State v. Tuopeh

2025 S.D. 16

• Court: South Dakota Supreme Court
• Decided: March 12, 2025
• Docket: 30365
• Status: Published

Opinion

#30365-a-JMK 2025 S.D. 16

IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA

****

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

STEVEN TUOPEH, Defendant and Appellant.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA

THE HONORABLE JAMES A. POWER Judge

MARK KADI TRACY MILLER of Minnehaha County Office of the Public Advocate Sioux Falls, South Dakota Attorneys for defendant and appellant.

MARTY J. JACKLEY Attorney General

JACOB R. DEMPSEY Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

ARGUED APRIL 25, 2024 OPINION FILED 03/12/25 #30365

KERN, Justice

[¶1.] Christopher Mousseaux was beaten to death during an altercation

with Steven Tuopeh and Jeff Pour near the Red Sea Pub in downtown Sioux Falls.

Although Tuopeh and Pour were initially charged as co-defendants, their cases were

severed and Pour entered into a plea bargain agreement with the State. 1 After a

trial, the jury found Tuopeh guilty of second-degree murder and first-degree

manslaughter. Tuopeh appeals, arguing that the circuit court erred by failing to

give Tuopeh’s requested jury instructions, in denying his motion for judgment of

acquittal, and in several legal and evidentiary rulings. We affirm.

Factual and Procedural Background

[¶2.] In the evening hours of October 10, 2021, Steven Tuopeh and Jeff

Pour, along with several other individuals, were standing around the outside

entrance to the Red Sea Pub in downtown Sioux Falls. 2 At some point, they became

aware of an individual in a white t-shirt—later identified as Christopher

Mousseaux—approaching from the east. Several males, including Tuopeh and

Pour, intercepted Mousseaux before he reached the pub entrance. Although the

encounter initially seemed amicable, Mousseaux, who appeared intoxicated, started

vigorously pulling up his pants, stepped forward, and then suddenly swung at

1. Pour pled guilty to first-degree manslaughter and was sentenced to serve 50 years in prison.

2. An armed security guard, Sean Tika, was also standing at the front entrance near the group. Surveillance video from the Red Sea Pub and other neighboring businesses captured much of the encounter.

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Tuopeh and Pour with his right fist. Mousseaux, while still facing Tuopeh and

Pour, started skipping and hopping backwards down the street, away from the pub.

[¶3.] Tuopeh and Pour followed Mousseaux for some distance and ultimately

began running towards him, with Tuopeh in the lead. Once Tuopeh and Pour were

closing in, Mousseaux turned his back towards his pursuers and attempted to run a

few steps. However, likely due to his intoxication, he almost immediately tripped

and fell. Tuopeh and Pour began punching and kicking Mousseaux as soon as he

hit the pavement. 3 After delivering a brutal beating, Tuopeh and Pour walked

away, leaving Mousseaux lying motionless on the ground.

[¶4.] Law enforcement eventually received reports concerning a potential

stabbing or car-on-pedestrian collision in the area. Police officers responding to the

scene found Mousseaux prone on the ground, in a pool of blood and vomit.

Mousseaux was taken to the Avera McKennan Hospital in Sioux Falls. He died a

few days later, on October 13, 2021, from the blunt force trauma inflicted on him

during the beating. At the time of his arrival at the hospital, Mousseaux had a

blood alcohol content of .245.

[¶5.] An autopsy performed by Dr. Kenneth Snell revealed rib and skull

fractures, as well as hemorrhaging in the skull. In addition to numerous other

injuries, Dr. Snell observed several lacerations 4 to Mousseaux’s head: one on the

upper left side of the forehead and four on the back of the head. There was also a

3. Surveillance video and trial testimony support the assertion that both Tuopeh and Pour punched Mousseaux.

4. Dr. Snell explained at trial that “a laceration is a tearing of the skin due to blunt force injury.”

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puncture wound in between two of the four lacerations on the back of his head.

Beneath these lacerations were several skull fractures, including a “very complex”

fracture on the front and back of Mousseaux’s skull. 5 As a result of the serious head

injuries Mousseaux received, his brain hemorrhaged, causing substantial swelling

of brain tissue, which pushed the brain into the spinal cord canal. According to Dr.

Snell, this traumatic brain injury caused Mousseaux’s death, not the other injuries

to his arms, legs, and ribs.

[¶6.] During the ensuing criminal investigation, detectives interviewed

Pour, who acknowledged his presence at the Red Sea Pub on the night in question.

However, Pour denied beating Mousseaux after he tripped and fell to the ground.

Pour identified a person called “Ceano” 6 as having also been involved in the

altercation with Mousseaux. Investigators were able to obtain footage of the

incident from the Red Sea Pub and other neighboring establishments. One

photograph appeared to show “Ceno,” an African American male, holding an object

comprised of two rings and a spike at the base of his fingers, prior to the

confrontation with Mousseaux. Based on a Facebook profile, law enforcement

officers were able to identify “Ceno” as Tuopeh. After obtaining a warrant, officers

searched Tuopeh’s residence and located several items of evidentiary value,

including a pair of tennis shoes, matching the shoes worn by Tuopeh as depicted on

5. Dr. Snell testified that a complex fracture on the forehead, like the one Mousseaux suffered, would require a substantial amount of force—the equivalent of falling from a second floor or higher onto a rock.

6. In describing the suspect, Pour spelled the name “Ceano” for the investigators, however the Facebook profile and notebook used the spelling, “Ceno.”

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the video footage, and a pair of blue jeans with blood stains. Law enforcement also

found a notebook with apparent rap lyrics written by “Ceno.”

[¶7.] A Minnehaha County grand jury jointly indicted Tuopeh and Pour on

three counts: Count 1, second-degree murder (depraved mind) in violation of SDCL

22-16-7; Count 2, first-degree manslaughter (heat of passion) in violation of SDCL

22-16-15(2); and Count 3, first-degree manslaughter (dangerous weapon) in

violation of SDCL 22-16-15(3). 7 However, after Pour reached a plea bargain

agreement with the State, the cases were severed. Prior to trial, Tuopeh moved for

a grant of statutory immunity from criminal prosecution, pursuant to SDCL 22-18-

4.8, based on his claim that he was acting in self-defense. After an immunity

hearing, the circuit court determined that Tuopeh made a prima facie case of self-

defense by showing that Mousseaux had thrown the first punch. However, the

court determined that the State carried its burden of rebutting the prima facie case

by clear and convincing evidence. The court specifically found that, at the time of

the beating, Mousseaux had turned his back to run, had fallen to the ground and no

longer posed an imminent threat to Tuopeh. Furthermore, the court concluded

that, even if Tuopeh was justified in using force to defend himself, the use of deadly

force—significant blows to Mousseaux’s head—was not reasonable. As a result, the

court denied Tuopeh’s immunity motion.

