[¶ 1.] William J. Janklow (Janklow) appeals from a jury verdict finding him guilty of reckless driving and second degree manslaughter for an August 16, 2003, collision which killed Randolph Scott (Scott). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
[¶ 2.] On August 16, 2003, Janklow was driving a white Cadillac south on Moody County Highway 13. He was traveling from Aberdeen, South Dakota to his home in Brandon, South Dakota after giving a speech at a county fair.
[¶ 3.] Highways 13 and 14 intersect ten miles south of Flandreau, South Dakota. The intersection is controlled by stop signs for north-and southbound traffic on Highway 13. The east-and westbound traffic on Highway 14 does not have a stop sign at that intersection. The speed limit on both highways is 55 miles per hour. A corn field located northeast of the intersection blocked the view for southbound and westbound motorists approaching the intersection.
[¶ 4.] Approximately three or four miles north of the intersection, Janklow passed another vehicle traveling south on Highway 13. The driver of that vehicle testified that she was traveling approximately 55 to 60 miles per hour when she was passed by Janklow. She testified that, “he passed me as if I was standing still. I felt like I was parked on the side of the road and the car just went past real fast.” At approximately 4:40 p.m., Jank-low’s southbound vehicle and the westbound motorcycles ridden by Scott and Johnson converged at the intersection. Johnson safely passed through the intersection approximately 50 yards ahead of Scott. Scott’s motorcycle hit the side of Janklow’s vehicle. Scott was thrown from his motorcycle and was pronounced dead
[¶ 5.] Janklow was charged in Moody County with the offenses of failure to stop at a stop sign, speeding, reckless driving and second degree manslaughter. A jury trial commenced on December 1, 2003, in Flandreau. Janklow did not dispute that he failed to stop at the stop sign, nor did he dispute that he was driving in excess of the speed limit. However, there was conflicting testimony at trial as to his actual speed at the point of impact. The State’s expert estimated that Janklow was traveling 71 miles per hour and Scott was traveling 59 miles per hour at the point of impact. Janklow’s expert calculated Jank-low’s speed at 63 to 64 miles per hour at the point of impact.
[¶ 6.] In his defense, Janklow asserted that he was suffering from hypoglycemia at the time of the collision and did not consciously run the stop sign. Hypoglycemia results in the brain not getting the glucose it needs to function properly. Janklow is an insulin dependent diabetic. Janklow testified that he took a dose of insulin the morning of the accident, but that he had not eaten for at least eighteen hours prior to the collision. The experts offered by the defense testified that the effect of the insulin taken by Janklow would have peaked at the time of the collision. If he did not eat anything during the day to counteract the effect of the insulin, the experts opined that this would have resulted in low blood sugar or hypoglycemia.
[¶ 7.] Emergency personnel who arrived at the scene shortly after the collision testified that Janklow was asked about his diabetes and whether he had recently checked his blood sugar levels. Janklow told them that he had checked his blood sugar level earlier and that he had eaten earlier in the day. Janklow appeared to the emergency personnel and law enforcement to be distraught about the collision, but seemed alert and oriented with no difficulty speaking. Janklow indicated that he was fíne and refused medical attention. The defense offered evidence that Janklow was offered candy and a sugary drink after the collision and that hypoglycemia can be countered relatively quickly if a diabetic receives sugar. Several days after the collision, it was determined that Janklow suffered a fractured wrist and a closed head injury.
[¶ 8.] Several witnesses testified that immediately after the collision Janklow said that he went through the intersection because he was trying to avoid hitting a white car. Because the accident involved a fatality, law enforcement asked Janklow for a blood sample to determine his blood alcohol level.
[¶ 10.] Moody County Deputy Aas was notified of Walters’ call and proceeded south on Highway 13 where he encountered a white Cadillac driven by Janklow traveling northbound. Deputy Aas testified that he locked his radar on the vehicle showing a speed of 86 miles per hour. He stopped the vehicle and recognized the driver as Janklow. He testified that he told Janklow about the call received from Walter and that Janklow responded that he was not paying attention to his speed and did not recall the stop sign. Deputy Aas advised Janklow to slow down and let him go.
