State v. Rouse

#30681-aff in pt& rev in pt-PJD
2025 S.D. 29

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

ISAIAH VAUGHN ROUSE, Defendant and Appellant.

****

APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
HUGHES COUNTY, SOUTH DAKOTA

****

THE HONORABLE M. BRIDGET MAYER
Judge

****

KATIE J. THOMPSON
Pierre, South Dakota Attorney for defendant and
appellant.

MARTY J. JACKLEY
Attorney General

JENNIFER M. JORGENSON
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff and
appellee.

****

CONSIDERED ON BRIEFS
JANUARY 13, 2025
OPINION FILED 06/20/25
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DEVANEY, Justice

[¶1.] Isaiah Rouse was convicted of three counts of aggravated assault

(physical menace) against a law enforcement officer and one count of threatening a

law enforcement officer. He appeals, claiming the circuit court erred by not

dismissing the case under the 180-day rule and by denying his motion for judgment

of acquittal, and further claims the circuit court abused its discretion when

admitting evidence and giving certain instructions to the jury. We affirm in part,

reverse in part, and remand for a new trial.

Factual and Procedural Background

[¶2.] In January 2023, Rouse was in custody in the maximum security

cellblock of the Hughes County Jail awaiting trial on an aggravated assault charge.

According to the evidence introduced at trial, on the evening of January 13,

correctional officer (CO) Harlie Petrak was doing rounds when Rouse approached

her and stated, “I need my medication or the next CO to come in here will be

stabbed.” CO Petrak thereafter contacted the nurse, who confirmed that Rouse had

not yet received his evening medication. When the nurse arrived, CO Petrak called

Rouse to come to the door of the cellblock so he could receive his medicine. This

door is between the cellblock where maximum security inmates are housed and the

central area where the correctional officers are stationed. Inmates are supposed to

stay within their cellblock when taking their medicine and are not permitted to

come out of the cellblock unless brought out by an officer.

[¶3.] As Rouse approached the door, CO Petrak, who was standing outside

the cellblock while holding the door open, told him to stay inside the cellblock.

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Instead of stopping at the door, Rouse continued out of the cellblock into the officers’

area and obtained his medicine from the nurse. CO Petrak ordered him to go back

into the cellblock but Rouse refused, saying, “What the fuck are you going to do

about it? Nothing. Exactly.” CO Petrak described Rouse as appearing very

frustrated and agitated and testified that his fists were clenched. He told CO

Petrak he wanted to talk to the person in charge. Shift supervisor Brant Billings,

who was at the officers’ station podium, asked what was going on. Rouse

responded, “What are you going to do about it?” CO Billings called additional

officers to respond to the area and approached Rouse. Because Rouse was not

following the officers’ commands, CO Billings ordered him to “cuff up,” or turn

around and put his hands behind his back to be handcuffed. Rouse refused to

comply. Instead, he set his medicine cup down and put his fists down to his side,

and stated, “Which one of you motherfuckers are going to come at me and are going

to be stabbed first?” As Rouse stood facing the officers, the officers saw he was

firmly gripping in his left hand a small pencil, its well-sharpened point facing

forward.1

[¶4.] The officers immediately recognized the seriousness of the situation, as

they knew the sharpened pencil could be used as a weapon. The officers testified

that because sharpened pencils have been known to be used by inmates to stab

1. According to testimony admitted at trial, inmates are provided three-inch
“golf” pencils for writing, but they are prohibited from bringing them outside
the cellblock.

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themselves or others, officers consider them potentially lethal objects.2 At that

point, officers Billings, Petrak, and another CO, Zach Knowlton, were in the vicinity

of Rouse. Other officers soon responded to the area. CO Billings ordered Rouse to

drop the pencil, but Rouse refused. CO Petrak took several steps back from him to

maintain distance, as CO Billings talked to Rouse in an effort to de-escalate the

tense situation. He commanded Rouse multiple times to drop the pencil but Rouse

did not do so.

[¶5.] CO Billings made his way to the officers’ station and retrieved a taser

and gave it to CO Knowlton. Under jail policy, a taser may only be brought out

when an officer believes there is a threat to the officer or others. CO Billings told

Rouse he had one last chance to drop the pencil, to which Rouse replied, “Or what?

You going to tase me?” On CO Billings’ signal, CO Knowlton activated the taser.

Rouse then complied without being tased. He snapped the pencil in half and threw

it toward CO Billings, who ordered him to cuff up. Rouse was then handcuffed and

led away to a cell. Approximately an hour later, CO Petrak took water to Rouse in

the cell. At that time, he apologized to her and said he was sorry about the

comments that he had made.

