#26176-rev & rem-LSW

2013 S.D. 25

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

TAMMY JEAN KVASNICKA, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE ROBIN J. HOUWMAN

Judge

* * * *

MARTY J. JACKLEY

Attorney General

ANN C. MEYER

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff 

and appellee.

NICOLE J. LAUGHLIN

MARCUS WALTON of

Minnehaha County 

 Public Defender’s Office

Sioux Falls, South Dakota Attorneys for defendant 

and appellant.

* * * *

ARGUED ON OCTOBER 2, 2012

OPINION FILED 03/27/13
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WILBUR, Justice

[¶1.] Tammy Kvasnicka was convicted by a jury of first-degree 

manslaughter by means of a dangerous weapon, vehicular homicide, vehicular 

battery, and driving under the influence (DUI). Kvasnicka was acquitted of two 

charges of first-degree manslaughter while engaged in the commission of a felony. 

In her appeal to this Court, Kvasnicka argues that the language “while engaged in 

the commission of a felony” was prejudicial when referring to the charge of DUI in a 

first-degree manslaughter trial. Kvasnicka also argues that the trial court abused 

its discretion in overruling her objections to the admissibility of Officer Brian 

Crozier’s testimony.

FACTS AND PROCEDURAL BACKGROUND

[¶2.] On July 9, 2010, Kvasnicka celebrated her birthday by having several 

alcoholic drinks at a friend’s house and at downtown bars in Sioux Falls, South 

Dakota. In the early morning hours on July 10, Kvasnicka left the downtown area 

in her Dodge Intrepid. 

[¶3.] At approximately 2:00 a.m., Kvasnicka was traveling southbound in 

the northbound lane on Interstate 229 when she struck a vehicle carrying five 

people. The front seat passenger suffered a serious injury to his arm and a back 

seat passenger died at the scene. Kvasnicka was not seriously injured in the 

collision.

[¶4.] At the hospital, Kvasnicka was read her Miranda rights and placed 

under arrest. Her blood was drawn at 3:44 a.m., which reflected a blood alcohol 
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content between 0.225 and 0.219. Following a second drawing at 4:47 a.m., 

Kvasnicka’s blood alcohol content was between 0.204 and 0.200. 

[¶5.] On the evening of July 10, Kvasnicka was questioned at the Sioux 

Falls Police Department. After being read her Miranda rights, Kvasnicka admitted 

that on the previous evening she consumed several alcoholic drinks and smoked

marijuana prior to the collision.

[¶6.] A grand jury indicted Kvasnicka with seven counts: count one –

manslaughter in the first-degree while engaged in the commission of a felony, 

driving while under the influence of alcohol, class C felony, in violation of SDCL 22-

16-15(1); count two – manslaughter while engaged in the commission of a felony, 

driving while having .08 percent or more by weight of alcohol in the blood, class C 

felony, in violation of SDCL 22-16-15(1); count three – manslaughter in the firstdegree by means of a dangerous weapon, class C felony, in violation of SDCL 22-16-

15(3); count four – vehicular homicide, class 3 felony, in violation of SDCL 22-16-41; 

count five – vehicular battery, class 4 felony, in violation of SDCL 22-18-36; count 

six – driving while under the influence of any alcoholic beverage, marijuana, or any 

controlled drug or substance, class 1 misdemeanor, in violation of SDCL 32-23-1; 

count seven – driving while having .08 percent or more by weight of alcohol in the 

blood, class 1 misdemeanor, in violation of SDCL 32-23-1. The State also filed two 

part II informations because Kvasnicka had been previously convicted in 2006 of 

two DUI charges and one second-degree burglary charge. 

[¶7.] Kvasnicka filed a motion to dismiss counts one and two on the grounds 

that DUI is not a felony offense as required by SDCL 22-16-15(1). Kvasnicka also 
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sought to dismiss count three on the basis that an automobile should not be 

considered a dangerous weapon for purposes of SDCL 22-16-15(3). The motions 

were denied. 

[¶8.] Prior to trial, Kvasnicka again moved to dismiss counts one, two, and 

three predicated upon the same grounds as her previous motion. The trial court 

denied the motion but granted Kvasnicka a standing objection as to those counts. 

The case proceeded to a jury trial. 

[¶9.] At trial, the State offered the expert testimony of Officer Crozier, who 

was trained in accident reconstruction.1 Before Officer Crozier was allowed to 

testify further, Kvasnicka objected to his testimony. A bench conference was held. 

Kvasnicka objected to Officer Crozier’s kinetic energy testimony on the grounds of 

foundation and relevancy. 

[¶10.] The trial court found that Officer Crozier’s testimony was relevant 

because it provided information to the jury to demonstrate the force of the impact 

and to show that Kvasnicka’s Dodge Intrepid was being used as a dangerous 

weapon at the time of the collision. As to foundation, the trial court found that 

Officer Crozier “did provide quite a bit of information about his education and 

 

1. Officer Crozier testified that he had been provided information about the 

collision. He testified that he was unable to perform an accident 

reconstruction to determine the speed of Kvasnicka’s vehicle because of the 

angle of the impact of the collision. 
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background in accident reconstruction, as well as teaching crash investigations at 

the police academy in Pierre.”2 

[¶11.] Following voir dire of Officer Crozier, Kvasnicka again objected to the 

testimony on the grounds of relevance, foundation, and prejudice. The trial court 

overruled Kvasnicka’s relevancy objection incorporating its previous ruling. 

