#29004-r-SRJ
2020 S.D. 15
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
…
STATE OF SOUTH DAKOTA, Plaintiff and Appellant,
v.
VINCENT WOLF, Defendant and Appellee.
…
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
…
THE HONORABLE NATALIE DAMGAARD
Judge
…
JASON R. RAVNSBORG
Attorney General
MATTHEW W. TEMPLAR
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff and
appellant.
CHRISTOPHER MILES of
Minnehaha County Public
Defender’s Office
Sioux Falls, South Dakota Attorneys for defendant and
appellee.
…
CONSIDERED ON BRIEFS
JANUARY 13, 2020
OPINION FILED 03/18/20
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JENSEN, Justice
[¶1.] A jury convicted Vincent Shane Wolf of aggravated assault and simple
assault for attacking a Department of Corrections (DOC) employee while Wolf was
an inmate at the South Dakota State Penitentiary. The circuit court denied Wolf’s
motion for judgment of acquittal on both charges at the close of the State’s evidence.
However, Wolf filed a renewed motion for judgment of acquittal on the aggravated
assault conviction after the trial, which the court granted. The State appeals
arguing that the circuit court erred in granting Wolf’s motion for judgment of
acquittal on the aggravated assault conviction. We reverse and reinstate the
aggravated assault conviction.
Background
[¶2.] On August 26, 2018, DOC Officer Darek Ekeren confiscated Wolf’s
tablet for a violation of the DOC rules. Later, Wolf approached Officer Ekeren and
told him, “[y]ou have five minutes to return my tablet.” In response, Officer Ekeren
told Wolf to go lock up and left the area.
[¶3.] Shortly thereafter, Wolf waited for Officer Ekeren at the entrance of
the hallway area of a cellblock, referred to as Tier 2. This was a location that Wolf
was not authorized to be in. Tier 2 had inmate cells along one side and a fenced
railing with a metal grid on the other. Wolf asked for his tablet back as Officer
Ekeren approached. Officer Ekeren refused to return it and told Wolf to walk away.
Wolf did not comply. Instead, he charged at Officer Ekeren and the two began
grappling. Officer Ekeren fell to the floor during the initial encounter. Officer
Ekeren testified that while he remained on the floor, Wolf began to punch and knee
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him in the face and head for about twenty seconds. Officer Ekeren testified that
Wolf punched him with a closed fist.
[¶4.] During this attack, Officer Ekeren got onto one knee and grabbed onto
mesh netting above the railing. As he did this, Wolf put Officer Ekeren in a
chokehold. Officer Ekeren testified that Wolf wrapped his forearm around his neck
and used his other arm as leverage to put more pressure on him. Officer Ekeren
testified that while in the chokehold, he was unable to breathe for a few seconds
and thought to himself, “he has me locked in.” Using the chokehold, Wolf attempted
to lift Officer Ekeren off the floor. Officer Ekeren escaped the chokehold and
separated himself from Wolf by pushing Wolf back against a cell door. Officer
Ekeren then called a “Code Red” and another officer arrived to assist. Officer
Ekeren sprayed Wolf with “OC spray” and the other officer handcuffed Wolf and
placed him in a holding cell. A video recording that was presented to the jury
showed that the entire physical altercation may have lasted approximately thirty
seconds.
[¶5.] Officer Ekeren was escorted to the penitentiary’s health services to be
examined. He was then referred to the Avera Emergency Room. The treating
physician observed that Officer Ekeren had a one-centimeter laceration under his
left eye, redness in that same eye, and bruises on his face and eye. Officer Ekeren
received treatment for the laceration under his eye. The next day, Officer Ekeren
returned to the Avera Emergency Room because of knee pain. Officer Ekeren was
diagnosed with a knee sprain and was placed in a knee immobilizer for four weeks.
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[¶6.] Following the altercation, Lieutenant Hunter Summers, a DOC Special
Investigations Unit officer, interviewed Wolf. Wolf admitted that he hit Officer
Ekeren in the head over twenty times and put him in a chokehold. Wolf told
Lieutenant Summers that he tried to pick up Officer Ekeren and throw him, but
Officer Ekeren was holding onto the bars on the grid. Wolf admitted that he
wanted to hurt Officer Ekeren at the time of his attack. When Wolf was asked his
intention in using a chokehold, he answered, “I don’t know man. I just—I was just
gone. I was just—just raged.”
