#27869-a-SRJ
2018 S.D. 13

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                    ****
STATE OF SOUTH DAKOTA,                       Plaintiff and Appellee,

      v.

CHRISTOPHER DEAN KRYGER,                     Defendant and Appellant.


                                    ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                                    ****

                     THE HONORABLE MARK E. SALTER
                                Judge

                                    ****

MARTY J. JACKLEY
Attorney General

ANN C. MEYER
Assistant Attorney General
Pierre, South Dakota                         Attorneys for plaintiff
                                             and appellee.


MARK KADI and
AUSTIN VOS of
Minnehaha County Office
   of the Public Advocate
Sioux Falls, South Dakota                    Attorneys for defendant
                                             and appellant.

                                    ****

                                             ARGUED ON
                                             JANUARY 9, 2018
                                             OPINION FILED 02/07/18
#27869

JENSEN, Justice

[¶1.]        Christopher Dean Kryger appeals his convictions for first-degree

murder, first-degree burglary, and second-degree rape. He claims the circuit court

erred in ruling on a number of issues and that these errors, both separately and in

the aggregate, entitle him to a new trial. We affirm.

                                    Background

[¶2.]        At approximately 10:00 p.m. on Friday, March 14, 2014, Kari

Kirkegaard returned to her home on South Garfield Avenue in Sioux Falls after

having supper with her family. On Sunday, March 16, 2014, Kirkegaard’s son’s

fiancée, Paetyn Haemze (Haemze), went to Kirkegaard’s home after failed attempts

to reach her via phone. Haemze noticed Kirkegaard’s blue SUV parked in the

driveway of the home and that the back door was unlocked. Upon entering the

home, Haemze heard water running. She investigated the bathroom and found

Kirkegaard’s body lying naked on her side in a full bathtub with the water running.

[¶3.]        Haemze first called Kirkegaard’s son and then called 911. Sioux Falls

Police Officer Pat Mertes responded to the scene and noted Kirkegaard’s body in the

bathtub facing toward the door. Officer Mertes did not notice anything else

unusual. Additional fire, ambulance, and police personnel arrived shortly

thereafter. Police took photographs of Kirkegaard’s body, drained the bath water,

removed the body, and checked the rest of the home. They found no apparent signs

of forced entry, foul play, or physical trauma. None of the first responders reported

any smell of bleach.




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[¶4.]        After emergency personnel left, Kirkegaard’s brother, Brian Johnson

(Johnson), punched a hole in the wall of Kirkegaard’s bathroom. Family members

noticed that Kirkegaard’s bedsheets, purse, SUV keys, and towels and rugs from the

bathroom were missing. They also noticed a strong smell of bleach. Police were

called back to the scene approximately one hour after they had left. This time,

officers interviewed family and friends present at the scene. The officers also noted

a strong odor of bleach in the home at this time. Law enforcement then began a

homicide investigation.

[¶5.]        During police interviews, Kirkegaard’s friends and family members

described her as a homebody who stuck within a small circle of friends and family.

Kirkegaard had previous romantic interests, but she was not in any relationships at

the time of her death. It was soon discovered that a mosque located two lots north

of Kirkegaard’s home possessed camera surveillance footage between March 14,

2014, and March 16, 2014. The mosque’s camera faced southeast and had captured

a view of Kirkegaard’s front lawn, driveway, Garfield Avenue, and Garfield

Elementary School.

[¶6.]        The footage showed Kirkegaard’s SUV returning to her home on the

night of March 14 after she had supper with her family. It also showed a bicyclist

riding past Kirkegaard’s residence heading north at 11:30 p.m. that evening. The

bicyclist doubled back on the sidewalk of Kirkegaard’s home, then slowed down. A

person was seen crossing the street in front of the mosque around 2:30 a.m. on

March 15. The person was wearing a plaid flannel coat, jeans, and dark shoes, and

appeared to have a shiny object in their hands. The person’s face was not visible.


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After the individual left the view of the camera, Kirkegaard’s vehicle was seen

leaving her driveway and travelling north with the headlights off. Kirkegaard’s

SUV returned about an hour later, at 3:30 a.m. The driver missed Kirkegaard’s

driveway, then turned around in the parking lot of Garfield Elementary School.

