STATE OF SOUTH DAKOTA v. KADIR HUSSEIN AHMED
#29549-a-SRJ
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
2022 S.D. 20. OPINION FILED 04/06/22
2022 S.D. 20
THE HONORABLE CAMELA THEELER, Judge
CONSIDERED ON BRIEFS FEBRUARY 14, 2022
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JASON R. ADAMS of Tschetter & Adаms Law Offices, P.C. Sioux Falls, South Dakota Attorneys for defendant and appellant.
JASON R. RAVNSBORG Attorney General CHELSEA WENZEL Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
[¶1.] Kadir Hussein Ahmed was charged with multiple counts arising from two separate incidents involving an alleged shooting and a later confrontation between Ahmed and two men. A jury found Ahmed guilty of seven counts, including aggravated assault by physical menace with a dangerous weapon and grand theft by receiving stolen property. Ahmed appeals both convictions arguing that the circuit court erred when it denied his motion for judgment of acquittal because there was insufficient evidence to support the convictions. We affirm.
Facts and Procedural History
[¶2.] On July 25, 2020, Angela Graham was awakened around 5:00 a.m. by “some ruckus” and pounding at her door. After the pounding stopped, Graham claimed she walked outside and saw Ahmed. Graham alleged that Ahmed shot a gun three times, forcing her to retreat to her apartment and call the police. During the 911 call, Graham identified the shooter as Ahmed, who was driving a black vehicle. Graham recognized Ahmed as a friend of her oldest daughter.
[¶3.] Law enforcement responded to the call. Upon arrival and a brief inspection of the scene, the officers were unable to observe any evidence of a shooting and left the scene. Shortly after law enforcement left, Graham made a second 911 call stating that Ahmed had returned to her apartment door.
[¶4.] Officer Andrew Parrot responded to the second 911 call. Officer Parrot inspected the apartment and discovered bullet holes in and around the apartment. He believed the interior bullet holes were fresh, however no bullets or casings were found.
[¶6.] The detectives returned to Ahmed‘s apartment complex and observed Ahmed come out of an apartment building and approach a woman later identified as Racquel Jellis. Jellis was visiting her brother-in-law, Hеath Range, and her boyfriend, Mitchell Erickson. Jellis testified that she had never met Ahmed but noticed him approaching her once she arrived at the apartment complex. Jellis became scared of Ahmed‘s presence and began to quickly walk away from him as he followed her into the apartment building. Once inside Range‘s apartment, Jellis informed both Erickson and Rangе that a man had followed her into the building.
[¶7.] Range and Erickson exited the apartment building to confront Ahmed about his interaction with Jellis. Range asked Ahmed, “What‘s going on man. That ain‘t your girlfriend.” Range testified that Ahmed then pulled out a silver revolver from the front of his waistband and responded, “don‘t worry about it,” and “you don‘t want none of this smoke [N-Word]. You don‘t want none of this smoke.” Upon
[¶8.] The detectives observed the confrontation but due to a privacy fence between the detectives and the three individuals, they could only see the men‘s faces and top portion of their shoulders. Detective Eilers observed Range and Erickson show surprise or fear during the confrontation and retreat into the apartment building. Detective Eilers did not see a gun.
[¶9.] Ahmed then ran to his vehicle and attempted to leave the apartment complex parking lot. Officers Trent Ehler and Scott Hildebrand arrived at the apartment complex and initiated a traffic stop in the parking lot. As Officer Ehler exited his patrol vehicle, he heard someonе yell, “he‘s got a gun.” Ahmed exited his vehicle and ran toward the apartment buildings while holding the front of his waistband. At trial, Officer Ehler explained that based on his training and experience, he believed Ahmed was attempting to stabilize a firearm as he ran. Ahmed ran into an apartment building and locked himself in the apartment for several minutes. Additional officers arrived and directed Ahmed to еxit the apartment. Another occupant came out of the apartment first. A few minutes later, Ahmed exited, told the officers that they needed a warrant to search his apartment, and law enforcement detained him without further incident.
[¶10.] Detective Eilers interviewed Ahmed, who was unable to provide a consistent timeline of his day leading up to his arrest. Ahmed claimed that he was having trouble recalling his day because he had been drinking. Ahmed denied any involvement in the shooting earlier that day and denied threatening Range and
[¶11.] Law enforcement later executed a search warrant for Ahmed‘s apartment. Officers found several unspent bullet rounds in different locations throughout the apartment, including in the pockets of a pair of pants that contained his personal identification card. The officers also discovered a black bumper in the apartment that matched the vehicle Ahmed was driving. In the apartment bathroom, Detective Mertes found a silver revolver wrapped in a white cloth hidden inside the garbage basket. Inside the revolver was one unspent bullet round, matching the other bullets found inside the apartment. Dеtective Mertes ran the serial number on the revolver, which revealed that the firearm was reported as stolen. At trial, Cory Burrell testified that in June 2020 his Silver Taurus .38 Special Ultralight revolver was stolen from his vehicle and he identified the gun found in Ahmed‘s apartment as his gun.
[¶12.] A grand jury indicted Ahmed on multiple counts stemming from the shooting at Graham‘s apartment and the later confrontation at Ahmed‘s аpartment. Count 7 of the indictment charged Ahmed with a Class 3 felony for aggravated assault by physical menace with a deadly weapon pursuant to
[¶13.] Ahmed appeals his convictions for aggravated assault by physical menace against Erickson in Count 7 and for grand theft by receiving stolen property in Count 11 arguing that the circuit court erred in denying his motion for judgment of acquittal.
