#30929-a-RG 2026 S.D. 20
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
KELLY D. WARFIELD, Defendant and Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT BON HOMME COUNTY, SOUTH DAKOTA
THE HONORABLE CHERYLE W. GERING Judge
WANDA HOWEY-FOX of Harmelink & Fox Law Office, P.C. Yankton, 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.
CONSIDERED ON BRIEFS FEBRUARY 10, 2026 OPINION FILED 03/18/26 #30929
GUSINSKY, Justice
[¶1.] Kelly Warfield was imprisoned at the South Dakota State Penitentiary
in Sioux Falls, South Dakota, for prior felony offenses before being transferred to
Mike Durfee prison in Springfield, South Dakota. In April 2021, while imprisoned
at Mike Durfee, Warfield was indicted on two counts of simple assault against a
Department of Corrections employee and one count of intentional damage to
property. Count 1 for simple assault was charged under SDCL 22-18-1(1) and 22-
18-1.05, and Count 2 for simple assault was charged under SDCL 22-18-1(5) and
SDCL 22-18-1.05. Count 3 for intentional damage to property was charged under
SDCL 22-34-1(1). Warfield pleaded not guilty to each offense.
[¶2.] The charges arose out of an incident at Mike Durfee where Warfield
destroyed a computer screen and TV before engaging in a physical altercation with
a correctional officer. The altercation was caught on the prison’s video surveillance
system, but the video contains a four-second skip in footage. Warfield appeals his
conviction, raising several issues for our review. We affirm.
Factual and Procedural History
[¶3.] In January 2021, Kelly Warfield’s cell was randomly selected to be
searched by two officers for contraband. During the search, Warfield stood outside
of his cell while two officers examined the inside of his cell. Upon inspection,
Correctional Officer Christopher Day (CO Day) noticed that Warfield’s TV lacked
proper security stickers, specifically the stickers covering the USB port to prevent
unauthorized usage. CO Day confiscated the TV and testified that when he
attempted to remove the TV from Warfield’s cell that Warfield “balled his fist and
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squared his stance” to prevent CO Day from leaving. Warfield eventually moved
out of his way, and CO Day began walking towards the front desk of the prison,
which is near the day hall.
[¶4.] Warfield began to follow him, but first returned to his cell and emptied
the water from his electric tea kettle (hot pot). Carrying the hot pot with him,
Warfield walked down the hallway, down three flights of stairs, and over to the day
hall where CO Day was with Warfield’s TV. The day hall is a recreational space in
the prison containing pool tables and a wall-mounted TV. The front desk overlooks
the day hall area, and security cameras record both the front desk and the day hall.
[¶5.] Once CO Day made it to the day hall, he gave Warfield’s TV to the
officers at the front desk and began to explain the situation. While CO Day and
several officers were behind the front desk, Warfield appeared in the day hall.
Warfield then used the hot pot to strike and break the computer monitor on the
front desk. An officer was seated at the front desk at this time, and the hot pot
nearly missed him. This is documented by the prison surveillance footage
recording, and Warfield admitted to striking the monitor.
[¶6.] Warfield then turned and moved towards the TV hanging on the wall
in the day hall. Video footage and testimony at trial shows him dropping the hot
pot before striking the TV with his fist several times, damaging it beyond repair.
Warfield alleges that he dropped the hot pot because he did not want to hurt anyone
with the plastic component that had come loose and was hanging from the bottom of
the kettle. CO Day and the other officers present rushed into the day hall and
surrounded Warfield.
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[¶7.] When Warfield turned from the TV to face the entering officers and
started walking towards them, Officer Don Schwindt sprayed Warfield with pepper
spray, but it did not incapacitate him. Several officers testified that CO Day
ordered Warfield to “cuff up,” but that he did not comply. Video surveillance shows
Warfield then approaching CO Day and throwing multiple punches at him. CO Day
does not swing back at Warfield in the video surveillance footage, but instead
assumes a defensive position to block Warfield’s punches. Warfield landed several
punches on CO Day’s face and chest. Officer Brian Salts then took Warfield to the
ground and handcuffed him. CO Day suffered from whiplash and facial bruising
and swelling.