The SUV parked in Kirkegaard’s driveway, and the same individual was seen

leaving on a bicycle. None of the camera footage captured who was in the vehicle or

showed anyone entering or leaving Kirkegaard’s residence.

[¶7.]        Police eventually released the mosque video to the public. After

receiving several tips, they were led to interview Kryger’s friend Michael Miller,

Kryger’s fiancée, Lori Nagel, and Kryger’s uncle and employer Richard Foster.

Nagel and Miller indicated that the person seen in the video could have been

Kryger, as the person had a similar gait and wore similar clothing. They also

confirmed Kryger typically used his bicycle for transportation around Sioux Falls.

Nagel told police that she and Kryger had an argument the night of March 14. She

stated Kryger returned to her home around 4:30 a.m. to reconcile. Miller stated

that he ran into Kryger on March 15, and the pair visited Walmart where Kryger

bought an engagement ring for Nagel, a new cell phone, and a cell phone plan.

[¶8.]        Kryger was contacted by police and taken to the Sioux Falls law

enforcement center for an interview. In the interview, Kryger stated he became

upset with Nagel on the night of March 14 and decided to go on a long bike ride

around Sioux Falls. Kryger claimed that during this ride, he was nearly struck by

an SUV without its headlights on just north of Kirkegaard’s home. He also stated

that later in the evening, his bike slid into the river. Kryger maintained that he


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returned home to wash his dirty clothes and called Nagel to reconcile. He stated he

then rode his bike to Nagel’s home and remained there until morning. Kryger

discussed seeing Miller on March 15 and confirmed that the pair had gone shopping

at Walmart. Kryger denied ever having sex with Kirkegaard. Kryger also made

comments about having a “criminal mind.”

[¶9.]        Police collected hundreds of items in the course of their investigation of

Kirkegaard’s death. Only some of the items were tested. An autopsy performed on

Kirkegaard’s body revealed ligature furrows across her neck in two parallel lines,

petechial hemorrhages, numerous small abrasions, a fractured hyoid bone, and

fractured thyroid cartilage. The examination also revealed small abrasions on the

outside wall of Kirkegaard’s vaginal vault. The coroner was unable to pinpoint a

time of death but concluded Kirkegaard was asphyxiated and that the manner of

death was homicide. A rape kit conducted on Kirkegaard’s body tested positive for

Kryger’s sperm cell DNA.

[¶10.]       Kryger was arrested and indicted on five counts of first-degree murder,

one count of second-degree murder, one count of second-degree rape, one count of

third-degree rape, and two counts of first-degree burglary. The jury convicted

Kryger on all counts except third-degree rape. On February 25, 2016, Kryger was

sentenced to life in prison for first-degree murder, 50 years for second-degree rape,

and 25 years for first-degree burglary to run concurrently with the first-degree

murder sentence, but consecutive to the sentence for second-degree rape. Kryger

appeals his conviction and sentence, raising several issues for our review, which we

combine and restate as follows:


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              1.    Whether the circuit court erred by precluding questioning
                    of Johnson concerning his bias against Kryger.

              2.    Whether the circuit court erred by admitting expert
                    testimony expressed in terms of possibilities.

              3.    Whether the circuit court erred by admitting irrelevant
                    evidence without a foundation of physical evidence from
                    the State’s investigation of Kryger.

              4.    Whether the circuit court erred by admitting Kryger’s
                    statements that he has a criminal mind.

              5.    Whether the circuit court erred by denying Kryger’s
                    motions for mistrial.

              6.    Whether the circuit court erred by denying Kryger’s
                    proposed jury instructions regarding Kryger’s statements
                    about his criminal mind, speculation and conjecture, and
                    an alibi defense.

              7.    Whether the circuit court erred by denying Kryger’s
                    motion for judgment of acquittal.

              8.    Whether the accumulation of the errors claimed by
                    Kryger constitute reversible error.

                                      Analysis

         1.   Whether the circuit court erred by precluding questioning of
              Johnson concerning his bias against Kryger.

