#29004-r-SRJ

2020 S.D. 15

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellant,

v.

VINCENT WOLF, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE NATALIE DAMGAARD

Judge

* * * *

JASON R. RAVNSBORG

Attorney General

MATTHEW W. TEMPLAR

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff and 

appellant.

CHRISTOPHER MILES of

Minnehaha County Public

 Defender’s Office

Sioux Falls, South Dakota Attorneys for defendant and 

appellee.

* * * *

CONSIDERED ON BRIEFS

JANUARY 13, 2020

OPINION FILED 03/18/20
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JENSEN, Justice

[¶1.] A jury convicted Vincent Shane Wolf of aggravated assault and simple 

assault for attacking a Department of Corrections (DOC) employee while Wolf was 

an inmate at the South Dakota State Penitentiary. The circuit court denied Wolf’s 

motion for judgment of acquittal on both charges at the close of the State’s evidence. 

However, Wolf filed a renewed motion for judgment of acquittal on the aggravated 

assault conviction after the trial, which the court granted. The State appeals 

arguing that the circuit court erred in granting Wolf’s motion for judgment of 

acquittal on the aggravated assault conviction. We reverse and reinstate the 

aggravated assault conviction.

Background

[¶2.] On August 26, 2018, DOC Officer Darek Ekeren confiscated Wolf’s 

tablet for a violation of the DOC rules. Later, Wolf approached Officer Ekeren and 

told him, “[y]ou have five minutes to return my tablet.” In response, Officer Ekeren 

told Wolf to go lock up and left the area.

[¶3.] Shortly thereafter, Wolf waited for Officer Ekeren at the entrance of 

the hallway area of a cellblock, referred to as Tier 2. This was a location that Wolf 

was not authorized to be in. Tier 2 had inmate cells along one side and a fenced 

railing with a metal grid on the other. Wolf asked for his tablet back as Officer 

Ekeren approached. Officer Ekeren refused to return it and told Wolf to walk away. 

Wolf did not comply. Instead, he charged at Officer Ekeren and the two began 

grappling. Officer Ekeren fell to the floor during the initial encounter. Officer 

Ekeren testified that while he remained on the floor, Wolf began to punch and knee 
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him in the face and head for about twenty seconds. Officer Ekeren testified that 

Wolf punched him with a closed fist.

[¶4.] During this attack, Officer Ekeren got onto one knee and grabbed onto 

mesh netting above the railing. As he did this, Wolf put Officer Ekeren in a 

chokehold. Officer Ekeren testified that Wolf wrapped his forearm around his neck 

and used his other arm as leverage to put more pressure on him. Officer Ekeren 

testified that while in the chokehold, he was unable to breathe for a few seconds 

and thought to himself, “he has me locked in.” Using the chokehold, Wolf attempted 

to lift Officer Ekeren off the floor. Officer Ekeren escaped the chokehold and 

separated himself from Wolf by pushing Wolf back against a cell door. Officer 

Ekeren then called a “Code Red” and another officer arrived to assist. Officer 

Ekeren sprayed Wolf with “OC spray” and the other officer handcuffed Wolf and 

placed him in a holding cell. A video recording that was presented to the jury 

showed that the entire physical altercation may have lasted approximately thirty 

seconds.

[¶5.] Officer Ekeren was escorted to the penitentiary’s health services to be 

examined. He was then referred to the Avera Emergency Room. The treating 

physician observed that Officer Ekeren had a one-centimeter laceration under his 

left eye, redness in that same eye, and bruises on his face and eye. Officer Ekeren 

received treatment for the laceration under his eye. The next day, Officer Ekeren 

returned to the Avera Emergency Room because of knee pain. Officer Ekeren was 

diagnosed with a knee sprain and was placed in a knee immobilizer for four weeks.
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[¶6.] Following the altercation, Lieutenant Hunter Summers, a DOC Special 

Investigations Unit officer, interviewed Wolf. Wolf admitted that he hit Officer 

Ekeren in the head over twenty times and put him in a chokehold. Wolf told 

Lieutenant Summers that he tried to pick up Officer Ekeren and throw him, but 

Officer Ekeren was holding onto the bars on the grid. Wolf admitted that he 

wanted to hurt Officer Ekeren at the time of his attack. When Wolf was asked his 

intention in using a chokehold, he answered, “I don’t know man. I just—I was just 

gone. I was just—just raged.”

