#29878-aff in pt & rev in pt-PJD

2023 S.D. 15

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

JAY JOSEPH PENEAUX, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SEVENTH JUDICIAL CIRCUIT

PENNINGTON COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE CRAIG A. PFEIFLE

Judge

* * * *

TODD A. LOVE

Rapid City, South Dakota Attorney for defendant

and appellant.

MARTY J. JACKLEY

Attorney General

JONATHAN K. VAN PATTEN

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff

and appellee.

* * * *

CONSIDERED ON BRIEFS

OCTOBER 3, 2022

OPINION FILED 03/15/23
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DEVANEY, Justice

[¶1.] Jay Peneaux was charged with multiple offenses relating to the assault 

of his ex-wife, Brittany, and his later efforts to get the pending charges dismissed. 

After the close of the State’s evidence during a jury trial, Peneaux moved for a 

judgment of acquittal on all charges. The circuit court denied the motion, and the 

jury found Peneaux guilty on all counts. Peneaux appeals, arguing that there was 

insufficient evidence for the jury to find him guilty of aggravated assault and 

threatening and harassing conduct. We affirm in part, reverse in part, and vacate 

the conviction on the threatening and harassing conduct charge.

Factual and Procedural Background

[¶2.] Peneaux and Brittany began their relationship in 2006. At the time, 

Peneaux was 22 years old, and Brittany was 14 years old. Brittany became 

pregnant and gave birth to the couple’s first child in 2007. They were married in 

2014, and Brittany gave birth to two additional children, one in 2015 and one in 

2018. Throughout their marriage, Brittany was subjected to emotional abuse from 

Peneaux. According to Brittany, this abuse was especially prevalent when Peneaux 

was drinking or getting high. In addition to emotional abuse, Brittany claimed 

Peneaux physically abused her multiple times throughout their marriage.

[¶3.] Evidence of prior acts of abuse was admitted at trial. One such act 

occurred during the summer of 2018 when, after a night of drinking at a bar, 

Peneaux pulled Brittany’s hair, threw her on the ground, and jumped on top of her 

during an argument outside their home. She did not call the police, explaining that 

Peneaux provided the family’s only source of income. In another incident in 
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December 2018, after an argument during which Brittany was attempting to get 

her car keys back from Peneaux, he started choking her and then threw her off the 

porch. This time Brittany did call the police.

[¶4.] Trial testimony was also presented regarding an incident occurring in 

November 2019. During this incident, Peneaux grabbed a knife from the kitchen 

after arguing with Brittany and threatened to kill her and her family. Upon seeing 

their daughter, who was recording the incident, Peneaux turned the knife on 

himself and threatened suicide. He left the home when Brittany’s mother arrived. 

Her mother called the police to report what had happened, and charges were filed 

relating to this incident. But after receiving numerous threatening text messages 

from Peneaux, Brittany complied with his instructions and wrote a letter to the 

judge handling the case asking that the charges be dismissed. Brittany testified 

that during each of the above altercations, she believed Peneaux to be intoxicated 

from either drugs or alcohol.

[¶5.] In late 2019, Brittany decided to initiate divorce proceedings, and the 

divorce was finalized approximately one year later. After the divorce, Peneaux was 

living with his parents, but in April 2021, Brittany allowed him to stay at her home. 

Peneaux had informed Brittany that he had a job lined up and that he was trying to 

work on his sobriety. He explained that it was difficult for him to stay sober at his 

parents’ home. According to Brittany, although they no longer had a romantic 

relationship, she allowed Peneaux to stay at her home in the hope that he would 

stay sober and reconnect with their children. Peneaux slept in the children’s room 
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while staying in her home. She was aware that Peneaux had a girlfriend named 

Janelle Fisher who was in jail at the time.

[¶6.] On April 27, 2021, Peneaux informed Brittany that he would be 

leaving indefinitely to work at a construction site out of town. He also mentioned 

that Janelle had gotten out of jail, and he was going to go see her before leaving 

town. Peneaux left Brittany’s home, and when he returned, Brittany thought he 

appeared to be high because he was acting aggressive and talking about things that 

did not make sense. This behavior upset Brittany, and they then had an argument 

about Peneaux’s role as a father. The argument ended when Peneaux asked for 

Brittany’s keys, so he could collect his things from her vehicle. Once he collected his 

belongings, he left Brittany’s keys on the driver’s seat of her vehicle and got into his 

own vehicle and sped off.

[¶7.] Shortly after Peneaux left, Brittany went to retrieve her keys from her 

vehicle. While doing so, she noticed that the glove compartment and center console 

were left open. She then discovered that Peneaux had taken money from the center 

console and her handgun from the glove compartment. Brittany kept the magazine 

for the handgun at the bottom of the center console, and it was still there.