Further, the court determined that “the officer has clearly articulated the basis for 

his calculations and he also articulated that he found the[ ] other references - -

Jerry Rice, the crossbow and the firearm - - to be comparison tools, so [the court]

will allow the testimony.”3 In front of the jury, Officer Crozier opined that the 

kinetic energy of a 2001 Dodge Intrepid traveling at 65 miles per hour would be 

436,583 foot-pounds and that it would take the simultaneous firing of ninehundred-two 40-caliber Glock pistols at the same target to achieve the same amount 

of kinetic energy that Kvasnicka’s Dodge Intrepid would exert at 65 miles per hour. 

[¶12.] At the close of evidence, Kvasnicka moved for judgment of acquittal 

relying on the same arguments she made in her motions to dismiss. See supra ¶¶ 7-

 

2. At time of trial, Officer Crozier, who had been a police officer since 1988, 

began to take courses in accident reconstruction in 2002. Officer Crozier had 

continued to take classes for accident reconstruction until a week prior to 

trial. He also taught accident reconstruction at the police academy in Pierre 

and at Southeast Technical Institute. Additionally, Officer Crozier testified 

that in making his kinetic energy calculations, he utilized formulas that are 

“very well recognized throughout the accident reconstruction community.” 

These kinetic energy formulas were contained within an equation manual 

from the Institute of Police Technology and Management at the University of 

North Florida, which Officer Crozier brought with him to the witness stand.

 

3. Officer Crozier’s testimony to the jury did not include the kinetic energy 

calculations of the 40-yard dash by Jerry Rice or the crossbow.
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8. The trial court denied her motion based on its previous rationale as to the 

motions to dismiss. The case was then submitted to the jury.

[¶13.] During jury deliberations, the jury presented four questions to the trial 

court. Three of the questions related to whether a DUI charge is a felony. 

Specifically, the jurors asked, “Is it a felony to drive under the influence?” The 

second question was “Is it a felony to drive while having a blood alcohol level of a 

.08 or higher?” The jurors also asked “Is a DWI that results in a death a felony?” 

[¶14.] After arguing that the juror’s questions demonstrated confusion as to 

whether or not the DUI was a felony, Kvasnicka moved for mistrial. The trial court 

denied the motion for mistrial relying on her rationales from Kvasnicka’s previous 

motions to dismiss and motion for judgment of acquittal. Following this ruling, the 

court advised the jury to read the instructions as a whole and rely upon the 

instructions as provided. Neither the State nor Kvasnicka objected to this 

instruction.

[¶15.] The jury found Kvasnicka not guilty of the two counts of manslaughter

in the first-degree while engaged in the commission of a felony and guilty of 

manslaughter in the first-degree by means of a dangerous weapon, vehicular 

homicide, vehicular battery, and DUI. She admitted to both part II informations. 

Kvasnicka was sentenced to 70 years in prison with 18 years suspended on the

manslaughter in the first-degree by means of a dangerous weapon charge. She was 

also sentenced to 25 years in prison for vehicular homicide, 15 years for vehicular 
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battery, and 2 years for felony DUI, all to run concurrent with the manslaughter 

charge.4 

[¶16.] Kvasnicka appeals and raises the following issues:

1. Whether the language “while engaged in the commission 

of a felony” under SDCL 22-16-15(1) is prejudicial when 

referring to the crime of driving under the influence.

2. Whether the trial court abused its discretion in admitting 

the expert testimony of Officer Brian Crozier regarding 

the kinetic energy of Kvasnicka’s vehicle.

STANDARD OF REVIEW

[¶17.] This Court reviews “the trial court’s denial of a motion to dismiss 

under an abuse of discretion standard.” State v. Miranda, 2009 S.D. 105, ¶ 14, 776 

N.W.2d 77, 81 (quoting State v. Williams, 2008 S.D. 29, ¶ 23, 748 N.W.2d 435, 442). 