[¶7.] On January 2, 2018, the Minnehaha County Grand Jury returned an 

indictment charging Wolf with Count 1: aggravated assault against a DOC 

employee (extreme indifference) in violation of SDCL 22-18-1.05 and SDCL 22-18-

1.1(1); Count 2: aggravated assault against a DOC employee (serious bodily injury) 

in violation of SDCL 22-18-1.05 and SDCL 22-18-1.1(4); or in the alternative, Count 

2A: simple assault against a DOC employee (intentionally causes bodily injury) in 

violation of SDCL 22-18-1.05 and SDCL 22-18-1(5); and Count 3: aggravated assault 

against a DOC employee (choking) in violation of SDCL 22-18-1.05 and SDCL 22-

18-1.1(8).

[¶8.] Wolf entered a plea of not guilty to the charges and the case proceeded 

to a jury trial. After the close of the State’s case, Wolf moved for judgment of 

acquittal on all the charges. The circuit court granted the motion on Count 2 

determining the State failed to present evidence that Officer Ekeren sustained 

serious bodily injury. The court denied the motion on the other counts, determining 

there was sufficient evidence to support the other charges. In denying the motion 
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on the aggravated assault charge in Count 1, the circuit court stated, “there is 

sufficient evidence to send to the jury that there is an attempt to cause serious 

bodily injury . . . under circumstances manifesting extreme indifference to the value 

human life.”

[¶9.] The jury found Wolf guilty of aggravated assault against a correctional 

officer (extreme indifference) in Count 1, and simple assault against a correctional 

officer in Count 2A, but acquitted Wolf of aggravated assault against a correctional 

officer (choking) in Count 3. After the verdict, Wolf again moved for judgment of 

acquittal on Count 1. He argued that the State presented insufficient evidence to 

prove that he acted under circumstances manifesting an extreme indifference to the 

value of human life based upon Wolf’s conduct, the extent of Officer Ekeren’s 

injuries, and the jury’s acquittal of aggravated assault for choking. The circuit 

court granted Wolf’s post-verdict motion and entered a judgment of acquittal on 

Count 1.

[¶10.] Wolf was sentenced on May 15, 2019, on the conviction for simple 

assault against a correctional officer. Prior to sentencing, the State dismissed the 

part II information alleging a prior felony conviction and argued for the application 

of the doubling statute in SDCL 22-6-5.1.1 The circuit court sentenced Wolf to four 

 

1. SDCL 22-6-5.1 provides that:

A court may sentence any person convicted of a crime committed 

while that person was a prisoner as defined by § 22-11A-1, to a 

term of not more than twice the maximum term allowed by the 

statute for the commission of the same crime by a person not so 

confined. However, the provisions of this section do not apply if, 

(continued . . .)
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years in the South Dakota State Penitentiary, with two years suspended, and 

ordered the sentence to run consecutively to the penitentiary sentence Wolf was 

already serving.

[¶11.] The State timely appealed the circuit court’s entry of a judgment of 

acquittal on the conviction for aggravated assault in Count 1 pursuant to SDCL 

23A-32-4.2 The State raises one issue, arguing that the circuit court erred in 

granting Wolf’s motion for judgment of acquittal on Count 1 because there was 

sufficient evidence to support the jury’s guilty verdict.

Analysis and Decision

[¶12.] We have not previously considered the standard of review applicable to 

the State’s challenge of an order granting a motion for judgment of acquittal after 

the jury has returned a guilty verdict. However, 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. “Whether the State has 

provided sufficient evidence to sustain the conviction is a question of law reviewed 

de novo.” State v. Hauge, 2013 S.D. 26, ¶ 12, 829 N.W.2d 145, 149 (citing State v. 

Jucht, 2012 S.D. 66, ¶ 18, 821 N.W.2d 629, 633).

[¶13.] In reviewing the sufficiency of the evidence, we consider:

________________________

(. . . continued)

for the same offense, the prisoner is subject to an enhanced 

penalty as an habitual offender.

2. SDCL 23A-32-4 provides the State with an appeal, as a matter of right, from 

an order from the circuit court entering a judgment of acquittal. See SDCL 

23A-32-4. An appeal under SDCL 23A-32-4 must be taken within ten days 

after the order. SDCL 23A-32-6.
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[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. . . . On review, we accept the evidence and the 

most favorable inferences that can be fairly drawn from it that 

support the verdict. We do 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.

State v. Carter, 2009 S.D. 65, ¶ 44, 771 N.W.2d 329, 342 (citations omitted).

