#29318-a-MES 2021 S.D. 16
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
**** STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
JUDY K. SCHUMACHER, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT FALL RIVER COUNTY, SOUTH DAKOTA
THE HONORABLE ROBERT GUSINSKY Judge
JASON R. RAVNSBORG Attorney General
BRIGID C. HOFFMAN Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
JOHN M. FITZGERALD of Fitzgerald Law Firm Rapid City, South Dakota Attorneys for defendant and appellant.
CONSIDERED ON BRIEFS JANUARY 11, 2021 OPINION FILED 03/03/21 #29318
SALTER, Justice
[¶1.] A jury convicted Judy Schumacher of two counts of aggravated assault
under the theory that she used a deadly weapon in an attempt to put another in
fear of imminent serious bodily harm. The jury also found her guilty of one count of
simple assault against a law enforcement officer. Judy appeals, arguing she cannot
be guilty of aggravated assault because the gun she was holding at the time of the
incident giving rise to the charges was inoperable. She also contends there was
insufficient evidence to support the conviction of simple assault against a law
enforcement officer. She further claims that the facts supporting the simple assault
charge should have been suppressed because they occurred following what she
considers an unlawful entry onto her property to arrest her. We affirm.
Facts and Procedural History
[¶2.] On June 28, 2018, Fall River County Sheriff’s Deputies Stephen
Yenulonis and Kyle Maciejewski received a report of a domestic dispute between
Judy Schumacher and her husband, Al. The Schumachers live on an acreage near
the community of Provo in Fall River County, but after the two argued at their
home, a friend gave Judy a ride to nearby Edgemont and called for law enforcement
assistance.
[¶3.] Deputies Yenulonis and Maciejewski were dispatched to Edgemont
where they spoke with Judy at her friend’s house. Judy reported that there had
been no physical violence during the disagreement with Al and that they had
quarreled about when it was best for Judy to seek medical care to address ongoing
symptoms following a recent surgery. The deputies advised Judy that they would,
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nevertheless, need to visit with Al in order to complete their investigation. This
prompted a strong response from Judy who became angry and began using profane
language, telling the deputies in no uncertain terms that they should not attempt to
speak with Al.
[¶4.] Undeterred, the deputies set out from Edgemont in separate patrol
vehicles for the 10-minute drive to the Schumacher acreage near Provo. Still angry,
Judy set out on foot toward her house before the deputies left Edgemont. When
Deputy Maciejewski overtook her en route to Provo, he offered Judy a ride. She
declined and responded defiantly, telling the deputy, “If you speak to my husband,
I’m gonna kick your ass.”
[¶5.] The deputies continued to the Schumacher acreage where they drove
through an open gate to reach the house, but they were not successful in their effort
to make contact with Al. After knocking on the front door and checking other areas
around the house, they left. As the deputies drove away, Judy and Al passed by
them in a vehicle driving the opposite direction toward the house. 1 The deputies
turned around to return to the Schumachers’ residence. When they arrived, the
gate at the end of the driveway leading up to the house was closed and locked.
Cameras in the patrol vehicles and the deputies’ microphones recorded the ensuing
sequence of events.
[¶6.] Waiting at the gate, the deputies could see Judy walking towards them
down the driveway. Deputy Maciejewski realized that Judy was carrying a gun,
which was later identified as a .22 caliber revolver. Judy held the revolver so that
1. At some point, Judy had telephoned Al and asked that he pick her up.
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the barrel rested on her shoulder and the handle was pointing up in the air. The
deputies immediately told her to put the revolver down, drew their own weapons,
and took cover behind their vehicles. Judy ignored the deputies’ orders to put the
revolver down until she reached the gate. Once there, she brought the revolver
forward off her shoulder in the general direction of the deputies, and placed it on
top of a fence post, but ignored further instructions to step away from the revolver.
[¶7.] Al soon walked up behind Judy, and because Al had a calmer
demeaner, Deputy Yenulonis asked him to take the revolver and move it away from
Judy. Al complied and put the gun on a separate fence post away from Judy.
Deputy Yenulonis then approached Al and retrieved the weapon. After the revolver
had been secured, 2 both deputies climbed over the closed gate to place Judy under
arrest for aggravated assault. As she was being handcuffed, Judy kicked Deputy
Maciejewski and attempted to stomp on his foot.