[¶7.] On January 2, 2018, the Minnehaha County Grand Jury returned an
indictment charging Wolf with Count 1: aggravated assault against a DOC
employee (extreme indifference) in violation of SDCL 22-18-1.05 and SDCL 22-18-
1.1(1); Count 2: aggravated assault against a DOC employee (serious bodily injury)
in violation of SDCL 22-18-1.05 and SDCL 22-18-1.1(4); or in the alternative, Count
2A: simple assault against a DOC employee (intentionally causes bodily injury) in
violation of SDCL 22-18-1.05 and SDCL 22-18-1(5); and Count 3: aggravated assault
against a DOC employee (choking) in violation of SDCL 22-18-1.05 and SDCL 22-
18-1.1(8).
[¶8.] Wolf entered a plea of not guilty to the charges and the case proceeded
to a jury trial. After the close of the State’s case, Wolf moved for judgment of
acquittal on all the charges. The circuit court granted the motion on Count 2
determining the State failed to present evidence that Officer Ekeren sustained
serious bodily injury. The court denied the motion on the other counts, determining
there was sufficient evidence to support the other charges. In denying the motion
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on the aggravated assault charge in Count 1, the circuit court stated, “there is
sufficient evidence to send to the jury that there is an attempt to cause serious
bodily injury . . . under circumstances manifesting extreme indifference to the value
human life.”
[¶9.] The jury found Wolf guilty of aggravated assault against a correctional
officer (extreme indifference) in Count 1, and simple assault against a correctional
officer in Count 2A, but acquitted Wolf of aggravated assault against a correctional
officer (choking) in Count 3. After the verdict, Wolf again moved for judgment of
acquittal on Count 1. He argued that the State presented insufficient evidence to
prove that he acted under circumstances manifesting an extreme indifference to the
value of human life based upon Wolf’s conduct, the extent of Officer Ekeren’s
injuries, and the jury’s acquittal of aggravated assault for choking. The circuit
court granted Wolf’s post-verdict motion and entered a judgment of acquittal on
Count 1.
[¶10.] Wolf was sentenced on May 15, 2019, on the conviction for simple
assault against a correctional officer. Prior to sentencing, the State dismissed the
part II information alleging a prior felony conviction and argued for the application
of the doubling statute in SDCL 22-6-5.1. 1 The circuit court sentenced Wolf to four
1. SDCL 22-6-5.1 provides that:
A court may sentence any person convicted of a crime committed
while that person was a prisoner as defined by § 22-11A-1, to a
term of not more than twice the maximum term allowed by the
statute for the commission of the same crime by a person not so
confined. However, the provisions of this section do not apply if,
(continued . . .)
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years in the South Dakota State Penitentiary, with two years suspended, and
ordered the sentence to run consecutively to the penitentiary sentence Wolf was
already serving.
[¶11.] The State timely appealed the circuit court’s entry of a judgment of
acquittal on the conviction for aggravated assault in Count 1 pursuant to SDCL
23A-32-4. 2 The State raises one issue, arguing that the circuit court erred in
granting Wolf’s motion for judgment of acquittal on Count 1 because there was
sufficient evidence to support the jury’s guilty verdict.
Analysis and Decision
[¶12.] We have not previously considered the standard of review applicable to
the State’s challenge of an order granting a motion for judgment of acquittal after
the jury has returned a guilty verdict. However, a motion for judgment of acquittal
attacks the sufficiency of the evidence, which is a question of law whether the
motion is considered before or after the jury’s verdict. “Whether the State has
provided sufficient evidence to sustain the conviction is a question of law reviewed
de novo.” State v. Hauge, 2013 S.D. 26, ¶ 12,
829 N.W.2d 145, 149 (citing State v.
Jucht,
2012 S.D. 66, ¶ 18,
821 N.W.2d 629, 633).
[¶13.] In reviewing the sufficiency of the evidence, we consider:
________________________
(. . . continued)
for the same offense, the prisoner is subject to an enhanced
penalty as an habitual offender.
2. SDCL 23A-32-4 provides the State with an appeal, as a matter of right, from
an order from the circuit court entering a judgment of acquittal. See SDCL
23A-32-4. An appeal under SDCL 23A-32-4 must be taken within ten days
after the order. SDCL 23A-32-6.
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[W]hether there is evidence in the record which, if believed by
the fact finder, is sufficient to sustain a finding of guilt beyond a
reasonable doubt. . . . On review, we accept the evidence and the
most favorable inferences that can be fairly drawn from it that
support the verdict. We do not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence on
appeal. If the evidence including circumstantial evidence and
reasonable inferences drawn therefrom sustain a reasonable
theory of guilt, a guilty verdict will not be set aside.
