State v. Shibly

#30025-a-JMK
2023 S.D. 30

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

ADNAN R. SHIBLY, Defendant and Appellant.

****

APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
LINCOLN COUNTY, SOUTH DAKOTA
****

THE HONORABLE RACHEL R. RASMUSSEN
Judge

****

JASON R. ADAMS of
Tschetter & Adams Law Office, P.C.
Sioux Falls, South Dakota Attorneys for appellant.

MARTY J. JACKLEY
Attorney General

JOHN M. STROHMAN
Assistant Attorney General
Pierre, South Dakota Attorneys for appellee.

****

CONSIDERED ON BRIEFS
MAY 23, 2023
OPINION FILED 06/28/23
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KERN, Justice

[¶1.] Adnan Shibly was charged with seven counts of violating a no contact

order. While the alleged victim, Irina Manuylo, was testifying at Shibly’s jury trial,

she became emotional in front of the jury causing the circuit court to recess the jury

during her testimony. The court ordered Manuylo not to communicate with anyone

during the recess. In violation of this order, Manuylo spoke with her mother.

Shibly moved for a mistrial, which was denied after the court questioned Manuylo

about the content of the conversation and determined she had not spoken with her

mother about the case. Manuylo returned to the stand but became emotional again,

and the court recessed the trial for the day after Manuylo told the court she did not

feel well. Shibly again moved for a mistrial, which the court held in abeyance until

trial reconvened the following morning. After a hearing, the court denied the

motion but gave the jury a curative instruction. At the close of the evidence, Shibly

moved for a judgment of acquittal alleging insufficiency of the evidence. The court

denied the motion, and the jury convicted Shibly on all counts. Shibly appeals,

asserting the circuit court erred by denying his motions for mistrial and judgment of

acquittal. We affirm.

Facts and Procedural History

[¶2.] Shibly and Manuylo were in a long term “on and off” again romantic

relationship but were not residing together at the time of the incident. During their

ten-year relationship, they had three children together. A no contact order was

issued against Shibly on November 30, 2020, as a condition of bond in a separate

criminal case. The order required Shibly to have no contact with Manuylo.

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[¶3.] Manuylo called law enforcement on the evening of March 9, 2021, and

reported a family dispute. She told law enforcement that Shibly made multiple

phone calls and sent text messages to her from his phone number and from other

numbers. He also came to her front door and appeared angry, knocking hard on the

door for her to let him in. She refused to do so. As a result of this incident, the

State filed a seven count information, charging Shibly with one felony violation of a

no contact order by stalking (domestic), in violation of SDCL 25-10-13 and SDCL 22-

19A-1, and six misdemeanor counts of violation of a no contact order (domestic), in

violation of SDCL 25-10-13.

[¶4.] A two-day trial was held on October 26–27, 2021. On the first day of

trial, the State called Manuylo to the witness stand. After answering a few

introductory questions, Manuylo became evasive, stating that she did not recall

calling law enforcement on the date in question and did not remember that Shibly

was ordered not to have contact with her. Manuylo stated she had a bad memory.

The following colloquy occurred:

State: Do you remember - - let me ask you this: Do you
have a cell phone?
Manuylo: Right now honestly, um . . .
State: Did you have a cell phone back in March? Irina,
did you have a cell phone back in March?
Manuylo: I told you I can’t do this.
State: I’m asking did you have a cell phone, yes or no?
Manuylo: I don’t know.
State: Why don’t you know?
Manuylo: You guys have hurt me more in the past year than
he has.
State: What was that?
Manuylo: Can I leave?
State: No.

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At that point, the State asked for a short break and the court excused the jury after

providing the standard recess admonishment.

[¶5.] The State requested that the court declare Manuylo to be an

unavailable witness under the exception set forth in SDCL 19-19-804(b)(6), which

permits hearsay when “[a] statement [is] offered against a party that wrongfully

caused--or acquiesced in wrongfully causing--the declarant’s unavailability as a

witness, and did so intending that result.” The State asserted that several

members of Shibly’s family, who were seated directly behind him in the courtroom,

had been in frequent contact with Manuylo encouraging her not to show up at trial.