[¶6.] Rouse remained in maximum security custody at the jail. On February

25, 2023, CO Zane Hesse entered the maximum security cellblock. When Rouse

saw him, he said he would be getting out of jail in two weeks and then he was going

2. During the trial testimony, an example was provided involving a prior
incident at the jail when an inmate used a sharpened pencil to stab his arm,
causing blood to spray across the room. This inmate was taken to the
hospital with serious injuries.
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to stab CO Hesse. When the officer, who was unsure if Rouse was serious,

responded in a joking manner, Rouse did not laugh. Instead, he asked CO Hesse,

“Do you think I’m joking? I’m being serious.” CO Hesse left the cellblock and

reported the incident to his supervisor.

[¶7.] On March 7, 2023, a grand jury indicted Rouse on three counts of

aggravated assault (physical menace) against a law enforcement officer involving

the incident on January 13, 2023. The victims identified in these felony counts

were officers Petrak, Billings, and Knowlton. In the same indictment, Rouse was

also charged with threatening a law enforcement officer, a class 1 misdemeanor,

involving the incident on February 25, 2023 with CO Hesse. The State filed a part

II information alleging two prior felonies. Rouse made his initial appearance before

a magistrate judge on March 13, 2023.

[¶8.] During the pendency of this case, he also faced felony charges in other

Hughes County criminal cases. This included CRI22-564, in which Rouse was

charged with aggravated assault stemming from an incident where he was alleged

to have stabbed a person with a knife in September 2022, resulting in serious bodily

injury. Another case (CRI22-661) involved a separate aggravated assault charge

alleging that in September 2022, Rouse struck a person and broke his jaw. As a

result of these events, he was arrested and incarcerated in the jail, where he

remained at the time of the incidents at issue in this appeal.

[¶9.] Rouse was appointed counsel, who represented him in all three Hughes

County cases. The circuit court judge in this case presided over all three cases as

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well. Rouse’s trial in CRI22-661 was held on May 31 and June 1, 2023, after which

the jury found him not guilty of aggravated assault but guilty of simple assault.

[¶10.] In the present case, a jury trial was set to begin October 25, 2023. On

the morning of September 7, 2023, Rouse’s counsel electronically filed several

motions, including a motion for disclosure of Rule 404(b) and Rule 609 evidence.

His counsel also electronically filed a separate motion for appointment of a private

investigator. Later that same day, the circuit court electronically signed and filed

orders granting all of Rouse’s motions.

[¶11.] The court held a pretrial conference on October 18. The court and the

parties discussed the motions filed by defense counsel on September 7, and the

court also noted a letter Rouse had sent to the court asserting that a trial had not

been set for this case within the 180-day timeframe. The court explained that when

the proposed orders were presented to the court electronically on September 7, the

court granted them under the mistaken belief that a motion hearing had been held,

but it had not. The court stated that those orders were prematurely signed because

the State was not first given an opportunity to be heard before they were signed the

same day the motions were filed. The court stated that “technically, I signed those

orders[,]” but “I’m now granting it technically today[.]” The court directed the

parties to calculate when the 180 days would run “with that in mind” and file

motions if they deemed it necessary.

[¶12.] The State filed a motion seeking to toll certain time periods under

SDCL 23A-44-5.1, noting that based on Rouse’s initial appearance date of March 13,

2023, the 180 days would have ended September 9, 2023, unless otherwise tolled.

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The State argued that days should be excluded due to Rouse’s motions filed on

September 7 and orally granted on October 18, as well as days relating to the

proceedings in Rouse’s other criminal case (CRI22-661), from the date of the pretrial

order through the conclusion of the jury trial on June 1. In addition, among other

motions, the State filed an other acts motion pursuant to SDCL 19-19-404(b)

seeking to introduce evidence that the correctional officers were aware that the

reason Rouse was in custody at the jail was because he was arrested for allegedly

stabbing an individual with a knife in September 2022, resulting in serious bodily

injury.

