State v. Rogers

#30588-a-JMK
2025 S.D. 18

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

DREAU LESTER ROGERS, Defendant and Appellant.

****

APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA

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THE HONORABLE MICHAEL W. DAY
Judge

****

ROBERT J. ROHL
Rapid City, South Dakota Attorney for defendant
and appellant.

MARTY J. JACKLEY
Attorney General

ERIN E. HANDKE
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.

****

ARGUED
OCTOBER 1, 2024
OPINION FILED 03/12/25
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KERN, Justice

[¶1.] A jury convicted Dreau Rogers for the second-degree murder of his

wife, Destiny Rogers, and of several additional offenses. He was sentenced to life in

prison. The tenet of Rogers’s defense at trial was that Donovan Derrek, an alleged

third-party perpetrator, shot and killed Destiny. Rogers appeals alleging that the

circuit court erred by denying his motion for judgment of acquittal and by failing to

give Rogers’s requested spoliation instruction which he claims was warranted by

the State’s failure to properly analyze the data on Derrek’s phone before returning

it to him. He contends that the return of Derrek’s phone without notice to the

defense, and its subsequent destruction, constituted a due process violation under

the Fourteenth Amendment to the United States Constitution because he was

denied material and potentially exculpatory evidence—namely the location data

from Derrek’s phone at the time of the murder. We affirm.

Factual and Procedural Background

[¶2.] Around 9:00 a.m. on January 21, 2022, Destiny Rogers went to the

Common Cents Convenience Store in Spearfish. Destiny asked Carolyn Neimi, the

store manager, if she could charge her phone while she waited for a cab to take her

to Rapid City. Neimi testified that Destiny talked on the phone with her husband,

Dreau Rogers, and it sounded as though they argued. Destiny told Rogers that she

was going to pick up her car in Rapid City and was waiting for a cab. Neimi

indicated that Destiny was “very adamant that she would not be riding with

[Rogers]” to pick up her car and that she “made a comment about his attitude not

being right.” Rogers arrived at Common Cents and prepaid for gas at 9:33 a.m.

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Destiny briefly got in Rogers’s car, but then re-entered Common Cents at 9:35 a.m.

and Rogers left. Destiny stayed in the area of the Common Cents until

approximately 10:00 a.m. before she left.

[¶3.] Later that evening, Destiny was at Rogers’s house in Spearfish. They

were alone in the house, sitting on the couch in the living room. Rogers contests

what happened next. However, “we restate the evidence and testimony ‘in a light

most favorable to the jury’s verdict.’” State v. Seidel, 2020 S.D. 73, ¶ 2, 953 N.W.2d

301, 305 (citation omitted).

[¶4.] At 12:48 a.m. on January 22, 2022, Rogers called 911 requesting an

ambulance. When the dispatcher asked for additional information, Rogers simply

urged the dispatcher to hurry and stated that he would explain when help arrived.

Officer Hunter Bradley arrived first on scene and was ushered into the house by

Rogers, who was visibly sweating and out of breath, despite it being cold outside.

Once inside, Officer Bradley discovered Destiny lying on the living room floor,

motionless. It appeared that she had been shot in the upper right arm and was not

breathing. Rogers told Officer Bradley that he had attempted CPR before Officer

Bradley arrived. However, when Officer Bradley started chest compressions, he felt

Destiny’s ribs and cartilage pop which he later explained were indicia that CPR had

not previously been done. The ambulance arrived and transported Destiny to the

hospital where she was pronounced dead.

[¶5.] Rogers was interviewed by law enforcement officers at the scene and

immediately identified Donovan Derrek as the shooter. He stated that Derrek came

to the house, and they got into an argument. Rogers reported that he turned to

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walk away, heard a noise, and then saw Destiny fall to the ground. Rogers told law

enforcement that he believed Derrek intended to shoot him but missed and hit

Destiny. After the gunshot, Rogers stated that Derrek fled out the back door, which

was the main door to the residence, and left the area in a Mazda 6 vehicle.

[¶6.] Law enforcement completed a search of Rogers’s residence pursuant to

a search warrant and discovered two firearms: a holstered .45 caliber

semiautomatic handgun located under a wooden landing in the backyard, and a .22

caliber revolver found in a dresser drawer. The search also revealed a wooden box

on the kitchen counter containing a bag of .45 caliber bullets. The .45 found under

the landing had a magazine containing several unspent bullets and a round in the

chamber.

[¶7.] Law enforcement transported Rogers to the Spearfish Police

Department for further questioning. At the time, law enforcement did not believe

that Rogers was a suspect. He was not arrested and was interviewed as a witness.

Over the course of several hours, Rogers was interviewed four times. 1 Some

portions of Rogers’s rendition of the events of the evening remained consistent

throughout the interviews. He reported that he and Destiny were home alone

sitting on the couch in the living room when Derrek knocked “aggressively” on the

door. Rogers stated that although he and Destiny were married, they had not been

speaking to each other for six months. He explained that they had recently

1. Rogers was not handcuffed and had access to his cell phone in the interview
room during all four interviews. At the beginning of the third interview,
Rogers was advised of his rights under Miranda and he agreed to waive his
rights and speak to the officers. Rogers was again reminded of his rights at
the beginning of the fourth interview.

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reconciled, and that they were “happy” and not fighting that evening. Rogers

claimed that he did not have firearms or ammunition in the house and that he and

Destiny were not using drugs. 2

[¶8.] Other parts of Rogers’s story changed throughout the interviews,

particularly Derrek’s location in the house at the time the shot was fired. Rogers

reported in the first two interviews that Derrek fired the shot while standing in the

doorway at the entrance to the house. In the third interview, Rogers placed Derrek

further inside the house. He stated that when Derrek came in the door, Rogers was

standing where the carpet meets the linoleum, 3 and the gun was “probably, with

[Derrek’s] reach, um, I mean he’d have had to have been basically -- basically right

next to me.” In the fourth interview, Rogers stated that Derrek was inside the

house, standing “right where the carpet meets the linoleum” when he fired the shot.

[¶9.] Rogers also provided inconsistent statements about the gun used by

Derrek. Initially, Rogers stated that he did not see Derrek pull out the gun because

he was turning to walk away when Derrek pulled the trigger. However, later,

Rogers stated that he saw Derrek pull the gun out of his pocket before the shot was

fired. Rogers also initially stated that he did not know Derrek had firearms, but

2. Evidence at trial established that these statements were not true. Both
Destiny and Rogers had methamphetamine in their systems and law
enforcement discovered a .22 pistol and a bag of .45 caliber ammunition
inside Rogers’s house while executing the search warrant.