Additionally, this Court reviews the trial court’s “denial of a motion for mistrial 

under the abuse of discretion standard.” State v. Dillon, 2010 S.D. 72, ¶ 28, 788 

N.W.2d 360, 369. “We will affirm a trial court’s denial of a mistrial unless we find 

abuse of discretion resulting in clear prejudice.” Id. “Error is prejudicial when, in 

all probability . . . it produced some effect upon the final result and affected rights of 

the party assigning it.” Id. (quoting State v. Fool Bull, 2009 S.D. 36, ¶ 34, 766 

N.W.2d 159, 167). Abuse of discretion is defined as “a fundamental error of 

judgment, a choice outside the range of permissible choices, a decision, which, on 

full consideration, is arbitrary or unreasonable.” State v. Lemler, 2009 S.D. 86, ¶ 

 

4. The vehicular homicide charge was to run consecutive to count six, one of the 

felony DUI charges. The vehicular battery charge was to run consecutive to 

the vehicular homicide charge and count seven, the other felony DUI charge. 
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40, 774 N.W.2d 272, 286 (quoting Burley v. Kytec Innovative Sports Equip., Inc., 

2007 S.D. 82, ¶ 12, 737 N.W.2d 397, 402). 

[¶18.] Additionally, “the trial court has broad discretion concerning the 

qualification of experts and the admission of expert testimony.” State v. Running 

Bird, 2002 S.D. 86, ¶ 38, 649 N.W.2d 609, 617 (quoting State v. Logue, 372 N.W.2d 

151, 156 (S.D. 1985)). “We review a trial court’s ‘decision to admit or deny an 

expert’s testimony under the abuse of discretion standard.’” Lemler, 2009 S.D. 86, ¶ 

18, 774 N.W.2d at 278 (quoting Burley, 2007 S.D. 82, ¶ 12, 737 N.W.2d at 402). 

“This [C]ourt has consistently held that the trial judge has the discretionary power 

to determine whether a witness is an expert witness. As such, [her] ruling will not 

be disturbed unless there is no evidence that the witness had the qualifications of 

an expert or the trial court has proceeded upon erroneous standards.” State v. 

Fisher, 2011 S.D. 74, ¶ 42, 805 N.W.2d 571, 580 (quoting State v. Edmundson, 379 

N.W.2d 835, 839 (S.D. 1985)). 

[¶19.] Lastly, a trial court’s evidentiary rulings are reviewed under an abuse 

of discretion standard. State v. Roach, 2012 S.D. 91, ¶ 37, 825 N.W.2d 258, 268. 

“[O]ur review requires a two-step process; first, to determine whether the trial court 

abused its discretion in making an evidentiary ruling; and second, whether this 

error was a prejudicial error that ‘in all probability’ affected the jury’s conclusion.” 

Supreme Pork, Inc. v. Master Blaster, Inc., 2009 S.D. 20, ¶ 59, 764 N.W.2d 474, 491. 

ANALYSIS AND DECISION

[¶20.] 1. Whether the language “while engaged in the commission 

of a felony” under SDCL 22-16-15(1) is prejudicial when 

referring to the crime of driving under the influence. 
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[¶21.] Kvasnicka argues that the language “while engaged in the commission 

of a felony” was prejudicial when referring to the crime of driving under the 

influence. In arguing her motions to dismiss, Kvasnicka asserted that the language

of the indictment, specifically “while engaged in the commission of a felony,” 

improperly inferred the existence of Kvasnicka’s prior DUI convictions. She further 

contends that the jury’s questions as to whether or not the DUI was a felony were 

evidence of the prejudice.

[¶22.] The State initially argues that, because the jury convicted Kvasnicka 

on counts other than the counts containing the language “while engaged in the 

commission of a felony,” Kvasnicka’s argument is moot. In the alternative, the 

State contends that the trial court was within its discretion to deny Kvasnicka’s 

motions to dismiss and motion for mistrial because the felony DUI could be used as 

the predicate felony under SDCL 22-16-15(1) and SDCL 22-16-4(2). Based on a

plain reading of SDCL 22-16-15(1) and SDCL 22-16-4(2), the State contends that 

the Legislature has not excluded felony DUI as the predicate offense for first-degree 

manslaughter. 

[¶23.] Initially, this Court must address the State’s contention that, because 

the jury convicted Kvasnicka on counts other than the counts containing the 

language “while engaged in the commission of a felony,” Kvasnicka’s argument is 

moot. The State cites State v. Clothier to support its proposition that Kvasnicka’s 

argument is moot. 381 N.W.2d 253, 258-59 (S.D. 1986) (determining that Clothier’s 

arguments as to the first-degree murder charge were moot when the jury did not 

find him guilty on the charge but instead found him guilty of first-degree 
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manslaughter). “It is a fundamental principle of our jurisprudence that courts do 

not adjudicate issues that are not actually before them in the form of cases and 

controversies.” Moeller v. Weber, 2004 S.D. 110, ¶ 45, 689 N.W.2d 1, 16. 

[¶24.] The jury found Kvasnicka guilty of first-degree manslaughter by 

means of a dangerous weapon, vehicular homicide, vehicular battery, and driving 

under the influence. Kvasnicka was acquitted of the charges containing the 

language “while engaged in the commission of a felony.” Thus, Kvasnicka’s

argument that the language “while engaged in the commission of a felony” was 

prejudicial when referring to the crime of driving under the influence is moot 

because the jury acquitted her on those counts. We decline to address an issue that 

is not before us in the form of a case or controversy. 

[¶25.] 2. Whether the trial court abused its discretion in admitting 

the expert testimony of Officer Brian Crozier regarding 

the kinetic energy of Kvasnicka’s vehicle. 