[¶8.] Meanwhile, on December 21, 2022, Korderro Robinson, an inmate at

the Minnehaha County Jail where Pour was incarcerated, sent a letter to the

State’s Attorney’s Office, claiming to have overheard Pour making certain

7. Prior to trial, the State dismissed Count 3 of the indictment.

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incriminating statements. Although Robinson and Pour were not in neighboring

cells, they were in the same cell block for a period of time, as was Tuopeh. Robinson

was facing an upcoming sentencing hearing in January 2023, and was pursuing

sentencing concessions from the State. In a subsequent interview, Robinson told

Detective Patrick Marino of the Sioux Falls Police Department (SFPD), that Pour

had admitted to using brass knuckles while beating Mousseaux. 8

[¶9.] However, during Tuopeh’s trial, Robinson, who was in the

penitentiary, refused to testify, despite being served with a subpoena. The circuit

court thus concluded that Robinson was unavailable to testify. Tuopeh argued that,

because Robinson was an unavailable witness, his statements to Detective Marino

relating what Pour had told him should be admitted under either the exception for

statements against penal interest or as nonhearsay statements made by an

opposing party. Nevertheless, the State noted that Robinson’s recollection of Pour’s

admission, as related by the detective, would be double hearsay. The circuit court

ultimately held that Pour was not an opposing party and that Pour’s statements,

while against his penal interest, were not sufficiently corroborated to establish the

trustworthiness of either Pour’s or Robinson’s statements and were thus

inadmissible.

[¶10.] Additionally, at trial, the State sought to introduce a photograph of

Tuopeh’s rap lyric notebook, which contained offensive and violent lyrics, including

the use of the N-word. Although the court admitted the exhibit, it instructed the

8. Based on this information, it appears that Tuopeh had intended to argue that Pour alone had caused the complex fractures to Mousseaux’s head and the ensuing brain trauma.

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jury to only consider the notebook for purposes of identifying Tuopeh by his

pseudonym of “Ceno.” Finally, during closing arguments—while emphasizing that

his sneakers seized from his apartment showed no blood stains—Tuopeh accused

the State of trying to “sell” them on a theory that the sneakers had been cleaned. In

its reply argument, the State took exception to this suggestion, responding that “I’m

not a salesman. I don’t sell anything. My job is justice and bringing people to

justice who have committed crimes.” Tuopeh objected, claiming that this statement

constituted impermissible vouching, but the objection was overruled by the circuit

court.

[¶11.] At the close of evidence, the court met with the parties to settle jury

instructions, including Tuopeh’s proposed non-pattern instructions defining

speculation and conjecture, as well as his proposed alternative counts instruction.

The circuit court refused these instructions, concluding that the speculation

instruction was unnecessarily confusing and that the alternative counts instruction

was not a correct statement of the law as it pertained to the charges and facts

presented in the case. The court did grant Tuopeh’s request for lesser-included

offense instructions on second-degree manslaughter and simple assault. The jury

found Tuopeh guilty of second-degree murder and first-degree manslaughter.

[¶12.] Prior to sentencing, Tuopeh filed a motion to vacate the first-degree

manslaughter conviction, arguing that “double homicide convictions for a single

death are improper” and that the second conviction constitutes impermissible

punishment in violation of the double jeopardy clauses of the state and federal

constitutions. The court considered the motion at a combined motion and

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sentencing hearing. The State opposed the motion to vacate, but agreed that under

the case law, it was not appropriate for the court to pronounce judgment and

sentence on both counts. The State urged the court to enter judgment and sentence

only as to Count 1, the murder count, and leave the jury’s guilty verdict on Count 2,

first-degree manslaughter, in place but “with no judgment of conviction, no sentence

ascribed to it.”

[¶13.] Although the court agreed with Tuopeh and determined that he could

only have one conviction, the court said its remedy was somewhat different than

either party’s proposal. The court granted Tuopeh’s motion and vacated Count 2,

“merging” it into Count 1 and leaving a conviction only on the murder count. The

court sentenced Tuopeh to life in prison without the possibility of parole on the

second-degree murder conviction. Thereafter, the court entered a written judgment

and sentence that first recited the jury’s verdicts finding Tuopeh guilty on both

counts. It then included language stating that the court “vacated the [j]ury’s guilty

verdict as to Count 2 [manslaughter in the first degree] and merged it into a single

conviction for [murder in the second degree.]” The written judgment and sentence

did not contain an express adjudication of guilt by the court on either count, 9 but

did contain the court’s sentence for Count 1, second-degree murder. Tuopeh appeals

raising several issues which we restate as follows:

1. Whether the circuit court abused its discretion when it denied Tuopeh’s proposed alternative counts instruction.

9. We similarly noted an absence of an express adjudication of guilt in the judgment at issue in State v. Washington, 2024 S.D. 64, ¶ 69, 13 N.W.3d 492, 512.

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2. Whether the circuit court erred by failing to procure Robinson’s attendance or admit evidence of his statements concerning Pour’s alleged admission.

3. Whether the circuit court abused its discretion by overruling a vouching objection regarding the prosecutor’s declaration that “my job is justice.”

4. Whether the circuit court abused its discretion by overruling objections to Dr. Snell’s testimony regarding certain cause of death opinions.

5. Whether the circuit court abused its discretion when it denied Tuopeh’s proposed jury instructions on speculation and conjecture.

6. Whether the circuit court erred by denying Tuopeh’s motion for judgment of acquittal.

7. Whether the circuit court erred by denying Tuopeh’s request for statutory immunity under SDCL 22-18-4.8.

8. Whether the circuit court abused its discretion by admitting a photograph of a page from Tuopeh’s notebook.

Analysis

1. Whether the circuit court abused its discretion when it denied Tuopeh’s proposed alternative counts instruction.

[¶14.] “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.” State v.