[¶8.] Later that same evening, Brittany drove to the trailer home owned by 

Peneaux’s parents to retrieve the gun from him. When Brittany confronted 

Peneaux, they argued about the gun and about how his behavior affected their 

children. Peneaux refused to give the gun back. According to Brittany, he was 

yelling loudly, he shoved her, and she shoved him back. He also threw a beer in her 

face. Peneaux told her to leave the property immediately and mentioned that his 
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brother Heath who was at his parents’ home, was “wanted.” Brittany then left and 

went home to put her kids to bed.

[¶9.] Brittany explained that later that night, she could not go to sleep 

because she was upset about Peneaux’s actions and with herself for letting him back 

into their children’s lives. She also felt unsafe and wanted her gun back. She was 

afraid, given her perception of Peneaux being high, that he might pawn her gun like 

he had done with other possessions when their marriage ended. Accordingly, in the 

early morning hours of April 28, 2021 (around 2:00 a.m.), Brittany returned to the 

trailer home to retrieve her gun.

[¶10.] The events that occurred in front of Peneaux’s parents’ home during 

this second visit were captured on a neighbor’s security camera. The silent video 

footage shows Brittany getting out of her car and walking toward the front of the 

trailer home. Unbeknownst to Brittany, Peneaux was sitting in his pickup truck, 

which was parked on the backside of the home in an area that cannot be seen on the 

video. According to Brittany, once Peneaux noticed her, he got out of his truck and 

confronted her. He was very angry and began yelling at her because she had come 

back despite him previously telling her to leave the property. While he was yelling 

at her, Brittany could see someone who looked like his girlfriend, Janelle, in the 

driver’s seat of Peneaux’s truck.

[¶11.] Thereafter, things escalated. Brittany claimed that Peneaux grabbed 

her gun from his truck and asked her if this was the gun she wanted. She stated 

that he then threatened to “take [her] out and [her] family” so she “just ran.” The 

video footage shows Brittany running back to the front of the home and getting 
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inside her vehicle. It also shows Peneaux running around the opposite side of the 

garage to the front of the home and approaching Brittany’s vehicle. The video 

shows him punching the passenger-side windows. Brittany then gets out of the 

vehicle and walks toward the front of her car where Peneaux confronts her and 

physically takes her to the ground.

[¶12.] It is very difficult to discern on the video what is occurring while they 

are on the ground. According to Brittany, while Peneaux had her pinned to the 

ground, he grabbed the gun from his waistband and asked her if she wanted to end 

up like her brother who had passed away just a month prior. In an effort to get 

away, Brittany bit Peneaux, grabbed the gun, and tried to pull it away from him. 

She claims that he then punched her on the side of her head and called for his 

brother, Heath, who can be seen on the video walking over to Peneaux and Brittany 

while they are on the ground wrestling. The video shows Heath lean down toward 

Brittany and Peneaux and remove the gun as they continue to wrestle. It is not 

clear from the video whether the gun was handed to Heath or whether he pulled it 

away from them. However, the video shows Heath walking away, after which 

Peneaux draws his arm back and punches Brittany two more times. Brittany 

testified that she blacked out at this point.

[¶13.] Directly after striking Brittany, Peneaux can be seen getting up and 

walking away. A few seconds later, the video shows Brittany get up and walk 

toward Peneaux and other members of his family who were standing nearby 

watching the altercation occur. At trial, Brittany explained that Peneaux’s family 

members told her to leave because they did not want the police to come. Brittany 
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could not find her keys and the video shows her looking for them in the area 

surrounding her vehicle and in the driveway. Brittany later discovered her keys in 

the pocket of the sweatshirt she was wearing under her coat.

[¶14.] A neighbor witnessed the altercation and called 911. Shortly 

thereafter, law enforcement arrived at the scene and found Brittany sitting outside 

on the curb crying. Officers observed swelling, redness, and blood on Brittany’s 

face. They also noticed that her nose appeared to be deformed. After the officers 

spoke with Brittany about what had happened, a paramedic with the fire 

department evaluated Brittany at the scene. The paramedic observed bruising 

across the bridge of her nose but could not ascertain if it was broken. After this 

assessment, the paramedic determined that she did not need emergency care.1

[¶15.] Although the officers attempted to apprehend Peneaux, they were 

unsuccessful due to their inability to enter the trailer home. After knocking and 

receiving no answer, law enforcement discovered that the entrances had been 

barricaded. Given the concern that Peneaux might be inside with a gun, along with 

his brother who had outstanding warrants, the officers elected not to attempt a 

forced entry at that time.

[¶16.] Later that morning, an arrest warrant for Peneaux was issued. When 

law enforcement executed a search warrant on the home to arrest Peneaux and 

1. Photographs taken by law enforcement at the scene and later at the police 

department depicted bruising on Brittany’s body and around both of her eyes. 