[¶8.] The prison surveillance cameras captured the incident, but the footage
contained a four-second skip in coverage. The skip begins when Warfield turned
around after smashing the TV in the day hall, and the footage resumes when
Warfield can be seen throwing several punches at CO Day. According to the record
and testimony at trial, the skip occurred due to a common bandwidth issue that
happens when the 800 cameras at the prison upload data at the same time. This is
called “bottlenecking,” and it frequently causes short skips in the recording.
[¶9.] During the discovery process, Warfield received footage from two
camera angles overlooking the front desk and the day hall that included the four-
second skip. There are three security cameras in the area, but footage from only
two of the cameras was provided to Warfield because the third camera did not
capture the entire incident.
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[¶10.] The prison preserved footage from the two relevant camera angles and
uploaded it to a USB drive. A witness at trial testified that the footage cannot be
altered at this stage due to the encryption processes. Footage from the third
camera was left on the server, but eventually written over in accordance with the
system’s regular processes. During discovery, Warfield attempted several times to
inspect the prison servers, but it is unclear from the record whether that ever
occurred. The circuit court signed a court order to allow Warfield to inspect the
servers, but the record documents a breakdown in the relationship between
Warfield and the expert he retained. Over the course of discovery, Warfield’s
counsel filed several discovery motions seeking video footage of the four-second skip
and other system security details. During a pretrial conference, the circuit court
noted that “the State has repeatedly stated that they have produced what is
available to be produced and that it is no longer available. Any video could no
longer be retrieved” because the footage only exists on the servers for six months.
[¶11.] In October 2021, Warfield filed a pro se motion to dismiss the simple
assault Counts 1 and 2 on the grounds that they violated his due process rights and
protections against double jeopardy. That motion was denied because he was
represented by counsel at the time, and the circuit court advised him to instead
communicate with the court through counsel.
[¶12.] Prior to trial, Warfield proposed jury instructions on the right to self-
defense. These submitted instructions were ultimately rejected by the circuit court
and were not included in the final jury instructions as discussed infra. A jury trial
was eventually held on November 14, 2023. At trial, the State called six of the
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correctional officers who were present on the day of the incident to testify. They all
presented consistent testimony about what occurred. Most of the relevant
testimony concerned what transpired during the four-second skip in the video
surveillance footage.
[¶13.] Jennifer Buchanan, an employee at Mike Durfee, testified that during
the four-second skip, Warfield turned around after striking the TV, “zeroed in on
Officer Day,” and “went straight up to him and started to punch him” with a closed
fist at least twice. Several other officers testified that Warfield approached CO Day
with his hands up, and that CO Day did not assault Warfield nor throw a punch at
Warfield once he had been hit.
[¶14.] CO Day then testified that another officer—later revealed to be Officer
Don Schwindt—first “deployed his pepper spray on Inmate Warfield” while Warfield
was “coming towards” CO Day. Then, after the pepper spray was deployed, CO Day
testified that Warfield “continue[d]” at him, “[a]nd that’s when we [went] hands-on.”
He testified that he gave Warfield “the directive to cuff up” after Warfield hit the
computer monitor, and that Warfield did not respond and did not comply.
[¶15.] As it related to preservation of the security footage, several officers
testified that they reviewed the footage at the prison on the day of the incident or
shortly thereafter. Officer Walter Kemnitz testified that he reviewed the security
footage, but that he did not recall observing a skip in the video. Officer Brian Salts
recalled that there was a skip on the video at the time they viewed it at Mike
Durfee.
