#29182-a-PJD

2020 S.D. 73

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

RICHARD SEIDEL, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FOURTH JUDICIAL CIRCUIT

PERKINS COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE ERIC J. STRAWN

Judge

* * * *

JASON R. RAVNSBORG

Attorney General

PAUL S. SWEDLUND

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff and 

appellee.

TIMOTHY J. BARNAUD

Belle Fourche, South Dakota Attorney for defendant and 

appellant.

* * * *

CONSIDERED ON BRIEFS

AUGUST 24, 2020

OPINION FILED 12/30/20
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DEVANEY, Justice

[¶1.] Richard Seidel appeals his convictions for kidnapping, rape, 

aggravated assault, and commission of a felony with a firearm. He claims that the 

circuit court abused its discretion in limiting defense counsel’s closing argument; 

that the prosecutor engaged in misconduct during closing argument; and that the 

circuit court erred in denying his motion for judgment of acquittal. He also claims 

that his sentence is cruel and unusual in violation of the Eighth Amendment. We 

affirm.

Factual and Procedural Background

[¶2.] J.S. separated from her husband, Richard Seidel, sometime in 2015 

after he had an affair, and in September 2017, she filed for divorce. While they

were separated, J.S. continued to work as a bookkeeper for a company owned by 

Richard—Bison Grain Company. On November 2, 2017, when J.S. arrived at Bison 

Grain, Richard and an employee, Doug Lewton, were present. At around 11:45 

a.m., Richard told Doug to take his lunch break “like [he] normally do[es].” Doug 

later explained that he thought Richard’s statement was odd because he did not 

take a lunch break at a set time, but he nevertheless left Bison Grain. Richard 

disputes what happened next; however, we restate the evidence and testimony “in a 

light most favorable to the jury’s verdict.” See State v. Huber, 2010 S.D. 63, ¶ 2, 789 

N.W.2d 283, 286.

[¶3.] After Doug left, Richard and J.S. were alone at Bison Grain, and 

according to J.S., Richard asked her to help him process a transaction on the 

computer in the scale room. J.S. complied, and as she was typing, Richard slipped a 
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zip tie around her neck, tightened it, and began choking her. She begged him to 

stop making it tighter. Richard then pushed J.S. to the ground and took her cell 

phone. J.S. blacked out shortly thereafter.

[¶4.] When J.S. awoke, she realized she was on her stomach on the floor of 

the scale room and the zip tie was still around her neck. She noticed that she had 

urinated and defecated, and her wrists and ankles were bound with zip ties. J.S.

saw that Richard had a gun, and she thought he was going to kill her. According to 

J.S., Richard stood her up and put her in the backseat of his pickup, after which she 

blacked out again.

[¶5.] When J.S. awoke, she could hear the pickup traveling down a gravel 

road. Richard drove J.S. to their marital home outside of Bison where he continued 

to live after the couple had separated. He parked the pickup in the garage, then cut 

the zip tie from J.S.’s ankles and had her walk into the house while he pointed a 

gun at her back. As the two walked to the bedroom, J.S. noticed a white garbage 

bag with black draw strings on the kitchen counter. In the bedroom, J.S. noticed a 

rope tied to the bottom part of the headboard. Although Richard did not use the 

rope on J.S., she feared that he planned to rape and kill her.

[¶6.] Once in the bedroom, Richard used a utility knife to cut off J.S.’s coat, 

shirt, and bra. He also removed her jeans and underwear and took her into the 

master bathroom to shower and clean off the urine and feces. After the shower, 

Richard shaved J.S.’s pubic area with an electric razor. He then had J.S. perform 

oral sex on him at gunpoint. Next, he returned J.S. to the bedroom and bent her 

over the bed. She asked him to use a lubricant if he was going to do anything 
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anally. J.S. explained that Richard used lubrication from a tube in a bag under the 

bed and penetrated her both vaginally and anally. During the anal penetration, 

J.S. defecated, which upset Richard, so he took her to the shower again. Afterward, 

Richard told her that she needed to listen to him about their divorce. J.S. promised 

that she would stop the divorce, hoping this would prevent Richard from killing her. 

Richard then appeared to calm down. He cut the zip ties from her wrists but 

reminded her he had a gun and told her to put on other clothing.

[¶7.] J.S. walked from the bedroom to the laundry room to get dressed. At 

some point, she placed part of a zip tie that had been cut from her wrist on top of 

the refrigerator. According to J.S., Richard put her cut-up clothing in a white 

garbage bag and placed her underwear and the bedding in the washing machine. 

Thereafter, they left the house and drove to the airport where Richard stored his 

private plane. When they arrived, J.S. noticed that the door to the hangar was open 

and the blocks were removed from the plane’s tires, neither of which were typical. 

At the airport, Richard cut the zip tie from J.S.’s neck and placed it in the white 

garbage bag. He got out of the pickup, taking the bag with him, and told J.S. to 

return in 20 minutes. He warned her that if she told the sheriff what happened he 

would shoot himself.