Schumacher, 2021 S.D. 16, ¶ 25, 956 N.W.2d 427, 433 (citation omitted). “We have

defined abuse of discretion as ‘discretion exercised to an end or purpose not justified

by, and clearly against, reason and evidence.’” State v. Carter, 2023 S.D. 67, ¶ 24, 1

N.W.3d 674, 685 (quoting State v. Snodgrass, 2020 S.D. 66, ¶ 25, 951 N.W.2d 792,

802). “Error in declining to apply a proposed instruction is reversible only if it is

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prejudicial, and the defendant has the burden of proving any prejudice.” State v.

Ortiz-Martinez, 2023 S.D. 46, ¶ 36, 995 N.W.2d 239, 246–47 (citations omitted).

“[The] jury instructions are to be considered as a whole, and if the instructions

when so read correctly state the law and inform the jury, they are sufficient.” State

v. Hauge, 2013 S.D. 26, ¶ 17, 829 N.W.2d 145, 150–51 (alteration in original)

(citation omitted). However, “it is axiomatic that there can be no abuse of discretion

in the refusal of a proposed jury instruction that does not represent a correct

statement of the law.” Id. ¶ 18, 829 N.W.2d at 151 (quoting State v. Janklow, 2005

S.D. 25, ¶ 26, 693 N.W.2d 685, 695).

[¶15.] Here, Tuopeh requested the following alternative counts jury

instruction, which he indicated was a modification of Criminal Pattern Jury

Instruction 1-13-6:

The defendant is charged with Murder 2nd Degree, Manslaughter 1st Degree and Manslaughter 2nd Degree. These charges are presented in the alternative and in effect allege that the defendant committed an unlawful act which constitutes either the crime of Murder 2nd Degree, Manslaughter 1st Degree, or Manslaughter 2nd Degree. If you find that the defendant committed an act or acts constituting one of the crimes so charged, you then must determine which of the offenses so charged was thereby committed.

In order to find the defendant guilty, you must all agree as to the particular offense committed and, if you find the defendant guilty of one of such offenses, you must find the defendant not guilty of the others.

[¶16.] During the settling of instructions, the State objected to Tuopeh’s

requested instruction and contended it was not “an accurate statement of the way

the charges were brought or how the law works.” Tuopeh claimed the instruction

was warranted because double homicide convictions for a single death are improper,

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citing the constitutional prohibition against double jeopardy addressed in this

Court’s prior decisions, as well as in Ball v. United States, 470 U.S. 856, 105 S. Ct.

1668, 84 L. Ed. 2d 740 (1985) and Rutledge v. United States, 517 U.S. 292, 116 S.

Ct. 1241, 134 L. Ed. 2d 419 (1996).

[¶17.] The circuit court denied the instruction. The court determined there

were differences in the homicide counts and although it was possible that the jury

could render guilty verdicts on more than one count, if that occurred, any concerns

about multiple convictions could be resolved in a way to avoid running afoul of the

case law cited by Tuopeh. Ultimately, the jury found Tuopeh guilty of both second-

degree murder and first-degree manslaughter. Because the circuit court did not

enter a conviction on the latter and sentenced Tuopeh on only the second-degree

murder conviction, Tuopeh does not directly raise a double jeopardy issue on appeal.

Instead, he contends the court committed reversible error warranting a new trial by

not instructing the jury to consider the homicide counts in the alternative and

“determine which charge had been proved, to the exclusion of the others, if any had

been proved at all.”

[¶18.] We find no abuse of discretion in the court’s refusal to give the

requested instruction. We first note that Tuopeh’s proposal incorrectly stated that

second-degree manslaughter was one of three charged offenses the jury must

consider. But only second-degree murder and first-degree manslaughter counts

were charged in the indictment, and those were the two counts for the jury’s initial

consideration. At Tuopeh’s request, instructions on second-degree manslaughter, as

well as simple assault, were presented to the jury to potentially consider as lesser-

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included offenses. Lesser-included offenses are distinct from the charged offenses

and were addressed in other instructions.

[¶19.] More importantly, the jury was not required, as directed by Tuopeh’s

requested instruction, to consider the separately charged homicide counts in the

alternative such that a finding of guilt on one charge required a finding of not guilty

on the other. It is true that double jeopardy principles prohibit a defendant from

being convicted and punished for more than one homicide in a single-death case.

Wilcox v. Leapley, 488 N.W.2d 654, 657 (S.D. 1992). But Tuopeh emphasizes an

additional statement in Wilcox urging prosecutors to charge homicide counts in the

alternative to support his argument that the circuit court abused its discretion in

refusing his requested instruction. However, we did not hold in Wilcox that an

indictment which did not charge in the alternative, or that the submission of

separate homicide charges to the jury without an alternative counts instruction,

was error. 10 Id.

10. Tuopeh’s reliance on State v. Well, 2000 S.D. 156, 620 N.W.2d 192, is also misplaced. The Court’s rationale in Well for concluding the circuit court abused its discretion by not giving an alternative counts instruction was that the offenses at issue were mutually exclusive. Id. ¶ 21, 620 N.W.2d at 196. Such is not the case here. In 2005, our Legislature enacted SDCL 22-16-20.1 which directs that second-degree murder and manslaughter in the first and second degree are lesser-included offenses of first-degree murder. By definition, lesser-included offenses are not mutually exclusive. See State v. McCahren, 2016 S.D. 34, ¶ 11, 878 N.W.2d 586, 593 (noting that a “greater offense cannot be committed without also committing the lesser offense”). And contrary to Tuopeh’s claim that a failure to give an alternative counts instruction warrants a new trial, this Court did not order such relief in Well. See Well, 2000 S.D. 156, ¶ 25, 620 N.W.2d at 197. Moreover, as further discussed in our analysis of this issue, our case law addressing double jeopardy claims has evolved since both Wilcox and Well.