She testified at trial that after the assault, she experienced headaches and 

confusion. However, she explained that she did not go to a doctor for followup care, as suggested, because she does not have health insurance.
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locate the gun, no one was inside. They did not locate Brittany’s gun during the 

search; however, Peneaux’s mother later brought the gun to the police department.

[¶17.] On May 2, 2021, Peneaux contacted Brittany via telephone twice. In 

the first call, he told her to drop the charges or he would hurt her and her family. 

In the second call, he said, “Watch this[,]” which Brittany perceived as a threat. 

Peneaux was subsequently arrested on May 4, 2021, after Peneaux’s mother 

allowed law enforcement to enter the Peneaux home to search for him. While 

searching, officers found Peneaux hiding inside a zippered mattress. As a condition 

of the bond set after he was arrested, Peneaux was ordered to have no contact with 

Brittany.

[¶18.] On May 20, 2021, an information was filed containing two counts of 

aggravated assault for the events that occurred on April 28, 2021, one charging 

Peneaux with a violation of SDCL 22-18-1.1(1) (extreme indifference to human life) 

and the other charging a violation of SDCL 22-18-1.1(5) (physical menace with a 

deadly weapon). The information also contained charges of witness tampering in 

violation of SDCL 22-11-19 and threatening or harassing conduct in violation of 

SDCL 49-31-31(1) based on statements Peneaux made to Brittany during the May 2 

phone calls. On August 11, 2021, a grand jury issued an indictment charging 

Peneaux with the same four offenses. The indictment contained an additional 

charge of felony stalking in violation of SDCL 22-19A-1(3) and SDCL 22-19A-2
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based on texts Peneaux sent to Brittany on June 30, 2021, while the order 

prohibiting contact was in place.2

[¶19.] On November 1, 2021, a three-day jury trial commenced. In addition 

to the video of the assault and Brittany’s testimony detailing the above-described 

events, the State called several other witnesses, including law enforcement officers; 

Brittany’s mother, who testified about past abuse; and Brittany and Peneaux’s 

daughter, who witnessed Peneaux take something out of the console of Brittany’s 

car when he left Brittany’s home on April 27. At the close of the State’s evidence, 

Peneaux moved for a judgment of acquittal on all counts. As to the first aggravated 

assault charge, he argued that the State did not present evidence that Brittany 

suffered serious bodily injury. As to the second aggravated assault charge, he 

offered arguments similar to those he now makes on appeal with respect to the 

element regarding the use of a deadly weapon. He argued that this element could 

not be met because Brittany knew the gun was unloaded. Peneaux did not present 

any argument with respect to the threatening and harassing contact charge at issue 

in this appeal. The circuit court denied Peneaux’s motion as to all counts except for 

the second aggravated assault charge, which the court took under advisement.

2. Peneaux was later indicted via a superseding indictment issued on 

September 15, 2021, charging, in addition to the existing five counts, one 

count of solicitation of perjury in violation of SDCL 22-4A-1, SDCL 22-29-1 

and SDCL 22-29-5(2) and one count of solicitation to be an accessory after the 

fact in violation of SDCL 22-4A-1, SDCL 22-3-5, and SDCL 22-3-3.1. These 

solicitation charges stemmed from a July 8, 2021 phone call between Peneaux 

and his mother in which he asked her to testify that she was the one sending 

some of the text messages underlying the pending stalking charge. On 

Peneaux’s motion, the solicitation to be an accessory charge was dismissed 

prior to trial. The remaining solicitation charge is not at issue in this appeal.
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[¶20.] In his defense, Peneaux called several witnesses, including multiple 

family members who were at the home during the incident and his girlfriend, 

Janelle, who was with Peneaux in his truck when Brittany came back the second 

time. According to the defense witnesses, Brittany was the one who brought the 

gun to confront Peneaux at his parents’ home. Janelle testified that Brittany began 

hitting the windows of Peneaux’s pickup with the gun shortly after arriving. She 

claimed that Peneaux ran after Brittany in order to disarm her. According to 

Janelle, Peneaux was not the aggressor and he never threatened Brittany. Janelle 

also testified about screenshots of text messages Brittany purportedly sent to 

Peneaux earlier that evening expressing that she hated him and that she wanted to 

die because she wanted him and her family back.

[¶21.] Through cross-examination of Brittany and the law enforcement 

officers who had interviewed her, Peneaux pointed out multiple inconsistencies in 

Brittany’s initial story regarding the events surrounding the assault. In particular, 

Brittany initially told law enforcement that she and Peneaux were in her vehicle 

outside the Peneaux home when the argument started and that this is when he took 

the gun from her car before attacking her. Brittany admitted in a later interview, 

and at trial, that she had initially lied about when Peneaux took the gun because 

she was ashamed and did not want anyone to know that she had let him back into

her life and let him stay in her home.

