the ground, appeared
submissive. Peneaux nevertheless continued to assault her, punching her twice,
with blows to her face and head, one of which likely broke her nose. According to
Brittany, she briefly lost consciousness at this time.
[¶33.] Although Peneaux offered a different version of the events to the jury,
“[t]his Court examines the evidence in its totality and does not reweigh evidence or
pass on the credibility of witnesses.” State v. Ahmed, 2022 S.D. 20, ¶ 20, 973
N.W.2d 217, 223. When considering this evidence in a light most favorable to the
verdict, it was reasonable for the jury to conclude that Peneaux demonstrated a
blatant disregard for the risk to Brittany’s life based upon his conduct during the
attack. Additionally, by pinning Brittany to the ground and punching her at least
twice in the head, it was reasonable for the jury to conclude that Peneaux
attempted to cause Brittany serious bodily injury. See Miland, 2014 S.D. 98, ¶ 14,
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858 N.W.2d at 332–33 (noting the risk of a life-long injury when there is a blow to
the head). An attempt to cause serious bodily injury can, under circumstances such
as those present here, demonstrate extreme indifference to the value of human life.
Therefore, the circuit court did not err in denying Peneaux’s motion for judgment of
acquittal on the charge of aggravated assault in violation of SDCL 22-18-1.1(1).
2. Whether the circuit court erred by not granting Peneaux’s motion for judgment of acquittal on the charge of aggravated assault in violation of SDCL 22-18-1.1(5).
[¶34.] Peneaux argues his conviction for aggravated assault under SDCL 22-
18-1.1(5) is not supported by sufficient evidence because Brittany testified that she
knew the gun was not loaded given that the magazine for the gun was still in the
console of her vehicle at the time of the assault. He thus contends the gun could not
have met the definition of a deadly weapon as required for a conviction under this
particular statute.
[¶35.] The State responds that Brittany had lost control of the gun for several
hours prior to the incident; therefore, she could not have known whether the gun
was loaded. 4 The State argues this evidence was sufficient for the jury to
reasonably conclude that Peneaux used a deadly weapon to put Brittany in fear of
imminent serious bodily harm.
4. Aside from defense counsel’s cross-examination of Brittany, there is no evidence in the record confirming whether, at the time of the events in question, the gun was in fact unloaded. Law enforcement did not locate the gun when searching the Peneaux home the morning after the assault, and it was Peneaux’s mother who later brought it to law enforcement.
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[¶36.] SDCL 22-18-1.1(5) provides that any individual who “[a]ttempts by
physical menace with a deadly weapon to put another in fear of imminent serious
bodily harm . . . is guilty of aggravated assault.” Id. A “deadly weapon” is defined
in SDCL 22-1-2(10) as “any firearm, stun gun, knife, or device, instrument,
material, or substance, whether animate or inanimate, which is calculated or
designed to inflict death or serious bodily harm, or by the manner in which it is
used is likely to inflict death or serious bodily harm[.]”
[¶37.] We have explained that “[t]he gravamen of the offense is the attempt
to put a person in fear of imminent serious bodily harm. Actual fear of imminent
serious bodily harm is not an essential element of the offense.” Ahmed, 2022 S.D.
20, ¶ 15, 973 N.W.2d at 221 (quoting State v. LaCroix, 423 N.W.2d 169, 170 (S.D.
1988)). We have further held that “[p]hysical menace ‘requires more than words:
there must be some physical act on the part of the defendant.’” State v. Scott, 2019
S.D. 25, ¶ 19, 927 N.W.2d 120, 127 (quoting In re R.L.G., 2005 S.D. 119, ¶ 10, 707
N.W.2d 258, 261).
[¶38.] In support of his argument, Peneaux relies on an excerpt from State v.
Heumiller, a case addressing the question whether an unloaded gun can be
considered a deadly weapon under SDCL 22-18-1.1(5). 317 N.W.2d 126, 131 (S.D.
