#29549-a-SRJ

2022 S.D. 20

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

KADIR HUSSEIN AHMED, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE CAMELA THEELER

Judge

* * * *

JASON R. ADAMS of

Tschetter & Adams Law Offices, P.C.

Sioux Falls, South Dakota Attorneys for defendant and 

appellant.

JASON R. RAVNSBORG

Attorney General

CHELSEA WENZEL

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff and 

appellee.

* * * *

CONSIDERED ON BRIEFS

FEBRUARY 14, 2022

OPINION FILED 04/06/22
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JENSEN, Chief Justice

[¶1.] Kadir Hussein Ahmed was charged with multiple counts arising from 

two separate incidents involving an alleged shooting and a later confrontation 

between Ahmed and two men. A jury found Ahmed guilty of seven counts, 

including aggravated assault by physical menace with a dangerous weapon and 

grand theft by receiving stolen property. Ahmed appeals both convictions arguing 

that the circuit court erred when it denied his motion for judgment of acquittal 

because there was insufficient evidence to support the convictions. We affirm.

Facts and Procedural History

[¶2.] On July 25, 2020, Angela Graham was awakened around 5:00 a.m. by 

“some ruckus” and pounding at her door. After the pounding stopped, Graham 

claimed she walked outside and saw Ahmed. Graham alleged that Ahmed shot a 

gun three times, forcing her to retreat to her apartment and call the police. During 

the 911 call, Graham identified the shooter as Ahmed, who was driving a black 

vehicle. Graham recognized Ahmed as a friend of her oldest daughter.

[¶3.] Law enforcement responded to the call. Upon arrival and a brief 

inspection of the scene, the officers were unable to observe any evidence of a 

shooting and left the scene. Shortly after law enforcement left, Graham made a 

second 911 call stating that Ahmed had returned to her apartment door.

[¶4.] Officer Andrew Parrot responded to the second 911 call. Officer Parrot 

inspected the apartment and discovered bullet holes in and around the apartment. 

He believed the interior bullet holes were fresh, however no bullets or casings were 

found.
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[¶5.] Graham identified Ahmed by his nickname, “K.D.,” and shared 

Ahmed’s Facebook profile with law enforcement. Graham also directed law 

enforcement to an apartment complex in Sioux Falls where Ahmed was staying. 

Law enforcement also discovered that Ahmed was driving his aunt’s black Nissan 

Versa. Detectives Pat Mertes and Logan Eilers were dispatched to the apartment 

complex where Ahmed was believed to be staying and located the vehicle registered 

to Ahmed’s aunt in the parking lot. The detectives parked along the street to 

observe the vehicle. After a few minutes, Ahmed exited his apartment building and 

left in the vehicle. The detectives attempted to follow Ahmed but lost sight of him.

[¶6.] The detectives returned to Ahmed’s apartment complex and observed 

Ahmed come out of an apartment building and approach a woman later identified 

as Racquel Jellis. Jellis was visiting her brother-in-law, Heath Range, and her 

boyfriend, Mitchell Erickson. Jellis testified that she had never met Ahmed but 

noticed him approaching her once she arrived at the apartment complex. Jellis 

became scared of Ahmed’s presence and began to quickly walk away from him as he 

followed her into the apartment building. Once inside Range’s apartment, Jellis 

informed both Erickson and Range that a man had followed her into the building.

[¶7.] Range and Erickson exited the apartment building to confront Ahmed 

about his interaction with Jellis. Range asked Ahmed, “What’s going on man. That 

ain’t your girlfriend.” Range testified that Ahmed then pulled out a silver revolver 

from the front of his waistband and responded, “don’t worry about it,” and “you 

don’t want none of this smoke [N-Word]. You don’t want none of this smoke.” Upon 
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seeing the gun, Range and Erickson retreated into the apartment building and 

Ahmed walked away from the building.

[¶8.] The detectives observed the confrontation but due to a privacy fence 

between the detectives and the three individuals, they could only see the men’s 

faces and top portion of their shoulders. Detective Eilers observed Range and 

Erickson show surprise or fear during the confrontation and retreat into the 

apartment building. Detective Eilers did not see a gun.