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[¶16.] Lee Kaufenberg, an administrative captain in charge of the Special
Investigation Unit, testified that he reviewed the surveillance video after the
alleged assault. He testified that he noticed a skip, but that there was no way to
“recover whatever portion is not recorded.” When asked about alternative camera
angles, he explained that the two camera angles provided to the defense were the
best angles, and that they “showed it the clearest. There might have been a third
one that was from a different angle, but it didn’t have—have the sightlines that
these two showed—that these two were direct sightlines.” Tiffany Voigt, another
employee at Mike Durfee, similarly testified that she viewed all three video angles
available to her, and that none of the cameras showed “an assault by any one officer
or anyone else” on Warfield.
[¶17.] Inmate Marc Jones then testified. Warfield’s and Jones’ accounts of
what occurred on the date of the incident and during the four-second skip are
notably different from those of the officers who testified. At the time of the alleged
assault, Jones was standing on the stairwell that looks into the day hall when he
heard officers tell Warfield to “turn around and cuff up.” After this, he testified,
Warfield “turn[ed] around, place[d] his hands behind his back, and then the guard
picked him up and slammed him on the ground.” From his view of the situation,
there were seven or eight officers who appeared aggressive, leading Jones to worry
that Warfield would be assaulted. Jones did not see any officer punch Warfield and
only saw the “very end” of the encounter, “right when Defendant Warfield gets
taken down.” After Jones’ testimony, though, Warfield mentioned that he thought
Jones may have been untruthful in his testimony.
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[¶18.] Warfield then took the stand and testified that when he “pulled back
from the TV set” that “guards were right—starting to come in [the day hall].” Then,
he testified, he “did walk back towards them” with his hands down at his sides
when they told him to “cuff up.” It was then that he felt he had been sprayed with
pepper spray, and he testified that his hands were still down at his sides while he
was being sprayed. Warfield recalled walking up to four officers standing in a row
but did not recall “bringing up my hands at any time” into a fighting position while
being sprayed. After he walked up to the officers with his hands down at his side,
however, Warfield testified he “can’t remember everything that occurred at that
time.” In fact, he testified: “I don’t recall the interaction that you guys see on the
video. I don’t recall that full interaction.” Warfield did not recall swinging his fist
at an officer or fighting with them. Rather, he testified that his intention behind
breaking the TV and computer screen was to get “a major write up” to be sent back
to the Penitentiary where he would have received medical attention for alleged
neurological issues.
[¶19.] The State cross-examined Warfield, beginning with the surveillance
video from the day of the incident. The video first shows Warfield walking into the
day hall and striking the computer screen and TV screen as he admitted. The video
then skips forward, leaving a four-second gap. When the skip begins, Warfield is
standing facing the correctional officers. When the video resumes, Warfield
admitted that it showed him “advancing” towards CO Day with a closed fist and
that “[he] may be attempting to punch Officer Day” in the footage.
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[¶20.] The video then shows Warfield striking CO Day, and other officers
taking him to the ground to restrain him shortly thereafter. CO Day is not seen
striking Warfield in the footage, and officers testified that CO Day assumed a
defensive position and did not hit Warfield. It is Warfield’s argument that the four-
second skip in the video contained footage of officers “threatening” Warfield, and
that his reaction was one of self-defense.
[¶21.] Before the case was submitted to the jury, the court again heard
arguments on proposed instructions. The defense proposed a self-defense jury
instruction, arguing “there has been sufficient evidence to at least go to the jury
regarding self-defense.” This evidence included, the defense argued, the officers
“encircling” Warfield, officers spraying him with pepper spray, and Marc Jones
testifying that he thought the force used by officers in taking Warfield to the ground
“was excessive.” In response, the State asserted Warfield had not met his burden of
introducing sufficient evidence of “reasonable fear,” and that no evidence indicated
officers “went beyond the scope of their duties” in subduing Warfield.
[¶22.] The circuit court agreed. It decided the evidence presented was
insufficient to give the self-defense instruction, reasoning that “the officers were
simply directing him to cuff up, and that there was no indication of any kind that
they were attempting to assault him in any way[.]” With regard to Marc Jones’
testimony, the circuit court reasoned there was no evidence in Jones’ testimony that
would support self-defense, and “during Mr. Warfield’s direct testimony, there was
absolutely no evidence in support of self-defense. It was only in redirect, through
many leading questions, that that even is on the table at a bare, minimum level.”