[¶ 11.] The State also offered the testimony of former South Dakota Highway Patrolman Tolsma. Tolsma testified that on April 27, 2002, he was driving his patrol car through a construction zone on a highway outside Rapid City, South Dakota. He testified that because of the construction, one lane of the highway was closed. Two-way traffic traveled on an uneven temporary roadway consisting of the remaining concrete lane and a temporary asphalt lane. The two lanes of traffic were separated by pylons. The speed limit in the construction zone was 40 miles per hour. Tolsma testified that he observed a vehicle traveling toward him at a high rate of speed. According to his radar, the vehicle was traveling 84 miles per hour. As the vehicle neared, Tolsma testified that the vehicle’s wheels dropped off the edge of the concrete and the driver jerked the vehicle back. Tolsma testified that it appeared the driver was about to lose control of the vehicle. Tolsma testified that he feared that the vehicle would collide with his patrol car so he pulled over as far as he could next to a concrete barrier and almost stopped. As the vehicle passed, he recognized the driver as Janklow. Tolsma did not stop the vehicle.
[¶ 12.] On December 8, 2003, the jury returned guilty verdicts on all four charges. Pursuant to SDCL 23A-27-13, the trial court granted a suspended imposition of sentence on the second degree manslaughter charge.
[¶ 13.] Janklow appeals his convictions and raises the following issues:
1. Whether the trial court erred when it denied Janklow’s motion for judgment of acquittal on the second degree manslaughter charge.
2. Whether the trial court erred when it refused to give Janklow’s requested jury instructions setting forth the defense of unconsciousness and denied Janklow’s motion for a new trial on the basis of the refused jury instruction.
3. Whether the trial court erred when it admitted evidence of uncharged,alleged other acts and denied Jank-low’s motion for new trial on the basis of the improperly admitted, unfairly prejudicial evidence.
4. Whether the trial court erred when it denied Janklow’s motion for mistrial and motion for new trial on the basis of prosecutorial misconduct during the State’s closing arguments.
5. Whether the cumulative effect of the alleged errors of the trial court deprived Janklow of his right to a fair trial.
ANALYSIS AND DECISION
[¶ 14.] 1. Whether the trial court erred in denying Janklow’s motion for judgment of acquittal.
[¶ 15.] Janklow argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to present sufficient evidence to establish beyond a reasonable doubt that he was guilty of second degree manslaughter.
[¶ 16.] Our standard of review is well established:
The standard of review for denial of a motion for judgment of acquittal is whether the “evidence was sufficient to sustain the convictions.” “When reviewing sufficiency of the evidence, this [C]ourt, considers the evidence in a light most favorable to the verdict.” “A guilty verdict will not be set aside if the state’s evidence and all favorable inferences that can be drawn therefrom support a rational theory of guilt.” “We do not resolve conflicts in the evidence, pass on the credibility of the witnesses, determine the plausibility of an explanation, or weigh the evidence.”
State v. Running Bird,
[¶ 17.] Janklow was charged with second degree manslaughter in violation of SDCL 22-16-20. That statute provides:
Any reckless killing of one human being, including an unborn child, by the act or procurement of another which, under the provisions of this chapter, is neither murder nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree. Manslaughter in the second degree is a Class 4 felony.
SDCL 22-16-20.
[¶ 18.] The State had the burden of proving that Janklow recklessly killed Randolph Scott. SDCL 22-l-2(l)(d) defines “reckless” as:
(1) If applied to the intent with which an act is done or omitted:
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(d) The words “reckless, recklessly” and all derivatives thereof, import a conscious and unjustifiable disregard of a substantial risk that the offender’s conduct may cause a certa in result or may be of a certain nature. A person is reckless with respect to circumstances when he consciously and unjustifiably disregards a substantial risk that such circumstances may exist!.]
[¶ 19.] “[F]or someone’s conduct to be deemed reckless, they must consciously disregard a substantial risk.” State v. Olsen,
The difference between the terms “recklessly” and “negligently,” as usually defined, is one of kind, rather than degree. Each actor creates a risk of harm. The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it.