The State indicated that Manuylo had been concerned about testifying in front of

the family members, fearing that they would retaliate against her if she testified

against him. Further, the State claimed that Shibly had attempted to call Manuylo

multiple times from the jail in the preceding months.

[¶6.] Before ruling on the motion, the court took a short recess. The court

advised that because Manuylo was still under oath, it was not “appropriate for

anyone to talk to her at this point” and left an officer in the courtroom to make sure

that no one tried to talk to Manuylo during the recess.

[¶7.] Upon returning from the recess, the court had a discussion with

Manuylo, who ultimately agreed to follow the court’s order to testify and answer

questions to the best of her ability. The court, therefore, declined to deem Manuylo

unavailable. However, before the jury was brought back to the courtroom, counsel

for Shibly informed the court that Manuylo had talked to her mother during the

recess, contrary to the court’s instructions, and Shibly made a motion for a mistrial.

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The court questioned Manuylo, who acknowledged speaking with her mother during

the recess, explaining that her mother had given her some valerian oil to help her

calm down. She stated that she did not discuss her testimony with her mother, who

had not been present for Manuylo’s testimony. The court, noting that neither side

expected to call Manuylo’s mother as a witness, denied the motion for mistrial,

concluding that there was not “enough prejudice to grant a mistrial in this case

under that circumstance.”

[¶8.] Manuylo then informed the court that she was not feeling well, but the

court decided to proceed with the trial based on concerns about the court’s ability to

enforce the sequestration order. The jury was brought back into the courtroom, and

the State continued its direct examination of Manuylo.

[¶9.] The State asked whether Shibly had come to her house on March 9,

2021, but she did not respond definitively. She did express that Shibly had called

her repeatedly, both from phone numbers that she recognized and from numbers

she did not recognize. She acknowledged that the court had ordered Shibly not to

contact her, yet he called her more than ten times. She testified that she showed

the responding officer her phone and he took pictures of the screens depicting the

texts and calls she had received. She also told the officer that she had answered

some of the calls and recognized the caller as Shibly. The State then asked:

State: Do you want the defendant to be calling you over
and over and over again?
Manuylo: That night, no.
State: Did you want it to stop?
Manuylo: That day, yeah. I wasn’t feeling good.
State: Did it stop?
Manuylo: No.

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Manuylo acknowledged that Shibly was upset with her because she was not

answering her phone but stated that there had been times when she had called him

over and over as well.

[¶10.] The State then began showing Manuylo photographic exhibits

numbered 2–17 depicting screen shots from her phone, when the following

discussion occurred:

Manuylo: I can’t do this. You keep putting me through this
crap. Take my kids from me and everyone else. I
can’t do this.
Court: Ms. Manuylo, I’m going to instruct you to only
answer and speak when answering questions.
Manuylo: I can’t do this, Your Honor. I can’t do this.
Court: Ms. Manuylo, please sit back down.
Manuylo: Take me to jail. I can’t do this.
Lt. Knutson: Just have a seat, okay?
Manuylo: I’m not going to answer any more questions from
her. No, I can’t. You don’t know how I feel.

Manuylo left the witness stand and sat in the front bench of the gallery. At this

point, the court excused the jury without further instruction.

[¶11.] Manuylo told the court that she would not return to the witness stand

and that she did not feel well. She told the court that if she felt better in the

morning, she would be willing to testify then. The court decided to recess for the

day. Shibly renewed his motion for a mistrial based on the conduct and statements

that had occurred in front of the jury. The court took the motion under advisement

until the following day and reminded the parties that the sequestration order was

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in effect and that any person who might attempt to improperly contact Manuylo

could be charged with witness tampering. 1 0F

[¶12.] The next morning, the defense argued that Shibly was prejudiced by

Manuylo’s actions to such an extent that even a curative instruction could not

correct it. After considering the arguments of the parties, the court denied the

motion for a mistrial but indicated it would give the jury a special instruction.

When the jury returned to the courtroom, the court stated the following:

. . . I would like to instruct the jury a bit further. Yesterday we
ended in a non-typical manner, and I would note that any
comments that were nonresponsive to a question being asked by
the State to the witness just before and after she left the witness
stand will be struck from the record. In addition, any conduct
should be disregarded and not considered in deliberations.