[¶8.] J.S. left the airport in the pickup after she saw Richard fly away in the 

plane. She then went to Bison Grain to get her cell phone. J.S. sent a snapchat 

message to her daughter-in-law Kristen Seidel around 1:30 p.m. informing her that 

she was “scared” and if she was “not back by 2,” Kristen should “come look for 

[her].” J.S. testified that she returned to the airport to pick up Richard and drove 
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him to another house they owned by Bison Grain. She explained that after she 

dropped Richard off, he got into his Cadillac and drove off. In an attempt to have 

things appear normal, J.S. got into her own vehicle (a red dually pickup) and drove 

to the post office and bank.

[¶9.] At approximately 1:50 p.m., J.S. returned to Bison Grain, and Kristen 

was there waiting for her. Kristen described J.S. as “pretty distraught” and noted 

that she was crying. J.S. told Kristen what had happened. Despite Kristen’s 

urging, J.S. resisted telling law enforcement, claiming she did not want Richard to 

kill himself. Doug came in from the shop at this point, and both he and Kristen 

convinced J.S. to report what had occurred. Kristen took J.S. to the police station in 

Doug’s pickup because J.S. did not want Richard to see her pickup leave Bison 

Grain or see it parked outside the police station.

[¶10.] J.S. was too afraid to go into the police station, so Kristen went inside. 

After learning that the sheriff was not in town, Kristen asked a deputy to speak to 

J.S. outside in Doug’s pickup. When Deputy Matthew Kindsvogel first approached 

J.S., he observed that she was crying and frantic in her movements and that she 

had a red mark on her neck. The deputy recorded his conversation with J.S.

wherein she related what Richard had done to her. Deputy Kindsvogel 

photographed the marks on J.S.’s neck, wrists, and elbow and determined that J.S.

should be seen by medical personnel. Kristen then took J.S. to a medical clinic in

Bison. A physician assistant at the clinic observed that J.S. had broken blood 

vessels in her eyes, petechiae (pinpointed, round spots caused by broken capillaries) 

on her right forehead, abrasions on her elbow, and ligature marks on her wrists and 
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neck. He also observed that J.S. had bloody post nasal drip in her throat, and 

because of the trauma to her neck, he recommended that J.S. be taken to the 

emergency room at the hospital in Spearfish for an examination.

[¶11.] At approximately 5:30 p.m., Kristy Schumacher, a nurse specially 

trained in conducting examinations of sexual assault victims, examined J.S. During 

her initial assessment, Nurse Schumacher observed a ligature mark on J.S.’s neck 

which had “several stripes going vertically within it” consistent with the teeth of a 

zip tie. She also observed that the whites of both of J.S.’s eyes were red from 

“hemorrhaging in the eye sclera.” The nurse further observed broken capillaries on 

the right side of J.S.’s forehead and eye. Although the nurse did not observe visible 

injuries to J.S.’s vagina or anus, she noted that J.S.’s vaginal and anal openings 

were very tender based on J.S.’s reaction of holding onto the bed railing tightly and 

crying during the examination.

[¶12.] While at the Spearfish hospital, Dr. Matthew Finke also examined 

J.S.’s injuries. Dr. Finke reported that J.S. had a subconjunctival hematoma on the 

lateral part of her left eye. He also reported that because of the hemorrhaging in 

her eye and J.S.’s reported tenderness around “the laryngeal cartilage, which is 

kind of the Adam’s apple” part of the neck, he ordered a CT angiogram of the head 

and neck to rule out airway and vessel issues. The test indicated normal vessels 

and no fracture of the laryngeal cartilage.

[¶13.] After law enforcement’s initial contact with J.S., officers located 

Richard as he was driving toward Bismarck, North Dakota. Law enforcement also 

obtained search warrants for Richard’s residence, airplane, pickup, and Bison 
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Grain. During a search of the residence, law enforcement found J.S.’s jeans and 

undergarments in the dryer and bed linens in the washing machine. They also 

found a bag containing sex paraphernalia and lubricant on a shelf in the closet of 

the master bedroom. Officers found a box of white garbage bags with black draw 

strings in a closet and a portion of a zip tie on the top of the refrigerator. Although 

the officers did not find the specific garbage bag taken by Richard when he flew 

away in his airplane, they did uncover a portion of a zip tie on the floor inside the 

plane. Various items were submitted for testing at the South Dakota Forensic 

Laboratory. Forensic examiners identified J.S.’s DNA on swabs from Richard’s 

penis, from the partial zip tie located on top of the refrigerator, and from an electric 

razor head found in the master bathroom. They also determined that Richard could 

not be excluded as a source of the DNA obtained from the vaginal swabs collected 

from J.S.

[¶14.] On November 14, 2017, a grand jury indicted Richard with alternative 

counts of kidnapping, and one count each of rape, aggravated assault, and 

commission of a felony with a firearm. He pled not guilty, and a jury trial was held 

on July 22–26, 2019. The State called numerous witnesses, including J.S., Kristen, 

Doug, multiple law enforcement officers, Dr. Finke, and Nurse Schumacher. 