[¶22.] Prior to the defense resting, the circuit court denied Peneaux’s motion 

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

with a deadly weapon. The court concluded that there was sufficient evidence from 
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Brittany’s testimony to establish the necessary element pertaining to the use of a 

deadly weapon. The case was submitted to the jury, and after an overnight recess, 

the jury returned a verdict on the afternoon of the second day of deliberation. The 

jury found Peneaux guilty on all six counts.

[¶23.] Peneaux timely appealed, and his issues are restated as follows:

1. Whether the circuit court erred by not granting Peneaux’s 

motion for judgment of acquittal on the charge of 

aggravated assault in violation of SDCL 22-18-1.1(1).

2. Whether the circuit court erred by not granting Peneaux’s 

motion for judgment of acquittal on the charge of 

aggravated assault in violation of SDCL 22-18-1.1(5).

3. Whether the circuit court erred by not granting Peneaux’s 

motion for judgment of acquittal on the charge of 

threatening or harassing contact in violation of SDCL 49-

31-31(1).

Standard of Review

[¶24.] “This Court reviews ‘a denial of a motion for judgment of acquittal de 

novo.’” State v. Timmons, 2022 S.D. 28, ¶ 14, 974 N.W.2d 881, 887 (quoting State v. 

Frias, 2021 S.D. 26, ¶ 21, 959 N.W.2d 62, 68). “[A] motion for a judgment of 

acquittal attacks the sufficiency of the evidence[.]” Id. (alterations in original) 

(quoting State v. Wolf, 2020 S.D. 15, ¶ 12, 941 N.W.2d 216, 220). “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.” Frias, 2021 S.D. 26, 

¶ 21, 959 N.W.2d at 68 (quoting State v. Brim, 2010 S.D. 74, ¶ 6, 789 N.W.2d 80, 

83). “[T]he jury is the exclusive judge of the credibility of the witnesses and the 

weight of the evidence[,]” and “this Court will not resolve conflicts in the evidence, 
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pass on the credibility of witnesses, or weigh the evidence.” Id. (first alteration in 

original) (quoting State v. Bausch, 2017 S.D. 1, ¶ 33, 889 N.W.2d 404, 413).

Analysis and Decision

1. Whether the circuit court erred by not granting 

Peneaux’s motion for judgment of acquittal on the 

charge of aggravated assault in violation of SDCL 

22-18-1.1(1).

[¶25.] Peneaux argues that his conviction for aggravated assault under SDCL 

22-18-1.1(1) is not supported by sufficient evidence because his conduct did not rise 

to the level required for a finding of “circumstances manifesting extreme 

indifference to the value of human life.”3 He highlights the video evidence showing 

that he walked away directly after punching Brittany. He also claims that unlike 

the scenarios presented in other aggravated assault cases considered by this Court, 

no one had to interfere to stop the altercation. The State responds that Peneaux’s 

act of dragging Brittany to the ground and delivering multiple punches to her head, 

coupled with his threatening statements to her while holding a deadly weapon, are 

sufficient to sustain the conviction.

[¶26.] “Our Legislature has not declared what circumstances constitute 

extreme indifference to the value of human life under SDCL 22-18-1.1(1).” Wolf, 

2020 S.D. 15, ¶ 15, 941 N.W.2d at 221. “However, it has ‘deemed significant the 

nature of the assaultive act or acts themselves.’” Id. (quoting State v. Miland, 2014 

S.D. 98, ¶ 18, 858 N.W.2d 328, 332). We have sustained a finding of guilt under 

3. The full text of the subsection relating to this type of aggravated assault 

provides that any individual who “[a]ttempts to cause serious bodily injury to 

another . . . under circumstances manifesting extreme indifference to the 

value of human life . . . is guilty of aggravated assault.” SDCL 22-18-1.1(1).
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SDCL 22-18-1.1(1) when “the accused’s ‘conduct was of the 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[.]’” Miland, 2014 S.D. 98, ¶ 18, 858 N.W.2d at 332–33 (quoting State v. 

Saucier, 512 A.2d 1120, 1125 (N.H. 1986)). “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. ¶ 18, 858 N.W.2d 

at 332.

[¶27.] Although Peneaux attempts to distinguish the facts in his case from 

other aggravated assault cases considered by this Court, “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.” Wolf, 2020 S.D. 

15, ¶ 18, 941 N.W.2d at 221. Therefore, the unique facts of each case must be 

evaluated on their own merits. Nevertheless, we note some similarities between the 

facts here and in prior cases cited by Peneaux.