[¶8.] It was later determined, and the parties agreed at trial, that the
revolver “was incapable of discharging a projectile” at the time of the incident. Al
testified that he had last fired the gun in 2002, and because of a loose barrel, small
pieces of the lead bullet came back toward him and hit his arm.
[¶9.] The State charged Judy in what became a three-count information 3
which included two counts of aggravated assault, alleging that Judy assaulted each
2. Deputy Yenulonis initially placed the gun on the hood of a patrol vehicle. Despite some difficulty with the revolver’s ejection pin, he eventually removed several live bullets with Al’s assistance.
3. At the preliminary hearing, the State dismissed a fourth count alleging possession of a loaded firearm while intoxicated.
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of the deputies by “attempt[ing] by physical menace with a deadly weapon” to put
each of them “in fear of imminent serious bodily harm[.]” See SDCL 22-18-1.1(5). 4
Judy was also charged with simple assault against Deputy Maciejewski under the
theory she had kicked him as he was attempting to arrest her. See SDCL 22-18-
1(5), -1.05.
[¶10.] Relying upon the condition of the gun, Judy filed a pretrial motion to
dismiss the aggravated assault charges, arguing that the two counts contained in
the information did not charge a public offense. In Judy’s view, her conduct was not
illegal because she could not “attempt by physical menace with a deadly weapon to
put another in fear” if the revolver was inoperable. 5 (Emphasis added.) The circuit
court was unpersuaded and denied her motion to dismiss.
[¶11.] Judy also filed a motion to suppress prior to trial, seeking to exclude
the facts related to the simple assault charge. She argued that the deputies
violated her Fourth Amendment rights when they climbed over the gate to arrest
4. The State did not charge Judy with aggravated assault of a law enforcement officer. See SDCL 22-18-1.05 (increasing the felony classification of aggravated assault under SDCL 22-18.1.1 from a Class 3 felony to a Class 2 felony when committed against a law enforcement officer engaged in the officer’s duties).
5. In their submissions on appeal, the parties describe the revolver as “inoperable” interchangeably with references to their pretrial stipulation, agreeing that the revolver was “incapable of discharging a projectile[.]” See SDCL 22-1-2(16) (defining firearm as “any weapon from which a projectile or projectiles may be discharged by gunpowder”). Al’s testimony as related above, however, indicates that the revolver did fire when he last attempted it, but a loose barrel caused him to sustain minor injuries when shards of lead became embedded in his arm. We make no determination here whether a gun that could conceivably be fired, but not safely, satisfies the statutory definition of a firearm.
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her in the driveway, and in her view, “any evidence gathered . . . from the moment
after the deputies jumped the gate and entered the curtilage of the property” should
be excluded as “fruit of the poisonous tree.” The circuit court denied the motion
after receiving testimony from Deputy Maciejewski and viewing the recorded audio
and video evidence of the incident. 6
[¶12.] The case was tried to a jury on January 15 and 16, 2020. Though the
.22 caliber revolver was damaged and could not be safely fired, the evidence
established that Deputies Yenulonis and Maciejewski were unaware of the gun’s
condition. Both testified that Judy’s actions caused them to fear for their lives
because the revolver appeared to be a normal, working firearm as she walked
toward them.
[¶13.] Judy also testified at trial, but her testimony concerning the revolver
proved problematic for her. She initially claimed she was merely carrying the
revolver for protection from wild animals on her property. However, she also
acknowledged that she knew the gun did not function properly. On cross-
examination, the prosecutor pointed to the incongruity of possessing an inoperable
firearm for protection against wild animals. When he suggested that Judy had
instead armed herself in an attempt to frighten the deputies, Judy answered, “Fifth
Amendment. I have the right to carry a firearm on my own property.” The circuit
court attempted to clarify whether Judy was attempting to invoke her Fifth
6. Originally, Judy also moved to suppress the aggravated assault charges, arguing her Fourth Amendment rights were violated when the deputies simply drove to her property against her wishes. However, she ultimately abandoned this argument, and the circuit court did not consider it.
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Amendment right to remain silent and allowed the prosecutor to repeat the
question:
Q: [by the prosecutor] I said the only reason to take the gun out at that point was to intimidate law enforcement. Correct? And that’s when you said, “I claim the Fifth”?
A: [by Judy] No, that’s not the only reason to take a firearm out. I have the right to carry a firearm on my own property or in public according to state laws of South Dakota, Second Amendment of the United States Constitution.