Richard’s defense theory centered on his claim that his entire interaction with J.S.

on November 2 was consensual, including the sex acts.1 Defense counsel’s opening 

statement alluded to a history between Richard and J.S. of rough but consensual 

 

1. The trial transcript refers to “J.N.” rather than “J.S.” because by the time of 

trial, Richard and J.S. were divorced and she was no longer using her 

married name.
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sex. Defense counsel called multiple witnesses to testify about J.S.’s demeanor and 

behavior within an hour of the alleged incident, and within several days and 

months after the incident, to suggest that her behavior was not consistent with 

someone who had been violently attacked and raped.

[¶15.] After the State rested, Richard moved for judgment of acquittal on all 

counts. The court denied the motion. Richard renewed the motion after the defense 

rested, but the court denied it again. Before closing argument, the State filed two 

motions in limine—one to preclude defense counsel from arguing that Richard and 

J.S. had engaged in consensual sex on the date in question, and the other to 

specifically preclude any mention of Richard and J.S. engaging in “erotic 

asphyxiation.” The latter motion pertained to defense counsel’s comment to the jury 

during his opening statement that Richard and J.S. had previously “engaged in 

something called ‘erotic asphyxiation’, where a person’s breath is held by a small 

cord-type deal that was actually a pet collar to enhance an orgasm.” The State 

asserted that defense counsel should be precluded from making such an argument 

in closing because no evidence had been admitted at trial to support this suggestion. 

The court denied the State’s motion to preclude defense counsel from arguing the 

acts were consensual but granted the State’s motion precluding defense counsel 

from referring to erotic asphyxiation.

[¶16.] Ultimately, the jury found Richard guilty of first-degree kidnapping, 

rape, aggravated assault, and commission of a felony with a firearm. The circuit 

court sentenced him to 45 years for the kidnapping, 25 consecutive years for the 
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rape, five consecutive years for the commission of a felony with a firearm, and 15 

concurrent years for the aggravated assault.

[¶17.] Richard appeals, asserting the following issues for our review:2

1. Whether the circuit court abused its discretion when it 

granted the State’s motion in limine regarding erotic 

asphyxiation.

2. Whether prosecutorial misconduct occurred, depriving 

Richard of his right to a fair trial.

3. Whether the circuit court erred in denying Richard’s 

motion for judgment of acquittal.

4. Whether cumulative error occurred, denying Richard of 

his right to a fair trial.

5. Whether Richard’s sentence is grossly disproportionate in 

violation of the Eighth Amendment.

Analysis and Decision

1. Whether the circuit court abused its discretion when 

it granted the State’s motion in limine regarding 

erotic asphyxiation.

[¶18.] Richard claims he “was deprived of a key argument in his case when 

the [circuit] court granted the State’s motion in limine regarding erotic 

asphyxiation.” He asserts that there was sufficient evidence in the record to allow 

the jury to consider this defense. In particular, he argues that the jury could have 

reasonably inferred that the marks on J.S.’s neck were the result of erotic 

asphyxiation because there was a lack of evidence, testimony or otherwise, to

support J.S.’s claim that she was violently attacked. He also claims that the 

inference is reasonable because, in his view, the red marks on J.S.’s neck were not 

 

2. Richard’s counsel on appeal is different than his counsel at trial.
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consistent with her claim that the zip tie was so tight that she blacked out, or with 

her claim that Richard cut the zip tie off with a utility knife.3 Finally, he asserts 

that although J.S. denied engaging in erotic asphyxiation on prior occasions, his 

contrary argument is supported by the bag of sex toys found in the Bison residence.4

[¶19.] Richard posits his claim as a denial of his right to present his theory of 

the defense. However, the circuit court did not bar Richard from presenting 

evidence in support of his theory that J.S.’s injuries were the result of consensual 

sexual acts, nor did the court prohibit defense counsel from arguing the same. The 

court only precluded defense counsel from specifically referring to erotic 

asphyxiation. The court’s ruling was based on a finding that there were no facts 

introduced at trial to support the suggestion that Richard and J.S. had engaged in 

erotic asphyxiation either before or during the charged offenses. The court noted 

that although “there was mention of sex toys . . . there was no buildup of facts with 

regard to previous uses of those items” or “any testimony with regard to [ ] the 

erotic asphyxiation.”

[¶20.] It is well settled that in closing argument, “[c]ounsel has a right to 

discuss the evidence and inferences and deductions generated from the evidence 

 

3. In response to similar arguments defense counsel made to the circuit court, 

the State pointed to defense counsel’s failure to account for the fact that a 

gun was used, and that J.S. had passed out, had injuries to her neck, 

petechiae on her face, and blood in her eye. More importantly, the State 

noted that her wrists were bound and injured. The State asserted that 

defense counsel cannot “make up facts” or “throw things out to confuse the 

jury, [or] prejudice the jury.”

4. The only identifiable items in a photo of the bag of sex toys introduced at trial 

are a dildo and a tube of lubricant. 
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presented.” State v. Patterson, 2017 S.D. 64, ¶ 20, 904 N.W.2d 43, 50 (quoting State 

v. Smith, 1999 S.D. 83, ¶ 42, 599 N.W.2d 344, 353). However, “[c]losing arguments 

are not evidence”, see Smith, 1999 S.D. 83, ¶ 48, 599 N.W.2d at 354, and courts may 

limit arguments “to the facts in evidence and reasonable inferences flowing 

therefrom”, see Richardson v. Bowersox, 188 F.3d 973, 980 (8th Cir. 1999) (citation 

omitted). We review the circuit court’s decision to grant the State’s motion in limine 

for an abuse of discretion. See Fix v. First State Bank of Roscoe, 2011 S.D. 80, ¶ 23, 

807 N.W.2d 612, 619 (reviewing the court’s evidentiary ruling related to closing 

argument for an abuse of discretion); State v. Bausch, 2017 S.D. 1, ¶ 12, 889 N.W.2d 

404, 408 (reviewing an in limine ruling for an abuse of discretion).