I do have an instruction specifically to read to you. It is your
duty as a juror to determine the facts, and you must do this from
the evidence that has been produced here in open court. Any
statements made by a witness that the [c]ourt has ordered
stricken should not be considered by you as evidence in this
case. Any conduct the [c]ourt has told you to disregard should
not be considered as evidence in this case. You must not - - you

1. Before concluding the proceedings, the court indicated that in light of the
nature of the charges, it had concerns about the “demeanor of some of the
individuals sitting behind the defendant throughout the course of the trial
today. I have grave concerns about contact. And quite honestly, Ms.
Manuylo’s safety.” The court ordered that Shibly have no contact with
anyone other than his attorney until the trial resumed in the morning.

The following day, prior to trial, the State reported that after these
proceedings, as the trial participants and audience members were leaving for
the day, several of Shibly’s family members approached Manuylo’s mother
near her car and words were exchanged between the family members and a
deputy state’s attorney who tried to stop the interaction. Portions of this
interaction were apparently captured by a security camera, but the video is
not contained in the record. In response to this assertion, the court
individually canvassed the members of the jury and none reported seeing or
hearing any interaction connected to the proceedings as they were leaving the
building the previous day.
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must put any such statement and conduct out of your mind and
not consider them in any way in your deliberations in this
matter.[ 2]
1F

[¶13.] Manuylo then returned to the stand, and her direct examination

continued. The State offered several exhibits showing missed and answered calls to

Manuylo’s phone on the evening of March 9, 2021, including missed calls at 7:10,

7:55, 10:38, 10:46, 10:48, 10:49, 10:52, 10:53, 10:56, 10:57, and two calls at 10:58.

There were also several calls that Manuylo answered. There was a call at 9:33 that

was nine minutes long, a call at 9:43 that was 19 seconds long, a call at 9:44 that

was 52 seconds long, a call at 10:37 that was ten seconds long, a call at 10:38 that

was eight seconds long, and a call at 10:55 that was 19 seconds long. Many of the

phone calls were from the same number, which Manuylo indicated was a number

she knew to be Shibly’s, but several were from other numbers. She stated that

Shibly was on the line when she answered several of the calls. The State also

introduced a series of text messages sent at 10:38, which it theorized were sent by

Shibly, reading:

De yalla I’ll see you soon

You got bunch of graghead in the house

[two emojis with a single tear; one emoji with streaming tears]

De yalla just like always when you got people over you don’t
know me .im always last thing on your mind good night …

I always send you money when you ask .i do nothing but love
you and be there for you

2. This instruction was also included in the final instructions to the jury.
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[¶14.] Manuylo then testified that Shibly came to her house that night and

knocked hard on her door, but she did not let him in. On cross-examination,

Manuylo stated that Shibly was angry when he was outside, but he did not threaten

her. Manuylo further stated that of the calls she answered, she knew it was Shibly

because she had spoken with him. Regarding the unanswered calls, she testified

that she did not know if he placed the calls or if someone else did. The same was

true of the text messages. She acknowledged that she wanted Shibly to stop calling

her because she was tired and did not feel well.

[¶15.] The State also called Officer Jeff Rech, who testified that he was

dispatched to Manuylo’s residence for a family dispute to investigate a no contact

order violation. He stated that there was a no contact order in place between Shibly

and Manuylo. He said that when he got to Manuylo’s residence, she told him Shibly

had been at her door and that he had made numerous phone calls to her. There

were multiple calls made to Manuylo’s phone while Officer Rech was at her

residence, one of which she answered in his presence. He testified he could hear a

man’s voice speaking to Manuylo at times in a foreign language. Officer Rech also

stated that Manuylo was receiving calls from various phone numbers. Manuylo

believed they were being sent to her through the use of a random phone number

generator because Shibly had used this technology in the past.

[¶16.] Officer Rech also testified that he obtained Shibly’s number from

Manuylo. As part of his investigation, he called the number and a man answered,

identifying himself as Shibly. When asked why he was contacting Manuylo, Shibly

gave Officer Rech several stories regarding the calls. He indicated that Manuylo

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had stolen his phone several days earlier and that she and a man named Andrew

made the calls and sent the texts. Shibly told Officer Rech that Andrew had then

dropped the phone off with him at the shop he was staying at around 11:00 that

night. When Officer Rech confronted Shibly with the timing discrepancies and the

fact that he was with Manuylo when she received some of the calls, Shibly

contended that he was telling Andrew what to say to Manuylo in order to relay a

message to her.