[¶11.]        Kryger argues he was deprived of his due process and Confrontation

Clause rights when the circuit court denied Kryger the opportunity to cross-

examine Johnson concerning threats Johnson made toward Kryger and defense

counsel prior to trial. This included a threat to defense counsel at the conclusion of

a pretrial hearing where Johnson stated words to the effect that defense counsel

had better be a light sleeper. Johnson also made comments to the media that he

would torture and kill Kryger if Kryger were released or not convicted. On

Facebook, Johnson suggested he would harm or kill Kryger and defense counsel.



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Johnson’s actions prompted the circuit court to exclude Johnson from Kryger’s trial,

but the State was allowed to call Johnson as a witness.

[¶12.]       Before Johnson’s testimony, the State orally moved to preclude Kryger

from referencing any threatening comments made by Johnson. The circuit court

precluded Kryger from cross-examining Johnson about the threats. Kryger claims

the circuit court’s ruling totally deprived him of the ability to effectively cross-

examine Johnson. He argues Johnson’s bias created a motive for Johnson to

fabricate and exaggerate his testimony. Kryger maintains that without the ability

to question Johnson regarding his bias, he was denied the right to a fair trial.

[¶13.]       “We review a circuit court’s evidentiary rulings under an abuse of

discretion standard with a presumption that the rulings are correct.” State v.

Birdshead, 2015 S.D. 77, ¶ 36, 871 N.W.2d 62, 75-76. A circuit court’s decision to

limit cross-examination will be reversed only if there is both an abuse of discretion

and a showing of prejudice to the defendant. State v. Carter, 2009 S.D. 65, ¶ 31,

771 N.W.2d 329, 338. Prejudice exists only when “a reasonable jury probably would

have a significantly different impression if otherwise appropriate cross-examination

had been permitted.” Birdshead, 2015 S.D. 77, ¶ 36, 871 N.W.2d at 76 (quoting

State v. Johnson, 2007 S.D. 86, ¶ 35, 739 N.W.2d 1, 13).

[¶14.]       Because a defendant’s right to present a defense is fundamental, we

review limitations on cross-examination under the Confrontation Clause. See id.

¶ 37. “The Confrontation Clause of the Sixth Amendment to the United States

Constitution, as applied to South Dakota through the Fourteenth Amendment,

requires that in all criminal cases, the defendant has the right ‘to be confronted


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with the witnesses against him.’” State v. Spaniol, 2017 S.D. 20, ¶ 24, 895 N.W.2d

329, 338 (quoting U.S. Const. amend. VI). The Confrontation Clause applies to

witnesses testifying at trial, and is “generally satisfied when the defense is given a

full and fair opportunity to probe and expose a witness’ infirmities through cross-

examination, thereby calling to the attention of the factfinder the reasons for giving

scant weight to the witness’ testimony.” Id. (quoting State v. Carothers, 2006 S.D.

100, ¶ 16, 724 N.W.2d 610, 617).

[¶15.]       In limiting Kryger’s cross-examination, the circuit court recognized

that the threats went to bias but had a “marginal degree of relation [to] this case.”

The court noted that Johnson’s direct testimony was likely to be narrow and factual,

and pertain only to the investigatory timeline of Kirkegaard’s death. Indeed,

Johnson’s testimony was short and limited to describing Johnson’s relationship with

Kirkegaard and Johnson’s factual observations immediately after Kirkegaard’s body

was discovered. The circuit court also concluded that Johnson’s threats were not

contemporaneous with the events Johnson was testifying about, and that the jury

would be cognizant of Johnson’s bias because of Johnson’s close familial relationship

with Kirkegaard. The circuit court noted that Kryger’s counsel could still impeach

Johnson on bias or factual issues if there was a concern that Johnson was

fabricating his story. After determining the threats had marginal relevance, the

circuit court conducted a balancing test under SDCL 19-19-403. Under this test,

the court determined the marginal probative value of the threats was substantially

outweighed by the danger of unfair prejudice—including the possibility of jury

confusion of the issues and a waste of time.


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[¶16.]       The circuit court limited cross-examination only with respect to the

specific threats made toward Kryger and his counsel, and Johnson’s belief of

Kryger’s guilt. Kryger was not precluded from asking if Johnson held any bias

against Kryger because of Johnson’s family relationship with Kirkegaard. Further,

the jury heard about Johnson’s emotional reaction of punching the bathroom wall in

Kirkegaard’s home immediately after learning of her death. Finally, Kryger also

had the opportunity to question Johnson on any factual matters that were allegedly

fabricated without referencing Johnson’s threats. “An individual is only guaranteed

‘an opportunity for effective cross-examination, not cross-examination that is

effective in whatever way, and to whatever extent, the defense might wish.’”