3. Photographs of Rogers’s house show that entry into the house through the
back door leads directly to the kitchen which has a linoleum floor. Several
feet inside, the flooring transitions to carpet where the kitchen meets the
living room.

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later, Rogers stated that he had seen the gun before, and that Derrek previously

tried to sell Rogers a gun.

[¶10.] Meanwhile, the Special Response Team (SRT) was called from Rapid

City to apprehend Derrek. SRT responded with an “all team callout” including

twenty “entry guys,” eight snipers, dispatch, and crisis negotiators. The SRT

believed that Derrek was at his house and that there were two children inside. The

crisis negotiators coordinated with the children’s grandparents to bring them out of

the home prior to apprehending Derrek. Derrek noticed his children leaving the

home and followed them out, where he was apprehended without incident by

Detective Chad Sayles and transported to the Spearfish Police Department.

[¶11.] Detective Sergeant Steve Hofman and Detective Shawn Fox with the

Spearfish Police Department interviewed Derrek and did not initially tell him why

he had been arrested or about Destiny’s death. Derrek told the officers that he

could not believe a SWAT team was used to make an arrest for a “dope” offense.

Derrek openly admitted that he was a methamphetamine addict, pointing to his

arms and legs which were covered with sores and bruises. 4 The detectives asked

Derrek to explain where he was during the evening hours of January 21 through

the early morning hours of January 22. Derrek stated, “I just told that cop, this is

gonna be embarrassing when you find out where I was last night . . . I was at some

dude’s house getting my dick sucked cause I was high on meth.”

4. Special Agent Cody Lineberger took photos of the bruises on Derrek’s legs
and small cut marks on Derrek’s forearms. Special Agent Lineberger
testified that Derrek told him the cuts and marks were from intravenous
drug use.

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[¶12.] When asked about his whereabouts earlier on January 21, Derrek

reported that he went to Rogers’s house around 11:00 a.m. because he had not

heard from Rogers in a week and a half, which was unusual. Derrek knocked on the

back door twice and knocked on Rogers’s bedroom window, with no response.

Derrek left without seeing Rogers and drove to a mutual friend’s house, where

Derrek got a more recent phone number for Rogers. Derrek called Rogers later that

night, between 9:00 p.m. and 10:00 p.m., and Rogers stated that he was busy and

would call him back.

[¶13.] Derrek told the detectives that throughout the day on January 21, he

was texting and messaging Alan Reddy, a man he met on Grindr, a dating site, two

days prior. They arranged to meet at Reddy’s house for a sexual encounter that

evening. Derrek said that he went to Reddy’s house around 11:30 p.m. on January

21 and left around 1:20 a.m. on January 22. When Detectives Hofman and Fox

revealed that they were investigating a murder that occurred at 12:48 a.m., Derrek

said, “check my phone . . . my phone says exactly where I was and what I was

doing.” 5

[¶14.] Law enforcement interviewed Reddy at his home later in the morning

on January 22. Reddy relied on the text messages between himself and Derrek to

establish a timeline. He stated he was visiting a friend in Rapid City and got back

to his house at approximately 10:50 p.m. on January 21. Reddy indicated that at

11:50 p.m., Derrek texted that he was leaving his house and Derrek arrived at

5. All three of Derrek’s recorded interviews were published to the jury. The
first two interviews were conducted on January 22 and the third interview
was conducted on January 28.

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Reddy’s shortly after because he lived only two or three blocks away. Reddy

initially estimated that Derrek was at the house for about an hour and believed that

Derrek left at 12:45 a.m. or 12:50 a.m. However, Reddy recalled that he had taken

a picture of Derrek’s penis right before Derrek left. When reviewing the timestamp

on the photo, Reddy stated, “I am off on my time” because the photo was taken at

1:23 a.m. and Derrek left Reddy’s house shortly after the picture was taken. Reddy

allowed law enforcement to take photos of the messages he and Derrek sent back

and forth that evening and early morning. The texts also revealed that at 1:42 a.m.,

Derrek texted Reddy thanking him for the evening and referencing the sexual

encounter.

[¶15.] Derrek was subsequently released from custody. On January 27,

Reddy again met with law enforcement, and reported that Derrek showed up at

Reddy’s house on January 26 and apologized for getting Reddy involved. In the

interview, Reddy stated that Derrek told him that he and Rogers had been in a

“physical altercation” on January 21, but Reddy did not know what the fight was

about or where it occurred.

[¶16.] On February 2, 2022, Rogers was indicted by a Lawrence County

grand jury on eleven counts, namely: Count 1: first-degree murder or, in the

alternative, Count 1A: second-degree murder; Count 2: possession of a firearm by a

person with a prior felony drug conviction (.45 caliber pistol); Count 3: possession of

a firearm by a person with a prior felony drug conviction (.22 caliber pistol); Count

4: possession of a firearm with altered serial number; Counts 5 and 6: commission of

a felony armed with a firearm; Count 7: possession of a controlled substance

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(methamphetamine); Count 8: possession of more than five grams of

methamphetamine with intent to distribute or, in the alternative, Count 8A:

possession of a controlled substance (methamphetamine) with intent to distribute;

Count 9: possession of a controlled substance (clonazepam); Count 10: ingestion of a

controlled substance (methamphetamine); and Count 11: possession of a controlled

substance (amphetamine). The State filed a part II information, alleging four prior

felony convictions. On Rogers’s motion, the circuit court severed counts 6, 7, 8, 9,

and 11.

[¶17.] The State filed a motion in limine requesting that Rogers disclose any

third-party perpetrator evidence before trial. Rogers filed a written response

disclosing Derrek as an alleged third-party perpetrator. The circuit court held a

hearing on the issue and determined the third-party perpetrator evidence was

admissible under SDCL 19-19-401 and SDCL 19-19-403. The State also moved to

admit evidence of other acts, pursuant to SDCL 19-19-404(b), involving Rogers’s

threats of domestic violence against Destiny. The circuit court granted the State’s

motion in part and denied it in part, admitting certain text messages from Rogers to

Destiny dated October 8, 2020.

[¶18.] During a nine-day jury trial, the State called thirty witnesses and

admitted 123 exhibits in its case-in-chief. Rogers called no witnesses but presented

his theory of the case through cross-examination of the State’s witnesses and by

challenging the veracity of the State’s evidence. In addition to the recorded

interviews of Rogers, Derrek, and Reddy, the State presented testimony from law

enforcement officers, a pathologist, analysts, and forensic scientists.