State v. Larson,
[¶ 20.] Janklow argues that the State only established that he ran a stop sign. “However, the operation of a motor vehicle in violation of the law is not in and of itself sufficient to constitute reckless conduct, even if a person is killed as a result thereof.” Olsen,
[¶ 21.] The State argues that the risk that Janklow disregarded was the potential harm arising out of his speeding-through a blind intersection without stopping. “Although it is not always possible for the State to directly establish that a defendant was aware of a risk, it can be done indirectly through the defendant’s conduct.” Olsen,
[¶ 22.] As in Larson, this Court cannot say as a matter of law that Janklow’s conduct did not constitute recklessness. Reasonable minds could differ as to this issue. In reviewing the denial of a motion for judgment of acquittal, this Court accepts “the evidence and the most favorable inferences that the jury might have fairly drawn from the evidence to support the verdict.” State v. Krebs,
[¶ 23.] 2. Whether the trial court abused its discretion in refusing Janklow’s requested jury instructions regarding the defense of unconsciousness.
[¶ 24.] Janklow claims that the trial court committed reversible error by refusing to give two requested jury instructions on the defense of unconsciousness. Defendant’s requested Instructions No. 15 and 16
[¶ 25.] Our standard of review for refusal to give a jury instruction is well-settled:
We review a trial court’s refusal of a proposed instruction under an abuse of discretion standard. The trial court has broad discretion in instructing the jury. Jury instructions are satisfactory when, considered as a whole, they properly state the applicable law and inform the jury. Error in declining to apply a proposed instruction is reversible only if it is prejudicial, and the defendant has the burden of proving any prejudice.
State v. Martin,
[¶ 26.] Generally, a criminal defendant is entitled to instructions on his theory of the case when evidence exists to support that theory. State v. Charles,
[¶ 27.] Janklow presented witnesses who testified that, based on the information they were provided, in their opinion Janklow was likely hypoglycemic at the time of the collision. However, being hypoglycemic does not necessarily equate with an individual being “unconscious.” That was a question of fact for the jury to determine.
[¶ 28.] “The defense of unconsciousness is based upon SDCL 22-3-1, which provides, in pertinent part: ‘Any person is capable of committing a crime, except those belonging to the following classes: ... (4) Persons who committed the act charged without being conscious thereof[.]’ ” Jenner,
[¶ 29.] This Court must review the trial court’s refusal of the jury instructions under an abuse of discretion standard. Martin,
[¶ 30.] This case is distinguishable from the recent decision in Luke v. Deal,
[¶ 31.] 3. Whether the trial court abused its discretion in admitting other acts evidence.
[¶ 32.] “In reviewing a trial court’s decision to admit other acts evidence this Court will not overrule the trial court’s decision unless there is an abuse of discretion.” State v. Jolley,
“Upon review ... we must be careful not to substitute our reasoning for that of the trial court.” Larson,512 N.W.2d at 736 . Thus, the question is not whether, had we been the trial judge, would we have admitted the prior bad acts evidence but whether the trial court sitting in this case abused its discretion by doing so. Id.; State v. Rufener,392 N.W.2d 424 , 426 (S.D.1986).
Id. (quoting State v. Anderson,
This Court will only disturb decisions of the trial court regarding the admission of evidence if there is a clear abuse of discretion. State v. Devall,489 N.W.2d 371 , 374 (S.D.1992); State v. Olesen,443 N.W.2d 8 , 9 (S.D.1989); State v. Bawdon,386 N.W.2d 484 , 486 (S.D.1986); State v. Percy,80 S.D. 1 , 4,117 N.W.2d 99 , 100 (1962). “ ‘An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.’ ” Devall,489 N.W.2d at 374 (quoting State v. Pfaff,456 N.W.2d 558 , 561 (S.D.1990)). Under the abuse of discretion standard, we do not determine whether we would have made a like decision, only whether a judicial mind, considering the law and the facts, could have reached a similar decision.