[¶9.] Ahmed then ran to his vehicle and attempted to leave the apartment 

complex parking lot. Officers Trent Ehler and Scott Hildebrand arrived at the 

apartment complex and initiated a traffic stop in the parking lot. As Officer Ehler 

exited his patrol vehicle, he heard someone yell, “he’s got a gun.” Ahmed exited his 

vehicle and ran toward the apartment buildings while holding the front of his 

waistband. At trial, Officer Ehler explained that based on his training and 

experience, he believed Ahmed was attempting to stabilize a firearm as he ran. 

Ahmed ran into an apartment building and locked himself in the apartment for 

several minutes. Additional officers arrived and directed Ahmed to exit the 

apartment. Another occupant came out of the apartment first. A few minutes later, 

Ahmed exited, told the officers that they needed a warrant to search his apartment,

and law enforcement detained him without further incident.

[¶10.] Detective Eilers interviewed Ahmed, who was unable to provide a 

consistent timeline of his day leading up to his arrest. Ahmed claimed that he was 

having trouble recalling his day because he had been drinking. Ahmed denied any 

involvement in the shooting earlier that day and denied threatening Range and 
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Erickson with a gun. Ahmed also asked Detective Eilers several times if she saw 

him pull a gun while motioning as if he were pulling out a gun from his waistband 

from the front of his pants. However, Ahmed denied that he had a gun during the 

confrontation. Ahmed stated that he ran from the officers because he had been 

drinking and believed an individual named Shalice had called the police on him.

[¶11.] Law enforcement later executed a search warrant for Ahmed’s 

apartment. Officers found several unspent bullet rounds in different locations 

throughout the apartment, including in the pockets of a pair of pants that contained 

his personal identification card. The officers also discovered a black bumper in the 

apartment that matched the vehicle Ahmed was driving. In the apartment 

bathroom, Detective Mertes found a silver revolver wrapped in a white cloth hidden 

inside the garbage basket. Inside the revolver was one unspent bullet round, 

matching the other bullets found inside the apartment. Detective Mertes ran the 

serial number on the revolver, which revealed that the firearm was reported as 

stolen. At trial, Cory Burrell testified that in June 2020 his Silver Taurus .38 

Special Ultralight revolver was stolen from his vehicle and he identified the gun 

found in Ahmed’s apartment as his gun.

[¶12.] A grand jury indicted Ahmed on multiple counts stemming from the 

shooting at Graham’s apartment and the later confrontation at Ahmed’s apartment. 

Count 7 of the indictment charged Ahmed with a Class 3 felony for aggravated 

assault by physical menace with a deadly weapon pursuant to SDCL 22-18-1.1(5), 
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stemming from the confrontation with Erickson outside the apartment.1 Count 11 

charged Ahmed with a Class 6 felony for grand theft by receiving stolen property 

pursuant to SDCL 22-30A-17(2) and SDCL 22-30A-7, stemming from the firearm 

recovered at his apartment. At trial, Ahmed moved for a judgment of acquittal on 

all charges. The court took the motion for judgment of acquittal on Count 11 under 

advisement but denied the motion as to all other counts.2 The jury found Ahmed 

guilty on seven of the fourteen counts, including Counts 7 and 11. The convictions 

on seven of the charges all arose from the events at Ahmed’s apartment complex. 

The jury found Ahmed not guilty on all the charges arising from the alleged 

shooting earlier in the day at Graham’s apartment.

[¶13.] Ahmed appeals his convictions for aggravated assault by physical 

menace against Erickson in Count 7 and for grand theft by receiving stolen property 

in Count 11 arguing that the circuit court erred in denying his motion for judgment 

of acquittal.

Analysis and Decision

[¶14.] “[A] motion for judgment of acquittal attacks the sufficiency of the 

evidence, which is a question of law whether the motion is considered before or after 

the jury’s verdict.” State v. Wolf, 2020 S.D. 15, ¶ 12, 941 N.W.2d 216, 220. “A 

question regarding the sufficiency of the evidence to sustain a conviction is reviewed 

1. Count 8 of the indictment alleged a separate charge for aggravated assault by 

physical menace with a deadly weapon as to Heath Range. Ahmed was 

convicted of Count 8 but does not challenge this conviction on appeal.