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[¶23.] In considering jury instructions, the circuit court also allowed
Warfield’s counsel to renew Warfield’s pro se motion to dismiss from October 2021
on due process grounds. Warfield maintained that charging and indicting him with
both Counts 1 and 2 violated his Fifth Amendment protections against double
jeopardy, and that the jury should not be instructed on both counts. The State
argued it was allowed to submit both counts to the jury, but that these counts were
alternative counts, and the jury could only find Warfield guilty of one count, not
both. The circuit court agreed and allowed the State to submit both counts to the
jury.
[¶24.] The jury convicted Warfield of Counts 1—simple assault upon a
correctional officer under SDCL 22-18-1(1); and 3—intentional damage to property
under SDCL 22-34-1(1). He was acquitted on Count 2 of simple assault under
SDCL 22-18-1(5). Warfield was sentenced on August 16, 2024, for Counts 1 and 3.
As to Count 1, he was sentenced to two years in the State Penitentiary with
payment of court costs. This sentence was ordered to run consecutively with
Warfield’s three prior convictions in Pennington County. As to Count 3, the circuit
court ordered Warfield to pay restitution and court costs.
[¶25.] Warfield appeals, raising five issues which we restate as follows:
1. Whether the State properly charged Warfield with simple assault.
2. Whether the circuit court erred when it allowed the jury to view Exhibit 1.
3. Whether the circuit court abused its discretion in refusing to give Warfield’s proposed self-defense jury instruction.
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4. Whether the State prevented Warfield from presenting a complete defense by failing to provide Warfield with additional surveillance footage both from the prison’s back-up servers and a third camera angle.
5. Whether the circuit court erred when it allowed the State to submit both Counts 1 and 2 to the jury.
Analysis
1. Whether the State properly charged Warfield with simple assault.
[¶26.] Warfield first argues that the State should not have charged him with
simple assault due to the four-second skip in the surveillance video, alleging there
is “no documentation of the alleged assault” of CO Day. The State argues in
response that we have no jurisdiction to consider this issue, as it is an unreviewable
decision involving prosecutorial discretion. A prosecutor’s charging decision is at
the heart of the prosecution function, involving a broad exercise of discretion which
is generally unreviewable on appeal unless the defendant alleges facts that raise
due process concerns. See Commonwealth v. Cosby, 252 A.3d 1092, 1135 (Pa. 2021)
(“Charging decisions inhere within the vast discretion afforded to prosecutors and
are generally subject to review only for arbitrary abuses.”); People v. Herndon, 633
N.W.2d 376, 391 (Mich. 2001) (“We review a charging decision under an abuse of
power standard, questioning whether a prosecutor has acted in contravention of the
constitution or the law.” (citation modified)); State v. Tweeten, 2004 N.D. 90, ¶ 8,
679 N.W.2d 287, 289 (“Generally, the prosecuting attorney is considered to be in the
best position to evaluate the charges and the evidence to determine if prosecution
should continue.” (citation omitted)).
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[¶27.] Here, Warfield makes no argument that the State engaged in an
arbitrary abuse of power by engaging in selective or discriminatory prosecution,
which is a matter that would be reviewable by this Court. See, e.g., People ex rel.
W.Y.B., 515 N.W.2d 453, 454 (S.D. 1994); State v. Muetze, 534 N.W.2d 55, 57 (S.D.
1995). Instead, his only argument is that he should not have been charged because
“the State should have used its prosecutorial discretion and pressed forward” only
with the charge of intentional damage to property. In the absence of any due
process concerns, we decline to review the State’s decision to charge Warfield with
simple assault in this matter.