[¶14.] At the conclusion of the State’s case, Judy moved for a judgment of
acquittal on all three charges. As to the aggravated assault charges, she argued
that an inoperable firearm did not meet the definition of “deadly weapon,” and for
the simple assault charge, Judy claimed there was insufficient evidence that
Deputy Maciejewski suffered any sort of injury during her arrest. The circuit court
denied the motion in all respects.
[¶15.] As the circuit court and the parties settled final instructions, Judy
proposed an instruction that included the statutory definition of “firearm:”
“Firearm,” any weapon from which a projectile or projectiles may be discharged by gunpowder. As used in this subdivision, the term, gunpowder, includes any propellant that upon oxidization emits heat and light and is commonly used in firearms cartridges[.]
SDCL 22-1-2(16).
[¶16.] Judy’s position remained that the revolver was so damaged that it was
no longer a firearm and could not, therefore, be used as a deadly weapon under
SDCL 22-18-1.1(5). The circuit court, however, denied the instruction along with
efforts by Judy’s counsel to argue to the jury that the non-working condition of the
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revolver created a valid defense. The court relied, in part, on the breadth of the
definition of “deadly weapon” which includes not only firearms but also any “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[.]” SDCL 22-1-2(10).
[¶17.] The jury returned a guilty verdict on all three counts. The court
suspended concurrent ten-year prison sentences for each of the aggravated assault
counts and a two-year sentence for the simple assault count. The court placed Judy
on probation under conditions, including serving 90 days in jail.
[¶18.] Judy appeals, raising several issues which we restate as follows:
1. Whether the court erred by denying Judy’s motion to suppress evidence of the simple assault charge.
2. Whether the court erred by not instructing the jury on the definition of a firearm and by prohibiting Judy’s argument regarding firearm operability.
3. Whether the circuit court erred by denying Judy’s motion for judgment of acquittal.
Analysis and Decision
Motion to suppress evidence of the simple assault
[¶19.] “We review the circuit court’s grant or denial of a motion to suppress
involving an alleged violation of a constitutionally protected right under the de novo
standard of review.” State v. Smith, 2014 S.D. 50, ¶ 14, 851 N.W.2d 719, 723. “We
review the court’s findings of fact under the clearly erroneous standard. Once the
facts have been determined, however, the application of a legal standard to those
facts is a question of law reviewed de novo.” State v. Vortherms, 2020 S.D. 67, ¶ 18,
952 N.W.2d 113, 117 (internal quotations and citations omitted). -7- #29318
[¶20.] The Fourth Amendment’s prohibition against unreasonable searches
and seizures does not apply to areas in which a defendant has no reasonable
expectation of privacy. See State v. Jones, 2017 S.D. 59, ¶ 15, 903 N.W.2d 101, 107
(“What a person knowingly exposes to the public, even in his own home or office, is
not a subject of Fourth Amendment protection.”) (quoting Katz v. United States, 389
U.S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576, 582 (1967)). Where it does apply,
“[t]he Fourth Amendment’s textual reference to the issuance of ‘[w]arrants’ has
been interpreted to state a general principle that police officers ‘must, whenever
practicable, obtain advance judicial approval of searches and seizures through the
warrant procedure[.]’” 7 State v. Short Bull, 2019 S.D. 28, ¶ 11, 928 N.W.2d 473, 476
(quoting Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889 (1968)).
[¶21.] “Despite this ‘strong preference’ for a warrant, certain exceptional
warrantless searches and seizures are, nevertheless, reasonable.” Id. (quoting
Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911
(1996)). Included among them is the exigent circumstances exception which “will
justify a warrantless entry into a home for the purpose of either arrest or search.”
State v. Hess, 2004 S.D. 60, ¶ 24, 680 N.W.2d 314, 325 (citing Payton v. New York,
445 U.S. 573, 590, 100 S. Ct. 1371, 1382, 63 L. Ed. 2d 639 (1980)). “Such
7. The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
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circumstances exist when there is an emergency: a situation demanding immediate
attention with no time to obtain a warrant.” Id.; see also State v. Fischer, 2016 S.D.