[¶13.] On October 20, Rouse’s counsel filed a motion to dismiss, alleging a

violation of the 180-day rule. Counsel objected to the exclusion of any days and,

alternatively, disputed the number of days the State argued should be excluded. On

October 24, the court held a hearing and ruled on the motions. The court denied the

motion to dismiss, ruling that several days were excludable from the 180-day

calculation under SDCL 23A-44-5.1(4), which it explained on the record. The court

later entered written findings and conclusions detailing the days excluded under

SDCL 23A-44-5.1(4)(a). The court excluded the seven days following a May 25,

2023 pretrial conference held in one of Rouse’s other pending criminal cases (CRI22-

661) through the completion of the jury trial in that case on June 1, 2023. The court

also noted that, in this case, at the time Rouse filed his motions on September 7,

2023, the 180 days had not yet expired. The court determined that the orders that

it inadvertently or mistakenly entered on the same date Rouse’s motions were filed

were invalid. Citing this Court’s rulings in State v. Seaboy, 2007 S.D. 24, 729

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N.W.2d 370 and State v. Sparks, 1999 S.D. 115, 600 N.W.2d 550, the circuit court

then concluded that all of the days after September 7 until the trial commenced on

October 25 were tolled because there were no written orders entered after the court

orally granted the motions at the October 18 hearing.

[¶14.] The court granted the State’s other acts motion on the basis that the

officers’ knowledge of the reason Rouse was in jail was admissible as res gestae

evidence. After a two-day jury trial starting on October 25, the jury found Rouse

guilty on all counts.

[¶15.] On appeal Rouse raises the following issues, which we have restated

and reordered:

1. Whether the circuit court erred in denying the motion to
dismiss the indictment due to a violation of the 180-day
rule.

2. Whether the circuit court erred by not granting Rouse’s
motion for judgment of acquittal.

3. Whether the circuit court abused its discretion by
allowing the State to introduce the correctional officers’
testimony about the reason Rouse was in jail.

4. Whether the circuit court abused its discretion when instructing
the jury.

Analysis and Decision

1. Whether the circuit court erred in denying the
motion to dismiss the indictment due to a violation
of the 180-day rule.

[¶16.] Rouse claims the circuit court erred in denying his motion to dismiss

for a violation of SDCL 23A-44-5.1, commonly referred to as the “180-day rule.”

Under that rule, “a criminal defendant must be brought to trial within 180 days

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from the date the defendant ‘has first appeared before a judicial officer on an

indictment, information, or complaint.’” State v. Andrews, 2009 S.D. 41, ¶ 7, 767

N.W.2d 181, 183 (quoting SDCL 23A-44-5.1(2)). However, the rule includes several

provisions that require the exclusion, or tolling, of certain periods of time from the

180-day calculation. Relevant here, the rule excludes the following timeframes:

(a) The period of delay resulting from other proceedings
concerning the defendant, including but not limited to . . .
the time from filing until final disposition of pretrial
motions of the defendant, . . . and the time consumed in
the trial of other charges against the defendant[.]

SDCL 23A-44-5.1(4).

[¶17.] Here, as his sole claim on appeal regarding the 180-day issue, Rouse

argues the court erred when excluding certain days attributable to the proceedings

in Rouse’s other criminal case that went to trial, CRI22-661. In its written findings

of fact and conclusions of law, the court, citing SDCL 23A-44-5.1(4)(a), excluded not

only the two days the parties spent in trial, but also the five days leading up to it,

which the court considered to be trial preparation time. Rouse contends that the

language of SDCL 23A-44-5.1(4)(a) requiring tolling for “the time consumed in the

trial of other charges against the defendant” should be narrowly read to exclude

only the two days that the parties were actually in trial. However, we need not

address the merits of the court’s ruling in that regard given the court’s other

conclusion related to the tolling attributable to Rouse’s September 7 motions.

[¶18.] Rouse made his initial appearance before the magistrate judge on

March 13, 2023. Even if, as Rouse suggests, the circuit court should have only

excluded two days for the time consumed in Rouse’s other trial, when Rouse later

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filed his motions on September 7, only 176 days had passed since his initial

appearance. Per the court’s additional ruling, Rouse’s trial commenced within 180

days because the “clock” stopped when Rouse filed these motions and it never

started running again because there were no valid written orders filed disposing of

the September 7 motions. See Seaboy, 2007 S.D. 24, ¶ 9 n.4, 729 N.W.2d at 373 n.4

and Sparks, 1999 S.D. 115, ¶ 7, 600 N.W.2d at 554. Rouse has not challenged this

latter ruling, which resolves the 180-day issue in the State’s favor. See Cook v.

Cook, 2022 S.D. 74, ¶ 27 n.6, 983 N.W.2d 180, 190 n.6 (declining to review a

determination of the circuit court that was not challenged by the appellant on

appeal).

2. Whether the circuit court erred by not granting
Rouse’s motion for judgment of acquittal.

[¶19.] “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 (citation omitted).