2. Whether the circuit court erred when it allowed the jury to view Exhibit 1.
[¶28.] Warfield asserts the circuit court erred when it allowed the State to
present to the jury Exhibit 1, the prison’s video surveillance footage of the incident.
He argues that the State “failed and neglected to preserve all of the videos of the
incident,” and that playing the video with the four-second skip violated his right to
a fair trial. It is unclear from Warfield’s briefing what his position is, but because
he failed to object to the admission of Exhibit 1 at trial, we assume he argues the
circuit court should have sua sponte excluded Exhibit 1. Warfield cites no authority
to support his argument on this issue, and instead relies solely on the claim that the
officers’ testimony about the incident “is suspect to a degree” because of “the
likelihood of bias or favoritism among fellow law enforcement officers.” The State
argues Warfield waived this issue by stating he had no objection to the exhibit and
by using the four-second skip in the video as a basis to create reasonable doubt at
trial. See State v. Heer, 2024 S.D. 54, ¶ 16 n.4, 11 N.W.3d 905, 910 n.4 (“Because
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Heer affirmatively assented to Kamrath’s introduction to the jury and her presence
at counsel table, a colorable argument exists that Heer actually waived—not merely
forfeited—his argument about the extent of Kamrath’s involvement at trial.”).
Alternatively, the State argues the issue was forfeited and that Warfield has failed
to demonstrate plain error. At the time Exhibit 1 was introduced into evidence and
played for the jury at trial, Warfield did not object to its admission. In fact,
Warfield relied on the footage and its contents several times for his defense theory.
On this record, Warfield has affirmatively waived the issue for appeal.
3. Whether the circuit court abused its discretion in refusing to give Warfield’s proposed self-defense jury instruction.
[¶29.] “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.
Tuopeh, 2025 S.D. 16, ¶ 14, 19 N.W.3d 37, 45 (quoting State v. Schumacher, 2021
S.D. 16, ¶ 25, 956 N.W.2d 427, 433). “We have defined abuse of discretion as
‘discretion exercised to an end or purpose not justified by, and clearly against,
reason and evidence.’” Id. (quoting State v. Carter, 2023 S.D. 67, ¶ 24, 1 N.W.3d
674, 685). “Error in declining to apply a proposed instruction is reversible only if it
is prejudicial, and the defendant has the burden of proving any prejudice.” Id. ¶ 14,
19 N.W.3d at 45–46 (quoting State v. Ortiz-Martinez, 2023 S.D. 46, ¶ 36, 995
N.W.2d 239, 246–47).
[¶30.] Self-defense is justified and available as an affirmative defense to
simple assault when a person “reasonably believes that using or threatening to use
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force is necessary to defend against [another individual’s] imminent use of unlawful
force.” SDCL 22-18-4 (emphasis added).
However, a caveat to this defense lies in SDCL 22-18-2, which permits a law enforcement officer in the performance of his or her legal duty “to use . . . force . . . toward the person of another[.]” Furthermore, “[a]n individual is not justified in using force” to resist arrest “or other performance of duty by a law enforcement officer within the scope of his [or her] official duties.” Under these rules, an individual is only justified in using self-defense against an officer if the officer is using excessive force or acting outside their lawful duty.
People ex rel. N.A., 2021 S.D. 57, ¶ 24, 965 N.W.2d 433, 441 (alterations in original)
(citations omitted).
[¶31.] “Criminal defendants are entitled to instructions on their theory of the
case when evidence exists to support that theory.” State v. Bruder, 2004 S.D. 12,
¶ 8, 676 N.W.2d 112, 115 (citation omitted). If the evidence supports an instruction
on self-defense, it is error not to give it. Id. But “[a] trial court need not instruct on
matters that find no support in the evidence.” State v. Chamley, 310 N.W.2d 153,
155 (S.D. 1981).