[¶26.] Kvasnicka argues that the trial court abused its discretion in 

admitting Officer Crozier’s expert testimony. She challenges Officer Crozier’s 

expertise to testify about kinetic energy and the foundation upon which he based 

his opinions. Additionally, Kvasnicka asserts that his testimony was not relevant

because the kinetic force generated by a vehicle traveling at 65 miles per hour had

no bearing on any elements of the crimes listed in the indictment. Lastly, 

Kvasnicka argues that Officer Crozier’s testimony, even if relevant, was unfairly 

prejudicial because the State compared an inherently dangerous weapon, a 40-

caliber Glock pistol, to Kvasnicka’s vehicle, an object whose intended use is not 

inherently dangerous. 
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[¶27.] SDCL 19-15-2 (Rule 702) governs the admissibility of expert 

testimony.5 This Court has stated on previous occasions that,

[u]nder this rule, before a witness can testify as an expert, that 

witness must be qualified. Furthermore, under Daubert, the 

proponent offering expert testimony must show that the expert’s 

theory or method qualifies as scientific, technical, or specialized 

knowledge as required under Rule 702. Before admitting expert 

testimony, a court must first determine that such qualified 

testimony is relevant and based on a reliable foundation. The 

burden of demonstrating that the testimony is competent, 

relevant, and reliable rests with the proponent of the testimony. 

The proponent of the expert testimony must prove its 

admissibility by a preponderance of the evidence. 

Burley, 2007 S.D. 82, ¶ 13, 737 N.W.2d at 402-03 (internal citations and quotation 

marks omitted). “Whether a witness is qualified as an expert can only be 

determined by comparing the area in which the witness has superior knowledge, 

skill, experience, or education with the subject matter of the witness’s testimony.” 

Fisher, 2011 S.D. 74, ¶ 41, 805 N.W.2d at 580 (quoting Lemler, 2009 S.D. 86, ¶ 18, 

774 N.W.2d at 278). 

 

5. SDCL 19-15-2 (Rule 702) provides:

If scientific, technical, or other specialized knowledge will assist 

the trier of fact to understand the evidence or to determine a 

fact in issue, a witness qualified as an expert by knowledge, 

skill, experience, training, or education, may testify thereto in 

the form of an opinion or otherwise, if:

(1) The testimony is based upon sufficient facts or data,

(2) The testimony is the product of reliable principles and 

methods, and

(3) The witness has applied the principles and methods 

reliably to the facts of the case.

See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 

L. Ed. 2d 469 (1993) (providing the standards for admission of expert 

testimony).
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[¶28.] The record demonstrates Officer Crozier was trained in accident 

reconstruction and performed a kinetic energy calculation using the weight of a 

2001 Dodge Intrepid and the speed limit of 65 miles per hour. In doing so, he used 

a kinetic energy formula that is well-recognized in the accident reconstruction 

community and concluded the kinetic energy of a 2001 Dodge Intrepid traveling at 

65 miles per hour was 436,583.33 foot-pounds. Thus, the trial court did not abuse 

its discretion in qualifying Officer Crozier as an expert. 

[¶29.] Relevant evidence is defined as “evidence having any tendency to make 

the existence of any fact that is of consequence to the determination of the action 

more probable or less probable than it would be without the evidence.” SDCL 19-

12-1 (Rule 401). “Evidence which is not relevant is not admissible.” SDCL 19-12-2 

(Rule 402). And if evidence, which is not relevant, is erroneously admitted, the 

appellant must show that the admission of the evidence was prejudicial error. 

Supreme Pork, Inc., 2009 S.D. 20, ¶ 58, 764 N.W.2d at 491. “To show such 

prejudicial error an appellant must establish affirmatively from the record that 

under the evidence the jury might and probably would have returned a different 

verdict if the alleged error had not occurred.” Id. (quoting Sander v. Geib, Elston, 

Frost Prof’l Ass’n, 506 N.W.2d 107, 113 (S.D. 1993).

[¶30.] Here, the State was required to prove that Kvasnicka used her vehicle 

as a dangerous weapon. See SDCL 22-16-15(3). A “[d]angerous weapon” or “deadly 

weapon” is defined as “any firearm, stun gun, knife or device, instrument, material 

or substance, whether animate or inanimate, which is calculated or designed to 

inflict death or serious bodily harm, or by the manner in which it is used is likely to 
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inflict death or serious bodily harm[.]” SDCL 22-1-2(10). Therefore, although a 

vehicle is not inherently designed to inflict death or serious bodily harm, if it is used 

in a manner that is likely to inflict death or serious bodily harm, “it constitutes a 

dangerous weapon[.]” See State v. Seidschlaw, 304 N.W.2d 102, 105 (S.D. 1981).

[¶31.] Officer Crozier’s testimony was not relevant because neither the 

kinetic energy calculation nor the pistol comparison related to the manner in which 

Kvasnicka drove her vehicle. Officer Crozier merely used the weight of a Dodge 

Intrepid and the speed limit of 65 miles per hour to reach his opinion. In fact, using 

Officer Crozier’s calculation and comparison, any person driving a 2001 Dodge 

Intrepid at 65 miles per hour on Interstate 229 would be accumulating the same 

kinetic energy as the simultaneous firing of nine-hundred-two 40-caliber Glock 

pistols. 