Spaniol, 2017 S.D. 20, ¶ 29, 895 N.W.2d at 340 (emphasis omitted) (quoting

Milstead v. Smith, 2016 S.D. 55, ¶ 13, 883 N.W.2d 711, 717).

[¶17.]       We conclude that the circuit court did not abuse its discretion in

limiting cross-examination on the specific threats made by Johnson toward Kryger

and his counsel. We also determine that Kryger did not suffer any prejudice

because of the circuit court’s decision to limit cross-examination. Johnson’s

testimony was mostly limited to the events immediately after Kirkegaard’s body

was found and the circumstances leading law enforcement to begin a homicide

investigation. Other friends and family members testified to many of the same

facts: namely, that they had smelled bleach or a very clean smell after police had

left, that no one had done any cleaning after police had left, and that they noticed

Kirkegaard’s purse and other items from the house were missing. Further, none of

the threats related to the subject areas of Johnson’s testimony.


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         2.   Whether the circuit court erred by admitting expert testimony
              expressed in terms of possibilities.

[¶18.]        Before trial, Kryger filed a motion in limine seeking to prevent Dr.

Kenneth Snell, the county coroner who performed Kirkegaard’s autopsy, from giving

an opinion that the injuries to Kirkegaard’s vaginal area were indicative of those

received from either consensual or non-consensual sex. The circuit court permitted

Dr. Snell to testify that the trauma to Kirkegaard’s vaginal area could have been

the result of either rough consensual intercourse or a sexual assault. Kryger claims

this testimony was not relevant; it confused the jury and invited the jury to

speculate as to Kryger’s guilt. Kryger also argues that Dr. Snell’s conclusion was

not proper opinion testimony because it was phrased only as a possibility, and not to

a reasonable degree of probability. He reasons that because Dr. Snell could not

state definitively that the trauma was the result of or consistent with a sexual

assault, it should have been excluded.

[¶19.]        “We afford broad discretion to circuit courts in deciding whether to

admit or exclude evidence.” State v. Patterson, 2017 S.D. 64, ¶ 12, 904 N.W.2d 43,

48 (quoting Kurtz v. Squires, 2008 S.D. 101, ¶ 3, 757 N.W.2d 407, 409). Thus, a

circuit court also has broad discretion in deciding whether to admit expert

testimony. Id. ¶ 22, 904 N.W.2d at 50.

[¶20.]        A witness who is qualified as an expert by knowledge, skill,
              experience, training, or education may testify in the form of an
              opinion or otherwise if:
                    (a)    The expert’s scientific, technical, or other
                           specialized knowledge will help the trier of fact to
                           understand the evidence or to determine a fact in
                           issue;
                    (b)    The testimony is based on sufficient facts or data;
                    (c)    The testimony is the product of reliable principles
                           and methods; and
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                    (d)    The expert has reliably applied the principles and
                           methods to the facts of the case.

SDCL 19-19-702. “There are no ‘magic words’ needed to express an expert’s degree

of medical certainty, and the test is only whether the expert’s words demonstrate

that he or she was expressing an expert medical opinion.” Stormo v. Strong,

469 N.W.2d 816, 824 (S.D. 1991).

[¶21.]       Here, the circuit court heard Kryger’s motion in limine at a pretrial

hearing. After arguments from counsel, the court opted not to rule fully on the

motion until hearing Dr. Snell’s testimony at trial. At trial, Dr. Snell testified that

based upon his autopsy, Kirkegaard’s injuries “would have been due to some object

being forcibly put into the vaginal area.” Because laboratory testing subsequently

found the presence of semen in Kirkegaard’s vagina, Dr. Snell also opined that the

injuries were likely caused by intercourse. Dr. Snell concluded that these injuries to

Kirkegaard’s vaginal area were due to either “rough intercourse or an assault” and

not to what the prosecutor classified as “normal, consensual sex.” During cross-

examination, Dr. Snell acknowledged that he could not determine whether or not

the sexual intercourse was consensual or nonconsensual because he was not present

during the commission of the act.