[¶28.] In State v. White Mountain, 477 N.W.2d 36, 39 (S.D. 1991), for 

example, this Court upheld an aggravated assault conviction under SDCL 22-18-

1.1(1) involving circumstances analogous to those here, where the defendant 

repeatedly kicked the victim in the head and stomach while she was defenseless on 

the ground. During this attack, the defendant asked the victim if she wanted to die 

and then told her that she was going to die. Id. at 37. The Court found this 

evidence sufficient to support the jury’s finding that the defendant attempted to 
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cause serious bodily injury in circumstances demonstrating extreme indifference to 

the value of human life. Id. at 39.

[¶29.] Also, in Miland, we considered whether a defendant demonstrated 

extreme indifference to the value of human life when, during a routine traffic stop, 

he began to punch a police officer multiple times in the face. 2014 S.D. 98, ¶ 4, 858 

N.W.2d at 329–30. The defendant continued this beating until he was eventually 

pulled away by another officer. In affirming the conviction, the Court noted that 

had the other officer not intervened, the defendant would have most certainly 

continued the assault. Id. ¶ 20, 858 N.W.2d at 333.

[¶30.] More recently, the Court affirmed a conviction under SDCL 22-18-

1.1(1) in Wolf, a case in which the defendant, an inmate at the South Dakota State 

Penitentiary, attacked a corrections officer by kicking and kneeing him in the face 

and head for approximately 20 seconds. 2020 S.D. 15, ¶ 3, 941 N.W.2d at 218. The 

defendant then put the officer in a chokehold, limiting the officer’s ability to breathe 

“for a few seconds.” Id. ¶ 4. Although the officer was able to escape the chokehold 

and spray the defendant with “OC spray,” the Court reasoned that the defendant 

would have continued the assault but for the defensive maneuvers made by the 

officer after he was attacked. Id. ¶¶ 4, 19, 941 N.W.2d at 219, 221–22.

[¶31.] Here, the video shows Brittany running toward her vehicle and 

Peneaux also running, via a different route, toward the driveway where Brittany’s 

vehicle was parked. After she took refuge inside her vehicle, Peneaux began 

punching its windows. An altercation then ensued outside the vehicle, where 

Peneaux pinned Brittany to the ground. Brittany testified that while Peneaux had 
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her on the ground, he made threatening comments about “taking out” her and her 

family. He also referred to Brittany “ending up like” her brother who had recently 

passed away. According to Brittany, these threatening remarks were made while 

Peneaux was holding Brittany’s gun.

[¶32.] In an attempt to defend herself, Brittany bit Peneaux and tried to 

wrestle the gun away from him while they were on the ground. These efforts 

appeared, from what the video shows, to have hindered Peneaux, at least 

temporarily, from acting on his threats. Although the testimony at trial indicates 

that Heath’s intervention here was at the behest of Peneaux, what transpired after 

Heath removed the gun from the scenario is equally troubling. Once Heath walked 

away with the gun, Brittany, who was still lying on the ground, appeared 

submissive. Peneaux nevertheless continued to assault her, punching her twice, 

with blows to her face and head, one of which likely broke her nose. According to 

Brittany, she briefly lost consciousness at this time.

[¶33.] Although Peneaux offered a different version of the events to the jury, 

“[t]his Court examines the evidence in its totality and does not reweigh evidence or 

pass on the credibility of witnesses.” State v. Ahmed, 2022 S.D. 20, ¶ 20, 973 

N.W.2d 217, 223. When considering this evidence in a light most favorable to the 

verdict, it was reasonable for the jury to conclude that Peneaux demonstrated a 

blatant disregard for the risk to Brittany’s life based upon his conduct during the 

attack. Additionally, by pinning Brittany to the ground and punching her at least 

twice in the head, it was reasonable for the jury to conclude that Peneaux 

attempted to cause Brittany serious bodily injury. See Miland, 2014 S.D. 98, ¶ 14, 
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858 N.W.2d at 332–33 (noting the risk of a life-long injury when there is a blow to 

the head). An attempt to cause serious bodily injury can, under circumstances such 

as those present here, demonstrate extreme indifference to the value of human life. 

Therefore, the circuit court did not err in denying Peneaux’s motion for judgment of 

acquittal on the charge of aggravated assault in violation of SDCL 22-18-1.1(1).

2. Whether the circuit court erred by not granting 

Peneaux’s motion for judgment of acquittal on the 

charge of aggravated assault in violation of SDCL 

22-18-1.1(5).

[¶34.] Peneaux argues his conviction for aggravated assault under SDCL 22-

18-1.1(5) is not supported by sufficient evidence because Brittany testified that she 

knew the gun was not loaded given that the magazine for the gun was still in the 

console of her vehicle at the time of the assault. He thus contends the gun could not 

have met the definition of a deadly weapon as required for a conviction under this 

particular statute.