12, ¶ 13, 875 N.W.2d 40, 45 (“when the exigencies of the situation make the needs of
law enforcement so compelling . . . a warrantless search is objectively reasonable
under the Fourth Amendment”) (quoting Missouri v. McNeely, 569 U.S. 141, 148-49,
133 S. Ct. 1552, 1558, 185 L. Ed. 2d 696 (2013)).
[¶22.] Here, the parties differ in their views about the reasonableness of
Deputy Maciejewski’s warrantless arrest on the Schumachers’ property or whether
the Fourth Amendment even applies given the conspicuous nature of Judy’s
conduct. 8 We think it is unnecessary to resolve these questions in this case,
however.
[¶23.] Regardless of whether a law enforcement officer’s arrest was illegal, 9
“assaultive conduct is not justifiable solely on the ground that the officers are
violating the defendant’s [F]ourth [A]mendment rights or on the ground that the
defendant believes that the officers are violating his rights.” State v. Miskimins,
435 N.W.2d 217, 221 (S.D. 1989) (quoting State v. Wick, 331 N.W.2d 769, 771 (Minn.
1983)). “[A] defendant who reacts to an arrest, even if it is unlawful, by committing
a new and distinct criminal act may not seek the remedy of exclusion.” State v.
Willingham, 2019 S.D. 55, ¶ 27, 933 N.W.2d 619, 626.
8. The State also cites SDCL 23A-3-2(1) as a statutory basis to support the arrest. See SDCL 23A-3-2(1) (“A law enforcement officer may, without a warrant, arrest a person . . . [f]or a public offense, other than a petty offense, committed or attempted in his presence[.]”).
9. We do not hold or suggest that Judy’s arrest was unlawful.
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[¶24.] Here, Judy cannot “suppress” the evidence of her conduct giving rise to
her simple assault charge. Our settled decisional law prevents courts from
excluding evidence of new criminal conduct resulting from a defendant’s original
arrest, even where the defendant alleges the arrest was unlawful. “[T]o hold
otherwise would allow a defendant carte blanche authority to go on whatever
criminal rampage he [or she] desired and do so with virtual legal impunity as long
as such actions stemmed from the chain of causation started by the police
misconduct, be it minor or major.” Id. (quoting Miskimins, 435 N.W.2d at 221). See
also United States v. Schmidt, 403 F.3d 1009, 1016 (8th Cir. 2005) (holding
resistance to an arrest, even an illegal one, can furnish a basis for a second, valid
arrest, reasoning that “[a] contrary rule would virtually immunize a defendant from
prosecution for all crimes he might commit that have a sufficient causal connection
to [an illegal arrest]”).
Jury Instruction and Firearm Operability
[¶25.] “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.” Vetter v. Cam
Wal Elec. Co-op., Inc., 2006 S.D. 21, ¶ 10, 711 N.W.2d 612, 615. However, “when
the question is whether a jury was properly instructed overall, that issue becomes a
question of law reviewable de novo. Under this de novo standard, ‘we construe jury
instructions as a whole to learn if they provided a full and correct statement of the
law.’” Id.
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[¶26.] “Any person who: [a]ttempts by physical menace with a deadly weapon
to put another in fear of imminent serious bodily harm . . . is guilty of aggravated
assault.” SDCL 22-18-1.1(5). As indicated, the Legislature has defined “deadly
weapon” 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[.]” SDCL 22-1-2(10). The general definition statute
goes on to describe “[s]erious bodily injury” as “such injury as is grave and not
trivial, and gives rise to apprehension of danger to life, health, or limb[.]” SDCL 22-
1-2(44A).
[¶27.] The circuit court’s instructions correctly stated these statutory
principles and accurately expressed the controlling law relating to the aggravated
assault charges. Judy’s argument that South Dakota law allows her a defense
because the revolver was inoperable is unsustainable.
[¶28.] As the circuit court observed, Judy’s definition of “deadly weapon” is
too narrow. Even if, as she argues, the inoperable .22 caliber revolver did not
satisfy the statutory definition of a firearm, it nevertheless fits the portion of the
“deadly weapon” definition which includes any “device, instrument, material, or
substance, whether animate or inanimate, which is calculated or designed to inflict
death or serious bodily harm[.]” SDCL 22-1-2(10). Without question, the design of
a gun, such as the revolver here, is to inflict death or serious bodily harm. 10
10. Judy also cites SDCL 22-14-17 to argue the inoperability of the gun precludes her charge of aggravated assault. The statute provides, “The provisions of (continued . . .) -11- #29318
[¶29.] Under the circumstances, the circuit court correctly refused to provide
the statutory definition of firearm. The court also acted within its discretion to
prohibit Judy’s related effort to argue that she was not guilty of aggravated assault
because the revolver was incapable of discharging a projectile. Simply put, telling
the jury that the non-functioning revolver cannot be a deadly weapon would be a
misstatement of the law, as the circuit court noted. See Vetter, 2006 S.D. 21, ¶ 10,
711 N.W.2d at 615 (“[N]o court has discretion to give incorrect, misleading,
conflicting, or confusing instructions: to do so constitutes reversible error if it is
shown not only that the instructions were erroneous, but also that they were
prejudicial.”).