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[¶20.] Indeed, our more recent cases addressing double jeopardy claims have

recognized that the primary issue is not how multiple counts are submitted to the

jury, but rather whether multiple convictions and sentences for the same act are

entered for the same conduct. We have thus noted that the principles safeguarding

the right to be free from double jeopardy do not preclude the prosecution from

charging multiple separate counts arising from the same conduct “in order to meet

the evidence which may be adduced[.]” State v. Washington, 2024 S.D. 64, ¶ 61, 13

N.W.3d 492, 510 (alteration in original) (citing State v. Baker, 440 N.W.2d 284, 293

(S.D. 1989) and State v. Manning, 2023 S.D. 7, ¶ 36, 985 N.W.2d 743, 755 (noting

that charges of rape and sexual contact were not required to be brought in the

alternative and that “[t]he State is not required to pick between two viable theories

that are supported by the evidence[]”)); see SDCL 23A-6-23; SDCL 23A-6-25. The

question presented here is whether the jury may return a guilty verdict on more

than one of the homicide counts arising out of the same conduct. In this regard,

Ball v. United States, the case Tuopeh relied on before the circuit court and in this

appeal, is instructive. 470 U.S. 856, 105 S. Ct. 1668.

[¶21.] In Ball, the defendant, a previously convicted felon, was charged under

two separate federal statutes with receiving a firearm and possessing a firearm,

based on the same conduct. 470 U.S. at 856, 105 S. Ct. at 1669. A jury convicted

him of both counts and he was sentenced on both. Id. The Supreme Court

determined the legislative intent behind the two statutes indicated that Congress

did not intend someone to be convicted and punished for both offenses based on the

same conduct. 470 U.S. at 861, 105 S. Ct. at 1671. The remedy, according to the

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Court, was to vacate one of the convictions along with its sentence. 470 U.S. at

864–65, 105 S. Ct. at 1673–74.

[¶22.] However, the Supreme Court made it clear there was no impediment

to the defendant being prosecuted simultaneously for multiple charges arising from

the same conduct, explaining that the Court “has long acknowledged the

Government’s broad discretion to conduct criminal prosecutions, including its power

to select the charges to be brought in a particular case.” 470 U.S. at 859, 105 S. Ct.

at 1670; see 470 U.S. at 860 n.7, 105 S. Ct. at 1671 n.7 (noting that “the Double

Jeopardy Clause imposes no prohibition to simultaneous prosecutions” on the

separate statutory charges).

[¶23.] Of particular relevance to our analysis here, the Court in Ball did not

hold that double jeopardy principles require that two charges arising from the same

conduct must be submitted to the jury as alternative counts. To the contrary, the

Court emphasized that while a multiple-count indictment may be brought “where a

single act establishes” both offenses, the focus is on ensuring that the accused does

“not suffer two convictions or sentences on that indictment.” 470 U.S. at 865, 105 S.

Ct. at 1673. Notably, the Court further explained, “If, upon the trial, the district

judge is satisfied that there is sufficient proof to go to the jury on both counts, he

should instruct the jury as to the elements of each offense. Should the jury return

guilty verdicts for each count, however, the district judge should enter judgment on

only one of the statutory offenses.” 470 U.S. at 865, 105 S. Ct. at 1673−74.

[¶24.] Relying on this passage from Ball, we recently cited this approach with

approval in Washington, a case involving multiple counts of aggravated assault

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based on the same conduct on which the jury had entered separate guilty verdicts.

However, because some of this Court’s prior cases have suggested that double

jeopardy concerns were not implicated by the entry of multiple convictions so long

as only one sentence was imposed, we clarified in Washington that “a court violates

double jeopardy when it imposes multiple convictions for a single statutory offense

arising out of the same act.” 2024 S.D. 64, ¶ 67, 13 N.W.3d at 512. We therefore

directed that “where a guilty verdict has been rendered on multiple counts for a

single statutory offense resulting from the same act, a sentencing court should

include express language stating that no judgment of conviction is being entered” on

the remaining count or counts at issue. Id. ¶ 71, 13 N.W.3d at 513.

[¶25.] In light of these decisions, the circuit court did not abuse its discretion

when it denied the requested alternative counts instruction and allowed the jury to

consider multiple counts of homicide and potentially render more than one guilty

verdict, even though in the end it would be impermissible for Tuopeh to be convicted

and punished for more than one. The court’s view was correct, that at that point in

time, it was unknown whether the jury would find Tuopeh guilty of more than one

count. The court appropriately recognized that, if that occurred, it would need to

address the potential double jeopardy concerns raised by the cases Tuopeh cited to

the court, including Ball. When multiple guilty verdicts were rendered, the court

did construct a remedy that avoided double jeopardy concerns. 11 The court’s denial

of Tuopeh’s requested instruction was therefore not an abuse of discretion.

11. The court’s remedy included vacating the jury’s guilty verdict on manslaughter and “merging” it into the murder conviction. At the time of (continued . . .) -14- #30365

[¶26.] Nor was Tuopeh prejudiced by the lack of an alternative counts

instruction. According to Tuopeh, such an instruction would have forced the jury to

focus on rendering a single verdict, and he was entitled to “have the jury determine

which charge had been proved, to the exclusion of others, if any had been proved at

all.” Tuopeh’s arguments ignore the fact that, irrespective of the number of charges

at issue, a jury must find that the evidence proves beyond a reasonable doubt every

element of each offense alleged before it may render a guilty verdict as to that

count. Here, the jury was instructed to separately consider each count and the

evidence that applied to it, and further instructed that a verdict on one count must

not influence the verdict on any other count. The guilty verdicts here demonstrate

that the jury did in fact find that the evidence proved, beyond a reasonable doubt,

that Tuopeh committed both of the charged counts.

2. Whether the circuit court erred by failing to procure Robinson’s attendance or admit evidence of his statements concerning Pour’s alleged admission.

[¶27.] Tuopeh argues that the circuit court was constitutionally obligated to

compel Robinson to testify regarding Pour’s alleged admission to Detective Marino

that he used brass knuckles while beating Mousseaux. The circuit court here did

issue a subpoena that was served on Robinson on April 6, 2023. Robinson, however,

refused to leave his cell and would not come to court to testify.

________________________ (. . . continued) Tuopeh’s sentencing, the circuit court did not yet have the benefit of our holding and guidance set forth in Washington. Rather than “vacating” a jury’s verdict under such circumstances, a court should instead note in the judgment that no conviction is being entered on the count or counts at issue.