Jolley,
[¶ 33.] SDCL 19-12-5 (FRE 404(b)) governs the admission of prior acts evidence. It provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
SDCL 19-12-5. In State v. Wright,
[¶ 34.] “To determine the admissibility of other acts evidence the court must first determine: (1) whether the intended purpose is relevant to some material issue in the case, and (2) whether the probative value of the evidence is substantially outweighed by its prejudicial effect.” Jolley,
[¶ 35.] Prior to trial, the State filed notice that it intended to offer other acts evidence. Initially the State sought to introduce Janklow’s driving record which included 12 speeding tickets from 1990 to 1994 and several accident reports. Additionally, the State wanted to introduce several law enforcement reports regarding uncited traffic violations occurring after
[¶ 36.] The trial court held several hearings on the admissibility of these other acts and ruled that all but two incidents were inadmissible in the State’s case in chief. The trial court found that the Walters and Tolsma “close call” incidents were admissible in the State’s case in chief under SDCL 19-12-5. The trial court made specific findings as to the purpose for which these other acts could be used. The testimony of Walters and Deputy Aas was admissible for the purpose of determining Janklow’s prior knowledge of the intersection in question, Janklow’s state of mind and the absence of inadvertence or mistake. The trial court found that the testimony of Tolsma was admissible for purposes of determining Janklow’s state of mind and the absence of inadvertence or mistake.
[¶ 37.] To prove recklessness as an element of second degree manslaughter, the State had the burden of showing that Janklow consciously disregarded a substantial risk. The Walters’ incident was relevant as evidence of Jank-low’s state of mind and his knowledge of the substantial risk of harm from speeding through that intersection without stopping. Tolsma’s testimony describing Janklow’s driving at an excessive speed in a construction zone and nearly losing control of his vehicle was relevant to establish that Janklow was aware of the risk created by his driving and his disregard for the safety of others. Prior to the testimony, and again in the final instructions, the trial court instructed the jury regarding the limited purposes for the evidence.
[¶ 38.] This case is distinguishable from the recent decision in State v. Lassiter,
“The most striking aspect of.... [Rule 404(b)] is its inclusive rather than exclusionary nature: should the evidence prove relevant in any other way it is admissible, subject only to the rarely invoked limitations of Rule 403.” United States v. Zeuli,725 F.2d 813 , 816 (1st Cir.1984). “The party objecting to the admission of evidence has the burden of establishing that the trial concerns expressed in [Rule 403] substantially outweigh probative value.” Larson, supra, § 403.1.
Wright,
[¶ 39.] This Court must review the trial court’s decision to admit these prior acts under an abuse of discretion standard. Jolley,
[¶40.] Janklow also objects to the trial court allowing the State to ask him on cross-examination whether he always stops at stop signs. However, Jank-low opened the door to these questions by testifying that even though he did not have any memory of stopping at stop signs on the day of the collision, he testified “I’d stop at a stop sign. I just don’t fly through them like that.” See Kremer v. American Family Mut. Ins. Co.,
[¶ 41.] 4. Whether the State committed prosecutorial misconduct warranting a new trial.
[¶42.] “In South Dakota, we approach prosecutorial misconduct using a two-prong analysis.” State v. Smith,
[¶ 43.] In closing arguments, Janklow’s counsel criticized the State for its failure to take a reading of Janklow’s glucose after the collision or have the blood sample that was obtained for alcohol analysis also tested for glucose. Counsel for Janklow suggested by his arguments that the State was not interested in a “search for the truth.” His counsel was also critical of the State’s medical expert, Dr. Wilde. Defense counsel noted that the State had consulted with him only two weeks before trial and that he was not aware of Janklow’s Atenolol prescription prior to trial.
[¶ 45.] The trial court denied the motion for mistrial because it found that the comments were not so prejudicial as to warrant a mistrial and that the jury had already been instructed that the arguments of counsel were not evidence. “Under the settled law of this state, ‘no hard and fast rules exist which state with certainty when prosecutorial misconduct reaches a level of prejudicial error which demands reversal of the conviction and a new trial; each case must be decided on its own facts.’ ” Stetter,
[¶ 46.] The second occurrence of prosecutorial misconduct alleged by Jank-low occurred at the end of the State’s rebuttal. Janklow argues that the prosecutor made a community conscience argument to the jury. “Community conscience arguments are improper.” Stetter,
[¶ 47.] “The prosecutor has an overriding obligation, which is shared with the court, to see that the defendant receives a fair trial.” State v. Blaine,
[¶ 48.] In addition to the two occurrences of prosecutorial misconduct specifically alleged by Janklow on appeal, this Court is disturbed by the prosecutor’s use of the other acts evidence. SDCL 19-12-5 (Rule 404(b)) begins by restating the prohibition in SDCL 19-12-4 (Rule 404(a)) against using evidence of a person’s character or a trait of his character for the purpose of proving that he acted in conformity therewith on a particular occasion. While this Court finds that the trial court did not abuse its discretion in admitting the other acts evidence for a limited purpose, the prosecutor’s attempt in his closing arguments to use the other acts evidence to suggest that Janklow had a propensity to commit this crime was improper.
