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201 4 S.D. 29 IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA * * * * STATE OF SOUTH DAKOTA , Plaintiff and Appellee ,

v. DEREK BOE , Defendant and Appellant

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* * * * APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES COUNTY, SOUTH DAKOTA * * * * THE HONORABLE JOHN L. BROWN Judge * * * * MARTY J. JACKLEY Attorney General KELLY MARNETTE Assistant Attorney General Pierre , South Dakota Attorneys for plaintiff and a ppellee

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BRAD A. SCHREIBER JOAN BOOS SCHUELLER of Schreiber Law F irm , LLC Pierre , South Dakota Attorneys for defendant and appell ant

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* * * * ARGUED ON MARCH 26, 2014 OPINION FILED 

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- KONENKAMP, Justice [¶ 1. ] Derek Leroy Boe was convicted by a jury of aggravated assault, discharge of a firearm at a car , and possession of a firearm by a prohibited person. On appeal, he assert s , among other things, that the circuit court ab used its discretion when it admitted evidence of his 2002 conviction for aggravated assault as other act evidence under SDCL 19

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- 5 (Rule 404(b)). B ackground [¶ 2. ] Boe and Tabetha Key began a romantic relationship in 2011 . T hey lived togethe r in Boe’ s hom e until an argument led Key to move out at the end of the year. Shortly thereafter, o n January 21, 2012, Boe planned to spend the day and night at his friend Brad Nystrom’s place. Boe was without his children for the weekend and he and Nyst rom planned to fix a tractor. While Boe was at Nystrom’s, Key called and asked if she could come over . Boe said yes , and a round noon , Key arrived. S he parked her 1995 GMC Jimmy in Nystrom’s shop and began to clean it
out. [¶ 3. ] A t 4:00 p.m ., Boe left for town to meet one of his children. He planned to come back and spend time with Key and Nystrom. He told Key that she could stay and c ontinue cleaning out her Jimmy

. While Boe was gone, his friend Colin Larson called him to see what his ev ening plans were. After Boe told him he planned to be at Nystrom’s, Larson suggested they have a boy s ’ night . Boe agreed , and Larson drove out to Nystrom’s place. Larson admittedly d islikes Key . Once Larson arrived at Nystrom’s, he asked Nystrom if he could tell Key to leave

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- Nystr o m complied

. But Key refused and locked herself and her Jimmy in Nystrom’s shop. [¶ 4. ] A t 9:00 p.m., Boe returned

. He knew Larson and Key were arguing and that Key refused to leave. Boe tried unsuccessfully t o convince Key to leave. Boe decided he would hook a chain between his 1993 GMC S uburban and Key’s Jimmy and pull her Jimmy out of the shop. After he got the chain hooked to her vehicle and started pulling, Key rammed her Jimmy into Boe’ s S uburban . She then drove away, heading north on Nystrom Road. Boe followed her in his Suburban

. Key changed course and decided to go south toward the highway. When she turned around, she saw Boe’s S uburban blocking th e road. She ran into his Suburban, she later clai med , to move him out of the way. After she hit his S uburban, however, she slid into the ditch and her Jimmy became stuck. [¶ 5. ] Boe later testified that when Key rammed his Suburban for the second time he did not believe she would stop until both vehicles wer e destroye d. With Key’s Jimmy stuck in the ditch, Boe parked his Suburban on the road, grabbed a New England Firearms “ Pardner ” 20 Gauge Single Shot Shotgun , exited the vehicle , and walked toward Key’s Jimmy

. He claimed t hat he intended to use the shot gun to tap on Key’s passenger

- side window, break the glass, and get Key’s attention. Boe thought she would re spond by driving to town. Key later testified that when she saw Boe exit his S uburban and walk toward her, she did not see the sho t gun . It is undisputed that when Boe was near Key’s passenger

- side window with the shot gun, it discharged and shatter ed Key’ s passenger - side window. Key was injured by flying glass and pellet fragments