[¶17.] The State’s final witness was Krista Heeren-Graber, the executive

director of the South Dakota Network Against Family Violence and Sexual Assault.

As a licensed social worker, with many years of experience working with victims of

domestic abuse, she testified regarding the techniques a person may use to

maintain control of a victim including emotional, physical, and economic abuse. She

also testified about some of the characteristics of victims of domestic violence

including their tendency to blame themselves for the abuse to avoid getting the

abuser in trouble. She described victims’ hesitancy to cooperate with law

enforcement and their tendency to minimize or recant their statements because

they have been intimidated or are fearful. Heeren-Graber also described the power

and control cycle of violence beginning with a tension building phase, leading to an

abusive act, followed by a period of reconciliation or a “honeymoon” phase. During

the “honeymoon” phase, Heeren-Graber explained that the offender may apologize,

give gifts, and make promises leading the victim to be hopeful that things will

change for the better. On cross-examination, Heeren-Graber acknowledged that she

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had no specific information about Shibly or Manuylo and had no information

regarding their case.

[¶18.] After its last witness, the State asked the court to take judicial notice

of the no contact order, and it was admitted into evidence. The State then rested its

case. Shibly moved for a judgment of acquittal on all counts but focused on the

felony count, arguing that the State had failed to provide evidence that the contacts

from Shibly were malicious in nature. The court denied the motion. The defense

did not present any witnesses.

[¶19.] The jury convicted Shibly on all seven counts. He was sentenced on

the one felony count to two years in the state penitentiary, all suspended, with

credit for time served and payment of fines, fees, and costs. No sentence was

imposed on the misdemeanor counts two through seven.

[¶20.] Shibly appeals, raising two issues we restate as follows:

1. Whether the circuit court abused its discretion by denying
Shibly’s motion for mistrial.

2. Whether the circuit court erred by denying Shibly’s
motion for judgment of acquittal on the charge of felony
violation of a no contact order by stalking. 3
2F

Analysis

1. Whether the circuit court abused its discretion by
denying Shibly’s motion for mistrial.

[¶21.] “We review the denial of a motion for mistrial for an abuse of

discretion[.]” State v. Nelson, 2022 S.D. 12, ¶ 35, 970 N.W.2d 814, 826 (alteration in

original) (quoting State v. Taylor, 2020 S.D. 48, ¶ 41, 948 N.W.2d 342, 355). “An

3. On appeal, Shibly challenges the sufficiency of the evidence for only the
felony charge.
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abuse of discretion is ‘a fundamental error of judgment, a choice outside the range of

permissible choices, a decision, which, on full consideration, is arbitrary or

unreasonable.’” Id. (quoting State v. Kvasnicka, 2013 S.D. 25, ¶ 17, 829 N.W.2d

123, 127–28). “For purposes of determining whether there are grounds for a

mistrial there must be error ‘which, in all probability, produced some effect upon

the jury’s verdict and is harmful to the substantial rights of the party assigning it.’”

Id. (quoting State v. Stone, 2019 S.D. 18, ¶ 34, 925 N.W.2d 488, 500).

[¶22.] Here, Shibly argues that a mistrial should have been granted at two

points during the trial. First, Shibly argues the court erred by denying his motion

for mistrial when Manuylo violated the circuit court’s order not to talk with anyone

during the recess. Second, Shibly contends he was entitled to a mistrial after

Manuylo left the witness stand to sit in the gallery after stating, “I can’t do this”

and “take me to jail.”

[¶23.] Regarding the first motion for mistrial, the court queried Manuylo

about whether she discussed her testimony with her mother. Manuylo stated that

her mother had given her some oil to help her calm down and that she did not

discuss the case with her mother. In denying the motion, the court noted that

Manuylo and her mother were supervised by a courtroom security officer while they

were sitting together and that they did not communicate in a foreign language.