1982). In Heumiller, the Court viewed an alleged assault charge under SDCL 22-
18-1.1(5) from the perspective of the victim and referred to the gravamen of the
offense being “the fear it instills in the mind of the victim who ordinarily does not
know whether the firearm is in fact loaded.” Id. at 131. The Court further noted
that absent “evidence that the victim knew the gun was unloaded, it is deemed
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loaded for the purpose of proving the element of fear[.]” Id. Heumiller later states
that “the gravaman [sic] of the offense is not whether the gun was in fact loaded,
but whether the [gun] was used to put the victim in fear of imminent serious bodily
injury.” Id.
[¶39.] Our cases subsequent to Heumiller have consistently held, and
clarified, that “the State need not prove ‘actual fear of imminent serious bodily
harm.’” Ahmed, 2022 S.D. 20, ¶ 19, 973 N.W.2d at 222 (quoting Scott, 2019 S.D. 25,
¶ 19, 927 N.W.2d at 127). Therefore, the statements in Heumiller suggesting that
the victim’s fear is an element of a crime charged under SDCL 22-18-1.1(5) are
incorrect. The relevant question is not whether the victim knew the gun was
unloaded. Instead, the focus is on what the defendant was attempting to do with
the gun.
[¶40.] Here, Brittany testified that Peneaux threatened her with the gun
when he got out of the pickup, and after he later pinned her to the ground, he
withdrew the gun from his waistband and asked her if she wanted to end up like
her recently deceased brother. In light of this testimony, there is sufficient evidence
to support the jury’s finding that Peneaux attempted to put Brittany in fear of
imminent serious bodily harm. Accordingly, the circuit court did not err in denying
Peneaux’s motion for judgment of acquittal on the charge of aggravated assault in
violation of SDCL 22-18-1.1(5).
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3. Whether the circuit court erred by not granting Peneaux’s motion for judgment of acquittal on the charge of engaging in threatening or harassing contact in violation of SDCL 49-31-31(1).
[¶41.] Peneaux argues his conviction under SDCL 49-31-31(1) is not
supported by sufficient evidence because the State did not put forth any evidence
tending to prove that he used obscene or lewd language or that he suggested a lewd
or lascivious act on May 2, 2021. 5
[¶42.] As stated in SDCL 49-31-31(1): “It is a Class 1 misdemeanor for a
person to use a telephone or other electronic communication device . . . [t]o contact
another person with intent to terrorize, intimidate, threaten, harass, or annoy such
person by using obscene or lewd language or by suggesting a lewd or lascivious act.”
Neither this Court nor the Legislature has defined “lewd or lascivious.” State v.
Dubois, 2008 S.D. 15, ¶ 35, 746 N.W.2d 197, 208. However, we have noted that
“Black’s Law Dictionary defines lewd as: ‘[o]bscene or indecent; tending to moral
impurity or wantonness,’ 926 (8th ed. 2004); Black’s Law Dictionary defines
lascivious as: ‘([o]f conduct) tending to excite lust; lewd; indecent; obscene.’ 897 (8th
ed. 2004).” Id.
5. Count 4 of the indictment charged the following:
That on or about the 2nd day of May, 2021, in the County of Pennington, State of South Dakota, DEFENDANT JOSEPH PENEAUX did commit the public offense of THREATENING OR HARRASSING CONTACT in that he did then and there use a telephone or other electronic communication device to contact another person, to-wit: Brittany Peneaux, with intent to terrorize, intimidate, threaten, harass or annoy such person by using obscene or lewd language or by suggesting a lewd or lascivious act, in violation of SDCL 49-31-31(1).
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[¶43.] In a case addressing the same argument Peneaux makes here, this
Court rejected the defendant’s allegations that his comments were not obscene or
lewd. See State v. Crelly, 313 N.W.2d 455, 457 (S.D. 1981). While discussing what
type of comments are considered to be “obscene,” the Court noted that “we must
take the normal everyday meaning of the word ‘obscene’, in other words: Lewd,
impure, filthy, offensive to modesty or decency.” Id. at 456 (quoting Baker v. State,
494 P.2d 68, 71 (A.Z. 1972)). The defendant in Crelly was found guilty pursuant to
SDCL 49-31-31(1) after he called a prosecutrix a “no good fucking whore,” a “sleazy
slut,” and “slut” during a phone conversation. Id. at 457. In affirming the circuit
court’s finding of guilt, the Court found this particular communication to be
“patently offensive” and “the type of utterance that SDCL 49-31-31(1) was designed
to prohibit.” Id.