. She jump ed out of her Jimmy and# 26691

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- yelled, “my eyes, my eyes, I can’t see.” Boe dropped the gun and went to her. He claimed the gun went off accidentally and that immediately afterwards he was concerned for her wellbeing. [¶ 6. ] After Key calmed down, Boe hooked a chain to Key’s Jimmy and pulle d it out of the ditc h. She drove south on Nystrom R oad to the highway and into Pierre. She stopped at a gas station because she was having problems seeing and wanted to get cleaned up. While she was at the gas station, she called Boe and asked for him t o come help her . He arrived and took her to his house in Ft. Pierre. There, he removed glass f ro m her face and body. She sent a text message to her mother to come get her. Key’s mother arrived and took Key to her home . She spent more time removing gla ss pieces embedded in her skin

. The next day she was on the phone with her brother explaining what happened. Her mother overheard the conversation and insisted that Key call law enforcement authorities . Key did, but called back later and said she did no t want to press charges. [¶ 7. ] Hughes County Deputy Sheriff Bill Gallagher responded to Key’s call and met with her at her mother’s home. He took pictures of her injuries and took her to the emergency room for medical treatment. Dr. Joseph Vil la observed glass

type shard injuries to her face, upper chest, shoulder, arms, and thighs. He removed two foreign objects from her temple and forehead, which were later d etermined to be lead. Deputy Gallagher had requested assistance with the South Dako ta Division of Criminal Investigation. Agent Chad Mosteller met with Key at the emergency room. He took photographs of her injuries and interviewed her.# 26691

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- [¶ 8. ] Agent Mosteller travelled to Nystrom’s place, along with Deputy Gallagher and anot her DCI agent. When the y arrived, Boe was there, along with Nystrom, Anna Jensen, and two of Boe’s children. Deputy Gallagher spoke with Nystrom while Agents Mosteller and Rechtenbaugh interviewed Boe. Boe told the agents about his argument with Key. H e said he pulled Key’s Jimmy out of Nystrom’s shop and that Key rammed his S uburban. He said Key str uck his S uburban a second time, causing her to land in the ditch . Realizing her Jimmy was stuck, Boe said he backed his Suburban up to the side of Key’s J immy and lowered his tailgate to get the chain to pull her out . As he opened his tailgate, the shot gun fell out of the back of his Suburban , discharged in midair, and shot out Key’s
passenger - side window. [¶ 9. ] Boe gave Agent Mosteller permis sion to retrieve the shot gun from Nystrom’s shop, and it was secured as evidence. Boe explained that he had given the shot gun to his daughter as a present for her fourteenth birthday. He had a prior felony that prohibited him from buying or owning a fire arm . He had arranged for a friend to buy the shot gun in his friend’s name . Boe said that he was familiar with the shot gun and had fired it several times. Agent Mosteller arrested Boe for possession of a firearm by a prohibited person. [¶ 10. ] At the jail, Agents Mosteller and Rechtenbaugh interviewed Boe a second time. Boe changed his story. This time h e told the agents that after Key’s Jimmy became stuck, he grabbed the shot gun as he exited his S uburban. He said that he only intended to us e the shot gun to tap on Key’s passenger

- side window, to# 26691

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- get her attention , and convey that he was serious about her leaving. He insisted that his finger was not on the trigger and that the shot gun accidentally discharged

. [¶ 11. ] Boe was charge d with aggravated assault in violation of SDCL 22

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- 1.1 and possession of a firearm by a prohibited person in violation of SDCL 22

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- 15. A grand jury later issued a superseding indictment adding additional charges of attempted first

- degree murder in vio lation of SDCL 22

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- 1, SDCL 22

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- 4 , and discharge of a firearm at an occupied structure or motor vehicle in violation of SDCL 22

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- 20. In a Part II Information, t he State also alleged that Boe was a habitua l offender

. [¶ 12. ] Before trial , th e State moved to offer evidence of Boe’s 2002 conviction for aggravated assault ( domestic violence ) as other act evidence under SDCL 19