2. The court did not formally rule on the motion for judgment of acquittal as to 

Count 11 but submitted the charge to the jury and imposed a sentence on the 

conviction after the guilty verdict was entered.
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de novo.” State v. McReynolds, 2020 S.D. 65, ¶ 11, 951 N.W.2d 809, 814. When 

reviewing the sufficiency of the evidence, the Court considers “[w]hether there is 

evidence in the record which, if believed by the fact finder, is sufficient to sustain a 

finding of guilt beyond a reasonable doubt.” Wolf, 2020 S.D. 15, ¶ 13, 941 N.W.2d at 

220 (citation omitted). On review, the Court “accept[s] the evidence and the most

favorable inferences that can be fairly drawn from it that support the verdict.” Id.

(quoting State v. Carter, 2009 S.D. 65, ¶ 44, 771 N.W.2d 329, 342). This Court does 

not “resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh 

the evidence on appeal. If the evidence including circumstantial evidence and 

reasonable inferences drawn therefrom sustain a reasonable theory of guilt, a guilty 

verdict will not be set aside.” Id. (quoting Carter, 2009 S.D. 65, ¶ 44, 771 N.W.2d at

342).

I. Count 7 – Aggravated Assault by Physical Menace 

against Mitchell Erickson.

[¶15.] Any individual who “[a]ttempts by physical menace with a deadly 

weapon to put another in fear of imminent serious bodily harm . . . is guilty of 

aggravated assault.” SDCL 22-18-1.1(5). “The gravamen of the offense is the 

attempt to put a person in fear of imminent serious bodily harm. Actual fear of 

imminent serious bodily harm is not an essential element of the offense.” State v.

LaCroix, 423 N.W.2d 169, 170 (S.D. 1988). “Physical menace ‘requires more than 

words: there must be some physical act on the part of the defendant.’” State v.

Scott, 2019 S.D. 25, ¶ 19, 927 N.W.2d 120, 127 (quoting In re R.L.G., 2005 S.D. 119, 

¶ 10, 707 N.W.2d 258, 261).
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[¶16.] Ahmed argues his conviction for aggravated assault against Erickson 

is not supported by sufficient evidence because he never pointed the gun at Erickson 

and his singular use of the N-Word indicates the threatening act was solely directed 

towards Range. Ahmed also argues that because Erickson did not testify at trial 

and the detectives’ view was obstructed, the evidence was insufficient to show that 

Erickson had an actual fear of imminent serious bodily harm. The State responds 

that Ahmed’s act of brandishing a firearm in Erickson’s proximity and his 

threatening statements are sufficient to sustain the conviction.

[¶17.] This Court has previously affirmed a circuit court’s denial of a motion 

for judgment of acquittal on a charge for aggravated assault by physical menace 

despite the absence of any evidence that the defendant directly pointed a gun at the 

victim. State v. Schmiedt, 525 N.W.2d 253, 255 (S.D. 1994). In Schmiedt, this 

Court found a defendant’s command to a law enforcement officer not to come any 

closer, combined with the defendant suddenly grabbing a loaded firearm and 

keeping the firearm at his side, supported a conviction for aggravated assault by 

physical menace. Id. Furthermore, in discussing the factual basis for a charge 

under SDCL 22-18-1.1(5), we have stated that whether the defendant “pointed [a 

gun] at the victims and [whether] it was loaded or unloaded makes no difference.” 

See State v. Waters, 529 N.W.2d 586, 588 (S.D. 1995) (affirming the circuit court’s 

decision to reject a lesser included instruction for simple assault because the 

defendant used “a deadly weapon for the purpose of this offense, during this 

incident”); see also State v. Schumacher, 2021 S.D. 16, ¶ 31, 956 N.W.2d 427, 435

(finding sufficient evidence to support a conviction under SDCL 22-18-1.1(5) when 
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the defendant held a gun on her shoulder, pointed it in the air, and later pointed the 

barrel in the general direction of two law enforcement officers as she was setting it 

down).