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[¶19.] Forensic pathologist Dr. Don Habbe conducted an autopsy on Destiny’s

body. He explained that the bullet entered Destiny’s right arm. Dr. Habbe

identified abrasion marks on the skin surrounding the bullet hole which were

independent of the marks created by friction when the bullet passed through the

skin. He specifically highlighted two marks which he testified were “caused by the

tip of the [gun] barrel.” These marks led Dr. Habbe to conclude that “when the

trigger [was] pulled . . . the gun [was] very close to [Destiny’s] arm.” Dr. Habbe

stated that the bullet created a “straight across” wound meaning that once fired, the

bullet went through Destiny’s right arm, fracturing it, then hit her right lung,

aorta, and left lung. He recovered the bullet from the soft tissue in the left side of

her chest. Dr. Habbe determined that the cause of death was a gunshot wound to

the chest. 6

[¶20.] Sergeant Kevin Kinney from the South Dakota Highway Patrol

captured a 3D scan of Rogers’s home. He explained that the scan creates a “digital

twin” of the scene so that distances can later be measured. At the State’s request,

Sergeant Kinney measured the distance from the door frame, where Rogers initially

reported Derrek was standing when he fired the shot, to where Destiny’s body was

located, which was approximately 22 feet. Sergeant Kinney also measured the

distance from where the linoleum met the carpet, where Rogers reported Derrek

was standing in his later interviews, to where Destiny’s body was located, which

6. A toxicology screen of Destiny’s blood revealed that she had
methamphetamine and amphetamine in her system at the time of her death.
Dr. Habbe reviewed the toxicology report and testified that the results did
not alter his determination of cause of death.

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was approximately 11 feet. Outside Rogers’s home, Sergeant Kinney measured the

distance between the back door and the location where the .45 was found, which he

testified was between 39 and 40 feet.

[¶21.] During the investigation, law enforcement gathered video surveillance

from businesses located near Rogers’s home including from Juneks car dealership,

Common Cents, and Black Hills State University. Detective Fox testified that the

Juneks video showed a section of St. Joseph Street in Spearfish, which was the

most-direct path from Rogers’s house to Derrek’s house. Detective Fox reviewed the

footage and testified that he did not see a vehicle matching the description of

Derrek’s Mazda 6 pass by in the time surrounding the 911 call. The State also

called Carol Latusek, Lawrence County Clerk of Court, to lay the foundation

necessary for admission of certified copies of documents establishing Rogers’s prior

felony drug conviction. Forensic Chemist Jeremy Kroon testified that he received

blood and urine samples from Rogers and tested them for the presence of drugs.

Kroon testified that both samples contained methamphetamine.

[¶22.] Forensic Scientist Patrick Jones testified that he conducted forensic

gunshot residue (GSR) tests on the samples obtained from Rogers’s and Derrek’s

hands at the time they were first detained or arrested. Both Rogers’s and Derrek’s

GSR kits included samples taken from the palm and backside of their left and right

hands. Jones testified that both Rogers and Derrek had GSR particles on their

samples.

[¶23.] Jones explained that GSR can get on a sample in three ways: a person

fires a gun, is near a gun when it is fired, or GSR is transferred from one surface to

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another. GSR particles do not biodegrade but can be washed away or broken into

smaller particles that can no longer be identified as GSR.

[¶24.] The State presented a theory at trial that the GSR on Derrek’s hands

was transferred from another source. The State called Detective Sayles, the officer

that arrested Derrek and handcuffed him by securing his hands behind his back.

Detective Sayles testified that his SRT uniform included a pair of gloves that he had

owned for approximately nine months to a year prior to Derrek’s arrest. During

this time, Detective Sayles wore the gloves during SRT training, including firearms

training, and anytime that SRT responded to a call. The gloves were admitted as

evidence but were never tested to determine whether they contained GSR. The

State argued to the jury that GSR particles transferred from Detective Sayles’s

gloves to Derrek’s hands when Derrek was arrested.

[¶25.] Law enforcement executed a search warrant on Verizon to obtain the

call detail records (CDR) from Rogers’s and Derrek’s cell phones. The data was then

sent to Special Agent Sean Kennedy, an FBI analyst, for examination. He

explained that CDR is maintained by cellular providers and shows the connections

made between cell phones and cell towers. Special Agent Kennedy testified that

due to the delay in issuing the search warrant to Verizon, the data he received was

limited to “dropped calls,” meaning that a phone call or text message originated

from the cell phone, but failed and did not connect to another device on the other

end.

[¶26.] For Derrek’s phone, the CDR data showed that the phone connected to

the cell tower nine times between 10:18 p.m. and 10:47 p.m. on January 21. For

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each of these connections, Derrek’s phone was between 2 and 2.1 miles from the cell

tower. Between 1:45 a.m. and 1:52 a.m., Derrek’s phone connected to the same cell

tower five times and was again located between 2 and 2.1 miles from the tower.

Special Agent Kennedy testified that although he could not pinpoint a specific

location based on the CDR data alone, the data was consistent with Derrek being at

his house during the identified periods. Special Agent Kennedy acknowledged that

because there was no data between 10:47 p.m. on January 21 and 1:45 a.m. on

January 22 he could not opine on the location of Derrek’s cell phone during that

time based on the CDR data alone. However, Special Agent Kennedy testified that

he also reviewed the text messages between Reddy and Derrek which in

combination with the CDR data led him to opine that Derrek’s phone was likely at

Reddy’s house when Destiny was shot.

[¶27.] Law enforcement also sent Derrek’s, Rogers’s, and Reddy’s cell phones,

along with several other devices, to the Internet Crimes Against Children (ICAC)

office in Rapid City for a physical extraction of the data stored on the devices.

Detective Matthew Almeida testified about the process for extracting data from cell

phones and explained that law enforcement relies on technology to bypass a device’s

security features, but that the technology is typically six months behind the

development of new security features by cell phone manufacturers. Accordingly,

Detective Almeida testified that the amount of data that can be extracted from a

cell phone is largely dependent on the phone’s make and model.

[¶28.] Detective Almeida explained that he extracted, or attempted to

extract, the data from Rogers’s, Derrek’s, and Reddy’s cell phones. From Rogers’s

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phone, Detective Almeida testified that he obtained a limited extraction that

included only text messages, phone calls, images, and videos. Detective Almeida

obtained a “really thorough” extraction from Reddy’s phone, including the messages

between Reddy and Derrek sent on the Grindr app. However, Detective Almeida

testified that Grindr does not store historical location data. Detective Almeida

attempted to do an extraction of Derrek’s phone but was not given the password and

the phone “wasn’t supported on any tool [he] had access to.”

[¶29.] On cross-examination, Rogers inquired about the type of location data

that can be stored on cell phones. Detective Almeida explained that cell phones

may contain location data, but that extracting the data requires “a perfect storm” of

favorable conditions. He explained that for a full extraction the user must have

applications on the phone that utilize the user’s location and the user must have

authorized the application to track their location.