[¶32.] Further, despite the trial court’s ruling that Officer Crozier’s opinion 

would “give the jury some information about the force perhaps of impact[,]” Officer 

Crozier did not testify as to any force of impact. Indeed, he explained that because 

of the angle of impact, he was unable to reconstruct the accident to determine the 

speed of Kvasnicka’s vehicle. Rather, Officer Crozier informed the jury about the 

kinetic energy of Kvasnicka’s vehicle traveling as any 2001 Dodge Intrepid would at 

65 miles per hour. Yet, Officer Crozier was then able to portray Kvasnicka’s use of 

her vehicle in the same way as nine-hundred-two people firing 40-caliber Glock 

pistols at the same time. Neither the kinetic energy calculation nor the pistol 

comparison was relevant because the evidence did not make it more probable or 

likely that Kvasnicka was using her vehicle as a dangerous weapon. Moreover, it 
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could be interpreted that the State, in its closing argument, conceded the 

questionable relevance of the pistol comparison testimony by advising the jury that 

they did not need to consider that testimony in deciding whether Kvasnicka was 

driving her vehicle in a dangerous manner. Thus, the trial court abused its 

discretion in concluding that Officer Crozier’s testimony was relevant. 

[¶33.] Additionally, the record demonstrates that, if the admission of this 

evidence had not occurred, the jury might and probably would have returned a 

different verdict. Officer Crozier’s testimony was not specific to the manner in 

which Kvasnicka drove her vehicle. Officer Crozier testified that he used 65 miles 

per hour in his calculation based on the speed limit of that section of Interstate 229. 

This speed was not based upon actual information about Kvasnicka’s speed. 

[¶34.] Even though his calculation was not specific to the manner in which 

Kvasnicka drove her vehicle, Officer Crozier was then allowed to portray

Kvasnicka’s use of her vehicle in the same way as the simultaneous firing of ninehundred-two 40-caliber Glock pistols at the same target. The State chose to make 

this comparison in order to prove that the vehicle was a dangerous weapon. Guns 

are defined by our statutes as dangerous or deadly weapons and are universally 

considered to be inherently dangerous. SDCL 22-1-2(10). And, Kvasnicka, though 

she admitted some of the charges, strongly contested the manslaughter charges and 

denied that she used her vehicle as a dangerous weapon. It was for the jury to 

decide the issue. 

[¶35.] The effect of the comparison testimony on the jury in determining 

Kvasnicka’s guilt was compounded by the fact that the kinetic energy calculation 
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and pistol comparison testimony were presented by an expert, and expert testimony 

is recognized as having the “aura of reliability and trustworthiness [that] 

surround[s] scientific evidence.” State v. Werner, 482 N.W.2d 286, 291-92 (S.D. 

1992). By allowing an expert to portray Kvasnicka’s use of her vehicle, which is not 

inherently dangerous, in the same way as nine-hundred-two inherently dangerous

weapons firing simultaneously, the jury was left with virtually no decision to make 

other than to conclude that Kvasnicka used her vehicle as a dangerous weapon. 

[¶36.] Finally, there was more than one reference to the pistol comparison 

testimony during the trial. The comparison testimony was before the jury twice –

once during the testimony of Officer Crozier, the only expert to testify in this case, 

and then again by the State during its closing argument. 

[¶37.] The trial court abused its discretion when it concluded that Officer 

Crozier’s testimony was relevant. The erroneous admission of Officer Crozier’s 

kinetic energy calculation and the pistol comparison testimony affected the jury in 

that the jury probably would have returned a different verdict had Officer Crozier’s

testimony not been admitted. We reverse and remand for a new trial.

CONCLUSION

[¶38.] The jury did not convict Kvasnicka on the counts containing the 

language “while engaged in the commission of a felony.” Therefore Kvasnicka’s 

argument that she was prejudiced is moot. Additionally, the trial court abused its 

discretion when it concluded that Officer Crozier’s testimony was relevant. We 

therefore reverse and remand for a new trial consistent with this opinion.

[¶39.] KONENKAMP and SEVERSON, Justices, concur.
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[¶40.] GILBERTSON, Chief Justice, and ZINTER, Justice, concur in part and 

dissent in part.

ZINTER, Justice (concurring in part and dissenting in part).

[¶41.] I join the opinion of the Court on issue one. On issue two, I dissent. 

The circuit court did not abuse its discretion in determining that the kinetic energy 

of the defendant’s vehicle at the time of the collision was relevant to proving 

whether the defendant was using her vehicle in a manner likely to cause death or 

serious bodily harm. Additionally, even if the circuit court erred in admitting the 

evidence, the error was not reversible error. The evidence would not have changed 

the jury’s verdict. The defendant did not dispute the material facts unequivocally 

reflecting that she was using her vehicle as a dangerous weapon; i.e. in a manner 

that was likely to cause death or serious bodily harm. 