[¶14.] A person commits aggravated assault under SDCL 22-18-1.1(1) if he 

“[a]ttempts to cause serious bodily injury to another, or causes such injury, under 

circumstances manifesting extreme indifference to the value of human life[.]” To 

sustain a conviction for aggravated assault under subsection (1) the State must 

prove: “(1) the person either attempted to cause or actually did cause serious bodily 

injury to another, and (2) the circumstances under which the act was done 

manifested extreme indifference to the value of human life.” State v. White 

Mountain, 477 N.W.2d 36, 39 (S.D. 1991) (quoting State v. Rash, 294 N.W.2d 416, 

418 (S.D. 1980)).

[¶15.] Serious bodily injury “means an injury which is grave and not trivial, 

and which gives rise to apprehension of danger to life, health, and limb.” State v. 

Bogenreif, 465 N.W.2d 777, 780 (S.D. 1991); See also, SDCL 22-1-2(44A). Our 

Legislature has not declared what circumstances constitute extreme indifference to 

the value of human life under SDCL 22-18-1.1(1). However, it has “deemed 

significant the nature of the assaultive act or acts themselves.” State v. Miland, 

2014 S.D. 98, ¶ 18, 858 N.W.2d 328, 332. We have stated that the accused is guilty 

of aggravated assault for extreme indifference if the “accused’s ‘conduct was of the 
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most threatening sort,’ such that the circumstances ‘demonstrate a blatant 

disregard for the risk to the victim’s life,’ and the accused either attempted to or did 

cause serious bodily injury . . . .” Id. ¶ 18, 858 N.W.2d at 333-34 (quoting State v. 

Saucier, 512 A.2d 1120, 1125 (N.H. 1986)3). “The severity of the resulting injuries 

and the accused’s state of mind may be germane to the extreme indifference 

question, but the main focus is on the conduct of the accused.” Id.

[¶16.] The State argues the evidence was sufficient to show that Wolf 

committed aggravated assault under SDCL 22-18-1.1(1). In considering the motion 

for judgment of acquittal, the State argues that the circuit court conducted an 

erroneous review of the evidence presented, invaded the province of the jury, and 

allowed the jury’s acquittal on one count to affect its consideration of another. Wolf 

argues the circuit court properly granted the motion for judgment of acquittal and 

cites Miland, 2014 S.D. 98, 858 N.W.2d 328, to support his claim that the evidence 

is insufficient to show that the circumstances manifested extreme indifference to 

the value of human life as required by SDCL 22-18-1.1(1).

[¶17.] In Miland, the defendant was in the passenger seat of a patrol vehicle 

when he began punching and kicking a law enforcement officer’s face and “was 

trying to get around to the officer’s throat.” 2014 S.D. 98, ¶¶ 3-4, 858 N.W.2d at 

329-30. Despite being struck twice with a baton by another officer, the defendant 

continued to punch the officer. Id. ¶ 5, 858 N.W.2d at 330. The defendant did not 

stop his attack until he was forcibly removed from the patrol vehicle by two other 

 

3. In Saucier, the court quoted New Hampshire’s comments to the 1969 report 

on its criminal code that defined “extreme indifference.” 512 A.2d at 1125 

(quoting N.H. Crim. Code RSA 631:2, III (1985) (comments to 1969 Report)).
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officers. Id. The attack inside the vehicle lasted less than a minute. Id. ¶ 6. The 

officer suffered a nose injury that required surgery to fix. Id. ¶ 7. This Court 

concluded that evidence existed showing that “[h]ad [the defendant] not been 

interrupted, obviously he would have continued.” Id. ¶ 20, 858 N.W.2d at 333. We 

upheld the aggravated assault conviction because the defendant’s “conduct—

repeatedly and violently punching the officer in the face without ceasing until he 

was pulled away—was of the most threatening sort and demonstrated a blatant 

disregard for the risk to [the officer’s] life.” Id.

[¶18.] Wolf argues the circuit court properly distinguished this case from 

Miland based on the fact that Wolf ceased his attack without third-party 

intervention, and because there was no evidence that Officer Ekeren sustained 

serious bodily injury. However, these distinctions simply mark differences in the 

factual records—not a definitive line that categorically prevents a finding of 

extreme indifference where an attack abates.

[¶19.] Regardless, the jury could have concluded that, like Miland, Wolf did 

not voluntarily stop his assault and would have continued his assault absent 

defensive maneuvers by Officer Ekeren. Evidence was presented showing that 

Officer Ekeren broke out of the chokehold, separated himself, and called for help 

with a “Code Red.” It was after these actions by Officer Ekeren that Wolf backed 

away.