[¶30.] After the unsuccessful attempt to extract the data from Derrek’s

phone, it was returned to the Spearfish Police Department along with several other

devices on February 1, 2022, with an extraction report. Detective Hofman released

Derrek’s phone to him on February 16. In June 2022, Detective Hofman reviewed

the extraction report and learned that Detective Almeida was unable to extract the

data from Derrek’s phone. Detective Hofman then applied for and received a second

search warrant for the phone. However, shortly after Derrek got his phone back in

February, he disposed of it at a Walmart kiosk for $2.00. Regardless, the phone

Derrek owned in June 2022 was seized and extracted pursuant to the second search

warrant, but the extracted data was not relevant to the investigation of the crime.

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[¶31.] On cross-examination, Detective Hofman acknowledged that his

decision to return Derrek’s phone without first notifying Rogers violated SDCL 23A-

37-15. He agreed with Rogers that he was responsible for reviewing the extraction

report and failed to do so until after he had returned the phone to Derrek.

Detective Hofman explained that when he returned the phone, he no longer

believed that Derrek was involved in Destiny’s murder and did not want to keep his

property longer than necessary.

[¶32.] The State also called three witnesses who conducted forensic testing on

the .45, magazine, holster, spent cartridge casing, and the bullet recovered from

Destiny’s body. First, Forensic Scientist Ashley Bullock testified that she analyzed

the evidence for DNA. Bullock received known DNA samples from Rogers, Derrek,

and Destiny. She testified that Rogers’s DNA was identified on the textured grip of

the .45, the edges of the holster, the seven cartridges inside the magazine of the .45,

and on the edges of the magazine itself. Neither Rogers’s nor Derrek’s DNA was

found on the spent .45 cartridge casing. Derrek’s DNA was not positively identified

on the grip of the .45, holster, magazine, or cartridges inside the magazine.

However, Bullock testified that there was a minor DNA contributor on the holster,

cartridges inside the magazine, and the magazine itself but the DNA profile was too

complex to compare, so she could not scientifically exclude Derrek’s DNA as a

contributor on these items. Bullock collected a swab from the tip of the barrel of the

.45 and testified that Destiny’s DNA was present.

[¶33.] Additionally, the State called Forensic Scientist Adam Dolezal who

conducted a forensic examination of the .45 and .22 caliber weapons. Dolezal first

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testified about the ammunition found in the bag in Rogers’s kitchen. He explained

that all of the bullets were for a .45 automatic caliber gun. There were three

different types of bullets in the bag: Federal Hydra-Shock bullets which have a

hollow point and a post inside the point, round-nose bullets with a full metal jacket,

and flat-nose bullets with a total metal jacket. Dolezal then compared the bullets in

the bag to the unspent bullets in the magazine of the .45. Dolezal testified that

there were Federal Hydra-Shock bullets in both the bag and the magazine. He also

testified that the flat-nose bullets in both the bag and the magazine appeared to

have been remanufactured. 7

[¶34.] Dolezal testified that the bullet recovered from Destiny’s body was a

.45 caliber flat-nose bullet with a total metal jacket. He testified that the bullet was

“similar in design and material and composition” to the bullets he examined from

the bag and those in the magazine. When he compared the bullet to the .45 found

under the wooden landing, he testified that the “class characteristics” matched.

Specifically, he identified the “number of grooves and the rifling of the barrel and

the width of the land and grooves is the same.” However, because there was

damage to the surface of the bullet extracted from Destiny’s body, he could not

identify sufficient “individual characteristics” to either identify the .45 as the

firearm that fired the fatal bullet or eliminate it.

[¶35.] Similarly, Dolezal examined the spent shell casing found near

Destiny’s body which he testified was a .45 caliber fired cartridge case head

7. Dolezal explained that it is common for companies to take discharged
cartridge cases and reload the case with their own bullets. When that occurs,
there will be various headstamps on the cases.

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stamped “Federal .45 auto.” He testified that there were similarities in the class

characteristics between the casing and the .45 8 but not enough to make a conclusive

identification from the ballistic evidence alone that the .45 was the murder weapon.

[¶36.] Dolezal testified that when he examined the .45, he saw that the serial

number was obliterated. He explained that he was able to chemically etch the

metal plate where the serial number was originally stamped, which ultimately

allowed him to determine the firearm’s serial number. 9

[¶37.] Additionally, the State called Forensic Scientist Kristin Walti who

analyzed the evidence for fingerprints. Walti testified that she found a fingerprint

on the spent shell casing found near Destiny’s body, which was identified as

Rogers’s left pinky finger. Walti also analyzed the .45, magazine, and seven

unspent cartridges from the magazine, but was unable to find any prints suitable

for comparison.

[¶38.] The State also called former Spearfish Police Officer Andrew Pearson

who introduced text messages sent by Rogers to Sterling Copas on June 27, 2021, in

8. Dolezal testified that the .45 had a hemispherical firing pin and the imprint
on the shell casing was also hemispherical. Within the firing pin, there are
concentric rings, which also appeared on the casing.

9. Dolezal explained that when a serial number is stamped, “the crystalline
structure of the metal changes” underneath the stamped area and the area
that has been stamped is harder than the area that has not been stamped.
The chemical etching affects the area that was not stamped, allowing the
stamped area to be seen.

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which Rogers inquired about where to purchase a gun. 10 Rogers stated, “If u hear

of a gun let me know I don’t have money but my soul would probably be set free lol

jk.” Copas responded, “Not sure ……I can ask around.” Rogers replied, “I mean I’m

pretty sure I’d use it weather [sic] on myself or someone but na I better not once I

get some cash lined up I probably will tho.”

[¶39.] The State also presented testimony regarding a history of domestic

conflict between Rogers and Destiny offering, through the testimony of Officer

Bradley, the text messages sent by Rogers to Destiny on October 8, 2020. The

following messages sent by Rogers to Destiny were read to the jury:

• “Im gonna fucking kill u”
• “I hate u and i wanna make u feel the same as i do you little
bitch”
• “I wanna punch u in the fucking face intel [sic] all ur teeth
are in ur stomach”
• “U better watch ur fucking self cause i sware im gonna get u
bitch”
• “I hope u know u hurt me and im tierd of hurting i think
beating ur fucking face is the onky [sic] thing thats gonna
make u stop hurting everyone around u”
• “I wanna put u in the ground where u belong”
• “Is that crazy enough for u yet”
• “Do u need me to actually do that shit to get my point across”
• “I can be that guy if u need”
• “Id reallt [sic] like to get on one are u gonne help me or do i
need to prove that I am crazy and come to ur house”

10. Outside the presence of the jury, Rogers stipulated to the foundation for this
exhibit. It appears that Rogers’s cell phone was previously seized incident to
an unrelated arrest and was extracted, revealing the text messages.