[¶32.] Here, Warfield requested the jury be instructed on self-defense against
assault, the right to stand one’s ground, and when an aggressor may have the right
to self-defense against assault. While settling the instructions, the State objected to
Warfield’s proposed instructions and argued Warfield failed to present sufficient
evidence to argue “any type of justification for self-defense, or that he was in any
way acting in self-defense.” The circuit court agreed and declined to give the
proposed instructions.
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[¶33.] Warfield claims on appeal that the instructions were warranted
because officers “encircled” him, and that he was afraid. In his brief, Warfield
argues “[t]he jury should have been allowed, at the very least, to consider whether
[Warfield] would have been justified in striking back at [CO Day.]” (Emphasis
added.) The only evidence Warfield presented to support this claim was his own
testimony that he was afraid, and Marc Jones’ testimony that the officers “got
aggressive with [Warfield]” and that CO Day lunged at Warfield while “trying to
put restraints on him.” Jones testified that while subduing Warfield after he struck
the computer screen and TV, officers “picked [Warfield] up and slammed him on the
ground.” Jones further testified he “was afraid” that the guards would then
“assault Mr. Warfield after him being picked up and slammed,” but that he did not
see any officer punch Warfield and only saw the “very end” of the encounter, “right
when Defendant Warfield gets taken down.” However, after reviewing the video,
the takedown at the “very end” that Jones referenced occurred only after Warfield
threw several punches at CO Day. Jones’ additional comment that officers were
“doing their job excessively” is simply a conclusory statement, unconnected to the
correct legal standard for self-defense against a law enforcement officer.
[¶34.] In this case, where Warfield had just destroyed a computer screen with
a hot pot and destroyed a TV with his fists, officers in the area acted lawfully and
used force within the scope of their duties when “encircling” him in order to cuff him
and ensure the safety of other inmates and the officers themselves. Nothing in the
record indicates officers used unlawful force in the course of doing so, and Warfield
even testified that he expected he would be cuffed after destroying prison property.
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Even if he was “afraid,” Warfield had no right to strike CO Day, and any such strike
was not the result of self-defense.
[¶35.] Warfield did not present evidence to show any of the correctional
officers used “excessive force” or acted “outside their lawful duty” in light of his
behavior, and the circuit court did not make a choice outside the range of
permissible choices by refusing to instruct the jury on self-defense.
4. Whether the State prevented Warfield from presenting a complete defense by failing to provide Warfield with additional surveillance footage both from the prison’s back-up servers and a third camera angle.
[¶36.] Warfield next argues the State violated his constitutional rights when
it did not provide him with video footage from the prison’s back-up servers or the
third surveillance camera angle. In making this argument, Warfield does not point
to a specific ruling made by the circuit court for our review. Instead, he alleges a
general violation of his Fourteenth Amendment right to present a complete defense,
arguing that because “the proof of what really happened or, even what might have
happened, was under the sole control of the State[,] . . . it appears that a Brady
violation has occurred and [Warfield’s] conviction should be set aside.”
[¶37.] “The Due Process Clause of the Fourteenth Amendment includes an
implicit guarantee that ‘criminal defendants be afforded a meaningful opportunity
to present a complete defense.’” State v. Turner, 2025 S.D. 13, ¶ 56, 18 N.W.3d 673,
691 (quoting State v. Zephier, 2020 S.D. 54, ¶ 20, 949 N.W.2d 560, 565) reh'g denied
(Apr. 29, 2025). “The resulting body of decisional law from the United States
Supreme Court and this Court exists under a topical heading that ‘might loosely be
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called the area of constitutionally guaranteed access to evidence.’” Zephier, 2020
S.D. 54, ¶ 20, 949 N.W.2d at 565 (quoting California v. Trombetta, 467 U.S. 479,
485 (1984)).