[¶22.]       Dr. Snell’s medical opinions in his testimony were clear and were

based upon a reasonable degree of medical certainty. His opinion was supported by

an adequate foundation in the record and assisted the jury in considering the

evidence presented in the case. Thus, Dr. Snell’s challenged testimony was

admissible and there was no abuse of discretion.



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         3.   Whether the circuit court erred by admitting irrelevant
              evidence without a foundation of physical evidence from the
              State’s investigation of Kryger.

[¶23.]        During the investigation of Kirkegaard’s death, police were alerted to

the presence of a burn pit in Sioux Falls, which law enforcement believed to be

connected to Kryger. The State presented testimony describing the burn pit and

how it was investigated, and showed photographs to the jury. Kryger objected to

that evidence on foundation and relevance grounds, arguing that neither the burn

pit nor any items found there were forensically tested to determine any connections

to him. Kryger claims that by permitting this evidence, the circuit court misapplied

the rules of relevant evidence and abused its discretion.

[¶24.]        “Evidence is relevant if: (a) It has any tendency to make a fact more or

less probable than it would be without the evidence; and (b) The fact is of

consequence in determining the action.” SDCL 19-19-401. “It is well settled that

photographs are generally admissible where they accurately portray anything that

a witness may describe in words . . . [and] when they are helpful in clarifying a

verbal description of objects and conditions. They must, however, be relevant to

some material issue.” State v. Hemminger, 2017 S.D. 77, ¶ 33, 904 N.W.2d 746, 757

(quoting State v. Owens, 2002 S.D. 42, ¶ 89, 643 N.W.2d 735, 756-57).

[¶25.]        Here, evidence of the burn pit was relevant, as it made it more

probable that Kryger had destroyed evidence associated with Kirkegaard’s murder.

Police became aware of the burn pit when they responded to a tip from a concerned

member of the public shortly after the crime had occurred. The witness indicated

he had seen the burn pit in a remote area near the Big Sioux River and that “fabric

in the fire” had caught his attention, so he contacted police. Miller testified that
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Kryger told him he burned his plaid flannel jacket after the mosque video footage

had been released to the public. Further, the photographs of the burn pit portrayed

what police and other witnesses had seen during their investigation of Kryger.

Sioux Falls Police Officer Chad Winkel testified he had investigated the burn pit,

that he believed it was fresh, but he noted police could not determine a source or

identify any items that had been burned as belonging to Kryger. The fact that none

of the items related to the burn pit were forensically tested went to the weight of

this evidence, not its admissibility. The evidence revealed a sufficient link between

Kryger and the burn pit, and therefore, the circuit court did not abuse its discretion

in admitting it.

         4.   Whether the circuit court erred by admitting Kryger’s
              statements that he has a criminal mind.

[¶26.]        During the investigation, Kryger was interviewed by Sioux Falls Police

Detectives Robert Forster and Martin Hoffman. In both interviews, Kryger made

references about having “a criminal mind.” In the interview with Detective Forster

on March 16, 2014, Kryger expressed concern for the safety of his fiancée living in

the area where Kirkegaard had been killed. In response, Detective Forster told

Kryger that law enforcement was advising people to lock their doors and use the

buddy system for protection. Kryger then stated he did not believe that would work

because “if I actually have a criminal mind . . . if I want to get into a place, I’ll just

kick the door in . . . and . . . that’s not stopping [inaudible] nobody.” During the

interview with Detective Hoffman on March 20, 2014, Kryger was asked about

whether he could identify the SUV that he claimed almost ran into him with its




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lights off. Kryger responded that he had “a criminal mind” and did not pay

attention to those things.

[¶27.]       Before trial, Kryger moved to exclude both statements on the basis

that they were inadmissible character evidence. The State argued Kryger’s

statements were admissible to prove Kryger had the requisite intent or state of

mind. The circuit court denied Kryger’s motion, holding the statements were not

character evidence, but rather, statements against interest. The circuit court

reasoned that because the statements were Kryger’s own voluntary admissions,

they did not pertain to character and the jury could consider them as evidence of his

involvement. The circuit court also balanced the statements under Rule 403 and

determined their relevance was not substantially outweighed by the danger of

unfair prejudice.