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- 5 (Rule 404(b)). Th is evidence was relevant, th e State asserted, to prove Boe’s intent, motive, and absence of mista ke or accident. In granting the motion, the circuit court ruled : T he fact tha t both instances involve some on e with whom he [Boe] was in a relationship with, both of them involved a loaded

– well, involved a firearm. I guess I’m not certain whether the h andgun was loaded. I am not clear on that. But certainly in the heat of a dispute of some sort he resorted to some type of action which was threatening or perceived to be threatening at least by the victim in the case. I certainly believe it is relevant

. And although it’s ten years old, I think the similarities are strikingly similar and I think they are relevant to prove motive, intent, and certainly to negate a defense of accident in this case. So I agree it’s not particularly relevant as a course of conduct or continuing conduct, but I think in those other issues as to motive and intent it is relevant. And I will find that although it may be prejudicial, it’s not unfairly so in the context of this case[.]”# 26691

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- [¶ 13. ] In the jury trial, Nyst rom and Larson testified about what happened at Nystrom’s place. Also testifying were Key’s mother, the gas station attendant, and two of Boe’s children. Dr. Villa testified about Key’s injuries. Deputy Gallagher and Agents Mosteller and Rechtenbaugh te stified about their investigation , relating Boe ’s conflicting versions of the incident. Mateo Serfontein, a criminalist and firearm s examiner with the DCI , testified t hat at the time Boe used the shot gun it was fully functioning . The shot gun had an inter nal safety mechanism to ensure that it could not be discharged without the trigger being pulled. Serfontein listed the steps necessary to fire the gun: put an unfired cartridge in the chamber, close the gun, cock the hammer back, and pull the trigger. Ac cording to Serfontein, it would be visually ob vious when the hammer was pulled back . It would stay cocked unti l the trigger was pulled. He tested the gun in varying scenarios and confirmed that it would not fire without the trigger being pulled. He foun d no sign that the
gun had malfunctioned on January 21, 2012. Serfontein was also trained as a crime scene investigator. He testified that although he was unable to determine exactly how far the barrel of the gun was from the Jimmy when it fired, it was in close proximity. Also, the shot came within inches of Key as she sat in the driver’s seat. [¶ 14. ] In her testimony, Key con firmed that she ran into Boe’s S uburban twice. She did not see Boe with a shot gun, but only saw him getting out of t he Suburban . She admitted that since the investigation started that she ha d gone back and forth between cooperating and not cooperating with the State because of her feelings for Boe.# 26691

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- [¶ 15. ] The State called Jenny Ponca, the victim of Boe’s 20 02 aggravated assault ( domestic ) violence convictio n. Ponca , the mother of four of Boe’ s children , recounted that w hile she and Boe w ere in a relationship and living together, they attended a social gathering at Boe’s mother’s home. Boe was intoxicated. Ponca and Boe argued because Ponca wanted to leave. Boe was showing off to his friends. H e had a gun , and when Ponca tried leaving, he hit her on the head twice with it

. It was unloaded. Ponca suffered a concussion. Boe pleaded guilty to aggravated

a ssault ( domestic violence ) and se rved four years in prison. His judgment of conviction was admitted in evidence

. [¶ 16. ] Boe ’s trial testimony was consistent with his statement in the second law enforcement interview . He could not recall exactly why he put the shot gun in his Suburban that day. In explaining his decision to hook a chain to Key’s Jimmy and pull it out of Nystrom’s shop, Boe testified, “I was willing to drag her car all the way to the highway if she didn’t want to leave, to get her off the property.” When her Jimmy became stuck, Boe believed “she’s obviously not going to stop until both

car s are completely destroyed. I’m thinking I need to sto p her. I just immediately grabbed the shotgun and I get out, still facing west. You kno w, it happened pretty fast. I just grabbed the shotgun and I’m not