[¶35.] The State responds that Brittany had lost control of the gun for several 

hours prior to the incident; therefore, she could not have known whether the gun 

was loaded.4 The State argues this evidence was sufficient for the jury to 

reasonably conclude that Peneaux used a deadly weapon to put Brittany in fear of 

imminent serious bodily harm.

4. Aside from defense counsel’s cross-examination of Brittany, there is no 

evidence in the record confirming whether, at the time of the events in 

question, the gun was in fact unloaded. Law enforcement did not locate the 

gun when searching the Peneaux home the morning after the assault, and it 

was Peneaux’s mother who later brought it to law enforcement.
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[¶36.] SDCL 22-18-1.1(5) provides that 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.” Id. A “deadly weapon” is defined 

in SDCL 22-1-2(10) as “any firearm, stun gun, knife, or device, instrument, 

material, or substance, whether animate or inanimate, which is calculated or 

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

used is likely to inflict death or serious bodily harm[.]”

[¶37.] We have explained that “[t]he 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.” Ahmed, 2022 S.D. 

20, ¶ 15, 973 N.W.2d at 221 (quoting State v. LaCroix, 423 N.W.2d 169, 170 (S.D. 

1988)). We have further held that “[p]hysical 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).

[¶38.] In support of his argument, Peneaux relies on an excerpt from State v. 

Heumiller, a case addressing the question whether an unloaded gun can be 

considered a deadly weapon under SDCL 22-18-1.1(5). 317 N.W.2d 126, 131 (S.D. 

1982). In Heumiller, the Court viewed an alleged assault charge under SDCL 22-

18-1.1(5) from the perspective of the victim and referred to the gravamen of the 

offense being “the fear it instills in the mind of the victim who ordinarily does not 

know whether the firearm is in fact loaded.” Id. at 131. The Court further noted 

that absent “evidence that the victim knew the gun was unloaded, it is deemed 
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loaded for the purpose of proving the element of fear[.]” Id. Heumiller later states 

that “the gravaman [sic] of the offense is not whether the gun was in fact loaded, 

but whether the [gun] was used to put the victim in fear of imminent serious bodily 

injury.” Id.

[¶39.] Our cases subsequent to Heumiller have consistently held, and 

clarified, that “the State need not prove ‘actual fear of imminent serious bodily 

harm.’” Ahmed, 2022 S.D. 20, ¶ 19, 973 N.W.2d at 222 (quoting Scott, 2019 S.D. 25, 

¶ 19, 927 N.W.2d at 127). Therefore, the statements in Heumiller suggesting that 

the victim’s fear is an element of a crime charged under SDCL 22-18-1.1(5) are 

incorrect. The relevant question is not whether the victim knew the gun was 

unloaded. Instead, the focus is on what the defendant was attempting to do with 

the gun.

[¶40.] Here, Brittany testified that Peneaux threatened her with the gun 

when he got out of the pickup, and after he later pinned her to the ground, he 

withdrew the gun from his waistband and asked her if she wanted to end up like 

her recently deceased brother, In light of this testimony, there is sufficient evidence 

to support the jury’s finding that Peneaux attempted to put Brittany in fear of 

imminent serious bodily harm. Accordingly, the circuit court did not err in denying 

Peneaux’s motion for judgment of acquittal on the charge of aggravated assault in 

violation of SDCL 22-18-1.1(5).
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3. Whether the circuit court erred by not granting 

Peneaux’s motion for judgment of acquittal on the 

charge of engaging in threatening or harassing 

contact in violation of SDCL 49-31-31(1).

[¶41.] Peneaux argues his conviction under SDCL 49-31-31(1) is not 

supported by sufficient evidence because the State did not put forth any evidence 

tending to prove that he used obscene or lewd language or that he suggested a lewd 

or lascivious act on May 2, 2021.5

[¶42.] As stated in SDCL 49-31-31(1): “It is a Class 1 misdemeanor for a 

person to use a telephone or other electronic communication device . . . [t]o contact 

another person with intent to terrorize, intimidate, threaten, harass, or annoy such 

person by using obscene or lewd language or by suggesting a lewd or lascivious act.” 

Neither this Court nor the Legislature has defined “lewd or lascivious.” State v. 

Dubois, 2008 S.D. 15, ¶ 35, 746 N.W.2d 197, 208. However, we have noted that 

“Black’s Law Dictionary defines lewd as: ‘[o]bscene or indecent; tending to moral 

impurity or wantonness,’ 926 (8th ed. 2004); Black’s Law Dictionary defines 

lascivious as: ‘([o]f conduct) tending to excite lust; lewd; indecent; obscene.’ 897 (8th 

ed. 2004).” Id.

