956 N.W.2d 427
S.D.2021Background
- Deputies responded to a domestic-dispute call involving Judy Schumacher; she later walked toward her driveway carrying a .22 revolver that appeared functional.
- Deputies ordered her to put the gun down, took cover, and after Al (her husband) removed the revolver to a separate post the deputies climbed the closed gate and arrested Judy.
- The revolver was later determined to be incapable of safely discharging a projectile (parties stipulated it was "incapable of discharging a projectile").
- While being handcuffed, Judy kicked Deputy Maciejewski; deputies testified they feared imminent serious bodily harm when she displayed the gun.
- The State charged Judy with two counts of aggravated assault (attempt by physical menace with a deadly weapon against each deputy) and one count of simple assault against a law-enforcement officer; the jury convicted on all counts.
- Judy moved to dismiss/suppress and for judgment of acquittal arguing (1) the gun’s inoperability means it could not be a deadly weapon, (2) evidence after the deputies jumped the gate should be suppressed as fruit of an unlawful entry, and (3) insufficient evidence of injury for simple assault.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Suppression of evidence for simple-assault (entry over gate) | Evidence properly admissible; even if entry questionable, subsequent criminal conduct is not suppressible | Arrest was unlawful entry onto curtilage so post-entry evidence must be suppressed | Denied — evidence of new criminal conduct (kicking) not excluded even if arrest arguably unlawful |
| Jury instruction / firearm operability | The jury need not be instructed that a nonfunctioning gun cannot be a deadly weapon; a gun’s design/use can make it a deadly weapon regardless of operability | An inoperable firearm cannot be a "deadly weapon"/"firearm" so operability is a defense and jury should be instructed accordingly | Denied — court properly refused instruction and argument; deadly-weapon definition covers devices designed to kill and the deputies’ perspective (fear) controls |
| Motion for judgment of acquittal on simple assault (injury element) | Video and testimony show Deputy Maciejewski was kicked and reacted ("ouch"), satisfying bodily-injury element | No actual bodily injury occurred from the kick; insufficient evidence | Denied — viewing evidence in State’s favor, rational juror could find bodily injury and guilt beyond a reasonable doubt |
Key Cases Cited
- State v. Heumiller, 317 N.W.2d 126 (S.D. 1982) (victim’s perception of firearm fosters the fear element; unloaded or inoperable weapon still functions as deadly weapon for victim’s fear)
- State v. Miskimins, 435 N.W.2d 217 (S.D. 1989) (assaultive conduct after an arrest is not justified solely because arrest was unlawful)
- State v. Willingham, 933 N.W.2d 619 (S.D. 2019) (new and distinct criminal acts following an arrest are prosecutable despite asserted illegality of the arrest)
- United States v. Schmidt, 403 F.3d 1009 (8th Cir. 2005) (resistance to an arrest, even illegal, can support subsequent prosecution)
- Vetter v. Cam Wal Elec. Co-op., Inc., 711 N.W.2d 612 (S.D. 2006) (standard for reviewing jury-instruction decisions and instructions construed as a whole)
- State v. Podzimek, 932 N.W.2d 141 (S.D. 2019) (standard for reviewing motions for judgment of acquittal/sufficiency of evidence)
- Payton v. New York, 445 U.S. 573 (U.S. 1980) (warrantless entry into a home for arrest is presumptively unconstitutional absent exigent circumstances)