– and I’m thinking I need to bust her windows out because it’s cold, so that she’ll go to town.” He said that he did not point the gun at the Jimmy , but when he struck the window with the shotgun “it flashed, boom.” He did not want the gun to go off and was shocked that it did. He maintained that he did not have his finger on the trigger. He insisted it was an accident. On cross

- examination, he confirmed that he told Agent Mosteller th at he# 26691

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- had never been “ so e f fing mad and effing pissed of f at a woman ” in his whole life as he had been with Key that day

. [¶ 17. ] The jury acquitted Boe of attempted first

- degree murder and found him guilty of aggravated assault ( domestic violenc e ) in violation of SDCL 22

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- 1.1(2) , discharge of a firearm at a motor vehicle , and possession of a firearm by a prohibited person. Boe admitted to being a habitual offender. The circuit court sentenced him to twenty years imprisonment for both the aggr avated assault and discharge of a firearm convictions and three years for possessing a firearm, all to be served concurrently. Boe appeals asserting that the circuit court abused its discretion when it admitted evidence of his 2002 conviction as other act evidence under SDCL 19

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- 5 (Rule 404(b)) and that there wa s insufficient evidence to sustain his conviction for aggravated assault

. A nalysis and Decision [¶ 18. ] Boe contends the fact that he struck a previous girlfriend with an unloaded gun in 2002 does not tend to make it more probable that he intended to fi re a loaded shot gun and injure Key in 2012, and therefore, the ev idence of his 2002 conviction was not relevant to any material fact in the charged crime

. He argues that although he was involved in a romantic relationship with both victims , the similarities between the 2002 and 2012 incidents end there. Specifically, he asserts that w hen he injured Ponca in 2002, he was intoxicated and showing off in front of his friends , but w hen he inj ured Key, he was sober, alone with Key , and at no time attempted to strike her with the shot gun, loaded or unloaded. Relying on these# 26691

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- “marked dissimilarities , ” Boe maintains that the other act evidence was offer ed only to prove propensity, and therefore, unfairly prejudiced him

. [¶ 19. ] For its part, t he State argues that the 2002 incident and current incident involve similar crimes and similar victims and that the 2002 incident was relevant to prove Boe’s motive, intent, and the absence of mista ke or accident. The State asserts that i n both incidents Boe became angry at his then

- girlfr iend (similar victims) and used a firearm to induce compliance, and in so doing injured his victim s (similar crimes). [¶ 20. ] Our review of a trial cour t’s decision to admit other act evidence under SDCL 19

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- 5 (Rule 404(b)) is for an abuse of discretion. State v. Wright , 1999 S.D. 50, ¶ 1 2 , 593 N.W.2d 792, 79 7 (citations omitted)

. Only when other act evidence is offered to prove character is the evid e nce inadmissible. Id. ¶ 13. As we said in Wright , “ under § 404(b) other act evidence may not be admitted if its sole purpose is to establish an inference from bad character to criminal conduct. It is admissible when similar in nature and relevant to a m aterial issue, and not substantially outweighed by its prejudicial impact. The degree of similarity required for other act evidence will depend on the purpose for which it is offered. ” Id. ¶ 16. [¶ 21. ] Here, the State offered the other act evi dence to negate Boe’s claim that the shot gun fired accidentally , that he did not intend to harm Key with the shot gun, and that he had no motive to harm her. Evidence of a prior crime can also demonstrate a defendant’s motive to commit the current crime or demonstrate the existence of a motive when the re is a relationship between the victims. State v. Lassiter , 2005 S.D. 8, ¶ ¶ 21

- 24, 692 N.W.2d 171, 177

- 79. B efore admitting other act# 26691

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- evidence under SDCL 19

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- 5 (Rule 404(b)), the court must use a two