[¶21.] A review of the trial record supports the circuit court’s observation that 

Richard did not present any evidence to support his erotic asphyxiation theory. The 

only mention of erotic asphyxiation during the entire trial was when defense 

counsel posed the following questions and received the following responses from 

J.S.:

Q: And you engaged in erotic asphyxiation because that’s 

something the two of you had done before; isn’t that true?

A: Never.

Q: And he used a small little cat collar around your neck that 

you wanted him to use; isn’t that true?

A: No.

Q: And you’re the one who brought those zip ties in there; 

isn’t that correct?

A: No.

Richard did not testify at trial, so J.S.’s testimony denying such conduct was not 

refuted. Defense counsel tried to broach the general topic of erotic asphyxiation by 

asking Dr. Finke if “there are ways for people to engage in manual strangulation to 
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enhance the sexual pleasure,” but the State objected to the question as “[b]eyond 

the scope of this witness”, and the court sustained the objection. Defense counsel 

was nevertheless allowed to elicit from Dr. Finke that he could not “tell by looking 

at a person’s neck whether they engaged in the activity willingly or not[.]” 

However, no witness provided testimony supporting a claim that Richard and J.S.

had previously engaged in such willing activity, and defense counsel conceded in his 

argument to the court that he was “not allowed to talk about cat collars because 

that did not come in.” Because there was simply no evidence in the record from 

which the jury could reasonably infer that Richard and J.S. engaged in erotic 

asphyxiation, the court did not abuse its discretion in precluding such an argument.

[¶22.] Despite the circuit court’s ruling, defense counsel was allowed, over the 

State’s objection, to argue to the jury that J.S. had consented to being bound. 

Counsel asserted that “one would not expect to see defensive marks . . . [b]ecause 

that would mean she was going along with it.” He then noted that because there 

were no claw marks on J.S.’s neck and her long fingernails were all intact, the 

evidence suggested she was not being choked involuntarily. In addition, defense 

counsel pointed out that by the time the doctor saw J.S. later in the evening on the 

day of the alleged assault, the striation marks from the zip tie on her neck were no 

longer visible. In counsel’s view, the fading marks would be “consistent with [J.S] 

going along with this.” Finally, counsel pointed to the evidence in the record 

suggesting that J.S. had gone back to the marital home after the alleged assault 

and suggested this was inconsistent with someone who had just been raped at this 
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location.5 Therefore, we conclude that Richard was not prevented from presenting 

the central theory of his defense to the jury.

2. Whether prosecutorial misconduct occurred, 

depriving Richard of his right to a fair trial.

[¶23.] Richard contends the prosecutor committed misconduct during closing 

argument by telling the jury that Dr. Finke had testified it would not be possible for 

J.S. to inflict these wounds upon herself. Richard asserts this was a 

misrepresentation of the doctor’s testimony. Richard also claims that the 

prosecutor “deceptively described” a letter Richard had written to J.S. by 

characterizing it “in a way that was likely to mislead the jury as to its contents.” 

He acknowledges that the letter was admitted at trial, but claims the prosecutor 

committed misconduct because he “plainly insinuated that a letter tantamount to a 

confession was among the evidence in the record” when the letter “had barely been 

mentioned during the course of the trial, and its contents were never laid out for the 

jury[.]” Finally, Richard asserts that the prosecutor knowingly proffered false 

testimony from J.S. about the gun she claimed Richard had used, and also proffered 

misleading testimony from J.S.’s divorce attorney regarding a civil suit she filed—

after the trial was concluded—against Richard for the same acts for which he was 

being tried in the criminal case.

 

5. Defense counsel suggested that the reason J.S. went back to the house was to 

plant evidence, namely the zip tie on the refrigerator and a ziplock bag of 

bullets in the pocket of Richard’s jeans found in a clothes hamper. The 

overarching theory of the defense was that J.S. engaged in all of these acts in 

order to use them as a basis for obtaining a more favorable divorce settlement 

or a monetary award against Richard in a civil lawsuit.
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[¶24.] Richard’s trial counsel did not object to any of these alleged instances 

of prosecutorial misconduct. Richard therefore requests that we review these 

claims for plain error. Under SDCL 23A-44-15, “[p]lain errors or defects affecting 

substantial rights may be noticed although they were not brought to the attention of 

a court.” “To establish plain error, an appellant must show ‘(1) error, (2) that is 

plain, (3) affecting substantial rights; and only then may this Court exercise its 

discretion to notice the error if (4) it seriously affect[s] the fairness, integrity, or 

public reputation of judicial proceedings.’” Bausch, 2017 S.D. 1, ¶ 27, 889 N.W.2d at

412 (alteration in original) (quoting State v. Buchhold, 2007 S.D. 15, ¶ 22, 727 

N.W.2d 816, 822).