[¶42.] Officer Brian Crozier, an undisputedly qualified accident 

reconstructionist, was unable to perform accident speed reconstruction because of 

the angle of impact of the two vehicles and the lack of markings on the highway. He 

was, however, able to perform elementary kinetic energy calculations. Those 

calculations disclosed the energy or force that the defendant’s 2001 Dodge Intrepid 

exerted on the other vehicle at the time of the collision.6 The comparative kinetic 

energy of the defendant’s vehicle and handguns was offered by the State to prove 

 

6. The physics/mathematical formulas that Officer Crozier used for determining 

kinetic energy were not challenged as unreliable science. As Officer Crozier 

explained, the calculations were “very well recognized throughout the 

accident reconstruction community.” They were published, “proven theories . 

. . based on [the] laws of physics, math[,] and geometry.”
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that the defendant had used her vehicle as a “dangerous weapon”; i.e., in a manner 

that was “likely to inflict death or serious bodily harm” within the meaning of SDCL 

22-16-15(3) and SDCL 22-1-2(10) (requiring that “first degree manslaughter” be 

committed by use of a “dangerous weapon”). In response to the defendant’s 

relevancy objection, the circuit court ruled that Officer Crozier’s testimony was 

relevant because it showed “that the car at the time of the accident was being used 

as a deadly weapon[,]” and that it “g[a]ve the jury some information about the force

. . . of an impact.” 

[¶43.] Evidence is relevant if it makes “the existence of any fact that is of 

consequence to the determination of the action more probable or less probable than 

it would be without the evidence.” SDCL 19-12-1. “Relevancy is demonstrated 

where evidence is necessary to prove an element of the crime . . . .” State v. 

Lassiter, 2005 S.D. 8, ¶ 14 n.2, 692 N.W.2d 171, 175 n.2 (citing State v. Red Star,

2001 S.D. 54, ¶ 11, 625 N.W.2d 573, 577).

[¶44.] In this case, the kinetic energy evidence was relevant because it was 

offered to prove an element of first-degree manslaughter. At trial, the defendant 

argued that she was not guilty of first-degree manslaughter because her manner of 

use of the vehicle did not make the vehicle a dangerous weapon, an element of the 

offense under SDCL 22-16-15(3) and SDCL 22-1-2(10). “A dangerous weapon is 

defined as ‘any firearm, knife or device, instrument, material or substance, whether

animate or inanimate, which is calculated or designed to inflict death or serious 

bodily harm, or by the manner in which it is used is likely to inflict death or serious 

bodily harm.’” Seidschlaw, 304 N.W.2d at 105 (emphasis added) (citing the 
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materially identical predecessor to SDCL 22-1-2(10)). Because a motor vehicle is 

generally not calculated or designed to inflict death or serious bodily harm, the 

State was required to prove that the defendant had used her vehicle in a manner 

that was “likely to inflict death or serious bodily harm.” See SDCL 22-1-2(10). See 

also State v. Stetter, 513 N.W.2d 87, 91-92 (S.D. 1994) (stating that a vehicle can 

constitute a dangerous weapon in a first degree manslaughter prosecution); 

Seidschlaw, 304 N.W.2d at 105-06 (same). Kinetic energy evidence was relevant to 

prove this element. When considered collectively with the defendant’s speed and 

manner of driving, the kinetic energy of the vehicle made it more probable the 

vehicle was being used in a manner that was likely to inflict death or serious bodily 

harm. 

[¶45.] The majority opines that Officer Crozier’s testimony was not relevant 

because it was not “related to the manner in which Kvasnicka drove her vehicle.”

See supra ¶ 31. According to the Court, “Officer Crozier merely used the weight of a 

Dodge Intrepid and the speed limit of 65 miles per hour to reach his opinion.”

Supra ¶ 31. (emphasis added). The Court also points out that Officer Crozier did 

not personally testify to the actual force of impact. Supra ¶ 32.

[¶46.] However, there was no dispute that the defendant was driving her 

vehicle at highway speeds and that she caused a high impact collision. The defense 

offered no evidence to contradict four State witnesses who testified to the extensive 

damage caused by the high impact collision and the high rate of speed of the 

defendant’s vehicle. That testimony provided the evidentiary foundation necessary 
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to support Officer Crozier’s use of a 65 miles per hour rate of speed in making his

kinetic energy calculations.

[¶47.] More specifically, Corbin Burwell, the driver and owner of the other 

vehicle, indicated that the crash was a high impact collision. He testified that the 

defendant’s oncoming vehicle hit his vehicle “hard” on the front and passenger side 

all the way to the back, sliding his car sideways into the ditch. He indicated that 

the passenger side of his vehicle was “cut in half.” He further indicated that the 

force of the impact partially ejected and killed a passenger in the backseat; it 

knocked Burwell partially out of the car, causing multiple back injuries; and it 

caused another passenger to suffer a severely broken arm.