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[¶40.] The State’s final two witnesses were Derrek and Reddy. 11 Derrek

testified that he met up with Reddy three times on January 21—first, around 5:30

a.m. where they had a sexual encounter, again around 2:30 p.m. to borrow twenty

dollars, and finally around 11:30 p.m. Consistent with his prior interviews, Derrek

testified that during the 11:30 p.m. meet-up, they engaged in oral sex and Derrek

left Reddy’s house between 1:20 a.m. and 1:30 a.m. on January 22. When asked

about the bruises and marks on his body on January 22, Derrek explained, “[t]hey

were from trying to shoot dope. And the best way to do it, if you can’t find a vein, is

to use a flashlight and try to find a vein somewhere. You end up missing and that

blood goes and causes a bruise.”

[¶41.] Derrek also testified about his contacts with Rogers on January 21. He

stated that he went to Rogers’s house around 11:00 a.m. but did not see or talk to

Rogers. Later that night, Derrek called Rogers and testified that Rogers said he

was busy and would call back later. After the call, Derrek texted Rogers and said,

“We need to meet face to face…ASAP.” But Derrek testified that he did not actually

see Rogers that day.

[¶42.] Contrary to Derrek’s testimony, Reddy testified that Derrek did not

come to his house in the early morning on January 21. During his testimony, Reddy

read the text messages between himself and Derrek. He testified that he texted

Derrek “I’m home” at 11:27 p.m. on January 21. Derrek responded, “Okay. About

15 minutes. Almost got it,” referencing Derrek’s attempt to inject

11. Derrek acknowledged that he had an immunity agreement from the State
regarding this testimony at trial.

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methamphetamine into a vein. At 11:53 p.m., Derrek told Reddy that he was

walking out his door and Reddy testified that Derrek arrived at his house “[v]ery

shortly after that.” Reddy testified that he took a photo of Derrek’s penis at 1:23

a.m. and believed Derrek left 10-15 minutes later. At 1:42 a.m., Derrek texted

Reddy, “Goodnight…thanx and i apologize for not cumming, you were terrific so

dont for one second think it was your fault, u went above and beyond…” Reddy

testified that Derrek remained at Reddy’s house from the time he got there to the

time he left.

[¶43.] Reddy recalled the conversation he had with Derrek on January 26.

Reddy stated that Derrek apologized for getting him involved in the case and said

that he and Rogers had been in an argument. Reddy assumed that the argument

occurred on January 21 before Derrek went to Reddy’s house but agreed that it was

an assumption and Derrek did not state when the argument occurred. Reddy also

testified that “[t]here was no mention of any kind of physical altercation,” contrary

to what Reddy reported to law enforcement in his second interview.

[¶44.] Reddy was cross-examined about the inconsistencies in his statements

regarding whether Derrek stated a physical altercation with Rogers had occurred.

Rogers also impeached Reddy by highlighting that Reddy told law enforcement that

he suspected Derrek was using drugs, when the text messages reveal that Derrek

told Reddy he was using drugs. Reddy acknowledged that the Grindr messages

indicated that he and Derrek engaged in sexual relations early in the morning on

January 21, but said he did not remember meeting and “there were times that we

just talked about meeting, but we never did. Many, many times.”

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[¶45.] The State rested, and Rogers made a motion for judgment of acquittal

on Counts 1, 1A, 2, 4, and 5. Rogers argued that the evidence was insufficient to

overcome Rogers’s defense that Derrek was the shooter. The circuit court denied

Rogers’s motion. Rogers rested without calling any witnesses. During the

settlement of the instructions, Rogers requested a spoliation instruction which the

circuit court denied.

[¶46.] The jury found Rogers not guilty of first-degree murder and guilty of

second-degree murder, two counts of possession of a firearm by a person with a

prior felony drug conviction, possession of a firearm with an altered serial number,

commission of a felony while armed with a firearm, and unauthorized ingestion of a

controlled substance. The circuit court sentenced Rogers to life in prison without

the possibility of parole for second-degree murder, two years in prison for each gun-

related conviction, and five years in prison for the unauthorized ingestion

conviction. Each sentence was ordered to run consecutively.

[¶47.] Rogers appeals, raising three issues, which we restate as follows:

1. Whether the circuit court erred by denying Rogers’s
motion for judgment of acquittal.

2. Whether the State violated Rogers’s due process rights by
returning Derrek’s phone before it had been properly
extracted.

3. Whether the circuit court abused its discretion by denying
Rogers’s request for a spoliation jury instruction.

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Analysis and Decision

1. Whether the circuit court erred by denying Rogers’s
motion for judgment of acquittal.

[¶48.] “The denial of a motion for judgment of acquittal is a question of law

we review de novo.” State v. Harruff, 2020 S.D. 4, ¶ 15, 939 N.W.2d 20, 25 (citation

omitted). “The standard is ‘whether the evidence was sufficient to sustain a

conviction.’” Id. (quoting State v. Klaudt, 2009 S.D. 71, ¶ 14, 772 N.W.2d 117, 122).

“When measuring the sufficiency of the evidence, we ask whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.”

Id. (cleaned up). “We accept the evidence and the most favorable inferences fairly

drawn therefrom, which will support the verdict.” Id. (quoting State v. Brim, 2010

S.D. 74, ¶ 6, 789 N.W.2d 80, 83). “This Court will not resolve conflicts in the

evidence, assess the credibility of witnesses, or evaluate the weight of the evidence.”

Id.

[¶49.] Rogers moved for a judgment of acquittal on five counts—1: first-

degree murder, 1A: second-degree murder, 2: possession of a firearm (.45 caliber

pistol) by a person with a prior drug felony, 4: possession of a firearm (.45 caliber

pistol) with altered serial number, and 5: commission of a felony while armed with a

firearm. Rogers did not include the ingestion of a controlled substance or the counts

relating to his possession of the .22 in his motion. Rogers was acquitted of Count 1,

first-degree murder, and thus only challenges the circuit court’s denial of the motion

with respect to the remaining counts.

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[¶50.] Rogers argues, as he did to the jury, that the proof of “five facts”

revealed the State’s inability to prove its case beyond a reasonable doubt: (1) the

police broke the law during the investigation; (2) the police gave material evidence

away; (3) the police contaminated important forensic evidence; (4) Derrek’s alibi is

“unquestionably weak”; and (5) “the material omissions of evidence.” Relying on

these alleged facts, Rogers challenges the sufficiency of the evidence to support the

verdict.