[¶25.] It is well established that in closing argument, “[c]ounsel has a right to 

discuss the evidence and inferences and deductions generated from the evidence 

presented.” Smith, 1999 S.D. 83, ¶ 42, 599 N.W.2d at 353. Therefore, “[h]e or she 

may ‘discuss the evidence, pointing out discrepancies and conflicts in the testimony, 

and argue that the evidence in the record supports and justifies a conviction[.]’” Id.

¶ 46, 599 N.W.2d at 354 (citation omitted). However, a prosecutor “may not seek a 

conviction at any price.” Id. ¶ 42, 599 N.W.2d at 353. As such, “[p]rosecutorial 

misconduct implies a dishonest act or an attempt to persuade the jury by use of 

deception or by reprehensible methods.” State v. Bariteau, 2016 S.D. 57, ¶ 23, 884 

N.W.2d 169, 177 (citation omitted).

[¶26.] Here, a review of the record does not support Richard’s 

characterization of the prosecutor’s conduct, let alone show that prosecutorial 

misconduct occurred. First, the prosecutor did not misrepresent Dr. Finke’s 
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testimony. Rather, the prosecutor explained the doctor’s responses to defense 

counsel’s cross-examination regarding hypothetical scenarios where similar injuries 

could result from activities other than someone being unwillingly strangled.

[¶27.] During trial, in response to defense counsel’s question about kids 

holding their breath under water and bursting blood vessels in their eyes, Dr. Finke 

stated, “I personally am not aware of that, but it could be possible.” Defense 

counsel also asked Dr. Finke whether coughing, sneezing, or vomiting could burst a 

blood vessel in the eye, and he agreed that could happen. But on redirect, the State 

asked Dr. Finke if these types of activities would result in marks on the neck, and 

he responded, “No.” During closing argument, the prosecutor’s full commentary on 

Dr. Finke’s testimony, without focusing solely on one statement in isolation, was as 

follows:

He testified about his examination of her, and he said that based 

on everything, even looked at the video - - or the picture, which 

he said he didn’t recall from that day, is consistent with a sexual

assault and consistent with manual strangulation. But what he 

also said is, “You can’t do that to yourself.” Petechiae in the eye 

- - or on the forehead, excuse me, the redness in the eye, the 

throat, that takes pressure. That takes force. Defense even 

threw out a hypothetical to him about children holding their 

breath and breaking blood vessels in their eye. Doctor said, “No. 

That’s not really it.” But, again, that wouldn’t cause a zip tie 

mark to your neck. That wouldn’t cause marks to your wrists. 

So, again, it is consistent with what her version of events were 

that day.

A review of the prosecutor’s statements as a whole, particularly considering the 

context of the underlying trial testimony, does not support Richard’s contention that 

the State misrepresented Dr. Finke’s testimony.
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[¶28.] Next, there is no merit to Richard’s claim that the prosecutor used 

“deceptive innuendo” and “patently deliberate” deception when referring, during 

rebuttal, to letters found in Richard’s desk at Bison Grain. These writings appeared 

to have been written by Richard to J.S. prior to the incident at issue. In them, 

Richard expressed sorrow and regret for his drinking and adultery. He promised to 

change and proposed certain changes to save the relationship before either of them 

filed for divorce. The prosecutor accurately noted that one letter contained a 

statement that the letter was written against his lawyer’s advice. It further 

expressed that despite his efforts as detailed in the letter, Richard knew he was 

losing the battle because J.S. had moved out and filed for divorce. The prosecutor 

argued that this evidence showed Richard had a motive to perpetrate these acts 

upon J.S. This was a fair argument in response to defense counsel’s suggestion that 

J.S. either set up or exaggerated the whole incident in an attempt to extract a more 

favorable property settlement in the divorce.

[¶29.] Richard’s additional claims—that the State “knowingly presented 

misleading and potentially perjured testimony from” J.S. and from her divorce 

attorney—are likewise unfounded.6 Beyond appellate counsel’s bald accusations, 

there is no evidence that the prosecution introduced perjured testimony by either 

J.S. or her divorce attorney. Rather than outlining any prosecutorial misconduct, 

appellate counsel’s critique of J.S.’s testimony is nothing more than a routine attack 

on a witness’s credibility based on perceived inconsistencies in the evidence. 

 

6. Allegations of suborning perjury are indeed serious and should only be made 

when based on a firm foundation. Appellate counsel’s accusations here are 

disturbing, given their unfounded nature.
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Moreover, the allegedly perjured testimony from J.S.’s divorce attorney was in fact 

elicited by defense counsel. Appellate counsel’s argument further overlooks the fact 

that J.S.’s divorce attorney ultimately acknowledged that J.S. would not waive her 

right to bring a civil suit against Richard and that nothing prevented her “from 

filing a lawsuit tomorrow[.]”

[¶30.] Because Richard’s prosecutorial misconduct claims are unfounded, he 

has failed to establish even the first prong of plain error.

3. Whether the circuit court erred in denying Richard’s 

motion for judgment of acquittal.