[¶18.] The evidence shows Erickson and Range approached Ahmed and 

confronted him about his interaction with Jellis. Range testified that, in response, 

Ahmed pulled the firearm from his waistband and pointed it directly at Range’s 

head. Ahmed was in close proximity to both Erickson and Range, in sole control of 

the firearm, and used threatening language during the interaction. Given Ahmed’s 

close proximity to Erickson and Range, and his ability to instantly utilize the 

firearm against Erickson or Range, a jury could have reasonably concluded that 

Ahmed attempted to put both Erickson and Range in fear of imminent serious 

bodily harm.

[¶19.] Ahmed’s claim that Erickson was required to testify to show that 

Erickson feared imminent harm from Ahmed also fails. “[T]he State need not prove 

‘actual fear of imminent serious bodily harm.’” Scott, 2019 S.D. 25, ¶ 19, 927 

N.W.2d at 127 (quoting LaCroix, 423 N.W.2d at 170). We have recognized that “an 

attempt to put another in fear” is sufficient to support a conviction. Id. An attempt 

includes “any act toward the commission of the crime but fails or is prevented or 

intercepted in the perpetration thereof.” Id. (citation omitted). Range’s testimony 

was sufficient for the jury to find that Ahmed, through his words and actions, 

attempted to place both Range and Erickson in fear of imminent serious bodily 

harm. Further, although it was unnecessary to prove the alleged victims were 

actually afraid, Detective Eilers testified that Range and Erickson looked “surprised 
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or afraid” moments before they retreated into the apartment building. Detective 

Eilers also testified that Range and Erickson were shaking, anxious, and appeared 

very upset when she spoke with them immediately after their encounter with 

Ahmed.

[¶20.] This Court examines the evidence in its totality and does not reweigh 

evidence or pass on the credibility of witnesses. Carter, 2009 S.D. 65, ¶¶ 44–45, 771 

N.W.2d at 342. The evidence presented to the jury, including the testimony from 

Range and law enforcement, and the reasonable inferences drawn therefrom, 

support a reasonable theory of guilt. Therefore, the circuit court did not err in 

denying Ahmed’s motion for judgment of acquittal on the aggravated assault by 

physical menace conviction.

II. Count 11 – Grand Theft by Receiving Stolen 

Property.

[¶21.] SDCL 22-30A-7 provides that “[a]ny person who receives, retains, or 

disposes of property of another knowing that the property has been stolen, or 

believing that the property has probably been stolen, unless the property is 

received, retained, or disposed of with the intent to restore the property to the 

owner, is guilty of theft.” Grand theft by receiving stolen property is a Class 6 

felony if the stolen property “[i]s a firearm with a value of less than or equal to two 

thousand five hundred dollars[.]” SDCL 22-30A-17(2).

[¶22.] Ahmed initially argues the State failed to provide sufficient evidence 

that he was ever in possession of the firearm, or that he knew or should have known 

the firearm was stolen as required by SDCL 22-30A-7. Ahmed highlights that there 

was no evidence that he was actually in possession of the stolen firearm, how the 
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firearm ended up in the garbage basket, or any evidence of fingerprints or DNA 

found on the firearm. The State points to Range’s testimony and Officer Ehler’s 

dash cam footage and testimony to show that Ahmed was in possession of the 

firearm just before it was found in his apartment. The State also asserts there was 

sufficient evidence to support that Ahmed knew the firearm was stolen based upon

the circumstances presented at trial.

[¶23.] This Court does not “resolve conflicts in the evidence, pass on the 

credibility of witnesses, or reweigh the evidence on appeal.” Wolf, 2020 S.D. 15, 

¶ 13, 941 N.W.2d at 220 (citation omitted). Further, “[a]ll elements of a crime . . . 

may be established circumstantially.” State v. Falkenberg, 2021 S.D. 59, ¶ 39, 965 

N.W.2d 580, 591 (quoting State v. Shaw, 2005 S.D. 105, ¶ 45, 705 N.W.2d 620, 633). 