“[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.” State v. Frias, 2021 S.D. 26, ¶ 21, 959 N.W.2d 62, 68

(citation omitted). “The 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.” Peneaux,

2023 S.D. 15, ¶ 24, 988 N.W.2d at 269 (cleaned up).

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[¶20.] Rouse was charged with three counts of aggravated assault pursuant

to SDCL 22-18-1.1(5), which provides: “Any person who . . . [a]ttempts by physical

menace with a deadly weapon to put another in fear of imminent serious bodily

harm . . . is guilty of aggravated assault.” Each of the counts further alleged the

aggravated assault was against a law enforcement officer engaged in the

performance of official duties. SDCL 22-18-1.05.

[¶21.] At the close of the State’s evidence Rouse moved for judgment of

acquittal on the aggravated assault counts. His sole basis for the motion was to

allege the State failed to prove the “physical menace” element. On appeal, he again

challenges whether the physical menace element was satisfied beyond a reasonable

doubt.3

[¶22.] Under SDCL 22-18-1.1(5), “the gravamen of the offense is the attempt

to put a person in fear of imminent serious bodily harm.” State v. Robertson, 2023

S.D. 19, ¶ 31, 990 N.W.2d 96, 104 (cleaned up) (quoting Peneaux, 2023 S.D. 15, ¶ 37,

988 N.W.2d at 272). In Robertson, this Court explained “that the relevant question

is not whether the alleged victim was in fear and ‘[i]nstead, the focus is on what the

defendant was attempting to do[.]’” Id. (alterations in original) (citation omitted).

“Therefore, in determining whether the elements of this offense have been

established, both words and actions may be pertinent.” Id. Nevertheless, the

element of physical menace “‘requires more than words: there must be some

physical act on the part of the defendant.’” State v. Scott, 2019 S.D. 25, ¶ 19, 927

3. Although Rouse’s brief mentions the fact he was also charged with the
misdemeanor count of threatening a law enforcement officer, he does not
challenge the sufficiency of the evidence supporting that conviction.
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N.W.2d 120, 127 (citation omitted). Rouse argues there was no physical act because

he did not lunge at the officers or swing his arms at them. But that is not the only

way physical menace may be shown.

[¶23.] Here, Rouse first started the events when he approached CO Petrak

and told her, “I need my medication or the next CO to come in here will be stabbed.”

Later, when she called him to the cellblock door so he could receive the medication

from the nurse, he ignored CO Petrak’s command to stay in the cellblock and

continued into the officers’ area and stated, “What the fuck are you going to do

about it?” CO Petrak described him as agitated and stated his fists were clenched.

Rouse ignored multiple commands from CO Billings, including to “cuff up.” He then

set his cup down, and with his fists to his sides, said to the officers who were near

him, “Which one of you motherfuckers are going to come at me and are going to be

stabbed first?” The officers testified that Rouse appeared to be aggravated and had

a pencil in his clenched fist with the sharp point facing outward. He refused to drop

the pencil despite multiple commands and did so only after it was evident he would

be tased. We conclude that when the evidence is viewed in a light most favorable to

the State, a rational jury could have found beyond a reasonable doubt that all

essential elements were met and that the entirety of Rouse’s actions leading up to,

and in conjunction with, his threatening statements, constituted physical menace.

3. Whether the circuit court abused its discretion by
allowing the State to introduce the correctional
officers’ testimony about the reason Rouse was in
jail.

[¶24.] This Court reviews evidentiary rulings for abuse of discretion. State v.

Belt, 2024 S.D. 82, ¶ 20, 15 N.W.3d 732, 737. “An abuse of discretion is defined as a

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‘fundamental error of judgment, a choice outside the range of permissible choices, a

decision, which on full consideration is arbitrary or unreasonable.’” Id. (citation

omitted). “In order to justify relief on appeal, an evidentiary error ‘must also be

shown to be prejudicial.’” Id. (citation omitted). An error is prejudicial if there is “a

reasonable probability that, but for [the error], the result of the proceeding would

have been different.” State v. Carter, 2023 S.D. 67, ¶ 26, 1 N.W.3d 674, 686

(alteration in original) (citation omitted). “In other words, ‘a probability sufficient

to undermine confidence in the outcome.’” Id. (citation omitted).

[¶25.] The State filed a motion to introduce other acts evidence pursuant to

SDCL 19-19-404(b). It sought to present testimony from the correctional officers

about their knowledge of the fact Rouse was in the jail on a pending aggravated

assault charge at the time of the alleged offenses in this case. The motion provided

a brief synopsis regarding Rouse’s criminal case, CRI22-564, in which he was

alleged to have used a knife to stab another person in September 2022. The

synopsis related the nature of the alleged victim’s wounds, but no additional details

of what occurred. The State argued that the fact Rouse “is alleged to have actually

stabbed someone causing serious bodily injury” was relevant to show a common

plan or scheme “of using a dangerous weapon to stab another individual.” The

State asserted the facts of the other case were “very similar” to the present case.