[¶31.] Richard argues that the State failed to present sufficient evidence to 

support a conviction on each offense. In regard to the kidnapping conviction, he 

claims that the evidence is insufficient because the State only presented J.S.’s

uncorroborated testimony that Richard took her from Bison Grain without her 

consent. Richard contends the evidence is similarly insufficient to prove aggravated 

assault because the State failed to present evidence corroborating J.S.’s account of 

the alleged assault, such as trace evidence of fecal or urine matter on the floor at 

Bison Grain. In regard to the rape conviction, Richard argues that no trier of fact 

could conclude beyond a reasonable doubt that he raped J.S. because the medical 

professionals did not find evidence of injuries to her vagina or anus; law 

enforcement did not find evidence of fibers on the bedroom or bathroom floor to 

support her statement that he cut off her clothing; and the marks on J.S.’s wrists 

and neck were not sufficiently probative to establish nonconsensual sex. Finally, 

Richard contends that J.S.’s uncorroborated testimony that he used a gun to commit 

the offenses was insufficient given her allegedly conflicting statements as to 
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whether she could describe the gun, and because no such gun was found during the 

investigation.

[¶32.] “We review a denial of a motion for judgment of acquittal de novo.” 

State v. Armstrong, 2020 S.D. 6, ¶ 12, 939 N.W.2d 9, 12. “In measuring the 

sufficiency of the evidence, we ask ‘whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.’” 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). It is well settled that we “will not resolve conflicts in the 

evidence, assess the credibility of witnesses, or evaluate the weight of the evidence.” 

Id. Rather, “we accept the evidence and the most favorable inferences fairly drawn 

therefrom, which will support the verdict.” State v. Jensen, 2007 S.D. 76, ¶ 7, 737 

N.W.2d 285, 288 (quoting State v. Lewis, 2005 S.D. 111, ¶ 8, 706 N.W.2d 252, 255). 

“Moreover, the jury is . . . the exclusive judge of the credibility of the witnesses and 

the weight of the evidence.” Id. (citations omitted).

a. Kidnapping

[¶33.] The jury found Richard guilty of first-degree kidnapping in violation of 

SDCL 22-19-1(3), which defines this crime as follows:

Any person who, either unlawfully removes another person from 

the other’s place of residence or employment, or who unlawfully 

removes another person a substantial distance from the vicinity 

where the other was at the commencement of the removal, or 

who unlawfully confines another person for a substantial period 

of time, with any of the following purposes:

. . .

(3) To inflict bodily injury on or to terrorize the victim or another

. . . .
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[¶34.] A review of the record reveals sufficient evidence for the jury to 

conclude that Richard removed J.S. from Bison Grain for the purpose of inflicting 

bodily injury upon her or to terrorize her. J.S. testified in detail regarding Richard’s 

act of forcefully removing her from Bison Grain. Further, Doug testified that 

Richard told him to leave for his lunch like he normally does when, according to 

Doug, he does not take lunch during the normal lunch hour. The jury could 

therefore infer that Richard ordered Doug to leave so he could be alone with J.S. to

perpetrate these unlawful acts. J.S.’s testimony regarding the events that 

transpired later at the marital home further supports the jury’s finding that 

Richard removed her from her place of employment to another location to injure or 

terrorize her.

b. Aggravated Assault

[¶35.] “Any person who . . . [a]ttempts to induce a fear of death or imminent 

serious bodily harm by impeding the normal breathing or circulation of the blood of 

another person by applying pressure on the throat or neck, or by blocking the nose 

and mouth[ ] is guilty of aggravated assault.” SDCL 22-18-1.1(8). Richard’s 

argument on this charge centers on the State’s failure to produce evidence 

corroborating J.S.’s claim that she urinated and defecated after Richard strangled 

her. Even though such evidence is not necessary to sustain the conviction, and the 

jury—not this Court—must evaluate the weight, if any, to give to the asserted lack 

of corroborating evidence, Richard’s argument overlooks the fact that there was 

evidence corroborating many aspects of J.S.’s testimony. The jury heard testimony 

from law enforcement who found J.S.’s jeans and underwear in the dryer at the 
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marital home where the events had transpired. Several witnesses also described 

the ligature marks on J.S.’s neck as appearing consistent with the markings from a 

zip tie. These, along with the broken blood vessels on J.S.’s face and in her eye, 

supported the State’s argument that Richard had placed a zip tie around J.S.’s neck 

and impeded her normal breathing to induce a fear of death or imminent serious 

bodily harm.

c. Rape

[¶36.] The jury found Richard guilty of second-degree rape under SDCL 22-

22-1(2), which provides that “[r]ape is an act of sexual penetration accomplished 

with any person under any of the following circumstances: . . . Through the use of 

force, coercion, or threats of immediate and great bodily harm against the victim or 

other persons within the victim’s presence, accompanied by apparent power of 

execution[.]” Although Richard claims more evidence of injury or other 

corroboration was necessary to prove beyond a reasonable doubt that he raped J.S., 

on appeal, we will not set aside a jury verdict unless “the evidence and all

reasonable inferences to be drawn therefrom fail to sustain a rational theory of 

guilt.” State v. Berhanu, 2006 S.D. 94, ¶ 7, 724 N.W.2d 181, 183 (citation omitted). 