5. Count 4 of the indictment charged the following:

That on or about the 2nd day of May, 2021, in the County of 

Pennington, State of South Dakota, DEFENDANT JOSEPH 

PENEAUX did commit the public offense of THREATENING 

OR HARRASSING CONTACT in that he did then and there use 

a telephone or other electronic communication device to contact 

another person, to-wit: Brittany Peneaux, with intent to 

terrorize, intimidate, threaten, harass or annoy such person by 

using obscene or lewd language or by suggesting a lewd or 

lascivious act, in violation of SDCL 49-31-31(1).
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[¶43.] In a case addressing the same argument Peneaux makes here, this 

Court rejected the defendant’s allegations that his comments were not obscene or 

lewd. See State v. Crelly, 313 N.W.2d 455, 457 (S.D. 1981). While discussing what 

type of comments are considered to be “obscene,” the Court noted that “we must 

take the normal everyday meaning of the word ‘obscene’, in other words: Lewd, 

impure, filthy, offensive to modesty or decency.” Id. at 456 (quoting Baker v. State, 

494 P.2d 68, 71 (A.Z. 1972)). The defendant in Crelly was found guilty pursuant to 

SDCL 49-31-31(1) after he called a prosecutrix a “no good fucking whore,” a “sleazy 

slut,” and “slut” during a phone conversation. Id. at 457. In affirming the circuit 

court’s finding of guilt, the Court found this particular communication to be 

“patently offensive” and “the type of utterance that SDCL 49-31-31(1) was designed 

to prohibit.” Id.

[¶44.] Here, the only evidence presented at trial regarding Peneaux’s May 2, 

2021 phone calls was Brittany’s testimony. Brittany testified that Peneaux’s first 

call came at 11:20 a.m. and lasted 13 seconds. When asked what happened during 

that 13-second phone call, Brittany testified as follows: “He just said that -- that I 

better drop the charges. Otherwise, he will hurt me and my family. And then he 

hung up.” The second phone call came at 11:21 a.m. and lasted 2 seconds. Brittany 

testified that Peneaux stated, “watch this” and then hung up.

[¶45.] In response to Peneaux’s arguments as to this issue, the State does not 

focus on what Peneaux said in the May 2 phone calls; rather, the State refers to the 

texts Peneaux sent to Brittany on June 30, 2021. Although these later texts contain 

language that could be described as obscene, lewd, or lascivious, these texts were 
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the subject of the felony stalking charge set forth in a different count in the 

indictment for which Peneaux was convicted and sentenced.6

[¶46.] The May 2, 2021 statements made by Peneaux as charged in the count 

at issue cannot be described as obscene or lewd, nor can they be construed to 

suggest a lewd or lascivious act. Although threatening and intimidating, the 

comments made during these phone calls fall outside the “patently offensive” 

language SDCL 49-31-31(1) “was designed to prohibit.” See Crelly, 313 N.W.2d at 

457. Because there was insufficient evidence presented to the jury to support a 

finding of guilt regarding Count 4, the circuit court erred in denying Peneaux’s 

motion for judgment of acquittal on the charge of engaging in threatening or 

harassing contact in violation of SDCL 49-31-31(1). Therefore, we vacate the 

Peneaux’s conviction on Count 4.

[¶47.] Affirmed in part and reversed and vacated in part.

[¶48.] JENSEN, Chief Justice, and KERN and MYREN, Justices, concur.

6. The dissent, in its application of the “invited error” doctrine, notes that 

during closing argument, Peneaux’s counsel conceded that there was evidence 

to support Count 4. However, it is apparent that Peneaux’s counsel, like the 

State in this appeal, was mistakenly referring to the texts sent on June 30, 

which prompted the additional charge against Peneaux in Count 5. In both 

quotes noted by the dissent, defense counsel referred to Peneaux’s “sexual 

messages” and “sexual comments.” But Count 4 concerned only the May 2 

phone calls and those calls did not contain a reference to anything of a sexual 

nature. Moreover, when conceding that there was evidence to find Peneaux 

guilty on Count 4, defense counsel specifically referred to the “sexual 

comments.” Counsel then asked the jury to find Peneaux not guilty on Count 

5 (the felony charge which actually did pertain to the sexual comments). 

Thus, contrary to the dissent’s suggestion, defense counsel’s statements do 

not appear to be part of a calculated strategy or an affirmative act of 

sandbagging. Rather, it is apparent here that Peneaux’s counsel simply 

mixed up the charges by associating the wrong evidence with the wrong 

counts.
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[¶49.] SALTER, Justice, concurs in part and dissents in part.

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

[¶50.] I would not review the merits of Peneaux’s challenge to his 

misdemeanor conviction for threatening or harassing conduct, as alleged in Count 4, 

and I write to respectfully explain why. I otherwise join the Court’s opinion.