[¶ 49.] This Court finds that the trial court gave a proper limiting instruction to the jury as to the use of other acts evidence both at the time the testimony was presented and at the close of the evidence. Considering the record in its entirety, Janklow fails to show that the prosecutor’s comments were so prejudicial that they resulted in a denial of due process.
[¶ 50.] 5. Whether the cumulative effect of the alleged errors by the trial court deprived Janklow of a fair trial.
[¶ 51.] Janklow argues that the cumulative effect of the alleged errors in this case deprived him of a fair trial. “[T]he cumulative effect of errors by the trial court may support a finding by the reviewing court of a denial of the constitutional right to a fair trial.” State v. Perovich,
[¶ 52.] Affirmed.
Notes
. Janklow was a United States Congressman at the time of the collision. Prior to being elected to the United States House of Representatives, Janklow was the Governor of South Dakota for four terms from 1979 to 1987 and 1995 to 2003.
. Testing indicated that there was no alcohol present in Janklow’s blood.
. Requested Instruction No. 15 provided:
Unconsciousness, as that term is used in these instructions, need not reach the physical dimensions commonly associated with the term such as a coma; it can exist where the defendant physically acts in fact but, for reasons such as epilepsy and other convulsions and reflexes, metabolic disorders, and hypnotic states, is not, at the time of acting, conscious of his actions.
Requested Instruction No. 16 provided:
Where a person commits an act without being conscious thereof, the act is not a criminal act even though it would be a crime if it had been committed by a person who was conscious. This rule of law applies to persons who are not conscious of the acts they perform because they are suffering from hypoglycemia as a result of diabetes.
Evidence has been received which may tend to show that the defendant was unconscious at the time and place of the commission of the alleged offenses for which he is here on trial. If after consideration of all the evidence, you have a reasonable doubt that the defendant was conscious, as that term is used in these instructions, at the time the alleged offenses were committed, he must be found not guilty.
. Instruction No. 12 provided:
The elements of the crime of manslaughter in the second degree, each of which the state must prove beyond a reasonable doubt, are that at the time and place alleged:
1. The defendant caused the death of Randolph E. Scott.
2. The killing was reckless.
3.The killing was not excusable or justified.
Instruction No. 13 provided:
With respect to the charge of manslaughter in the second degree, the words 'reckless' or 'recklessly' means a conscious and unjustified disregard of a substantial risk that one’s conduct may cause a certain result or may be of a certain nature.
. Atenolol is beta-blocker used to lower blood pressure, lower heart rate, reduce chest pain, and to reduce the risk of recurrent heart attacks. Janklow presented medical testimony that Atenolol can mask the early symptoms of hypoglycemia.
. For example, the prosecutor improperly used the prior acts evidence in his closing arguments by stating to the jury:
And you can consider the December 29th incident concerning the issue of state of mind and inadvertence. You know what happened on December 29th. The stop ahead sign that he passed didn't stop him. The first set of rumble strips didn’t stop him. The second set of rumble strips didn’t stop him. The stop sign didn’t stop him. Nothing could stop him. And he almost collided with the Walters family. Nothing could stop him. Maybe today.
. "An argument or comment by a prosecuting attorney to the effect that the people of a city, community, or county want or expect a conviction has resulted in numerous reversals, with the courts generally stating that the 'remark' is a fact not in evidence and therefore a departure from the record.” D.E. Evins, Annotation, Prejudicial Effect of Prosecuting Attorney’s Argument to Jury That People of City, County, Or Community Want or Expect a Conviction, 85 ALR2d 1132, § 2(b) (1962-2004). "Other courts in reversing have assigned various reasons, such as (1) the tendency of the remarks to cajole or to coerce a jury to reach a verdict which would meet with public favor, (2) that it took but a trivial matter to prejudice the case of the accused where the alleged criminal act caused excitement in the community where it occurred and where the trial took place, or (3) that the effect of the improper argument was more likely to be regarded as erroneous where the issue of guilt was close and the verdict a harsh one.” Id.