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[¶28.] Robinson’s refusal to testify was conveyed to the court and Tuopeh’s

counsel on the second day of the three-day trial. The court concluded that Robinson

was thus unavailable to testify under the rules of evidence. See SDCL 19-19-

804(a)(2) (stating that a witness is unavailable when they “[r]efuse[] to testify about

the subject matter despite a court order to do so”). At that juncture, Tuopeh made

an offer of proof, seeking to establish that Robinson’s statements to detectives

concerning Pour’s alleged admission that he used brass knuckles in the assault

against Mousseaux would be admissible if presented at trial through Detective

Marino, who took the statement. As this Court has previously observed,

The Sixth Amendment requires that a witness be brought to court, but it does not require that he take the stand after refusing to testify. Once a witness appears in court and refuses to testify, a defendant’s compulsory process rights are exhausted. It is irrelevant whether the witness’s refusal is grounded in a valid Fifth Amendment privilege, an invalid privilege, or something else entirely. The defendants’ Sixth Amendment rights were satisfied as soon as the [witness] appeared in court and refused to testify[.]

State v. Crawford, 2007 S.D. 20, ¶ 19, 729 N.W.2d 346, 350 (first alteration in

original) (quoting U.S. v. Griffin, 66 F.3d 68, 70 (5th Cir. 1995)). Here, Robinson

was already in custody and categorically refused to testify. At most, the circuit

court could have compelled his presence in the courtroom, but such steps would

have been manifestly futile based on the undisputed representations made to the

court that Robinson adamantly refused to leave his cell to come to court to testify. 12

12. The Fifth Circuit Court of Appeals has noted that a defendant is not entitled to draw the jury’s attention to a missing witness’ absence or refusal to testify. See U.S. v. Griffin, 66 F.3d 68, 71 (5th Cir. 1995). Tuopeh would thus not have been able to gain any strategic advantage by Robinson refusing to (continued . . .) -16- #30365

After the court found, based upon his refusal to testify, that Robinson was

unavailable, the court permitted Tuopeh to again subpoena Robinson and allow his

testimony if Robinson changed his mind before the close of trial. 13 We are thus

unable to discern error in the court’s prudential decision to classify Robinson as

unavailable. 14

[¶29.] We next consider the admissibility of proffered testimony by Detective

Marino relaying Robinson’s statements about what Pour told him. As an initial

matter, the circuit court correctly noted that such testimony would constitute

double hearsay. However, Tuopeh argued that Robinson’s statements were not

________________________ (. . . continued) testify in court. In addition, a contempt sanction would have been unlikely to succeed in this case, because Robinson was already incarcerated.

13. The State had rested its case by this time and because the trial was expected to conclude at least two days earlier than originally scheduled, Tuopeh requested that the court continue the trial until the date that the trial was originally scheduled to conclude to allow Tuopeh additional time to subpoena Robinson and perhaps compel his testimony. Tuopeh also suggests on appeal that the court should have directed law enforcement to forcibly bring Robinson into court, but no such request was made at trial. Further, it is clear from the record that both parties and the court believed that Robinson was simply unwilling to testify and would not change his mind. The circuit court’s denial of the continuance request or failure to take some other action, under these circumstances, was not an abuse of discretion.

14. As an aside, in order to obtain a continuance when a witness is absent, the defendant must demonstrate three criteria: “(1) the testimony of the absent witness is material; (2) the defendant has used due diligence to procure the attendance of the witness of his deposition; and (3) it is reasonably certain the presence of the witness or his testimony will be procured by the time to which the trial would be postponed.” State v. Letcher, 1996 S.D. 88, ¶ 30, 552 N.W.2d 402, 407. Even if Tuopeh moved for a continuance, which he did not, the final prong would not have been met because there was no reasonable certainty that, with the passage of additional time, Robinson would become willing to testify.

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necessarily offered to “prove the truth of the matter asserted,” but rather to cast

doubt on the “caliber” of the criminal investigation. SDCL 19-19-801(c)(2).

According to Tuopeh, law enforcement should have, but did not, follow up on the

possibility that Pour used brass knuckles.

[¶30.] However, as the circuit court noted, even if this was indeed the case, it

would not cast doubt on the investigation into Tuopeh’s culpability. The circuit

court also pointed out that, even with a limiting instruction, putting the

investigation on trial would distract from the central issue before the jury: Tuopeh’s

guilt or innocence. It is thus difficult to conclude that testimony regarding

Robinson’s statements could serve a non-hearsay purpose in this regard.

[¶31.] Tuopeh also argued that the testimony was admissible under the

opposing-party or against penal interest exceptions to the rule against hearsay.

However, the circuit court correctly concluded that the opposing party in this case

was the State. Here, the offered statement was ultimately from Pour, who is not an

employee or agent of the State. Thus, the opposing-party exception does not apply.

See SDCL 19-19-801(d)(2). When a witness is unavailable, SDCL 19-19-804 allows

hearsay evidence to be introduced under certain exceptions. Specifically, SDCL 19-

19-804(b)(3) permits the introduction of statements against penal interest. But, if

offered in a criminal trial, such statements must be “supported by corroborating

circumstances that clearly indicate . . . trustworthiness[.]” Id.

[¶32.] While Pour’s statement to Robinson was against Pour’s penal interest,

the circuit court noted that this Court has “set forth several factors for a trial court

to consider in assessing trustworthiness of hearsay offered under the residual

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hearsay rule[.]” State v. Cottier, 2008 S.D. 79, ¶ 27, 755 N.W.2d 120, 131. These

include:

(1) the character of the witness for truthfulness and honesty and the availability of evidence on that question; (2) whether the testimony was given voluntarily, under oath, subject to cross-examination and a penalty for perjury; (3) the relationship of the witness to the parties and any motivation the witness had for making the statement; (4) the extent to which the witness’s statement reflects personal knowledge; (5) whether the witness ever recanted the statement; (6) the existence of corroborating evidence; and (7) the reasons for the unavailability of the witness.

Id. (citation omitted).

[¶33.] The circuit court concluded that these factors weighed against a

finding of trustworthiness. First, Robinson pled guilty to a felony grand theft

charge on January 27, 2023, which undermined his character for truthfulness.