[¶51.] A fundamental precept of appellate review posits that a party may not 

ask a court to do something, only to later claim that granting the request was 

erroneous. The resulting rule is commonly referred to as the doctrine of invited 

error, but some courts have described it more colloquially as an effort to avoid a 

dubious litigation practice known as “sandbagging[.]” See Flowers v. State, 149 So. 

3d 1206, 1208 (Fla. Dist. Ct. App. 2014) (holding the doctrine of invited error is 

designed to prevent “sandbagging”). Regardless of the moniker, the concept is an 

eminently sensible one:

The doctrine of “invited error” embodies the principle that a 

party will not be heard to complain on appeal of errors which he 

himself induced or provoked the court or the opposite party to 

commit. It has been held that for the doctrine of invited error to 

apply it is sufficient that the party who on appeal complains of 

the error has contributed to it.

Veith v. O’Brien, 2007 S.D. 88, ¶ 27, 739 N.W.2d 15, 24 (quoting Taylor Realty Co. v. 

Haberling, 365 N.W.2d 870, 873 (S.D. 1985), superseded on other grounds by rule as 

stated in Weber v. Rains, 2019 S.D. 53, ¶ 33, 933 N.W.2d 471, 480).

[¶52.] Here, Peneaux is complicit in his own dilemma. During closing 

argument, Peneaux’s trial counsel asked the jury to find him guilty of Count 4 at 
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three separate points.7 Initially, defense counsel made this unmistakable 

concession to the jury:

Count 4, did he annoy her? I think he probably annoyed her 

when he sent the sexual messages. The lewd or lascivious act. 

All right, fine. When Jay said these sexual comments, that 

probably annoyed Brittany. I would agree that it probably 

constitutes that crime there.

(Emphasis added.)

[¶53.] Peneaux’s attorney then made a second acknowledgment of guilt by 

describing the threatening or harassing conduct charge as the “one I just talked 

about that Jay is likely guilty of.” And for the clincher, defense counsel directly 

asked the jury to find Peneaux guilty of Count 4 as part of an apparent strategy to 

avoid convictions on the felony charges he faced:

Ladies and gentlemen, we are going to ask you to go through 

this. We are going to ask you to vote not guilty on Count 1. Not 

guilty on Count 2. Not guilty on Count 3. I would agree the 

sexual comment he sent her, fine. Guilty of Count 4. Not guilty 

of Count 5. And not guilty of Count 6.

(Emphasis added.)8

[¶54.] Under the circumstances, Peneaux should not be surprised that the 

jury found him guilty of Count 4. Allowing review here would foster an incongruent 

rule under which a party can argue, with impunity, that a court or jury erroneously 

did exactly what the party wanted.

7. Peneaux is represented by different counsel on appeal.

8. This type of defense strategy has been discussed in the context of postconviction litigation. See e.g., Rocha v. Jones, No. CIV.A. 99-CV-71714-D, 

2001 WL 902628, at *4 (E.D. Mich. June 12, 2001) (“Trial counsel asserted 

that his planned trial strategy was to inform the jury that petitioner was 

guilty of the misdemeanor charges, but innocent of the felony charges.”).
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[¶55.] In its Flowers decision, the Florida District Court of Appeal expressed 

the same view, capturing the essence of the defendant’s argument and the 

application of the invited error doctrine in a crisp and clean opening paragraph:

Beware what you ask for. Here, defense counsel requested a 

jury instruction on a lesser included charge. [The defendant] 

was then convicted on that lesser included charge, and [the 

defendant] now seeks to be released without the possibility of 

retrial because the lesser included charge his attorney requested 

was time-barred. The invited error doctrine precludes such a 

“heads I win, tails you lose” game.

Flowers, 149 So. 3d at 1207.

[¶56.] The Court’s suggestion that the invited error doctrine should not apply 

here because trial defense counsel transposed the evidence relating to Counts 4 and 

5 confuses two concepts—being correct and being purposeful. See People v. PerezRodriguez, 2017 COA 77, ¶ 25, 411 P.3d 259, 266 (holding invited error need not be 

“competent or well planned” but “simply . . . deliberate rather than inadvertent”); 

Flowers, 149 So. 3d at 1208 (applying the invited error doctrine where defense 

counsel “should have known” that conviction of the lesser included offense was timebarred when counsel requested it).

[¶57.] Right or wrong, the record indicates that defense counsel deliberately 

conceded guilt on Count 4, which was, of course, the only misdemeanor charge. No 

one has claimed that this was coincidental or that Peneaux’s trial defense counsel 

actually meant to admit guilt to Count 5, instead of Count 4.

[¶58.] Under the circumstances, I would not consider Peneaux’s deferred 

challenge to Count 4.