[¶48.] Highway Patrol Sergeant Kyle Hoekstra was the first responding 

officer. He confirmed that Burwell’s vehicle was heavily damaged on both the front 

and passenger side. The defendant’s vehicle also had “very severe” front and 

passenger-side damage. The front passenger side of the vehicle was completely 

destroyed. The impact was sufficient to force the vehicle’s engine into the passenger 

seat area of the defendant’s vehicle. Sergeant Hoekstra observed that the force of 

the impact caused the vehicles to come to rest 300 to 400 yards apart. The debris 

field from the collision covered all three northbound lanes of the interstate for this 

entire distance.

[¶49.] Highway Patrol Trooper Robert Mayer verified that the speed limit in 

that area was 65 miles per hour. Although he did not know the exact speed of the 

defendant’s vehicle, Mayer testified that based on the damage to the vehicles and 

the debris field, “both vehicles [were] definitely going highway speed.” Mayer
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indicated it was unusual to see vehicle crashes causing that much damage. Based 

on his experience of thirteen years investigating 500 crashes, he opined that this 

was definitely a “highway-traffic-speed accident.”

[¶50.] Trooper Mayer also testified regarding a statement he had taken at the 

scene from Edward Bouwman. Bouwman was a driver who, by evasive maneuvers,

had successfully avoided the defendant’s oncoming vehicle seconds before the fatal 

collision. When asked to estimate the defendant’s speed, Bouwman told Mayer that 

the defendant’s vehicle “was flying.” When testifying at trial, Bouwman indicated 

that he observed the defendant’s vehicle gaining speed and accelerating, consistent 

with interstate driving. He estimated that, when the vehicle passed him, the 

defendant’s vehicle’s speed was between 50 and 65 miles per hour. Bouwman 

testified that, as he watched the car in his rearview mirror, he did not recall seeing 

any brake lights before the impact. 

[¶51.] Thus, the Court errs in opining that Officer Crozier’s kinetic energy 

evidence was not tailored to the defendant’s speed and use of the vehicle. Officer 

Crozier’s opinion was based on undisputed evidence that the defendant was 

operating her vehicle at highway speeds at the time of the high impact collision. 

Even the defendant concedes the point, acknowledging that she “was traveling

between 55 and 65 miles per hour” at the time of the collision. Brief for Appellant 

at 4. 

[¶52.] The Court also opines that the kinetic energy evidence was not 

relevant because it only informed the jury about the kinetic energy that any 2001 

Dodge Intrepid would exert at 65 miles per hour. Supra ¶¶ 31, 32. However, this is 
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the “narrow view of ‘relevancy’ [that] misinterprets Rule 401 [SDCL 19-12-1]” and 

has been rejected in this jurisdiction. See Supreme Pork, Inc., 2009 S.D. 20, ¶ 46, 

764 N.W.2d at 487-88. Under the correct view of relevancy, evidence need not 

directly prove the ultimate fact: any proffered item is relevant if it merely appears 

to “alter the probabilities of a consequential fact[.]” Id. And in this case, the kinetic 

energy of any vehicle traveling at highway speeds was a fact of consequence to the 

question whether the defendant’s manner of use of her vehicle would likely cause 

death or serious bodily harm. 

[¶53.] Moreover, today’s Court fails to recognize that, in analyzing relevancy, 

all evidence must be considered collectively. See id. Therefore, “[e]ven though each 

piece of evidence considered separately is less than conclusive, if when considered 

collectively with other evidence it tends to establish a consequential fact, such 

evidence is relevant. For purposes of Rule 401, that is enough.” Id. (emphasis 

added) (quoting 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal 

Evidence, § 401.04[2][c] (Joseph M. McLaughlin, ed., Matthew Bender 2d ed. 2008)). 

[¶54.] In this case, the Court fails to consider the kinetic energy evidence of

any 2001 Dodge Intrepid collectively with the other evidence establishing the 

manner in which the defendant was using her vehicle. When considered 

collectively, the kinetic energy of a 2001 Dodge Intrepid and the defendant’s 

manner of use of that vehicle increased the probability that death or serious bodily 

harm was likely. After all, there is a difference between the likelihood of death or 

serious bodily harm resulting from the kinetic energy exerted by a vehicle being 

operated by an impaired driver in a grocery store parking lot and the kinetic energy 
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of an identical vehicle being operated on an interstate at highway speeds. Officer 

Crozier’s testimony provided the jury with quantitative and qualitative evidence of 

the energy exerted by the higher velocity vehicle. Certainly, the high kinetic energy 

evidence increased the likelihood of death or serious bodily harm resulting from this 

defendant’s method of operating her vehicle at highway speeds. 