Second, Robinson’s statements to law enforcement, while voluntary, were not under

oath. Third, Robinson had no known relationship to Pour or Tuopeh, other than

their contemporaneous residency at the jail. Fourth, the court found that there was

credible evidence that Robinson, who was pending sentencing on a felony charge at

the time he contacted the State, was seeking to “obtain better treatment for

himself” thus suggesting a motive to manufacture his statements. The circuit court

carefully considered Tuopeh’s proffer, but in light of these findings, we are unable to

conclude that the circuit court abused its discretion in declining to admit the

hearsay testimony. 15

15. Tuopeh also argues that he was prevented from supplementing the record on trustworthiness because Robinson, even though he was subpoenaed, refused (continued . . .) -19- #30365

3. Whether the circuit court abused its discretion by overruling a vouching objection regarding the prosecutor’s declaration that “my job is justice.”

[¶34.] At trial, Tuopeh through the cross-examination of law

enforcement witnesses, emphasized the fact that the tennis shoes taken from

his home during the execution of the search had no blood stains on them. In

response, the State insinuated on redirect that any blood might have been

removed before law enforcement searched Tuopeh’s residence and seized the

shoes. Tuopeh responded to this suggestion during his closing argument:

There’s no evidence, whatsoever, that the sneakers were cleaned. None. But they try to sell you with that anyway. Why would they even try to do that if it’s such an open and shut case? Why do they need to suggest that the defendant cleaned them up when he could not have clean[ed] them up at all? Can’t possibly be true, so why push it? I would ask that you consider, you know, if we’re all getting played here a little bit by that tactic.

[¶35.] On rebuttal, the State responded:

In addition, the defense just said to you that I was trying to sell you something. That’s not my job. I’m not a salesman. I don’t sell anything. My job is justice and bringing people to justice who have committed crimes. I am not here trying to put anything over on you. I’m here to present evidence to you that shows that this defendant committed these crimes. Selling something is not what I do.

Tuopeh immediately objected on the grounds that these statements constituted

impermissible vouching, but the circuit court overruled the objection.

________________________ (. . . continued) to appear. However, as previously noted, the right to compulsory process does not guarantee witness testimony.

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[¶36.] “If an issue of prosecutorial misconduct is preserved with a timely

objection at trial, [this Court will] review the trial court’s ruling under the standard

of abuse of discretion.” State v. Hankins, 2022 S.D. 67, ¶ 31, 982 N.W.2d 21, 32–33

(alteration in original). “This Court will find that prosecutorial misconduct has

occurred if (1) there has been misconduct, and (2) the misconduct prejudiced the

party as to deny the party a fair trial.” Id. ¶ 32, 982 N.W.2d at 33. “[P]rejudice can

result from the prosecution placing the prestige of the government behind the

witness and implying that the prosecutor knows what the truth is and thereby

assures its revelation.” State v. Nelson, 2022 S.D. 12, ¶ 38, 970 N.W.2d 814, 826

(alteration in original) (citation omitted). “Improper vouching ‘invite[s] the jury to

rely on the government’s assessment that the witness is testifying truthfully.’”

Manning, 2023 S.D. 7, ¶ 38, 985 N.W.2d 743, 755 (alteration in original) (quoting

Snodgrass, 2020 S.D. 66, ¶ 45, 951 N.W.2d at 806).

[¶37.] As an example, Tuopeh points to Harris v. Fluke, where the defendant

was charged with rape. 2022 S.D. 5, 969 N.W.2d 717. There, during closing

arguments, the prosecutor stated:

I thought long and hard about this case. I thought long and hard about whether or not this was a case that needed to be heard by a jury. And it’s a serious allegation. I thought about the evidence, and I looked at the video, the phone report. I looked at everything and it became clear to me that Mr. Harris did take advantage of [R.K.’s] impairment; that she was incapable of consent; that he knew it; and that a jury needed to hear about it.

Id. at 718 n.1 (alteration in original). We determined these statements constituted

improper vouching. Id. at 720.

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[¶38.] A contextual comparison, however, reveals the State’s comments here

to be of a fundamentally different character than those of the prosecutor in Harris.

In Harris, the prosecutor specifically appealed to her review and assessment of the

evidence in deciding to bring the case to a jury. Here, the State was responding to

arguments by the defense that it was trying to “sell” something to the jury. The

State made no statements as to the strength or credibility of any witness or

evidence, but rather focused on rejecting Tuopeh’s accusation. The “my job is

justice” comment, in context, was not an attempt to vouch for the credibility of a

particular legal conclusion, but rather a description of the proper role of a

prosecutor made in response to a defense argument. Given this context, we cannot

conclude that the circuit court abused its discretion in overruling Tuopeh’s

objection.

4. Whether the circuit court abused its discretion by overruling objections to Dr. Snell’s testimony regarding certain cause of death opinions.

[¶39.] Tuopeh next argues that Dr. Snell impermissibly speculated as to the

cause of Mousseaux’s death at the statutory immunity hearing and during the trial.

According to Tuopeh, the State invited Dr. Snell to speculate as to whether a kick

from a shoe could have killed Mousseaux. In addition, Tuopeh objected to Dr.

Snell’s testimony regarding the amount of force necessary to cause the complex

skull fractures suffered by Mousseaux. However, these arguments are without

merit.

[¶40.] The questions asked of Dr. Snell during the immunity hearing were to

assist the circuit court in evaluating Tuopeh’s self-defense arguments. Thus, there

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was no danger of a jury being led astray by any supposed speculation and the court

was free to weigh the credibility of Dr. Snell’s testimony. Moreover, at trial, the

State did not specifically ask Dr. Snell whether a kick with a shoe could have

caused Mousseaux’s death. Tuopeh cites to the following exchange:

State: Could an additional blow make [the complex fracture] worse? So, let’s say that somebody fell and hit an object, and then somebody kicked that person in the head. Could that make that worse?

Dr. Snell: The way that it would make that worse is if the blow is to the opposite side while the individual is still laying on the rock because the fall may have created the initial simple fracture, but then an impact to the back opposite corner of that could then force the head down onto that rock with sufficient force to create this punch-out type skull fracture. That would be the only way we could get that from a simple fall, if [he] had an additional injury sustained in the opposite side, shoving that further down onto that rock area.