[¶51.] “A defendant is guilty of second-degree murder if he ‘perpetrate[s] . . .

any act imminently dangerous to others and evincing a depraved mind, without

regard for human life, although without any premeditated design to effect the death

of any particular person, including an unborn child.’” State v. Little Long, 2021 S.D.

38, ¶ 69, 962 N.W.2d 237, 259 (alteration in original) (quoting SDCL 22-16-7).

“‘Depraved mind’ is a ‘mens rea requirement involv[ing] less culpability than the

element of premeditation required for first-degree murder.’” State v. Larson, 2022

S.D. 58, ¶ 42, 980 N.W.2d 922, 933 (alteration in original) (citation omitted).

[¶52.] Although Rogers called no witnesses, he effectively cross-examined the

State’s witnesses to present evidence on each of his “five facts.” During cross-

examination, Rogers challenged the quality of Detective Hofman’s investigation.

Detective Hofman admitted when questioned that it was his responsibility to

comply with SDCL 23A-37-15 before returning Derrek’s cell phone and that he

failed to do so. 12 Detective Hofman also admitted that he did not make a report to

12. SDCL 23A-37-15 requires that law enforcement notify a defendant prior to
returning seized property to the owner.

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Child Protection Services despite having knowledge that Derrek was using

methamphetamine and had two minor children in his home. Rogers also questioned

many of the State’s witnesses about the proper procedure for collecting and storing

evidence and admitted photographs showing evidence being handled with dirty

gloves and evidence placed on surfaces without clean paper underneath to avoid

cross-contamination. Rogers impeached Derrek with prior inconsistent statements,

his criminal history, and his drug use. He highlighted to the jury the fact that

Derrek had gunshot residue on his hands. And he attacked Derrek’s alibi by

impeaching Reddy in several respects. Specifically, Rogers attacked Reddy’s

inconsistent statements regarding meetups with Derrek earlier in the day on

January 21 and Reddy’s recollection of Derrek’s statements on January 26

indicating that Derrek had an altercation with Rogers.

[¶53.] It was the jury’s responsibility, however, to examine the testimony and

evidence and accord to it the value it deserves. “[T]he jury is . . . the exclusive judge

of the credibility of the witnesses and the weight of the evidence.” State v.

Manning, 2023 S.D. 7, ¶ 27, 985 N.W.2d 743, 753 (citation omitted). The

weaknesses in the State’s case asserted in Rogers’s “five facts” are issues for the

jury to consider when judging the strength of the State’s case, the credibility of the

key witnesses, and the weight to be given to the evidence admitted. Contrary to

Rogers’s assertion, the proof of the “five facts” does not bear definitively on the

elements of the crimes for which he was convicted.

[¶54.] When considering the evidence in a light most favorable to the verdict,

it was reasonable for the jury to accept Derrek’s alibi and find Rogers guilty of

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Destiny’s murder. Rogers inconsistently recalled the details of the event and

ultimately, Rogers’s version of events was refuted by the forensic evidence

presented by the State’s witnesses. Most critically, Rogers placed Derrek no less

than 11 feet away from Destiny when he allegedly fired the shot. However, Dr.

Habbe’s opinion testimony established that the gun barrel was touching Destiny’s

arm when it was fired, and this was corroborated by the presence of Destiny’s DNA

on the tip of the barrel of the .45. Further, Rogers’s DNA was found in multiple

places on the firearm, holster, and ammunition, where Derrek’s DNA was not

found.

[¶55.] The October 2020 text messages show that Rogers previously

threatened to kill Destiny and six months prior to her murder, Rogers texted Copas

asking where to buy a gun. On the morning of January 21, Niemi testified that

Destiny and Rogers argued on the phone and Destiny “was very adamant” that she

would not get in the car with Rogers to travel to Rapid City.

[¶56.] Derrek’s alibi was supported by his text messages with Reddy planning

their sexual rendezvous, which established a timeline for the night. Derrek texted

Reddy that he was leaving his house at 11:53 p.m. on January 21 and both Derrek

and Reddy testified that he arrived at Reddy’s house shortly thereafter. Reddy took

a photo of Derrek’s penis at 1:23 a.m. on January 22 and testified that Derrek had

not left Reddy’s house before that time. They both agreed that Derrek left shortly

after the photo was taken and Derrek sent Reddy a text thanking him for the

evening at 1:42 a.m. While Rogers highlighted inconsistencies between Derrek’s

and Reddy’s testimonies regarding the existence of prior encounters on January 21,

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the evidence established that the two men were together from approximately 11:50

p.m. on January 21 until approximately 1:30 a.m. on January 22.

[¶57.] After viewing the evidence in a light most favorable to the verdict, a

rational trier of fact could have found that Rogers, and not Derrek, shot and killed

Destiny. See Harruff, 2020 S.D. 4, ¶ 49, 939 N.W.2d at 32. Based on our review of

the record, we conclude that the evidence was sufficient to support the conviction of

second-degree murder and the related convictions for possession of a firearm (.45

caliber pistol) by a person with a prior drug felony, possession of a firearm (.45

caliber pistol) with an altered serial number, and commission of a felony while

armed with a firearm. Accordingly, the circuit court did not err by denying Rogers’s

motion for judgment of acquittal.

2. Whether the State violated Rogers’s due process
rights by returning Derrek’s phone before it had
been properly extracted.

[¶58.] “The Due Process Clause of the Fourteenth Amendment imposes upon

states the requirement to ensure that ‘criminal prosecutions . . . comport with

prevailing notions of fundamental fairness.’” State v. Zephier, 2020 S.D. 54, ¶ 20,

949 N.W.2d 560, 565 (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct.

2528, 2532, 81 L. Ed. 2d 413 (1984)). “Implicit in this standard is the necessity that

‘criminal defendants be afforded a meaningful opportunity to present a complete

defense.’” Id. (quoting Trombetta, 467 U.S. at 485, 104 S. Ct. at 2532). “To

safeguard that right, the Court has developed ‘what might loosely be called the area

of constitutionally guaranteed access to evidence.’” Trombetta, 467 U.S. at 485, 104

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S. Ct. at 2532 (quoting U.S. v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S. Ct.

3440, 3446, 73 L. Ed. 2d 1193 (1982)).