“Direct and circumstantial evidence have equal weight. In fact, in some instances 

circumstantial evidence may be more reliable than direct evidence.” Id. (quoting 

State v. Riley, 2013 S.D. 95, ¶ 18, 841 N.W.2d 431, 437).

[¶24.] From our review of the record, there was sufficient evidence supporting 

the jury’s determination that Ahmed had possession of the firearm and the requisite 

knowledge that the firearm was stolen. Range testified that Ahmed pulled a silver 

revolver from his waistband. Additionally, Officer Ehler’s dash cam showed Ahmed 

running to his apartment building while holding onto the front of his waistband, 

which Officer Ehler testified is a common running position used to secure a firearm. 

Inside Ahmed’s apartment, law enforcement found a firearm matching the one 

described by Range at the bottom of a garbage basket wrapped in a cloth. Law 

enforcement also found a pair of pants that contained Ahmed’s personal 
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identification card and bullets for the firearm. The owner of the firearm testified 

that the firearm found in Ahmed’s apartment was stolen from his vehicle 

approximately a month earlier. Accepting this evidence and the most favorable 

inferences drawn therefrom, the evidence supports the jury’s determination that 

Ahmed was in possession of the firearm and knew or believed that it was stolen.

[¶25.] Ahmed also argues that the State was required to present evidence of 

the value of the firearm to prove that he was guilty of a Class 6 felony under SDCL 

22-30A-17(2). He claims that the value of the firearm was an essential element of 

the offense. Grand theft is a Class 6 felony if the stolen property “[i]s a firearm with 

a value of less than or equal to two thousand five hundred dollars[.]” SDCL 22-30A17(2). Under SDCL 22-30A-17, the State is required to prove the value of the stolen 

property beyond a reasonable doubt, but the exact value of the property is not 

important unless the value of the item stolen is close to the relevant statutory 

amount or level. State v. Iron Necklace, 430 N.W.2d 66, 81 (S.D. 1988).

[¶26.] SDCL 22-30A-17(2) provides that the theft of a “firearm with a value of 

less than or equal to two thousand five hundred dollars” is a Class 6 felony. 

(Emphasis added.); see State ex rel. Dep’t. of Transp. v. Clark, 2011 S.D. 20, ¶ 10, 

798 N.W.2d 160, 164 (“In matters of statutory interpretation, [this Court begins] 

with the plain language and structure of the statute.” (citation omitted)). Under the 

plain language of the statute, a theft of any firearm, regardless of value, is at least a 

Class 6 felony. Therefore, the State did not have to present evidence of the 

firearm’s exact value in order for the jury to find Ahmed guilty of a Class 6 felony 

for receiving stolen property.
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[¶27.] Another jurisdiction applying similar statutory language reached a 

similar conclusion. See generally Blair v. State, 562 S.W.3d 261 (Ark. Ct. App. 

2018). In Blair, the defendant was charged with theft by receiving stolen property, 

a Class D felony, under a statute with nearly identical language to SDCL 22-30A17(2), which states that “theft by receiving is a class D felony if the property is a 

firearm valued at less than $2500.” Id. at 264 (emphasis added); see also Ark. Code. 

Ann. § 5-36-1-6(e)(3)(B)(iii). The prosecution did not present any evidence of the 

value of the firearm. Id. The court affirmed the defendant’s conviction finding that 

“[t]heft by receiving of a firearm is at least a Class D felony regardless of the 

weapon’s value, and the State is not required to establish the value of the firearm in 

order to obtain a conviction.” Id.

[¶28.] At trial, the jury was shown pictures of the firearm, and heard 

testimony from the owner that he purchased the firearm from Gary’s Gun Shop and 

that the firearm had been stolen. Therefore, the jury was reasonably able to 

conclude that the firearm had been stolen and had some value less than $2,500. 

Based on the evidence presented and the reasonable inferences drawn therefrom, 

there was sufficient evidence to support the jury’s guilty verdict of grand theft by 

receiving a stolen firearm.

[¶29.] We affirm the circuit court’s denial of the motion for judgment of 

acquittal on both counts.

[¶30.] KERN, SALTER, DEVANEY, and MYREN, Justices, concur.