[¶41.] Here, Dr. Snell was not testifying as to his medical opinion regarding

the cause of Mousseaux’s death. Instead, he was providing context as to what

factors could have caused or exacerbated the type of injuries suffered by Mousseaux.

However, even if this was not the case, this Court has previously held that qualified

experts are permitted to testify as to the cause of a victim’s injuries and death. See

State v. Fisher, 2011 S.D. 74, ¶ 44, 805 N.W.2d 571, 580. Thus, Dr. Snell’s

testimony was well within permissible bounds.

[¶42.] Tuopeh also objected to the State asking Dr. Snell what amount of

force would be necessary to cause Mousseaux’s injuries. Dr. Snell responded that a

hammer blow or fall from a second story onto a rock would be sufficient. Contrary

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to Tuopeh’s assertions, the State did not “ask[] Snell hypotheticals regarding a

person falling onto a rock from a second story building.” Instead, Dr. Snell,

unprompted, provided this as an illustrative example of the amount of force

necessary to cause the unique skull fractures suffered by Mousseaux. But even if he

had asked the above referenced hypothetical, such testimony, particularly in the

context of an expert witness, is generally within the reasonable scope of an expert

witness’s explanation of his opinion. See id. The circuit court did not abuse its

discretion in overruling Tuopeh’s objections.

5. Whether the circuit court abused its discretion when it denied Tuopeh’s proposed jury instructions on speculation and conjecture.

[¶43.] Tuopeh proposed the following alternative jury instructions as

definitions for speculation and conjecture:

• Speculation is the act of making an assumption or guess based on small amount of data or none at all.

• Speculation is the art of theorizing about a matter as to which evidence is not sufficient for certain knowledge.

• Conjecture is a slight degree of credence, arising from evidence too weak or too remote to cause belief. This term applies to any evidence that is based on an estimate or a guess and is insufficient to form the basis of a conclusion.

[¶44.] The circuit court denied these instructions, concluding that the

preliminary jury instruction (No. 2), which informed the jury that their “verdict

must not be based upon speculation, guess, or conjecture” was sufficient. The court

reasoned that these three terms together would adequately convey their related

meaning to the jurors. In addition, the court pointed out that Tuopeh’s definitions

could cause confusion, since it is possible to speculate even based on a substantial

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amount of data. Tuopeh argues that this ruling constituted reversible error because

his defense centered on presenting the State’s case as based on speculation and

conjecture. However, we note that, from the preliminary instructions, the jury was

already on notice that their verdict “must not be based upon speculation, guess or

conjecture.” The court did not abuse its discretion in refusing additional

definitional instructions that could have confused the jury.

6. Whether the circuit court erred by denying Tuopeh’s motion for judgment of acquittal.

[¶45.] “This Court reviews ‘a denial of a motion for judgment of acquittal de

novo.’” State v. Peneaux, 2023 S.D. 15, ¶ 24, 988 N.W.2d 263, 269 (quoting State v.

Timmons, 2022 S.D. 28, ¶ 14, 974 N.W.2d 881, 887). “[A] motion for a judgment of

acquittal attacks the sufficiency of the evidence[.]” Id. (alterations in original). “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.”

Id. (quoting State v. Frias, 2021 S.D. 26, ¶ 21, 959 N.W.2d 62, 68). “‘[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, pass on the

credibility of witnesses, or weigh the evidence.’” Id. (alterations in original).

[¶46.] At the close of the State’s case-in-chief, Tuopeh moved for a judgment

of acquittal. Tuopeh specifically argued that there was insufficient evidence to

conclude that any of Tuopeh’s blows and kicks caused Mousseaux’s death. Tuopeh

also asserted that—compared to Pour—his actions did not demonstrate depraved

intent sufficient for a murder conviction. The court denied Tuopeh’s motion,

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concluding that, even if the jury found that Tuopeh didn’t forcefully strike

Mousseaux’s head, it could still conclude that Tuopeh’s blows aided and abetted

Pour in delivering the killing blows to Mousseaux. On appeal, Tuopeh argues that

this ruling was error because he did not intend to assist Pour in killing Mousseaux.

[¶47.] According to SDCL 22-16-7,

Homicide is murder in the second degree if perpetrated by any act imminently dangerous to others and evincing a depraved mind, without regard for human life, although without any premeditated design to effect the death of any particular person, including an unborn child.

“In order to successfully prosecute a suspect for murder under this statute, the

prosecution must prove that the Defendant’s conduct established that he was acting

with a depraved mind.” State v. Harruff, 2020 S.D. 4, ¶ 39, 939 N.W.2d 20, 30

(citation omitted). Tuopeh is correct that an aider or abettor must “inten[d] to

promote or facilitate the commission of a crime[.]” SDCL 22-3-3. However, the

evidence presented by the State at trial was sufficient for a reasonable jury to make

such a finding.

[¶48.] The video evidence of the beating inflicted upon Mousseaux reveals

that both Tuopeh and Pour chased Mousseaux after the altercation. After

Mousseaux fell to the ground, they began raining powerful kicks and punches to his

head, torso and legs, with such fatal force that Mousseaux was quickly rendered

motionless. A photograph of Tuopeh at the Red Sea Pub, derived from surveillance

videos taken just prior to the incident, revealed a device with two rings and a spike

in Tuopeh’s right hand. Dr. Snell also testified that all of the blows to Mousseaux’s

head would have contributed to his traumatic brain injury and resulting death. At

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the very least, as the circuit court pointed out, a jury could conclude that Tuopeh’s

punches and kicks aided and abetted Pour’s undisputed direct punches to

Mousseaux’s head as he laid upon the pavement. In viewing the evidence in the

light most favorable to the verdict, the evidence presented was sufficient for the jury

to conclude that the State proved the essential elements of second-degree murder

beyond a reasonable doubt. The circuit court did not abuse its discretion in denying

Tuopeh’s motion for acquittal.

7. Whether the circuit court erred by denying Tuopeh’s request for statutory immunity under SDCL 22-18- 4.8.

[¶49.] As the State points out, this Court has not yet determined the

appropriate standard of review for a circuit court’s decision to grant or deny

immunity under SDCL 22-18-4.8. However, it is a general principle that “[f]actual

findings of the lower court are reviewed under the clearly erroneous standard, but

once those facts have been determined, ‘the application of a legal standard to those

facts is a question of law reviewed de novo.’” State v. Heney, 2013 S.D. 77, ¶ 8, 839

N.W.2d 558, 561–62 (quoting State v. Hess, 2004 S.D. 60, ¶ 9, 680 N.W.2d 314, 319).