State v. Carter, 2009 S.D. 65, ¶ 44,
771 N.W.2d 329, 342 (citations omitted).
[¶14.] A person commits aggravated assault under SDCL 22-18-1.1(1) if he
“[a]ttempts to cause serious bodily injury to another, or causes such injury, under
circumstances manifesting extreme indifference to the value of human life[.]” To
sustain a conviction for aggravated assault under subsection (1) the State must
prove: “(1) the person either attempted to cause or actually did cause serious bodily
injury to another, and (2) the circumstances under which the act was done
manifested extreme indifference to the value of human life.” State v. White
Mountain,
477 N.W.2d 36, 39 (S.D. 1991) (quoting State v. Rash,
294 N.W.2d 416,
418 (S.D. 1980)).
[¶15.] Serious bodily injury “means an injury which is grave and not trivial,
and which gives rise to apprehension of danger to life, health, and limb.” State v.
Bogenreif,
465 N.W.2d 777, 780 (S.D. 1991); See also, SDCL 22-1-2(44A). Our
Legislature has not declared what circumstances constitute extreme indifference to
the value of human life under SDCL 22-18-1.1(1). However, it has “deemed
significant the nature of the assaultive act or acts themselves.” State v. Miland,
2014 S.D. 98, ¶ 18,
858 N.W.2d 328, 332. We have stated that the accused is guilty
of aggravated assault for extreme indifference if the “accused’s ‘conduct was of the
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most threatening sort,’ such that the circumstances ‘demonstrate a blatant
disregard for the risk to the victim’s life,’ and the accused either attempted to or did
cause serious bodily injury . . . .” Id. ¶ 18, 858 N.W.2d at 333-34 (quoting State v.
Saucier,
512 A.2d 1120, 1125 (N.H. 1986) 3). “The severity of the resulting injuries
and the accused’s state of mind may be germane to the extreme indifference
question, but the main focus is on the conduct of the accused.”
Id.
[¶16.] The State argues the evidence was sufficient to show that Wolf
committed aggravated assault under SDCL 22-18-1.1(1). In considering the motion
for judgment of acquittal, the State argues that the circuit court conducted an
erroneous review of the evidence presented, invaded the province of the jury, and
allowed the jury’s acquittal on one count to affect its consideration of another. Wolf
argues the circuit court properly granted the motion for judgment of acquittal and
cites Miland,
2014 S.D. 98,
858 N.W.2d 328, to support his claim that the evidence
is insufficient to show that the circumstances manifested extreme indifference to
the value of human life as required by SDCL 22-18-1.1(1).
[¶17.] In Miland, the defendant was in the passenger seat of a patrol vehicle
when he began punching and kicking a law enforcement officer’s face and “was
trying to get around to the officer’s throat.”
2014 S.D. 98, ¶¶ 3-4,
858 N.W.2d at
329-30. Despite being struck twice with a baton by another officer, the defendant
continued to punch the officer. Id. ¶ 5,
858 N.W.2d at 330. The defendant did not
stop his attack until he was forcibly removed from the patrol vehicle by two other
3. In Saucier, the court quoted New Hampshire’s comments to the 1969 report
on its criminal code that defined “extreme indifference.” 512 A.2d at 1125
(quoting N.H. Crim. Code RSA 631:2, III (1985) (comments to 1969 Report)).
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officers. Id. The attack inside the vehicle lasted less than a minute. Id. ¶ 6. The
officer suffered a nose injury that required surgery to fix. Id. ¶ 7. This Court
concluded that evidence existed showing that “[h]ad [the defendant] not been
interrupted, obviously he would have continued.” Id. ¶ 20,
858 N.W.2d at 333. We
upheld the aggravated assault conviction because the defendant’s “conduct—
repeatedly and violently punching the officer in the face without ceasing until he
was pulled away—was of the most threatening sort and demonstrated a blatant
disregard for the risk to [the officer’s] life.”
Id.
[¶18.] Wolf argues the circuit court properly distinguished this case from
Miland based on the fact that Wolf ceased his attack without third-party
intervention, and because there was no evidence that Officer Ekeren sustained
serious bodily injury. However, these distinctions simply mark differences in the
factual records—not a definitive line that categorically prevents a finding of
extreme indifference where an attack abates.