[¶59.] Within this body of law “two distinct lines of cases have developed—

cases in which the exculpatory value of the undisclosed evidence is known and cases

where it is not.” Zephier, 2020 S.D. 54, ¶ 21, 949 N.W.2d at 565. The first category

is “the prototypical violation of the rule set out in Brady v. Maryland where a

prosecutor does not share information or evidence that is, nevertheless, identifiable

and intact and is ‘either material to the guilt of the defendant or relevant to the

punishment to be imposed.’” Id. (quoting Trombetta, 467 U.S. at 485, 104 S. Ct. at

2532). “Whether the prosecution’s suppression of this type of evidence will lead to a

due process violation that results in a new trial turns on the materiality of the

suppressed evidence—not the good faith or bad faith of the prosecutor.” Id. (citing

State v. Birdshead, 2016 S.D. 87, ¶ 18, 888 N.W.2d 209, 215). The second category

includes “cases where the exculpatory value of the undisclosed evidence is unknown

because it has been destroyed, or lost, or compromised in some way.” Id. ¶ 22, 949

N.W.2d at 566.

[¶60.] Here, Derrek’s cell phone—more specifically the location data that may

have been stored on Derrek’s cell phone—falls under the second category because

Derrek’s phone was returned to him before any potential location data was

extracted from the device. Therefore, we look to the rule established in Trombetta

to determine its materiality:

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,

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evidence must both possess an exculpatory value that was
apparent before the evidence was destroyed, and be of such a
nature that the defendant would be unable to obtain comparable
evidence by other reasonably available means.

467 U.S. at 488–89, 104 S. Ct. at 2534 (internal citation omitted). “Once this

standard of constitutional materiality has been shown, a failure to preserve such

evidence for use by a defendant is a due process violation.” State v. Jackson, 2020

S.D. 53, ¶ 28, 949 N.W.2d 395, 404.

[¶61.] “However, Trombetta’s materiality test will not resolve all due process

challenges in cases of lost or destroyed evidence.” Zephier, 2020 S.D. 54, ¶ 24, 949

N.W.2d at 566 (citation omitted). “In some instances, this evidence cannot satisfy

the materiality test, and the most that could be said is that it ‘could have been

subjected to tests, the results of which might have exonerated the defendant.’” Id.

(quoting Arizona v. Youngblood, 488 U.S. 51, 57, 109 S. Ct. 333, 337, 102 L. Ed. 2d

281 (1988)). “For these cases involving only ‘potentially useful’ lost or destroyed

evidence, the Supreme Court contrasted the rule of Brady that ‘makes the good or

bad faith of the State irrelevant’ and held that a defendant must show that law

enforcement officers acted in bad faith to establish a due process violation[.]” Id.

(quoting Youngblood, 488 U.S. at 57, 109 S. Ct. at 337).

[¶62.] Rogers first argues that Derrek’s cell phone was constitutionally

material under Trombetta, making bad faith irrelevant. He asserts that the phone’s

exculpatory value was apparent before the phone was released because Derrek told

law enforcement during his interviews that his phone would show where he was.

However, these statements, at most, put law enforcement on notice that Derrek’s

phone contained evidence that was exculpatory to Derrek. Stated another way,

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Derrek’s statements to law enforcement supported the assumption that his phone

would exonerate him, not that it would have exculpatory value to Rogers. Further,

Derrek’s statements regarding his phone, when taken in context, suggest that

Derrek was referring to the text messages between himself and Reddy. When

Derrek’s phone was released, law enforcement already had those messages and

believed that they corroborated Derrek’s alibi.

[¶63.] It is worth noting that Rogers did not want the phone itself. Rather,

he asserts that he was constitutionally entitled to the location data stored on

Derrek’s phone. However, the testimony at trial established that the likelihood of

extracting precise location data from Derrek’s phone was, at best, uncertain.

Detective Almeida testified that extracting location data required a “perfect storm”

of favorable conditions to obtain all available data and Special Agent Kennedy

testified that even if the data could be extracted, “[t]he accuracy can be debated.” 13

Notably, law enforcement was unable to obtain location data from Rogers’s phone

even though it was extracted.

[¶64.] On this record, establishing the apparent exculpatory value of the

unavailable data requires a complex chain of assumptions. We must assume that

Derrek’s phone would have been the correct make and model for a more thorough

extraction, that Derrek had apps that stored his location data and that he had

permitted them to use his location, that the data could show his location accurately,

13. Detective Almeida’s testimony established that the amount of information
that can be extracted from a cell phone is highly dependent on the make and
model of the phone. The ability to extract location data, specifically, is also
dependent on whether the user enabled applications to access the user’s
location.

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and that the data would have contradicted the text messages and testimony

establishing that Derrek was at Reddy’s house. This chain of assumptions is

insufficient to establish the constitutional materiality required by Trombetta.

[¶65.] In the absence of a showing of materiality, “a defendant must show

that law enforcement officers acted in bad faith to establish a due process violation.”

Zephier, 2020 S.D. 54, ¶ 24, 949 N.W.2d at 566. We have “recognized that mere

negligence in the loss or destruction of evidence does not result in a constitutional

violation.” State v. Bousum, 2003 S.D. 58, ¶ 16, 663 N.W.2d 257, 263 (citation

omitted). Rather, we have previously taken guidance from the North Dakota

Supreme Court’s definition of bad faith in this context which states:

Bad faith, as used in cases involving destroyed evidence or
statements, means that the state deliberately destroyed the
evidence with the intent to deprive the defense of information;
that is, that the evidence was destroyed by, or at the direction
of, a state agent who intended to thwart the defense.

Id. (quoting State v. Steffes, 500 N.W.2d 608, 613 (N.D. 1993)).

[¶66.] Regarding bad faith, the circuit court found that “the defense cannot

show that the Spearfish Police Department, the State’s Attorney’s Office, or the

Rapid City Police Department engaged in any bad faith.” Rogers claims that this

finding is erroneous in light of the circuit court’s ruling on a pretrial motion to

suppress where it found that law enforcement intentionally and knowingly violated

Rogers’s Sixth Amendment right to counsel by arranging for a jail visit between

Derrek and Rogers, who was represented by counsel, in order to record their

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conversation. 14 Specifically, Rogers highlights that the Sixth Amendment violation

and the return of Derrek’s phone happened within the same two-week period. The

phone was returned from ICAC on February 1, 2022, and was released to Derrek on

February 16. The recorded visit between Derrek and Rogers leading to the

suppression motion occurred on February 4. However, aside from the timeframe,

Rogers presented no other evidence suggesting that the actions were in any way

related.

[¶67.] Detective Hofman testified that despite receiving the report indicating

that Derrek’s phone had not been extracted on February 1, 2022, he did not read the

report until June, and did not know that the extraction had not been done.

Detective Hofman also testified that at the time he returned the phone, he “didn’t

feel that [Derrek] was involved, you know, with the actual homicide itself.”