SDCL 22-18-4.8 provides that “[i]n a criminal prosecution, once a prima facie claim

of self-defense immunity has been raised by the defendant, the burden of proof, by

clear and convincing evidence, is on the party seeking to overcome the immunity

from criminal prosecution provided for in this section.” We will apply de novo

review to the application of this legal standard to the facts before the circuit court.

[¶50.] Here, before trial, Tuopeh moved for immunity from prosecution under

SDCL 22-18-4.8. At a hearing on April 4, 2023, the circuit court concluded that

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Tuopeh had raised a prima facie claim of self-defense by showing that Mousseaux

was the initial aggressor. After Tuopeh called Dr. Snell and Detective Marino as

witnesses, the State did not provide any additional testimony and rested, relying on

the video evidence that was introduced into evidence and Detective Marino’s

testimony.

[¶51.] The circuit court held that the State had met its burden to overcome

the initial claim of self-defense. The court found that, after the first punch,

Mousseaux had performed a “tactical retreat” and attempted to run away from

Tuopeh and Pour. At this point, the court held that it was not reasonable for

Tuopeh and Pour to view Mousseaux as an ongoing threat. Next, the court

reasoned that, even if Tuopeh and Pour were acting in self-defense, their use of

deadly force—repeated punches and kicks to Mousseaux’s head—was not justified

because Mousseaux had not engaged in a forcible felony pursuant to SDCL 22-18-

4.1.

[¶52.] The court also pointed out that, based on a theory of aiding and

abetting, both Tuopeh and Pour “certainly contributed to Mr. Mousseaux’s inability

to [d]odge the blows or to fight back.” The court concluded that “at a minimum, Mr.

Tuopeh, at a time when he didn’t have the right to use deadly force, at least aided

and abetted in the administration of deadly force to Mr. Mousseaux” by

participating in the beating. Based on this reasoning, the court denied Tuopeh’s

motion for immunity.

[¶53.] After our review of the record and the video, we are unable to conclude

that the circuit court erred in this instance. The video shows that Tuopeh and Pour

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continued to pursue Mousseaux, even after he turned to run away. Once

Mousseaux fell to the ground, it was not reasonable for Tuopeh and Pour to treat

him as an ongoing threat. In addition, the amount of force used in beating

Mousseaux, as both Tuopeh and Pour savagely punched and kicked him while he

was defenseless on the ground, was not reasonable. So fierce was the attack that

Tuopeh and Pour administered the killing blows to Mousseaux in less than 30

seconds. Tuopeh aided and abetted in the use of deadly force when he had no lawful

reason to do so. We conclude that the circuit court properly denied Tuopeh’s motion

for immunity.

8. Whether the circuit court erred by admitting a photograph of a page from Tuopeh’s notebook.

[¶54.] “Our standard of review for evidentiary rulings ‘requires a two-step

process: first, to determine whether the trial court abused its discretion in making

an evidentiary ruling; and second, whether this error was a prejudicial error that in

all probability affected the jury’s conclusion.’” Hankins, 2022 S.D. 67, ¶ 20, 982

N.W.2d at 30 (citation omitted). “The trial court[’s] evidentiary rulings are

presumed to be correct.” Id. (alteration in original) (citation omitted).

[¶55.] During the trial, the State sought to enter a photograph of a notebook

containing offensive rap lyrics that included the N-word and were of a violent

nature. The State ostensibly sought to enter the page from the notebook—which

was found in Tuopeh’s apartment—for identification purposes, because it contained

the pseudonym of “Ceno.” The court overruled Tuopeh’s objection but instructed the

jury to only consider the notebook as identification evidence, and not for its content.

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[¶56.] On appeal, Tuopeh argues that admission of the notebook photograph

was in error because his identity was not at issue and also because of the prejudicial

nature of the lyrics. However, at trial, the State did have the burden to connect

Tuopeh to the scene of the crime. Initially, Pour had referred to Tuopeh only as

“Ceno” and the notebook thus served as evidence tying this pseudonym to Tuopeh.

Nevertheless, the violent and insulting lyrics did paint Tuopeh in a negative light

and may have suggested a propensity for violence. However, there was no request

to redact any portion of the exhibit and the court gave the jury a limiting

instruction at the time it was received. Under these circumstances, we do not find

the court abused its discretion in admitting the notebook. 16

[¶57.] Further, we conclude that any error in receiving the entire notebook

with the lyrics was not prejudicial. Juries are presumed to follow the law set forth

in the court’s instructions. See State v. Shelton, 2021 S.D. 22, ¶ 30, 958 N.W.2d 721,

731. The jury was faced with substantial video evidence and testimony of Tuopeh’s

guilt. We are thus not convinced that there is a reasonable probability that, in the

absence of the photograph, the jury would have more likely than not come to a

different conclusion.

16. The exhibit was offered through the testimony of Aidan Mullaney, a forensic specialist for the SFPD. When it was admitted, the circuit court told the jury: “And this is the item I wanted to give you a limiting instruction on. That photo displayed contents of the letter. I’ve determined those contents are both hearsay and irrelevant, so the only purpose for which you may consider that exhibit is the fact that it shows those documents were found in the defendant’s house. One document addressed to Ceno, one document addressed to Steven Tuopeh. It’s limited to the purpose of identification. You’re not to consider the contents of the letters displayed there.”

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Conclusion

[¶58.] Based on our review of the record and the analysis set forth above, we

conclude that the circuit court did not err in denying Tuopeh’s request for statutory

immunity prior to trial. Further, the court did not abuse its discretion in the

formulation of the jury instructions or in the challenged evidentiary rulings it made

throughout the trial. In viewing the evidence in the light most favorable to the

verdict there was sufficient evidence for a jury to conclude that the State proved the

elements of second-degree murder. Accordingly, the circuit court did not err by

denying Tuopeh’s motion for acquittal. We affirm.

[¶59.] JENSEN, Chief Justice, and SALTER, DEVANEY, and MYREN,

Justices, concur.

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