State v. Warfield

#30929-a-RG
2026 S.D. 20

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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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

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THE HONORABLE CHERYLE W. GERING
Judge

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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
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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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