[¶26.] At a hearing on the motion, the State explained it proposed to limit the

testimony, more so than what it had suggested in its written motion, to only elicit

from the correctional officers that they were aware Rouse was in custody on an

aggravated assault charge for an alleged stabbing. The State suggested that this

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would provide “necessary context as well as just the common plan or scheme for the

jury.” The State then commented that it did not then “need to go into the details of

the arrest” or “the allegations in the underlying stabbing.” The State further

offered that the prior offense was “close in time and the traits of the two are

similar” and suggested that any prejudice could be cured by “appropriate jury

instructions for other acts.”

[¶27.] The court inquired whether the State was offering the evidence as res

gestae of the crime, to allow the officers “to explain what they know and why a

common pencil, which all the inmates have, he’s different from that set of folks

because they know why he’s there[.]” The court distinguished this from offering the

evidence to show “he stabbed someone else before and this is his common pattern,

practice, scheme and what he does when he gets upset,” and noted that using the

evidence in such manner would require a limiting instruction to be given to the

jury.

[¶28.] In response, the State agreed that evidence relating to the officers’

knowledge would be res gestae and then commented that it did not intend to bring

in the facts of the underlying alleged crime, “just that he’s there for an aggravated

assault for a stabbing.” The court then commented, “that to me is res gestae” but

noted that the State was also arguing the alleged stabbing goes to pattern, practice,

and scheme, and to show Rouse’s motive and intent. Rouse objected to the

admission of any evidence relating to the aggravated assault charge, arguing it was

improper character evidence and was prejudicial.

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[¶29.] When ruling on the State’s motion, the circuit court concluded the

proffered evidence was not improper character or propensity evidence and was not

unfairly prejudicial. The court determined that the evidence could be introduced in

the State’s case-in-chief as part of the res gestae to show the officers’ awareness of

why Rouse was in their custody and, therefore, why they had concerns with what he

might do when the events occurred at the jail. The court explained its view that the

evidence was relevant to prove the elements of the offense, and that “the jury is

entitled to know why [the officers were] in fear of imminent bodily harm with a

pencil and why it’s physical menace with a deadly weapon.” The court concluded its

ruling by stating “it comes in as res gestae, period. So we don’t even need to get into

whether or not it’s other acts.” The court further stated that, to the extent the State

wanted to argue it as other acts, “that same evidence can be used to show intent,

pattern, practice, common scheme.”

[¶30.] At trial, CO Hesse testified that Rouse was in maximum security

custody at the jail on two aggravated assault warrants. CO Petrak testified she was

aware that Rouse was in the jail for aggravated assault and was thus classified as

high risk and assigned to the maximum custody cellblock at the jail. Likewise, CO

Billings testified that Rouse was in custody for an assault charge, perhaps having to

do with a stabbing.

[¶31.] On appeal, Rouse contends this testimony was not res gestae evidence

nor did it show “intent, pattern, practice, [or] common scheme.” He maintains it

was instead improper character evidence, irrelevant, and unfairly prejudicial and,

therefore, the circuit court abused its discretion when admitting it.

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[¶32.] It does appear, from the record, that the State elected to only offer the

testimony at issue to show the officers’ awareness of the general nature of the crime

for which Rouse was being held, something the circuit court deemed to be res

gestae. As such, neither party requested an other acts instruction, nor did the court

propose that one be given.

[¶33.] As to the question whether the officers’ testimony was properly

characterized as res gestae, this Court considered what constitutes res gestae

evidence in State v. Otobhiale:

“‘Res gestae’ is a theory of relevance which recognizes that
certain evidence is relevant because of its unique relationship to
the charged crime . . . .” 29A Am. Jur. 2d Evidence § 858
Westlaw (database updated May 2022). “‘Res gestae,’ also
known as intrinsic evidence, is evidence of wrongful conduct
other than the charged criminal conduct offered for the purpose
of providing the context in which the charged crime occurred.”
Id. Courts have classified evidence of other crimes as intrinsic
evidence in the following circumstances:

[when the evidence] provides the jury with a complete story of
the charged crime[;] [i]ts absence would leave a chronological or
conceptual void in the story of the crime[;] [i]t arose out of the
same transaction or series of transactions as the charged
offense[;] [i]t is so blended or connected with the crime charged
that it incidentally involves it, explains the circumstances
surrounding it, or tends logically to prove an element of the
charged crime.