[¶44.] Here, the only evidence presented at trial regarding Peneaux’s May 2,
2021 phone calls was Brittany’s testimony. Brittany testified that Peneaux’s first
call came at 11:20 a.m. and lasted 13 seconds. When asked what happened during
that 13-second phone call, Brittany testified as follows: “He just said that -- that I
better drop the charges. Otherwise, he will hurt me and my family. And then he
hung up.” The second phone call came at 11:21 a.m. and lasted 2 seconds. Brittany
testified that Peneaux stated, “watch this” and then hung up.
[¶45.] In response to Peneaux’s arguments as to this issue, the State does not
focus on what Peneaux said in the May 2 phone calls; rather, the State refers to the
texts Peneaux sent to Brittany on June 30, 2021. Although these later texts contain
language that could be described as obscene, lewd, or lascivious, these texts were
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the subject of the felony stalking charge set forth in a different count in the
indictment for which Peneaux was convicted and sentenced. 6
[¶46.] The May 2, 2021 statements made by Peneaux as charged in the count
at issue cannot be described as obscene or lewd, nor can they be construed to
suggest a lewd or lascivious act. Although threatening and intimidating, the
comments made during these phone calls fall outside the “patently offensive”
language SDCL 49-31-31(1) “was designed to prohibit.” See Crelly, 313 N.W.2d at
457. Because there was insufficient evidence presented to the jury to support a
finding of guilt regarding Count 4, the circuit court erred in denying Peneaux’s
motion for judgment of acquittal on the charge of engaging in threatening or
harassing contact in violation of SDCL 49-31-31(1). Therefore, we vacate the
Peneaux’s conviction on Count 4.
[¶47.] Affirmed in part and reversed and vacated in part.
[¶48.] JENSEN, Chief Justice, and KERN and MYREN, Justices, concur.
6. The dissent, in its application of the “invited error” doctrine, notes that during closing argument, Peneaux’s counsel conceded that there was evidence to support Count 4. However, it is apparent that Peneaux’s counsel, like the State in this appeal, was mistakenly referring to the texts sent on June 30, which prompted the additional charge against Peneaux in Count 5. In both quotes noted by the dissent, defense counsel referred to Peneaux’s “sexual messages” and “sexual comments.” But Count 4 concerned only the May 2 phone calls and those calls did not contain a reference to anything of a sexual nature. Moreover, when conceding that there was evidence to find Peneaux guilty on Count 4, defense counsel specifically referred to the “sexual comments.” Counsel then asked the jury to find Peneaux not guilty on Count 5 (the felony charge which actually did pertain to the sexual comments). Thus, contrary to the dissent’s suggestion, defense counsel’s statements do not appear to be part of a calculated strategy or an affirmative act of sandbagging. Rather, it is apparent here that Peneaux’s counsel simply mixed up the charges by associating the wrong evidence with the wrong counts.
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[¶49.] SALTER, Justice, concurs in part and dissents in part.
SALTER, Justice (concurring in part and dissenting in part).
[¶50.] I would not review the merits of Peneaux’s challenge to his
misdemeanor conviction for threatening or harassing conduct, as alleged in Count 4,
and I write to respectfully explain why. I otherwise join the Court’s opinion.
[¶51.] A fundamental precept of appellate review posits that a party may not
ask a court to do something, only to later claim that granting the request was
erroneous. The resulting rule is commonly referred to as the doctrine of invited
error, but some courts have described it more colloquially as an effort to avoid a
dubious litigation practice known as “sandbagging[.]” See Flowers v. State, 149 So.