- step analysis: (1) is the evidence relevant to an issue other than character? and (2) i s the probative value substantially outweighed by the danger of unfair prejudice ? Wright , 1999 S.D. 50, ¶ 1 7 , 593 N.W.2d at 800 (citing State v. Ondricek , 5 3 5 N.W.2d 872, 8 73 (S.D. 1995) ). [¶ 22. ] In answering the first question, t he circuit court concluded that Boe’s previous act of assaulting a girlfriend with a gun when he was angered with her was relevant to prove the material fact that Boe had the motive and intent to harm Key with the shot gun and that harming Key was not an accident or mistake. The court further ruled that the probative value of the evidence was not outweighed by the danger of unfair prejudice

. Moreover, the court instructed the jury that t he evidence of the 2002 conviction could only be used to “show motive, intent, and absence of mistake or accident.” The jury was also instructed that it “may not consider it as tending to show in any other respect the defendant’s guilt of the offense with which the defendant is charged.” [¶ 23. ] In this appeal, Boe bears the burden of proving that the court abused its discretion when it admitted th is evidence, and that the admission was unfairly prejudicial

. See State v. Dubois , 2008 S.D. 15, ¶ 19, 746 N.W.2d 197, 204 (citation omitted)

. On the question of relevance, t he record shows a similarity between the victims and the crimes sufficient to support the court’s decision to admit the evidence to prove intent and to negate Boe’s claims of acci dent and mistake. “A prior act admitted to show guilty knowledge need not be identical to the crime charged. It need only be ‘reasonably related to the offending conduct.’” State v.# 26691

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- Lodermeier , 481 N.W.2d 614, 625 (S.D. 1992) (citation omitted). Both i ncidents involved a female victim in a rela tionship with Boe and a victim who was not complying with Boe’s wishes

. Bo e used a firearm in both incidents. In the first incident , in 2002 , he used a pistol to make hi s then

- girlfriend listen to him and comply with his orders , resulting in injury to her

. That t h is incident did not involve a loaded gun or the disch arge of a gun do es not erase the relevancy of the evidence

. As it pertained to the current charge, t he question wa s whether this prior act ha d a ten dency to make it more probable or not that Boe attempted to cause, or knowingly caused, bodily injury to Key with a dangerous weapon. T he court did not abuse its discretion when it ruled that the 2002 other act evidence was relevant under SDCL
19

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- 5 (Ru le 404(b)). [¶ 24. ] After other act evidence is deemed relevant, the next inquiry obliges the court to balance the probative value of the evidence against its potential for unfair prejudice. Wright , 1999 S.D. 50, ¶ 1 7 , 593 N.W.2d at 800

. Boe contends the prejudice is unfair, in part from a potential juror’s response to hearing about the conviction during voir dire and in pa rt because the 2002 conviction wa s too remote. Admission of other act evidence may result in some prejudice, but to be in admissible that prejudice must be unfair. Here, Boe has not established that the evidence allowed the jury to be persuaded by illegitimate means. See State v. Smith , 1999 S.D. 83, ¶ 19, 599 N.W.2d 344, 349

- 50. The potential juror who was concerned with Boe’s prior conviction was dismissed for cause. The empaneled jury was specifically instructed that it could only consider the evidence for deciding motive, intent, and absence of mistake or accident. H ere, t he crux of the case was# 26691

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- Boe’s mental state

— d id he intend to harm Key with the shot gun or was it an accident? See State v. Owen , 200 2 S.D. 42 , ¶ 46, 643 N.W.2d 735, 749. Indeed, in his defense he insisted that the shot gun fired accident ally . Thus, whether Boe’s assault on Key was unintended was op en to inference and the use of the 2002 incident could assist in showing an absence of mistake or accident. Moreover, although Boe’s 2002 conviction wa s nearly ten years old, Boe was sentenced to prison for four years during that time

. See State v. Moell e r, 1996 S.D. 60, ¶ 185, 548 N.W.2d 46 5, 505 ( Gilbertson , C. J., concurring in part and dissenting in part) (defendant’s period of incarceration taken into account) (citations omitted)

. [¶ 25. ] Nonetheless, Boe contends that this Court’s decision i n State v. Chamley guides our analysis here. 1997 S.D. 107, ¶ 12, 568 N.W.2d 607, 61 2