2022 S.D. 35, ¶ 16, 976 N.W.2d. 759, 767 (alterations in original) (quoting 2

Weinstein’s Federal Evidence § 404.20[2][c] (2d ed. 2021)). In Otobhiale, we

recognized several of these bases as properly supporting the admission of evidence

as res gestae. Id. ¶ 17 (citing State v. Hoadley, 2002 S.D. 109, ¶ 37, 651 N.W.2d

249, 258).

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[¶34.] Here, however, there is no evidence suggesting that Rouse’s other

aggravated assault charge involving an alleged stabbing with a knife was in any

way “blended or connected” to the allegations of aggravated assault against the

correctional officers in the present case or that the absence of such evidence would

“leave a conceptional void in the story of the crime.” The State failed to offer any

evidence to show that what happened in the prior alleged assault case was

intrinsically related to the events at the jail some four months later.

[¶35.] Nor does that evidence tend to prove any element of the crimes

charged. With respect to the elements of the aggravated assault offense, the circuit

court concluded otherwise. As to the element of attempting to put another in fear of

imminent bodily harm, the court stated:

That’s an element of the offense so . . . the jury is entitled to
know why they’re in fear of imminent bodily harm with a pencil
and why it’s physical menace with a deadly weapon and whether
or not you’re arguing that under these circumstances that
became a deadly weapon, I assume. And again, fear of
imminent bodily harm. These are elements of the offenses
which is why I think it also has to come in.

But as explained above, this is an incorrect statement of the law. The State need

not prove that the officers were actually in fear of imminent bodily harm; rather,

the gravamen of the offense was what Rouse was attempting to do. See Robertson,

2023 S.D. 19, ¶ 31, 990 N.W.2d at 104. For all the above reasons, the officers’

testimony was not res gestae evidence.

[¶36.] We note, however, that the fact an alleged victim’s fear is not an

element of the crime does not mean that evidence of what a victim was thinking can

never be admitted in a trial involving this type of aggravated assault charge. In

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fact, such testimony often is admitted to support a claim that a defendant was in

fact acting in a manner that constituted a physical menace. See People ex rel.

R.L.G., 2005 S.D. 119, ¶ 13, 707 N.W.2d 258, 262 (noting that, while actual fear

need not be proven, testimony regarding whether an alleged victim was afraid was

relevant in assessing whether an assault by physical menace “occurred through the

tone of the encounter and the posture of the parties”).

[¶37.] But here, in addition to the correctional officers’ testimony about their

concerns related to Rouse’s actions on the day of the charged offenses, they provided

further testimony regarding their knowledge that Rouse was in jail on an unrelated

aggravated assault charge, and that it was for allegedly stabbing someone. This

additional testimony, purportedly offered to suggest another reason why they may

have feared Rouse would carry out his threats to stab them, had no intrinsic

relationship to Rouse’s physical acts and threats during the incident in question.

Because this was not res gestae evidence, the court abused its discretion in

admitting it on that basis.

[¶38.] Additionally, given the sparse factual record presented by the State

regarding the prior incident, the court’s alternative pretrial ruling that this limited

testimony was admissible under SDCL 19-19-404(b) to show Rouse’s intent, or a

common plan or scheme, was also an abuse of discretion. The State never offered

evidence of the details of the alleged stabbing for which Rouse was being held.

Thus, there is no record from which the court—let alone the jury—could make a

comparison between the alleged prior stabbing and Rouse’s alleged assault by

physical menace against the correctional officers to determine whether the evidence

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showed intent, or a common plan or scheme. Nor is there an evidentiary record

from which the jury would have been able to determine that Rouse committed this

other act. See State v. Taylor, 2020 S.D. 48, ¶ 39, 948 N.W.2d 342, 354 (“[B]efore

considering the other acts, the jury must first determine if a preponderance of the

evidence established that the defendant committed the other acts.”)

[¶39.] Absent a proper basis for the admission of the fact Rouse was in jail for

another alleged assault, the admission of this testimony violated the well-

established rule precluding character or propensity evidence. See SDCL 19-19-

404(a)(1); State v. Hernandez, 2023 S.D. 17, ¶ 32, 989 N.W.2d 525, 536 (noting that

“propensity evidence ‘cannot be used to prove conduct through an inference about

the [individual]’s character, i.e., a general propensity to commit assaults’”

(alteration in original)). For these reasons, we conclude that the circuit court

abused its discretion in admitting this testimony.