3d 1206, 1208 (Fla. Dist. Ct. App. 2014) (holding the doctrine of invited error is
designed to prevent “sandbagging”). Regardless of the moniker, the concept is an
eminently sensible one:
The doctrine of “invited error” embodies the principle that a party will not be heard to complain on appeal of errors which he himself induced or provoked the court or the opposite party to commit. It has been held that for the doctrine of invited error to apply it is sufficient that the party who on appeal complains of the error has contributed to it.
Veith v. O’Brien, 2007 S.D. 88, ¶ 27, 739 N.W.2d 15, 24 (quoting Taylor Realty Co. v.
Haberling, 365 N.W.2d 870, 873 (S.D. 1985), superseded on other grounds by rule as
stated in Weber v. Rains, 2019 S.D. 53, ¶ 33, 933 N.W.2d 471, 480).
[¶52.] Here, Peneaux is complicit in his own dilemma. During closing
argument, Peneaux’s trial counsel asked the jury to find him guilty of Count 4 at
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three separate points. 7 Initially, defense counsel made this unmistakable
concession to the jury:
Count 4, did he annoy her? I think he probably annoyed her when he sent the sexual messages. The lewd or lascivious act. All right, fine. When Jay said these sexual comments, that probably annoyed Brittany. I would agree that it probably constitutes that crime there.
(Emphasis added.)
[¶53.] Peneaux’s attorney then made a second acknowledgment of guilt by
describing the threatening or harassing conduct charge as the “one I just talked
about that Jay is likely guilty of.” And for the clincher, defense counsel directly
asked the jury to find Peneaux guilty of Count 4 as part of an apparent strategy to
avoid convictions on the felony charges he faced:
Ladies and gentlemen, we are going to ask you to go through this. We are going to ask you to vote not guilty on Count 1. Not guilty on Count 2. Not guilty on Count 3. I would agree the sexual comment he sent her, fine. Guilty of Count 4. Not guilty of Count 5. And not guilty of Count 6.
(Emphasis added.) 8
[¶54.] Under the circumstances, Peneaux should not be surprised that the
jury found him guilty of Count 4. Allowing review here would foster an incongruent
rule under which a party can argue, with impunity, that a court or jury erroneously
did exactly what the party wanted.
7. Peneaux is represented by different counsel on appeal.
8. This type of defense strategy has been discussed in the context of post- conviction litigation. See e.g., Rocha v. Jones, No. CIV.A. 99-CV-71714-D, 2001 WL 902628, at *4 (E.D. Mich. June 12, 2001) (“Trial counsel asserted that his planned trial strategy was to inform the jury that petitioner was guilty of the misdemeanor charges, but innocent of the felony charges.”).
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[¶55.] In its Flowers decision, the Florida District Court of Appeal expressed
the same view, capturing the essence of the defendant’s argument and the
application of the invited error doctrine in a crisp and clean opening paragraph:
Beware what you ask for. Here, defense counsel requested a jury instruction on a lesser included charge. [The defendant] was then convicted on that lesser included charge, and [the defendant] now seeks to be released without the possibility of retrial because the lesser included charge his attorney requested was time-barred. The invited error doctrine precludes such a “heads I win, tails you lose” game.
Flowers, 149 So. 3d at 1207.
[¶56.] The Court’s suggestion that the invited error doctrine should not apply
here because trial defense counsel transposed the evidence relating to Counts 4 and
5 confuses two concepts—being correct and being purposeful. See People v. Perez-
Rodriguez, 2017 COA 77, ¶ 25, 411 P.3d 259, 266 (holding invited error need not be
“competent or well planned” but “simply . . . deliberate rather than inadvertent”);
Flowers, 149 So. 3d at 1208 (applying the invited error doctrine where defense
counsel “should have known” that conviction of the lesser included offense was time-
barred when counsel requested it).
[¶57.] Right or wrong, the record indicates that defense counsel deliberately
conceded guilt on Count 4, which was, of course, the only misdemeanor charge. No
one has claimed that this was coincidental or that Peneaux’s trial defense counsel
actually meant to admit guilt to Count 5, instead of Count 4.
[¶58.] Under the circumstances, I would not consider Peneaux’s deferred
challenge to Count 4.
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