[¶55.] The comparative kinetic energy evidence was also relevant. Officer 

Crozier explained that a kinetic energy comparison was useful in understanding the 

energy or force exerted by a vehicle traveling at highway speeds. Officer Crozier 

compared the kinetic energy of the defendant’s vehicle and his handgun, but he also 

indicated that the energy or force exerted by the defendant’s vehicle could be 

compared to any other object. Because the State was required to prove that the 

defendant’s motor vehicle was a “dangerous weapon,” the circuit court did not abuse 

its discretion in allowing this motor vehicle’s kinetic energy to be compared to that 

of a more commonly understood dangerous weapon. After all, the defendant’s 

manner of use that morning made the vehicle legally the same as a gun or other 

inherently “dangerous weapon.” SDCL 22-1-2(10). See also Stetter, 513 N.W.2d at

91-92; Seidschlaw, 304 N.W.2d at 105-06. Because the State was required to prove

that the manner of use of the vehicle was likely to cause death or serious bodily 

harm, the circuit court’s kinetic energy ruling was not “clearly against reason and 

evidence.” See Roach, 2012 S.D. 91, ¶ 37, 825 N.W.2d at 268.

[¶56.] Finally, even if we assume that the circuit court erred in allowing the 

kinetic energy calculation or the kinetic energy comparison, the defendant failed to 

establish that the error was prejudicial. See State v. Vatne, 2003 S.D. 31, ¶ 10, 659 
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N.W.2d 380, 383 (requiring reversible error to be prejudicial). “Error is prejudicial 

when, in all probability[,] it produced some effect upon the final result and affected 

rights of the party assigning it.” Id. (internal quotation marks omitted). 

[¶57.] In this case, the assumed error was not prejudicial because there is no 

question that the jury would have returned the same verdict without the kinetic 

energy evidence. The defendant admitted that she was driving the 2001 Dodge 

Intrepid the wrong way on Interstate 229 at night while under the influence of 

alcohol and marijuana. She even admitted that she was guilty of vehicular 

homicide.7 Additionally, numerous witnesses testified to the high impact, highway 

speed, head-on collision. The prosecutor argued to the jury that death or serious 

bodily harm was likely because the defendant was operating her vehicle the wrong 

way on the interstate with marijuana and three times the legal limit of alcohol in 

her blood (BAC .225 %). The prosecutor then specifically informed the jury that 

they did not need to consider the one testimonial reference to handguns made 

during the six-day trial. The prosecutor told the jury that the “rest of the evidence 

certainly informs you [the jury] that [the vehicle was] a dangerous weapon” by the 

 

7. The defendant did not testify. However, the defense made these admissions 

in opening and closing statements. By conceding that she was guilty of 

vehicular homicide, the defendant conceded that she was:

[a] person who, while under the influence of alcohol, drugs, or 

substances in a manner and to a degree prohibited by § 32-23-1, 

without design to effect death, operate[d] or [drove] a vehicle of any 

kind in a negligent manner and thereby cause[d] the death of another 

person, including an unborn child[.] 

See SDCL 22-16-41. 
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manner in which it was used. The prosecutor asked the jurors to simply use their 

common sense to determine whether a 3,100 pound vehicle, operated the wrong way 

on the interstate at night by an impaired driver, was something that was likely to 

cause death or serious bodily harm.8 The defendant offered no evidence to dispute

this argument. 

[¶58.] The Court offers two reasons why it believes the kinetic energy 

evidence affected the jury’s verdict. The Court first merely reiterates its view that 

Officer Crozier’s testimony was not specific to the manner in which the defendant 

drove her vehicle. See supra ¶ 33. But as previously demonstrated, this view is 

unsupportable under the record in this case. Numerous witnesses to the accident 

confirmed that Officer Crozier’s calculations were related to the manner in which 

the defendant was actually driving. The Court also concludes the verdict would 

have been different because an expert witness presented the kinetic energy 

evidence. In the Court’s view, this left the jury “with virtually no decision to make 

other than to conclude that [the defendant] used her vehicle as a dangerous 

weapon.” Supra ¶ 35. This of course ignores the prosecutor’s specific direction to 

the jury that it could determine the “likely to cause death or serious bodily harm” 

question based on the jury’s common sense without the use of the kinetic energy 

evidence. The Court also ignores the fact that the circuit court specifically 

instructed the jury “[y]ou are not bound to accept an expert’s opinion as conclusive, 

 

8. The Court incorrectly asserts that the State conceded “questionable

relevanc[y]” of Officer Crozier’s testimony. See supra ¶ 32. The State merely 

argued to the jury that the first-degree manslaughter by use of a dangerous 

weapon charge was sustainable with or without the handgun comparison.
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but should give to it the weight to which you find it to be entitled. You may 

disregard any such opinion if you find it to be unreasonable.”

[¶59.] Under the extreme and undisputed facts of this case, all reasonable 

jurors would have found that Kvasnicka, driving her motor vehicle at highway 

speeds the wrong way on an interstate highway at night while incapacitated by 

alcohol and marijuana, was likely to cause an accident resulting in death or serious 

bodily harm. Therefore, all reasonable jurors would have found that Kvasnicka was 

using her vehicle as what our law defines as a dangerous weapon. Consequently, 

even if the circuit court abused its discretion in allowing the kinetic energy 

evidence, the error could not have affected the verdict, and this conviction should be 

affirmed. 

[¶60.] GILBERTSON, Chief Justice, joins this dissent.