[¶20.] Moreover, the jury had an opportunity to consider the extent of Officer 

Ekeren’s injuries, along with other evidence in determining whether to convict Wolf 

of aggravated assault. We have previously rejected a claim that serious bodily 
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injury must exist to support a conviction under SDCL 22-18-1.1. Fasthorse, 2009 

S.D. 106, ¶ 10, 776 N.W.2d at 237. In Fasthorse, the defendant punched, choked, 

and threatened to shoot and kill the victim, but the victim sustained only minor 

injury. Id. ¶ 10-11. This Court upheld the jury’s guilty verdict under SDCL 22-18-

1.1 because the evidence was sufficient to support the jury’s conclusion that the 

defendant “attempt[ed] to cause serious bodily injury . . . under circumstances 

manifesting extreme indifference to the value of human life.” Id. ¶ 11 (emphasis 

added).

[¶21.] Here, a rational trier of fact could have found from the evidence that 

Wolf attempted to cause serious bodily injuries under circumstances that 

demonstrated a blatant disregard for the risk to Officer Ekeren’s life. Wolf attacked 

Officer Ekeren while they were alone in Tier 2—a narrow, locked cellblock of the 

prison consisting of metal bars on each side and a concrete floor. After Officer 

Ekeren fell to the floor in the initial attack, Wolf began punching and kneeing 

Officer Ekeren in the face and head. Once Officer Ekeren physically removed 

himself from the first attack, Wolf put Officer Ekeren in a chokehold that briefly 

impeded his breathing. While in the chokehold, Wolf attempted to pick up Officer 

Ekeren and throw him. Wolf later admitted that he “went into a rage” during the 

attack. Photos taken after the attack showed an abrasion on Officer Ekeren’s neck, 

a cut below his eye, and other abrasions on his face and eye. Wolf’s conduct, 

combined with the circumstances in which the attack occurred, supports the jury’s 

guilty verdict for aggravated assault on Count 1.
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[¶22.] Wolf also argues that the circuit court properly granted his motion for 

judgment of acquittal because the jury’s verdict finding him not guilty of aggravated 

assault (choking) in Count 3 was inconsistent with a finding of aggravated assault 

on Count 1. As such, he asserts the chokehold could not support a conviction for 

aggravated assault (extreme indifference) on Count 1. The circuit court also 

highlighted the jury’s acquittal on Count 3 in its ruling, stating that “the jury did 

not find sufficient evidence to support a verdict of guilty on the aggravated assault 

by choking.” However, the inconsistency of a jury’s verdict between two or more 

counts is not grounds for entering a judgment of acquittal. State v. Mulligan, 2007 

S.D. 67, ¶ 11, 736 N.W.2d 808, 814. A defendant “may not use the jury’s rejection of 

[one charge] to infer that there was insufficient evidence to justify [a conviction on 

another] charge.” Id. “Instead of speculating whether the inconsistent verdicts are 

evidence of jury error, [courts] should review the sufficiency of the evidence to 

support the conviction that was rendered.” Id. ¶ 12 (citing United States v. Powell, 

469 U.S. 57, 67, 105 S. Ct. 471, 478, 83 L.Ed. 2d 461 (1984)).

[¶23.] Officer Ekeren testified that he was choked and that his breathing was 

briefly impaired. A video presented to the jury confirmed that Wolf put Officer 

Ekeren in a chokehold. Notwithstanding the verdict on Count 3, the jury could 

have found that Wolf began choking Officer Ekeren and would have continued to do 

so absent evasive measures by Officer Ekeren. Such evidence would support a 

finding that Wolf attempted to cause serious injury “under circumstances 

manifesting extreme indifference to the value of human life.” SDCL 22-18-1.1. 

There was sufficient evidence on the record, and inferences that could have been 
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drawn therefrom, to sustain a reasonable theory of guilt of aggravated assault by 

extreme indifference beyond a reasonable doubt. See State v. Shaw, 2005 S.D. 105, 

¶ 19, 705 N.W.2d 620, 626.

[¶24.] We reverse the circuit court’s entry of a judgment of acquittal and 

remand to the circuit court with instructions to reinstate the jury’s verdict on Count 

1 and impose a sentence.

[¶25.] GILBERTSON, Chief Justice, and KERN, SALTER, and DEVANEY, 

Justices, concur.