Moreover, when a conviction turns in large part upon the credibility of witnesses, a 

circuit court properly leaves “to the jury the pervasive issue of credibility and 

considering the evidence as a whole[.]” State v. Guthrie, 2001 S.D. 61, ¶ 50, 627 

N.W.2d 401, 422.

[¶37.] Here, J.S.’s testimony alone, if believed by the jury, was sufficient to 

establish the elements of rape. But in addition, the jury heard testimony that law 
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enforcement located several items in the house consistent with her explanation of 

what had occurred there—pubic hairs in the bathroom, J.S.’s DNA on the razor, 

lubricant in the bedroom, the partial zip tie on top of the refrigerator, the bed linens 

in the washing machine, and J.S.’s jeans and undergarments in the dryer. Further, 

Nurse Schumacher testified that based on her observations during J.S.’s medical 

exam, J.S.’s vaginal and anal openings were very tender. This evidence is sufficient 

to support a finding of the elements of rape beyond a reasonable doubt.

d. Commission of a Felony with a Firearm

[¶38.] The jury convicted Richard of violating SDCL 22-14-12, which 

provides: “Any person who commits or attempts to commit any felony while armed 

with a firearm . . . is guilty of a Class 2 felony for the first conviction.” Richard 

maintains that aside from J.S.’s testimony, “[t]here is no other evidence that the 

gun allegedly used even exists, except the bullets that were recovered at the 

residence.” He further contends J.S. gave contradictory statements, raising 

questions as to the reliability of her description of the gun he allegedly used during 

the events in question.

[¶39.] Contrary to Richard’s suggestion, we do not reweigh evidence or pass 

on the credibility of witness testimony. See Brim, 2010 S.D. 74, ¶ 6, 789 N.W.2d at 

83. Like the other charges, the jury could reasonably have concluded based on J.S.’s

testimony alone, wherein she described the gun and how it was used, that Richard 

used a gun while perpetrating the felonies at issue. The jury could also rely on the 

fact that law enforcement discovered bullets at the scene in the pocket of a pair of 
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Richard’s jeans located in a clothes hamper, consistent with the type of bullet used 

in the gun described by J.S. (a .357 magnum revolver).

[¶40.] Because our review of the evidence in the light most favorable to the 

prosecution supports that the jury could have found the essential elements of the 

crimes beyond a reasonable doubt, the circuit court did not err in denying judgment 

of acquittal on all counts on which Richard was convicted.

4. Whether cumulative error occurred, denying 

Richard of his right to a fair trial.

[¶41.] Richard restates the errors alleged in the previous issues and claims 

that the cumulative effect of these errors denied him of his constitutional right to a 

fair trial. Because Richard has not established an error on any of the above issues, 

we need not address this argument. State v. Hemminger, 2017 S.D. 77, ¶ 41, 904 

N.W.2d 746, 759 (declining to review a claim of cumulative error based on the Court 

finding a lack of error on the other issues raised).

5. Whether Richard’s sentence is grossly 

disproportionate in violation of the Eighth 

Amendment.

[¶42.] Richard challenges the constitutionality of his sentence for multiple 

reasons. He claims that his 75-year sentence is grossly disproportionate because 

the circuit court, in effect, gave him a life sentence. He also contends that his 45-

year sentence for kidnapping—nearly twice as long as that received for rape and 

aggravated assault—is grossly disproportionate because the court did not consider 

what he describes as the incidental nature of the kidnapping in the commission of 

his other crimes. Regarding his total sentence, Richard asserts that the “court 

effectively ignored all mitigating factors” and “summarily disregarded any and all 
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evidence of” his good character. Finally, in his view, the court erroneously inferred 

without evidentiary support that he executed his crimes with premeditation, and 

then used that erroneous determination to impose a severe sentence.

[¶43.] There are generally two types of sentence challenges—an Eighth 

Amendment violation and an abuse of discretion. Although Richard characterizes

his challenge to the circuit court’s sentence as an Eighth Amendment claim and 

quotes our law governing proportionality review, his arguments only dispute the 

appropriateness of the court’s particular sentence based on the facts of this case and 

Richard’s unique characteristics. The State’s brief likewise seems to conflate the 

two types of sentence challenges. The State first identifies our law governing 

proportionality review, but then—within that constitutional analysis—quotes 

language from State v. Bonner, 1998 S.D. 30, ¶ 19, 577 N.W.2d 575, 580, setting 

forth what a court is to consider in exercising its discretion when imposing a

sentence. Because Richard characterized his sentencing challenge as an Eighth 

Amendment claim, we address that claim first, although we also review the 

sentence for an abuse of discretion.

a. Eighth Amendment

[¶44.] “In answering the threshold question of gross disproportionality” “the 

gravity of the offense refers to the offense’s relative position on the spectrum of all 

criminality.” State v. Chipps, 2016 S.D. 8, ¶ 35, 874 N.W.2d 475, 487. Similarly, an 

examination of the harshness of the penalty looks “to the penalty’s relative position 

on the spectrum of all permitted punishments.” Id. ¶ 37, 874 N.W.2d at 488. “This 

comparison rarely ‘leads to an inference of gross disproportionality’ and typically 
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marks the end of our review[.]” Id. ¶ 38, 874 N.W.2d at 489 (citation omitted). 