[¶30.] Although perhaps not directly controlling, we note that our holding
here aligns with our earlier decision in State v. Heumiller, 317 N.W.2d 126 (S.D.
1982). In Heumiller, we considered a circumstance where the defendant pointed a
shotgun at a deputy sheriff. Subsequent investigation revealed that the shotgun
was not loaded, but the deputy was unaware of that fact and feared for his life. We
described the aggravated assault theory listed in SDCL 22-18-1.1(5) in the following
terms:
SDCL 22-18-1.1(5) . . . must be viewed from the perspective of the victim. The gravamen of that offense is the fear it instills in
________________________ (. . . continued) this chapter do not apply to any firearm which has been permanently altered so it is incapable of being discharged.” SDCL 22-14-17. However, this statute has no applicability here because it exempts firearms that are incapable of being fired only from the provisions of SDCL chapter 22-14, dealing with the unlawful use of weapons. The State charged Judy with aggravated assault under a separate chapter, SDCL chapter 22-18, which concerns assaults and personal injuries.
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the mind of the victim who ordinarily does not know whether the firearm is in fact loaded. It is that unknown, however, which perpetrates the fear. Conversely if the victim knows the firearm is not loaded, then it is likely less than a deadly weapon. Absent that knowledge the victim must assume that a weapon, deadly by design, is in fact ready to dispense instant death. Subsequent knowledge that the firearm was not loaded does nothing to diminish the fear the victim experienced at the time of the assault. Consequently, in the absence of evidence that the victim knew the gun was unloaded, it is deemed loaded for the purposes of proving the element of fear and any evidence bearing in retrospect on whether it was loaded or unloaded is irrelevant.
Id. at 131.
[¶31.] We believe Heumiller’s analysis regarding loaded versus unloaded
weapons resembles in many respects the distinction Judy seeks to make between an
operable gun and one that is inoperable by virtue of a latent defect or damage.
Regardless of whether the gun in this case could be safely fired, the deputies
believed it could be brought to bear upon them in an instant and were placed “in
fear of imminent serious bodily harm[.]” SDCL 22-18-1.1(5).
Motion for Acquittal
[¶32.] We review the denial of a motion for acquittal de novo. State v.
Podzimek, 2019 S.D. 43, ¶ 30, 932 N.W.2d 141, 149. Such a review requires the
Court to “determine whether the evidence was sufficient to sustain the conviction.”
Id. In doing so, “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.” Id. A guilty verdict will not be
disturbed “[i]f the evidence, including circumstantial evidence and reasonable
inferences drawn therefrom sustains a reasonable theory of guilt[.]” Id.
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[¶33.] Here, Judy was charged with simple assault against a law enforcement
officer. See SDCL 22-18-1.05. The jury was instructed, without objection, that “[a]
person is guilty of simple assault . . . if the person: intentionally causes bodily injury
to another which does not result in serious bodily injury.” See SDCL 22-18-1(5). At
the close of the State’s case, Judy moved for a judgment of acquittal because Deputy
Maciejewski did not have any physical injuries after she kicked him. 11 The court
denied her motion.
[¶34.] On appeal, Judy continues to claim that she is not guilty because
Deputy Maciejewski did not actually suffer any bodily injury. However, the
recorded footage of the encounter shows otherwise. While Deputy Maciejewski is
attempting to arrest Judy, she unmistakably kicks him which prompts him to
immediately react by shouting, “ouch.” From this evidence, we believe that the jury
could reasonably conclude that the State met its burden to prove the injury element
of the simple assault against a law enforcement officer charge.
[¶35.] We affirm.
[¶36.] JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN,
Justices, concur.
11. Judy also moved for a judgment of acquittal for the aggravated assault charges based upon the claim that the revolver was inoperable and, therefore, not a firearm. She references the same theory in her appellate brief, but our analysis in the previous section disposes of any claim that Judy should have been acquitted on this basis.
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