. Chamley is distinguishable for several reasons. First, the prior acts there were offered in part to prove absence of mistake or accident, yet the defense was not base d on mistake or accident, but a denial of the charged acts . Second, unlike our case, the prior act s in Chamley w ere twelve to twenty years old

. Third, on the issue of intent , the Chamley Court found a critical lack of similarity between the charged offen ses and the prior acts. In our case, as we have said, there was sufficient similarity with the prior act. Fourth, at least twice Chamley cited and applied the wrong legal standard : “ whether the probative value of the proffered evidence substantially outw eighs the danger of unfair prejudice

. ” Id

. ¶ ¶ 1 0, 16 . Th at is backwards. Id

. ¶ 57 (Gilbertson, C. J., dissenting). We take this opportunity to overrule this erroneous language. The correct test, as stated in SDCL 19

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- 3 (Rule# 26691

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- 403), is whether the “pro bative value is substantially outweighed by the danger of unfair prejudice . . . .” Th e decision in Chamley provides n o assistance to Boe. [¶ 26. ] Boe next claims that there wa s insufficient evidence to support the jury’s guilty verdict on the charge of aggravated assault ( domestic violence )

. He contends that because he and Key were the only witnesses to the events and both
agree d that Boe did no t intend to injure Key, there was insufficient evidence for the jury to conclude that Boe attempted to cause, or knowingly caused, bodily injury to Key with a dangerous weapon. He points out the fact that he went to Key’s aid after she was injured, conduct inconsistent with someone wanting to cause injury. [¶ 27. ] Sufficiency of the evidence challenges raise questions of law reviewed de novo. State v. Wheeler , 2013 S.D. 59, ¶ 7, 835 N.W.2d 871, 873 (citing State v. Jucht, 2012 S.D. 66, ¶ 18, 821 N.W.2d 629, 633 ). “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 cr ime beyond a reasonable doubt.’ ” State v. Brim , 2010 S.D. 74, ¶ 6, 789 N.W.2d 80, 83 (quoting State v. Klaudt , 2009 S. D. 71, ¶ 14, 772 N.W.2d 117, 122). “No guilty verdict will be set aside if the evidence, including circumstantial evidence and reasonable inferences drawn therefrom, sustains a reasonable theory of guilt.” State v. Shaw , 2005 S.D. 105, ¶ 44, 705 N.W.2d 6 20, 632 (citation omitted)

. [¶ 28. ] To convict Boe of aggravated assault under SDCL 22

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- 1.1 (2), the jury was required to find beyond a reasonable doubt that Boe attempted to cause, or knowingly caused, bodily injury to Key with a dangerous wea pon. Aggravated# 26691

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- assault is a general intent crime ; the State was required to prove that Boe had the intent to do the physical act , or perhaps, recklessly did the physical act , which the crime requires. See State v. Barrientos , 444 N.W.2d 374, 376 (S.D. 1 989). It is undisputed that Boe fired a gun into Key’s Jimmy while Key was sitting in the driver’s seat and tha t she was injured as a result. T o prove t hat the gun did not fire accidentally, the State offered testimony through a firearm s expert . He test ified that the gun had an internal safety mechanism to prevent accidental discharge and that there was no sign it had m alfunction ed on January 2 1 , 2012 . The expert explained that in order for the shot gun to fire, the hammer must be pulled back and the tri gger must be pulled. He tested the shot gun to see if it would discharge accidentally without pulling the trigger and opined that the gun would not accidentally discharge. The jury also heard evidence that Boe was angrier than he had ever been at a woman, that he intended to use the gun to break out Key’s window, and that he would have do ne anything to get her to leave Nystrom’s place that evening to let the boys have their night. Therefore, although Boe insisted that the gun fired accidentally and that h e had no intent to harm Key , there was sufficient evidence to support the jury’s verdict. [¶ 29. ] Affirm ed

. [¶ 30. ] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and WILBUR, Justices, concur.