Analysis and Decision
[¶14.] “[A] motion for judgment of acquittal attacks the sufficiency of the evidencе, which is a question of law whether the motion is considered before or after the jury‘s verdict.” State v. Wolf, 2020 S.D. 15, ¶ 12, 941 N.W.2d 216, 220. “A question regarding the sufficiency of the evidence to sustain a conviction is reviewed
I. Count 7 – Aggravated Assault by Physical Menace against Mitchell Erickson.
[¶15.] 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.”
[¶17.] This Court has previously affirmed a circuit court‘s denial of a motion for judgment of acquittal on a charge for aggravated assault by physical menace despite the absence of any evidence that the defendant directly pointed a gun at the victim. State v. Schmiedt, 525 N.W.2d 253, 255 (S.D. 1994). In Schmiedt, this Court found a defendant‘s command to a law enforcement officer not to come any closer, combined with the defendant suddenly grabbing a loaded firearm and keeping the firearm at his side, supported a conviction for aggravated assault by physical menace. Id. Furthermore, in discussing the factual basis for a charge under
[¶18.] The evidence shows Erickson and Range approached Ahmed and confronted him about his interaction with Jellis. Range testified that, in response, Ahmed pulled the firearm from his waistband and pointed it directly at Range‘s head. Ahmed was in close proximity to both Erickson and Range, in sole control оf the firearm, and used threatening language during the interaction. Given Ahmed‘s close proximity to Erickson and Range, and his ability to instantly utilize the firearm against Erickson or Range, a jury could have reasonably concluded that Ahmed attempted to put both Erickson and Range in fear of imminent serious bodily harm.
[¶19.] Ahmed‘s claim that Erickson was required to testify to show that Erickson feared imminent harm from Ahmed also fails. “[T]he State need not prove ‘actual fear of imminent serious bodily harm.‘” Scott, 2019 S.D. 25, ¶ 19, 927 N.W.2d at 127 (quoting LaCroix, 423 N.W.2d at 170). We have recognized that “an attempt to put another in fear” is sufficient to support a conviction. Id. An attempt includes “any act toward the commission of the crime but fails or is prevented or intercepted in the perpetration thereof.” Id. (citation omitted). Range‘s testimony was sufficient for the jury to find that Ahmed, through his words and actions, attempted to place both Range and Erickson in fear of imminent serious bodily harm. Further, although it was unnecessary to prove the alleged victims were actually afraid, Detective Eilers testified that Range and Erickson looked “surprised
[¶20.] This Court examines the evidence in its totality and does not reweigh evidence or pass on the credibility of witnesses. Carter, 2009 S.D. 65, ¶¶ 44–45, 771 N.W.2d at 342. The evidence presented to the jury, including the testimony from Range and law enforcеment, and the reasonable inferences drawn therefrom, support a reasonable theory of guilt. Therefore, the circuit court did not err in denying Ahmed‘s motion for judgment of acquittal on the aggravated assault by physical menace conviction.
II. Count 11 – Grand Theft by Receiving Stolen Property.
[¶21.]
[¶22.] Ahmed initially argues the State failed to provide sufficient evidence that he was ever in possession of the firearm, or that he knew or should have known the firearm was stolen as required by
[¶23.] This Court does not “resolvе conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence on appeal.” Wolf, 2020 S.D. 15, ¶ 13, 941 N.W.2d at 220 (citation omitted). Further, “[a]ll elements of a crime . . . may be established circumstantially.” State v. Falkenberg, 2021 S.D. 59, ¶ 39, 965 N.W.2d 580, 591 (quoting State v. Shaw, 2005 S.D. 105, ¶ 45, 705 N.W.2d 620, 633). “Direct and circumstantial evidence have equal weight. In fact, in some instances circumstantial evidence may be more reliable than direct evidence.” Id. (quoting State v. Riley, 2013 S.D. 95, ¶ 18, 841 N.W.2d 431, 437).
[¶24.] From our review of the record, there was sufficient evidence supporting the jury‘s determination that Ahmed had possession of the firearm and the requisite knowledge that the firearm was stolen. Range testified that Ahmed pulled a silver revolver from his waistband. Additionally, Officer Ehler‘s dash cam showed Ahmed running to his apartment building while holding onto the front of his waistband, which Officer Ehler testified is a common running position used to secure a firearm. Inside Ahmed‘s apartment, law enforcement found a firearm matching the one described by Range at the bottom of a garbage basket wrapped in a cloth. Law enforcement also found a pair of pants that contained Ahmed‘s personal
[¶25.] Ahmed also argues that the State was required to present еvidence of the value of the firearm to prove that he was guilty of a Class 6 felony under
[¶26.]
[¶28.] At trial, the jury was shown pictures of the firearm, and heard testimony from the owner that he purchased the firearm from Gаry‘s Gun Shop and that the firearm had been stolen. Therefore, the jury was reasonably able to conclude that the firearm had been stolen and had some value less than $2,500. Based on the evidence presented and the reasonable inferences drawn therefrom, there was sufficient evidence to support the jury‘s guilty verdict of grand theft by receiving a stolen firearm.
[¶29.] Wе affirm the circuit court‘s denial of the motion for judgment of acquittal on both counts.
[¶30.] KERN, SALTER, DEVANEY, and MYREN, Justices, concur.