Additionally, Manuylo’s mother was not a witness in the case. Based on our review

of the record, there is no evidence that Manuylo’s testimony was impacted by any

discussion that occurred with her mother during the recess. The court did not

abuse its discretion in denying this motion for a mistrial.

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[¶24.] Shibly argues that the court erred in denying his second motion for a

mistrial because the cumulative effect of Manuylo’s “unsolicited statements and

outbursts,” along with her violation of the court’s order not to communicate with

anyone during the recess resulted in prejudice that deprived him of a fair trial. In

Shibly’s view, the curative instruction was inadequate to remediate the prejudice to

him because the jury could infer that he was coercing Manuylo not to testify. Shibly

points out that the circuit court acknowledged that the jury could have inferred that

he was threatening Manuylo, which reinforces his assertion that Manuylo’s conduct

resulted in sufficient prejudice to his case to warrant a mistrial.

[¶25.] After the second disruption during Manuylo’s direct examination, the

court dismissed the jury for the day. Shibly moved for a mistrial, which the court

took under advisement overnight. The parties reconvened outside the presence of

the jury the following morning. In ruling on Shibly’s motion, the court described the

events of the preceding day. The court observed that Manuylo was “extremely soft

spoken and emotional” during her testimony on the stand, which demeanor the

court found “very common” for witnesses who were alleged victims. The court

concluded that the “spontaneous statements” would not warrant a mistrial and

were not “completely abnormal, [e]specially in these types of situations and this

type of case.”

[¶26.] The court then addressed whether the statements coupled with

Manuylo’s decision to leave the witness stand was prejudicial to Shibly. The court

considered the prejudice to both sides, noting that the jurors could infer that the

State was forcing Manuylo to testify. The court also found it equally possible that

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“[t]he jury could infer that defendant was threatening her, coercing her not to

testify” or could “infer that she’s not credible and that her story is changing.” The

court noted that it struck the objectionable testimony through a curative instruction

and had given a preliminary instruction advising the jury to disregard any

testimony it ordered stricken. Therefore, the court denied the motion for mistrial

concluding there was no showing of actual prejudice to the defense.

[¶27.] Typically, “[w]e ‘presume that juries understand and abide by curative

instructions.’” Nelson, 2022 S.D. 12, ¶ 41, 970 N.W.2d at 827–28 (quoting State v.

Dillon, 2010 S.D. 72, ¶ 28, 788 N.W.2d 360, 369). This is not a case where it is

apparent from the record that the jury was unable to follow the instruction from the

court, and there is no showing that Shibly was deprived of a fair trial. The

instruction was clear regarding the statements and conduct that the jury should not

consider. After the curative instruction was given, Manuylo resumed the stand,

completed her direct examination, and was subject to cross-examination.

[¶28.] While Manuylo’s episodes may have presented certain challenges

during the trial, our review of the “cold record invariably lacks the emotion of the

occurrence below” to which the circuit court is privy. State v. Perovich, 2001 S.D.

96, ¶ 24, 632 N.W.2d 12, 17. In Perovich, this Court upheld the denial of a motion

for a mistrial after the young victim in a child rape case entered the courtroom after

being called to testify but then remained in the back of the courtroom crying for five

to six minutes. Id. ¶ 21. After taking the witness stand to testify, the child

continued crying while holding a stuffed bear. Id. We held that “[w]hether or not

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these emotions amount to circumstances that create an unfair trial is best

addressed within the discretion of the trial court.” Id. ¶ 24, 632 N.W.2d at 17–18.

[¶29.] The same reasoning is applicable here. The circuit court was in the

best position to judge the emotionality of the situation and gauge the risk of

prejudice resulting from the cumulative acts of the witness. Based on our review of

the record, it is apparent that the circuit court did just that—carefully evaluated

the facts and circumstances surrounding Manuylo’s conduct and its effect on the

jury. The circuit court determined that the conduct did not impact Shibly’s

substantial right to a fair trial. We conclude that the court did not abuse its

discretion in denying Shibly’s motion for mistrial.

2. Whether the circuit court erred by denying Shibly’s
motion for judgment of acquittal on the charge of
felony violation of a no contact order by stalking.

[¶30.] Shibly next asserts that there was insufficient evidence for a jury to

find him guilty of the felony count of violating a no contact order by stalking

(domestic). “We review a denial of a motion for judgment of acquittal de novo.”