[¶38.] Cases involving a defendant’s access to evidence generally fall into one
of two categories—“cases in which the exculpatory value of the undisclosed evidence
is known and cases where it is not.” Turner, 2025 S.D. 13, ¶ 56, 18 N.W.3d at 691
(citation omitted). The former category includes the prototypical violation of the
rule as set out in Brady v. Maryland, 373 U.S. 83, 87 (1963). “A Brady violation
occurs when (1) the evidence at issue [i]s favorable to the accused, either because it
is exculpatory, or because it is impeaching; (2) the evidence [has] been suppressed
by the State, either willfully or inadvertently, and (3) prejudice [has] ensued.” State
v. Peltier, 2023 S.D. 62, ¶ 18, 998 N.W.2d 333, 339 (alterations in original) (quoting
State v. Delehoy, 2019 S.D. 30, ¶ 25, 929 N.W.2d 103, 109).
[¶39.] The latter category includes “cases where the exculpatory value of
undisclosed evidence is unknown because it has been destroyed, lost, or
compromised in some way.” Turner, 2025 S.D. 13, ¶ 58, 18 N.W.3d at 691 (citation
omitted). The deleted surveillance footage from the third camera angle and back-up
servers falls into the second category. In these cases, we apply the rule set out in
California v. Trombetta to determine the materiality of evidence that no longer
exists:
Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality . . . evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a
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nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.
Id. (emphasis added) (quoting Trombetta, 467 U.S. at 488–89).
[¶40.] Here, Warfield argues the State’s failure to provide him with access
both to its back-up servers and to footage from the third camera angle in the day
hall constitutes a Brady violation. With regard to the prison’s backup servers, the
circuit court provided Warfield with a court order to inspect the prison’s servers and
scheduled an inspection by Computer Forensic Resources, Inc. Because of a
breakdown in the relationship between Warfield and the computer expert, however,
this inspection never occurred.
[¶41.] The delays in accessing the prison servers were as a result of
Warfield’s actions, and the circuit court found the State did nothing to conceal this
evidence or intentionally prevent Warfield’s access to it. Moreover, testimony at
trial suggested that these servers contained the exact same footage provided to
Warfield, and that the bandwidth issue that caused the four-second skip in the
produced footage would have affected the back-up servers, too. Lee Kaufenberg
testified that the four-second skip would be present on all versions of the footage,
and that there was no way to “recover whatever portion is not recorded.” Because of
its identical nature, no evidence or testimony suggests this back-up footage
contained an “exculpatory value that was apparent” before it was overwritten.
[¶42.] Similarly, with regard to the third camera angle, nothing in the record
and no evidence presented at trial suggests that the angle—which Kaufenberg
testified did not contain direct sightlines like the two camera angles that were
provided—contained exculpatory video footage that the first two cameras did not
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capture. Again, all evidence presented at trial suggests this third camera angle
would have also been affected by the four-second skip. Warfield’s argument that
“there would be no question what happened in that day hall” if the State had
preserved the third camera angle or its back-up servers is unsupported.
[¶43.] Even if Warfield had established that this third angle contained
exculpatory evidence, he must still show prejudice has ensued to warrant relief on
appeal. Peltier, 2023 S.D. 62, ¶ 18, 998 N.W.2d at 339. “Prejudice ensues when
there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” Id. (citation
modified). “A reasonable probability exists when evidence reasonably could be
taken to put the whole case in such a different light so as to undermine confidence
in the verdict.” Id. (citation modified).
[¶44.] The jury here was presented with testimony from several officers who
witnessed the incident, along with surveillance video footage from two separate
angles, both of which adequately captured the incident. With this testimony in
mind, video footage from a different angle could not have “put the whole case in a
different light so as to undermine the confidence in the verdict.” Id.
5. Whether the circuit court erred when it allowed the State to submit both Counts 1 and 2 to the jury.
[¶45.] Lastly, Warfield argues that “being charged twice with the same
offense against the same correctional officer subjected him to double jeopardy” in
violation of his Fifth Amendment rights. “[I]ssues regarding multiplicity of charges
are questions of law, which we review de novo.” State v. Chavez, 2002 S.D. 84, ¶ 10,
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649 N.W.2d 586, 591 (citing State v. Blakey, 2001 S.D. 129, ¶ 5, 635 N.W.2d 748,
750).