However, “[i]f the penalty imposed appears to be grossly disproportionate to the 

gravity of the offense, then we will compare the sentence to those ‘imposed on other 

criminals in the same jurisdiction’ as well as those ‘imposed for commission of the 

same crime in other jurisdictions.’” Id. (quoting Solem v. Helm, 463 U.S. 277, 291, 

103 S. Ct. 3001, 3010, 77 L. Ed. 2d 637 (1983)).

[¶45.] Richard’s attempt to minimize the gravity of his offenses ignores that 

the jury found him guilty of multiple acts: kidnapping J.S. to inflict bodily injury or 

to terrorize her; assaulting her by cutting off her oxygen supply; and raping her—all 

while armed with a gun. These crimes indisputably sit on the more serious end of 

the spectrum of all criminality and “often warrant severe penalties.” See, e.g., State 

v. Traversie, 2016 S.D. 19, ¶ 17, 877 N.W.2d 327, 332 (reviewing sentences for 

kidnapping and assault); State v. Yeager, 2019 S.D. 12, ¶ 6, 925 N.W.2d 105, 109 

(explaining that “[r]ape is a heinous crime”). In regard to the harshness of the 

penalties imposed, Richard has not established that the circuit court violated his 

constitutional right to be free from cruel and unusual punishment. He faced a life 

sentence for the kidnapping conviction and received a 45-year sentence. He faced a 

maximum possible sentence of 50 years for the rape conviction and received a 25-

year consecutive sentence. He faced a maximum possible sentence of 25 years for 

his conviction of commission of a felony with a firearm and received the mandatory 

minimum sentence of five consecutive years. His remaining sentence (15 years for 

aggravated assault) was ordered to run concurrent to the other sentences.
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[¶46.] When the gravity of the offenses is compared to the harshness of the 

penalties, Richard’s sentences do not appear grossly disproportionate. Because 

Richard has not met the threshold requirement of gross disproportionality, our 

review under the Eighth Amendment ends.

b. Abuse of Discretion

[¶47.] “Before sentencing a defendant, the court is to ‘acquire a thorough 

acquaintance with the character and history of the [person] before it.’” State v. 

Diaz, 2016 S.D. 78, ¶ 47, 887 N.W.2d 751, 765 (alteration in original) (quoting State 

v. Lemley, 1996 S.D. 91, ¶ 12, 552 N.W.2d 409, 412). In doing so, the court should 

consider the defendant’s “‘general moral character, mentality, habits, social 

environment, tendencies, age, aversion or inclination to commit crime, life, family, 

occupation, and previous criminal record[,]’ as well as the rehabilitative prospects of 

the defendant.” State v. Overbey, 2010 S.D. 78, ¶ 36, 790 N.W.2d 35, 44 (quoting 

State v. Blair, 2006 S.D. 75, ¶ 27, 721 N.W.2d 55, 63). On appeal, we will reverse a 

sentence upon a showing of an abuse of discretion—“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. Holler, 2020 S.D. 28, ¶ 10, 

944 N.W.2d 339, 342 (citation omitted).

[¶48.] Contrary to Richard’s characterization of the circuit court’s sentencing 

decision, the court carefully addressed each of the penological factors of retribution, 

deterrence, incapacitation, and rehabilitation. In doing so, the court considered the 

mitigating factors, including his lack of criminal history, his contributions to his 

community, and the multitude of letters submitted in support of Richard. The court 
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also considered that Richard had recently married, which suggested to the court 

that he is able to take on responsibility. However, “in the midst” of these mitigating 

factors, the court identified a common thread—attempts to justify why Richard did 

what he did. The court recounted one particular letter written in support of 

Richard explaining the combative and contentious nature of J.S. and Richard’s 

relationship and alleging J.S. was the aggressor and someone with a goal to destroy 

Richard. In the court’s view, even if both Richard and J.S. “had engaged in buttonpushing in the past, no one deserves to be kidnapped, bound with zip ties around 

their neck, pass out, lose consciousness, urinate themselves, be thrown into the 

back of a pickup truck with the door slammed, only to have the pressure released so 

they can endure a brutal rape vaginally and anally upon being revived.” The court 

noted that the many letters from the community in support of Richard failed to 

understand his “dual persona” and “Jekyll and Hyde” nature.

[¶49.] Ultimately, the court considered Richard’s prospects for rehabilitation 

unlikely based on the heinous nature of the crimes in this case. The court also 

disagreed with the psychosexual assessment that Richard would be safe in the 

community in light of the calculation and deliberation required to perpetrate these 

crimes against J.S. After considering everything presented, including the 

testimony, presentence investigation report, psychosexual assessment, letters of 

support, victim impact statement, and considerations relevant to rehabilitation, the 

court imposed a “significant sentence.” Based on our review of the record, the court 

did not abuse its discretion in imposing a total sentence of 75 years.

[¶50.] Affirmed.
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[¶51.] GILBERTSON, Chief Justice, and KERN, JENSEN, and SALTER, 

Justices, concur.