State v. Seidel, 2020 S.D. 73, ¶ 32, 953 N.W.2d 301, 313 (quoting State v.

Armstrong, 2020 S.D. 6, ¶ 12, 939 N.W.2d 9, 12). “[A] motion for a judgment of

acquittal attacks the sufficiency of the evidence[.]” State v. Peneaux, 2023 S.D. 15, ¶

24, 988 N.W.2d 263, 269 (alterations in original) (quoting State v. Timmons, 2022

S.D. 28, ¶ 14, 974 N.W.2d 881, 887). “In measuring the sufficiency of the evidence,

we ask ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.’” Seidel, 2020 S.D. 73, ¶ 32, 953 N.W.2d at 313

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(quoting State v. Brim, 2010 S.D. 74, ¶ 6, 789 N.W.2d 80, 83). In doing so, this

Court “will not resolve conflicts in the evidence, assess the credibility of witnesses,

or evaluate the weight of the evidence.” Id. We must “accept the evidence and the

most favorable inferences fairly drawn therefrom, which will support the verdict.”

Id. (quoting State v. Jensen, 2007 S.D. 76, ¶ 7, 737 N.W.2d 285, 288).

[¶31.] SDCL 25-10-13 provides that if a no contact order is issued and the

person restrained knows of the order, a violation of the order is a Class 1

misdemeanor. However, if the violation also constitutes stalking as criminalized in

SDCL 22-19A-1, then the violation becomes a Class 6 felony. SDCL 25-10-13. The

statute criminalizing stalking provides in relevant part that “[n]o person may: . . .

(3) Willfully, maliciously, and repeatedly harass another person by means of any

verbal, electronic, digital media, mechanical, telegraphic, or written

communication.” SDCL 22-19A-1. “Malice” is defined in SDCL 22-1-2 as “a wish to

intentionally vex, annoy, or injure another person, established either by proof or

presumption of law[.]” 4 Shibly concedes that there was evidence presented at trial
3F

that his contact with Manuylo was willful and repeated but argues that “[t]here is

nothing in the record to support a finding that his actions were malicious or

harassing to the extent in which it did not serve a legitimate purpose.” In his view,

his purpose in contacting her was legitimate—he wanted to spend time with her

because “they had an on-again/off-again relationship.”

4. “Malice” was defined in the jury instructions as “a wish to intentionally vex,
annoy, or injure another person as established either by direct evidence or by
an inference thereof that may be reasonably drawn from facts and
circumstances shown.”
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[¶32.] However, after reviewing the evidence in the light most favorable to

the jury’s verdict, we conclude that there is sufficient evidence to support the

verdict. Manuylo testified that Shibly was “angry” when he was at her residence,

knocking hard on the door, and that she wanted him to stop calling her. There were

eighteen calls to Manuylo’s phone on the evening in question, including thirteen

within the span of about twenty minutes. The repeated nature of the unwanted

calls, his arrival at her residence to pound on the door, and the texts are evidence

that Shibly intended to vex or annoy Manuylo, constituting malice.

[¶33.] We acknowledge that the conduct here differs from some of the

malicious conduct described in other decisions. See White v. Bain, 2008 S.D. 52, ¶

13, 752 N.W.2d 203, 207 (involving a series of offensive and insulting letters along

with an uninvited entrance into a home); Schaefer ex rel. S.S. v. Liechti, 2006 S.D.

19, ¶ 17, 711 N.W.2d 257, 263 (involving the respondent “canvassing” children,

watching children with binoculars, confronting and chasing children, and filing

false complaints); Erickson v. Earley, 2016 S.D. 37, ¶ 13, 878 N.W.2d 631, 634

(involving pulling up beside the petitioner and calling his place of business while

shouting profanities and indicating that people were “coming for” him). But this is

simply a consequence of the statutory breadth of the definition of malice which

convers conduct ranging from a wish to annoy another to a wish to injure. Suffice it

to say that on this record, there was sufficient evidence for a jury to determine that

Shibly acted with malice. The circuit court did not err in denying Shibly’s motion

for judgment of acquittal.

[¶34.] We affirm.

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

Justices, concur.

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