State v. Peneaux, 988 N.W.2d 263

Jay Peneaux and his ex-wife Brittany had a history of domestic abuse; multiple prior incidents (2018–2019) were admitted at trial.
On April 27–28, 2021, after Peneaux removed Brittany’s handgun from her car, a confrontation at his parents’ trailer—captured on video—ended with Peneaux pinning and striking Brittany and family members removing the gun; Brittany suffered facial injuries.
Brittany received threatening phone calls from Peneaux on May 2, 2021; later texts (June 30) and other conduct prompted additional charges while a no-contact order was in effect.
Indictment charged two aggravated-assault counts (SDCL 22-18-1.1(1) extreme indifference; (5) physical menace with a deadly weapon), witness tampering, threatening/harassing contact (SDCL 49-31-31(1)) based on May 2 calls, and felony stalking for June texts; solicitation charge added later.
At trial the jury convicted on all counts; on appeal Peneaux challenged sufficiency of the evidence for both aggravated-assault counts and the threatening/harassing-contact misdemeanor (Count 4).
The Supreme Court affirmed both aggravated-assault convictions but reversed and vacated the threatening/harassing-contact conviction for insufficient evidence that the May 2 calls contained obscene or lewd language as required by SDCL 49-31-31(1).

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Aggravated assault (SDCL 22‑18‑1.1(1)) — extreme indifference	Peneaux dragged Brittany to the ground, punched her repeatedly, threatened her while holding a gun—conduct supports extreme indifference.	Conduct did not manifest extreme indifference; attack abated and he walked away; not comparable to cases finding extreme indifference.	Affirmed — reasonable jury could find blatant disregard for life and attempt to cause serious bodily injury.
2. Aggravated assault (SDCL 22‑18‑1.1(5)) — physical menace with a deadly weapon	Testimony that Peneaux threatened Brittany while using the gun showed an attempt to put her in fear of imminent serious bodily harm.	Brittany knew the gun was unloaded (magazine remained in console), so it was not a deadly weapon.	Affirmed — focus is on defendant’s attempt to put victim in fear; State need not prove the gun was loaded or that victim actually feared.
3. Threatening or harassing contact (SDCL 49‑31‑31(1)) — May 2 phone calls	May 2 calls (“drop the charges or I’ll hurt you and your family”; “watch this”) amounted to terrorizing/harassing contact under the statute.	Statute requires obscene or lewd language or suggestion of a lewd act; the May 2 calls contained threats but no obscene/lewd content.	Reversed/vacated — insufficient evidence that the May 2 calls used obscene or lewd language or suggested a lewd/lascivious act as required by the statute.

State v. Timmons, 974 N.W.2d 881 (S.D. 2022) (standard of review for denial of judgment of acquittal).
State v. Wolf, 941 N.W.2d 216 (S.D. 2020) (aggravated‑assault extreme‑indifference analysis).
State v. Miland, 858 N.W.2d 328 (S.D. 2014) (blows to the head and continued assault support extreme indifference).
State v. White Mountain, 477 N.W.2d 36 (S.D. 1991) (repeated attacks on defenseless victim support aggravated assault under extreme‑indifference theory).
State v. Heumiller, 317 N.W.2d 126 (S.D. 1982) (discusses gun‑loaded issue; emphasizes gravamen is fear induced, but later clarified).
State v. Ahmed, 973 N.W.2d 217 (S.D. 2022) (clarifies actual fear is not an essential element for physical‑menace aggravated assault).
State v. Scott, 927 N.W.2d 120 (S.D. 2019) (physical menace requires more than words—some physical act).
State v. Crelly, 313 N.W.2d 455 (S.D. 1981) (obscene/lewd language meets SDCL 49‑31‑31(1); example of patently offensive sexual insults).