STATE OF SOUTH DAKOTA v. JAY JOSEPH PENEAUX
#29878-aff in pt & rev in pt-PJD
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
OPINION FILED 03/15/23
2023 S.D. 15
THE HONORABLE CRAIG A. PFEIFLE, Judge
CONSIDERED ON BRIEFS OCTOBER 3, 2022
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA
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.
[¶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
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 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 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
[¶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 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 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
[¶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 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 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.
[¶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 conduct 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.
[¶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
[¶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 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:
- 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) . - 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) . - 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, 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
[¶25.] Peneaux argues that his conviction for aggravated assault under
[¶26.] “Our Legislature has not declared what circumstances constitute extreme indifference to the value of human life under
[¶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
[¶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
[¶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 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, 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
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
[¶34.] Peneaux argues his conviction for aggravated assault under
[¶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.
[¶36.]
[¶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
[¶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
[¶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,
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
[¶41.] Peneaux argues his conviction under
[¶42.] As stated in
[¶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 (Ariz. 1972)). The defendant in Crelly was found guilty pursuant to
[¶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.
[¶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
[¶47.] Affirmed in part and reversed and vacated in part.
[¶48.] JENSEN, Chief Justice, and KERN and MYREN, Justices, concur.
[¶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 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.
[¶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.
[¶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. Perez-Rodriguez, 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
[¶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.
Notes
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) .