[¶40.] When considering whether Rouse was prejudiced by the erroneous

admission of this testimony, we must assess the overall evidence admitted during

trial and how the erroneously admitted testimony was used by the State. Although

the State did not mention why Rouse was in jail in its opening statement, in its

closing argument to the jury, the State began its discussion of the evidence by

noting that Rouse was housed in the area for “maximum custody high-risk

inmates.” The State further noted that officers “Petrak, Knowlton, and Billings

knew that the [d]efendant was in custody on charges of aggravated assault” and CO

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Billings testified that “he believed it to be for a stabbing.”4 No limiting instruction

was given to the jury explaining the permissible and impermissible uses of this

evidence, as would occur when evidence is properly admitted as other acts under

Rule 404(b). See State v. Wright, 1999 S.D. 50, ¶ 17, n.6, 593 N.W.2d 792, 800 n.6.

Thus, the jury could have decided to use the evidence for any purpose. And because

the jury was properly instructed that the victims’ actual fear need not be proven,

there is a reasonable probability the jury may have improperly considered Rouse’s

other aggravated assault charge as evidence of a character trait or a propensity to

commit violent crimes.

[¶41.] Further, while the other evidence relating to Rouse’s physical acts

here, when viewed in conjunction with his threatening statements, was sufficient to

support a guilty verdict on the aggravated assault counts, the question whether this

conduct constituted a physical menace is a close call. The video recording played for

the jury does not contain any audio; it shows only the backside of Rouse, and it is

hard to see the pencil Rouse was holding or the manner in which he was holding it.

Defense counsel made a strong argument to the jury, based on what can be seen on

the video, that Rouse was simply holding a two-and-half-inch pencil, an item all

inmates are allowed to possess, with his arms at his side, and that he never

brandished it in a manner constituting a physical menace. From our review of the

4. Our review of the record reveals that CO Knowlton did not testify about his
knowledge of the reason Rouse was in custody. CO Hesse, the alleged victim
in the other incident that occurred on February 25, testified that Rouse was
in custody on two aggravated assault warrants, even though the State’s other
acts motion, and the court’s ruling, only pertained to one of Rouse’s pending
aggravated assault cases, CRI22-564.
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record, we conclude that there is a reasonable probability that the jury would have

reached a different outcome if the testimony about Rouse being in jail for an

aggravated assault involving an alleged stabbing had not been admitted. See

Carter, 2023 S.D. 67, ¶ 26, 1 N.W.3d at 686. We therefore conclude Rouse was

prejudiced by the erroneous admission of this testimony such that a reversal and

remand for a new trial on the aggravated assault counts is warranted.5 Because the

remaining jury instruction issues may arise again on retrial, we address those

issues below.

4. Whether the circuit court abused its discretion when
instructing the jury.

[¶42.] Rouse contends the circuit court abused its discretion when it gave

Instruction 15 and Instruction 21 to the jury. It is well settled that:

[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. However, when the question is
whether a jury was properly instructed overall, that issue
becomes a question of law reviewable de novo. Under this de
novo standard, we construe jury instructions as a whole to learn
if they provided a full and correct statement of the law.

State v. Pfeiffer, 2024 S.D. 71, ¶ 38, 14 N.W.3d 636, 647 (quoting State v. Black

Cloud, 2023 S.D. 53, ¶ 50, 996 N.W.2d 670, 683).

5. It appears that Rouse’s claim of prejudice regarding this issue pertains only
to the aggravated assault charges. Because he does not contend that there is
a reasonable probability the jury would have rendered a different verdict on
the misdemeanor charge of threatening a law enforcement officer, we limit
the remand and retrial to the felony aggravated assault counts.
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Instruction 15

[¶43.] Here, the State was required to prove the elements of aggravated

assault, including that:

1. Defendant attempted to put [the law enforcement officer]
in fear of imminent serious bodily injury,

...

4. Defendant did so by means of a physical menace with a
deadly weapon.

[¶44.] In State v. Scott, after noting these elements, this Court addressed

Scott’s argument that his motion for judgment of acquittal was erroneously denied

because the alleged victim was never in fear. In rejecting his argument, we

provided the following explanation:

Physical menace “requires more than words: there must be some
physical act on the part of the defendant.” [R.L.G., 2005 S.D.
119, ¶ 10, 707 N.W.2d at 261]. However, the State need not
prove “actual fear of imminent serious bodily harm.” State v.
LaCroix, 423 N.W.2d 169, 170 (S.D. 1988). Rather, an attempt
to put another in fear exists when the defendant does “any act
toward the commission of the crime but fails or is prevented or
intercepted in the perpetration thereof.” R.L.G., 2005 S.D. 119,
¶ 9, 707 N.W.2d at 261 (quoting State v. Schmiedt, 525 N.W.2d
253, 255 (S.D. 1994)).