[¶19.] Regardless, the jury could have concluded that, like Miland, Wolf did
not voluntarily stop his assault and would have continued his assault absent
defensive maneuvers by Officer Ekeren. Evidence was presented showing that
Officer Ekeren broke out of the chokehold, separated himself, and called for help
with a “Code Red.” It was after these actions by Officer Ekeren that Wolf backed
away.
[¶20.] Moreover, the jury had an opportunity to consider the extent of Officer
Ekeren’s injuries, along with other evidence in determining whether to convict Wolf
of aggravated assault. We have previously rejected a claim that serious bodily
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injury must exist to support a conviction under SDCL 22-18-1.1. Fasthorse, 2009
S.D. 106, ¶ 10, 776 N.W.2d at 237. In Fasthorse, the defendant punched, choked,
and threatened to shoot and kill the victim, but the victim sustained only minor
injury. Id. ¶ 10-11. This Court upheld the jury’s guilty verdict under SDCL 22-18-
1.1 because the evidence was sufficient to support the jury’s conclusion that the
defendant “attempt[ed] to cause serious bodily injury . . . under circumstances
manifesting extreme indifference to the value of human life.” Id. ¶ 11 (emphasis
added).
[¶21.] Here, a rational trier of fact could have found from the evidence that
Wolf attempted to cause serious bodily injuries under circumstances that
demonstrated a blatant disregard for the risk to Officer Ekeren’s life. Wolf attacked
Officer Ekeren while they were alone in Tier 2—a narrow, locked cellblock of the
prison consisting of metal bars on each side and a concrete floor. After Officer
Ekeren fell to the floor in the initial attack, Wolf began punching and kneeing
Officer Ekeren in the face and head. Once Officer Ekeren physically removed
himself from the first attack, Wolf put Officer Ekeren in a chokehold that briefly
impeded his breathing. While in the chokehold, Wolf attempted to pick up Officer
Ekeren and throw him. Wolf later admitted that he “went into a rage” during the
attack. Photos taken after the attack showed an abrasion on Officer Ekeren’s neck,
a cut below his eye, and other abrasions on his face and eye. Wolf’s conduct,
combined with the circumstances in which the attack occurred, supports the jury’s
guilty verdict for aggravated assault on Count 1.
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[¶22.] Wolf also argues that the circuit court properly granted his motion for
judgment of acquittal because the jury’s verdict finding him not guilty of aggravated
assault (choking) in Count 3 was inconsistent with a finding of aggravated assault
on Count 1. As such, he asserts the chokehold could not support a conviction for
aggravated assault (extreme indifference) on Count 1. The circuit court also
highlighted the jury’s acquittal on Count 3 in its ruling, stating that “the jury did
not find sufficient evidence to support a verdict of guilty on the aggravated assault
by choking.” However, the inconsistency of a jury’s verdict between two or more
counts is not grounds for entering a judgment of acquittal. State v. Mulligan, 2007
S.D. 67, ¶ 11,
736 N.W.2d 808, 814. A defendant “may not use the jury’s rejection of
[one charge] to infer that there was insufficient evidence to justify [a conviction on
another] charge.”
Id. “Instead of speculating whether the inconsistent verdicts are
evidence of jury error, [courts] should review the sufficiency of the evidence to
support the conviction that was rendered.”
Id. ¶ 12 (citing United States v. Powell,
469 U.S. 57, 67,
105 S. Ct. 471, 478,
83 L.Ed. 2d 461 (1984)).
[¶23.] Officer Ekeren testified that he was choked and that his breathing was
briefly impaired. A video presented to the jury confirmed that Wolf put Officer
Ekeren in a chokehold. Notwithstanding the verdict on Count 3, the jury could
have found that Wolf began choking Officer Ekeren and would have continued to do
so absent evasive measures by Officer Ekeren. Such evidence would support a
finding that Wolf attempted to cause serious injury “under circumstances
manifesting extreme indifference to the value of human life.” SDCL 22-18-1.1.
There was sufficient evidence on the record, and inferences that could have been
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drawn therefrom, to sustain a reasonable theory of guilt of aggravated assault by
extreme indifference beyond a reasonable doubt. See State v. Shaw, 2005 S.D. 105,
¶ 19,
705 N.W.2d 620, 626.
[¶24.] We reverse the circuit court’s entry of a judgment of acquittal and
remand to the circuit court with instructions to reinstate the jury’s verdict on Count
1 and impose a sentence.
[¶25.] GILBERTSON, Chief Justice, and KERN, SALTER, and DEVANEY,
Justices, concur.
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