Further, because the extraction was not done, Detective Hofman did not know what

the phone contained when he released it to Derrek. The circuit court found that law

enforcement was negligent when it released the phone but did not find that the

actions were taken in bad faith.

14. The circuit court held an evidentiary hearing on Rogers’s motion to suppress.
After the hearing, the circuit court issued findings of fact and conclusions of
law, in which it found that on January 26, 2022, Lawrence County Jail staff
were informed that Derrek was not authorized to visit Rogers because Derrek
was a “material witness.” During Derrek’s interviews with law enforcement,
he indicated that he wished to speak with Rogers about Destiny’s murder.
On January 28, Captain Little with the Lawrence County Jail received a
phone call from the Spearfish Police Department requesting that Derrek be
permitted to visit Rogers. The following day, Lawrence County Jail staff
were informed that Derrek was now allowed to visit Rogers but only using a
device that was “recordable.” Derrek visited Rogers at the jail via a recorded
video teleconference on February 4, 2022. The circuit court suppressed the
recording.

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[¶68.] Based on a careful review of the record we conclude that Rogers did not

make a sufficient showing of bad faith. The record does not indicate that law

enforcement released Derrek’s cell phone “in a calculated effort to gain a tactical

advantage or to suppress exculpatory evidence.” Jackson, 2020 S.D. 53, ¶ 33, 949

N.W.2d at 405. Rather, the testimony establishes that law enforcement seized

Derrek’s cell phone and sent it to be extracted with the intention to discover the

information contained within it. When law enforcement released Derrek’s cell

phone, they did not know that the data was not extracted and they no longer

believed that Derrek was involved in Destiny’s murder.

[¶69.] We note that SDCL 23A-37-14 requires that law enforcement preserve

seized property for use in criminal prosecutions and SDCL 23A-37-15 requires

notice to criminal defendants before property is returned to its owner. Detective

Hofman acknowledged at trial that he did not comply with these provisions when he

released Derrek’s cell phone. “However, we have never held that a violation of

SDCL 23A-37-15 leads reflexively to a due process violation and the sanction of

exclusion or a new trial.” Zephier, 2020 S.D. 54, ¶ 29, 949 N.W.2d at 568.

[¶70.] On this record, Rogers has not established that Derrek’s cell phone

possessed evidence of apparent exculpatory value before it was released nor has he

shown that law enforcement acted in bad faith when they released it to Derrek.

Therefore, we conclude that no due process violation occurred.

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3. Whether the circuit court abused its discretion by
denying Rogers’s request for a spoliation jury
instruction.

[¶71.] “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.

Black Cloud, 2023 S.D. 53, ¶ 50, 996 N.W.2d 670, 683 (quoting State v. Schumacher,

2021 S.D. 16, ¶ 25, 956 N.W.2d 427, 433). “To establish reversible error from a trial

court’s refusal to give a requested instruction, the party asserting error must show

that (1) the tendered instruction was a correct statement of the law, (2) the

instruction was warranted by the evidence, and (3) the error in not giving the

instruction was prejudicial.” State v. Engesser, 2003 S.D. 47, ¶ 43, 661 N.W.2d 739,

753 (citation omitted). “An instruction on the inference that may be drawn from the

spoliation of evidence is proper only when substantial evidence exists to support a

conclusion that the evidence was in existence, that it was in the possession or under

the control of the party against whom the inference may be drawn, that the

evidence would have been admissible at trial, and that the party responsible for

destroying the evidence did so intentionally and in bad faith.” Id. ¶ 46, 661 N.W.2d

at 755 (citation omitted).

[¶72.] The circuit court declined to give Rogers’s requested spoliation jury

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instruction, 15 instead giving Instruction 48, taken from State v. Zephier, which

stated:

It is the law of this state that when property is seized by law
enforcement which constitutes evidence of a crime, law
enforcement must safely keep such property as evidence as long
as it is required for trial and must not dispose of the same
without an order of the court. It is for your sole and exclusive
determination whether returning the property to Donovan
Derrek without a court order, and the weight to be given such
fact, bears upon the innocence or guilt of the defendant.

15. Rogers’s proposed spoliation instruction provided:

The [c]ourt has determined that material evidence, i.e., Donovan
Derrek’s cell phone, was destroyed while in the care of and
dominion of law enforcement. You are hereby instructed to
presume that said evidence was destroyed by law enforcement in
bad faith and you may infer that the Donovan Derreck [sic] cell
phone evidence was unfavorable to the State.

Alternatively, Rogers proposed the following instruction patterned after the
instruction given in State v. Zephier:

It is the law of this state that when property is seized by law
enforcement which constitutes evidence of a crime, law
enforcement must safely keep such property as long as it is
required for trial and must not dispose of the same without an
order of the court. It is an express finding of the [c]ourt that law
enforcement violated statutory law requiring law enforcement
personnel in possession of Donovan Derrek’s cell phone to notify
the Defendant before returning it to the owner. Had the
Defendant been provided with statutorily required notice to
return the seized property he would have objected and the
[c]ourt would have required law enforcement to retain the cell
phone.

It is for your sole and exclusive determination whether
returning the cell phone to Donovan Derek [sic] without a court
order in violation of law bears upon the verdict, guilty or not
guilty, and the weight to be given to such fact.

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[¶73.] We have previously noted that “the spoliation rule should be ‘applied

with caution[.]’” Engesser, 2003 S.D. 47, ¶ 48, 661 N.W.2d at 755 (citation omitted)

(alteration in original). “Only intentional destruction will sustain the rule’s

rationale that the destruction amounts to an admission by conduct of the weakness

of one’s case.” Id. ¶ 44, 661 N.W.2d at 754 (citation omitted). Here, a spoliation

instruction was unwarranted by the facts because the record does not contain a

sufficient showing of bad faith by law enforcement. Further, the circuit court took

remedial measures to address the State’s noncompliance with SDCL 23A-37-15 by

allowing Rogers broad leeway to cross-examine Detective Hofman about the

decision to return Derrek’s cell phone and by giving Instruction 48, allowing the

jury to “exercise their judgment to determine the significance of the State’s

statutory noncompliance[.]” Zephier, 2020 S.D. 54, ¶ 33, 949 N.W.2d at 569. We,

therefore, conclude that the circuit court did not abuse its discretion by denying

Rogers’s requested spoliation instruction.

Conclusion

[¶74.] After a thorough review of the record, we affirm the circuit court’s

denial of Rogers’s motion for judgment of acquittal. We also determine that the

State did not violate Rogers’s right to due process by returning Derrek’s cell phone.

Additionally, we conclude that the circuit court did not abuse its discretion by

denying Rogers’s request for a spoliation jury instruction.

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

Justices, concur.

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