2019 S.D. 25, ¶ 19, 927 N.W.2d at 127.

[¶45.] Rouse proposed a jury instruction that included just the first sentence

from this quoted portion of our Scott opinion regarding physical menace: “Physical

menace requires more than words: there must be some physical act on the part of

the defendant.” The circuit court denied Rouse’s instruction as drafted. While the

court agreed that the jury should be instructed on this principle, the court

determined the jury should be instructed on “the whole law” and, thus, included not

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only the first sentence but also the remaining two sentences of this paragraph from

Scott, as reflected in final Instruction 15.

[¶46.] Rouse claims the additional sentences should not have been included

but he does not contend this additional language is an incorrect statement of the

law. The circuit courts are afforded discretion in determining the wording and

arrangement of the instructions and we find no abuse of discretion in the court’s

reliance on this language from Scott when including this additional language to

assist the jury in assessing the evidence presented.

[¶47.] However, we note that the last sentence from the Scott quote above

could cause confusion as to what must be proven to establish the elements of an

aggravated assault charge under SDCL 22-18-1.1(5). This statement in Scott

originates from prior cases in which this Court was citing language found in SDCL

22-4-1, the general attempt statute that provides the punishment for one who

attempts to commit a crime. See, e.g., Schmiedt, 525 N.W.2d at 255. But

aggravated assault by physical menace, as defined in SDCL 22-18-1.1(5), is not the

same as an attempt to commit some other crime (e.g., a physical assault) that was

prevented or intercepted. Instead, the crime of aggravated assault under SDCL 22-

18-1.1(5) is completed when a person attempts to put another in fear of imminent

serious bodily harm, and does so by means of a physical menace with a deadly

weapon.

[¶48.] It is apparent that our prior cases addressing charges of assault by

physical menace quoted the language in SDCL 22-4-1 to reinforce the point that the

State need not prove that a defendant succeeded in the attempt to put another in

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fear. However, to establish aggravated assault by physical menace, the State is not

required to prove that a defendant “fail[ed]” or [was] prevented or intercepted in the

perpetration” of some other crime; the inclusion of such language in a jury

instruction could incorrectly suggest that these are elements which must be proven.

Nevertheless, the inclusion of such language here was not prejudicial to Rouse. If

anything, it incorrectly suggested that the State must prove an additional element,

i.e., that Rouse attempted to put the officers in fear but failed or was prevented or

intercepted from doing so.

Instruction 21

[¶49.] Rouse also challenges the court’s decision to give Instruction 21, a

pattern instruction regarding admissions and confessions. The transcript suggests

that the parties and the court had an off-the-record discussion regarding whether

this pattern instruction should be modified to remove the word confession, but the

final instructions settled on the record did not include such a modification to

Instruction 21. Rouse’s counsel objected to this instruction on the basis that it

would be confusing to the jury. The State argued it was appropriate in light of the

apology that Rouse made to CO Petrak about an hour after the incident on January

13.

[¶50.] On appeal, Rouse argues the instruction should not have been given,

as the jury may have been led to assume that Rouse’s comment to CO Petrak rose to

the level of a confession and thus was enough to convict.

[¶51.] Instruction 21 stated, in part,

An admission is a statement by a defendant admitting one or
more of the facts at issue. It is not sufficient by itself to prove

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guilt of the crime charged, but it may prove one or more of the
elements of the crime charged.

A confession is a statement by a defendant which admits every
element of the crime charged, thus admitting guilt of the crime
charged.

[¶52.] This jury instruction also advised the jurors that they were “the

exclusive judges as to whether a confession was made by the defendant and if the

statement is true[,]” and that it was for the jury “to determine what weight, if any,

to give to a purported admission or confession.” The instruction further advised the

jury that “[t]he guilt of a defendant may not be established only by any admission or

confession[.]” Based on the instruction, it was for the jury to determine whether

any such confession (or admission) occurred in this case, and if so, what weight to

assign it. We conclude that, while it would not have been an abuse of discretion to

delete the pattern instruction’s reference to a confession under the circumstances

here, because Instruction 21 makes it clear that it is up to the jury to decide

whether or not a statement is in fact a confession, the circuit court did not err nor

abuse its discretion in giving this instruction as written.

[¶53.] We affirm in part, reverse in part, and remand for a new trial on the

aggravated assault counts.

[¶54.] JENSEN, Chief Justice, and KERN, SALTER, and MYREN, Justices,

concur.

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