[¶46.] The South Dakota Constitution provides that “[n]o person shall be . . .
twice put in jeopardy for the same offense.” S.D. Const. art. VI, § 9. “These
prohibitions against double jeopardy protect against three types of governmental
abuses: (1) a second prosecution for the same offense after acquittal; (2) a second
prosecution for the same offense after conviction; and (3) multiple punishments for
the same offense.” State v. Johnson, 2007 S.D. 86, ¶ 12, 739 N.W.2d 1, 6 (citation
omitted). Warfield alleges only the third type of abuse is at issue here.
[¶47.] Warfield maintains that both Counts 1 and 2 should have been
dismissed and should not have gone to the jury under State v. Chavez. In Chavez,
the defendant was charged with six counts of aggravated assault after he fired a
weapon at two officers conducting a search warrant at his house. 2002 S.D. 84,
¶¶ 6–7, 649 N.W.2d at 590–91. Like Warfield did here, Chavez filed a motion to
dismiss the indictment on multiplicity of charges grounds, but the circuit court
denied the motion. Id. ¶ 8, 649 N.W.2d at 591. After a jury trial, Chavez was
convicted of all six counts of aggravated assault and two counts of commission of a
felony with a firearm. Id. The circuit court “imposed concurrent fifteen-year
sentences for each one of the six aggravated assault convictions.” Id. Chavez
appealed, arguing he was improperly charged “with multiple crimes based on the
fact that all eight charges stemmed from the same set of facts.” Id. ¶ 12, 649
N.W.2d at 592.
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[¶48.] On appeal, we held Chavez could only be convicted and sentenced for
one count of aggravated assault as to each officer he assaulted, which would result
in two convictions. Id. ¶¶ 17–18, 649 N.W.2d at 593. “We acknowledge[d] that if
there is a single transaction resulting in more than one crime, each crime must
have been the result of separate factual incidents. A defendant cannot receive two
convictions for one crime unless the Legislature intended multiple punishments.”
Id. ¶ 15, 649 N.W.2d at 592–93 (citation modified). In other words, it is not
“permissible to punish a defendant more than once for one offense in violation of a
single statute.” Id. ¶ 16, 649 N.W.2d at 593 (emphasis added).
[¶49.] Warfield relies on Chavez to support the argument that being charged
with two offenses against the same officer violated his double jeopardy rights. But
Chavez does not stand for the proposition that defendants cannot be charged with
more than one offense arising from the same transaction. In fact, we have held
several times that in deciding how to charge a defendant, “[t]he State is not
required to pick between two viable theories that are supported by the evidence.”
State v. Manning, 2023 S.D. 7, ¶ 36, 985 N.W.2d 743, 755; see also State v.
Washington, 2024 S.D. 64, ¶ 61, 13 N.W.3d 492, 510. Rather, Chavez stands for the
principle that a defendant “cannot be punished more than once for identical facts
under varying subsections” of a statute. 2002 S.D. 84, ¶ 18, 649 N.W.2d at 593
(emphasis added).
[¶50.] The circuit court held “the State has the right to proceed on alternative
bases” under SDCL 23A-6-25. It explained that they do not have to assert them in
the alternative formally in the indictment, but they cannot seek sentences for both.
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The circuit court’s decision is in-line with our current precedent and most recent
decision in State v. Tuopeh:
Indeed, our most 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[.]”
2025 S.D. 16, ¶ 20, 19 N.W.3d at 47 (alteration in original) (quoting Washington,
2024 S.D. 64, ¶ 61, 13 N.W.3d at 510). Warfield was subsequently convicted on
Count 1 and sentenced on Count 1. The circuit court committed no error in
submitting Counts 1 and 2 to the jury, and Warfield suffered no double jeopardy
violation as a result. We affirm.
[¶51.] JENSEN, Chief Justice, and SALTER, DEVANEY, and MYREN,
Justices, concur.
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