[¶28.]       In determining that these statements were admissions against interest

by Kryger, the circuit court did not explain why they were probative to the case.

Kryger asserts that if the statements were admissions, they were admissions about

his character, which were inadmissible under SDCL 19-19-404(a)(1). See also State

v. Janis, 2016 S.D. 43, ¶ 38 n.3, 880 N.W.2d 76, 87 n.3. Kryger also argues the

probative value of these statements were outweighed by the danger of unfair

prejudice toward him and that the jury confused his statement as admitting the

mens rea elements of the crimes with which he was charged. The State responds

that the circuit court correctly allowed the statements as admissions that the jury

could consider and that they were relevant to the crimes charged.




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[¶29.]       Kryger’s statement to Detective Forster appears to be stated

hypothetically that precautions recommended by law enforcement would not protect

against himself or someone with a criminal mind from committing the offense. In

the interview with Detective Hoffman, Kryger directly stated he had a criminal

mind. The statements are ambiguous in their meaning. It is possible that the jury

could have considered the statements as evidence that Kryger knew something

about the crime or how to commit the crime. However, it is also possible that the

jury may have considered the statements as admissions by Kryger about his

character; that he was the kind of person who would have committed this crime.

[¶30.]       Kryger claims the admission of these statements is reversible error.

However, “[t]o obtain a new trial due to erroneously admitted evidence, ‘a defendant

must prove not only that the trial court abused its discretion in admitting the

evidence, but also that the admission resulted in prejudice.’” Patterson, 2017 S.D.

64, ¶ 13, 904 N.W.2d at 48 (quoting State v. Reay, 2009 S.D. 10, ¶ 31, 762 N.W.2d

356, 366). Prejudice must have produced an effect on the final result of a trial and

affected the rights of the party claiming the prejudice. Id.

[¶31.]       Kryger has failed to show prejudice in the admission of these

statements. Both statements were general in nature and were not expounded on

further during either interview. The statements were made without any context as

to whether Kryger had committed similar offenses or had ever been previously

convicted of any crime. Although the State referenced Kryger’s statements in

closing arguments, such argument was limited and was neither the theme nor

central focus. Most importantly, there was substantial independent evidence, apart


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from the two statements, establishing Kryger’s guilt. Kryger has failed to show

that the admission of his two voluntary statements had an effect on the outcome of

the verdict. Thus, there was no prejudice.

         5.   Whether the circuit court erred by denying Kryger’s motions
              for mistrial.

[¶32.]        Prior to trial, the circuit court granted several of Kryger’s motions to

exclude any evidence or reference to his criminal record or incarceration status.

Kryger claims that the circuit court’s pretrial orders were violated on three

occasions during the trial. First, Detective Forster testified he had received

Kryger’s cell phone number from Kryger’s parole officer. Second, as the jury was

hearing an audio recording of a phone call between Kryger and Nagel, it also heard

an automated message indicating that Kryger was incarcerated. Finally, Kryger

accidentally encountered the jury while being escorted by two officers after trial

proceedings had concluded for the day. Kryger claims the circuit court’s refusal to

grant a mistrial for each of these errors deprived him of his right to a fair trial.

[¶33.]        “Motions for mistrial are within the discretion of the trial judge.” State

v. Ball, 2004 S.D. 9, ¶ 16, 675 N.W.2d 192, 197 (quoting State v. Johnson, 2001 S.D.

80, ¶ 9, 630 N.W.2d 79, 82). Therefore, “denial of a motion for mistrial will not be

overturned unless there is an abuse of discretion.” Id. Here, the circuit court

reserved ruling on each of the motions for mistrial until the conclusion of the case so

that the court could consider the potential impact of any violations in light of the

entire record.

[¶34.]        The circuit court immediately addressed Detective Forster’s reference

to Kryger’s parole officer during the trial. The circuit court acknowledged that the

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testimony was a violation (although unintentional) of the court’s order. To

neutralize the impact of the testimony, the court instructed the jury to disregard

the source of Kryger’s cell phone number; and the court warned Detective Forster in

chambers not to make any more references to Kryger’s parole status, prison time, or

criminal history. At the end of the trial, the court denied the motion for mistrial,

reasoning that a mistrial would be an extreme remedy in light of the innocuous

nature of Detective Forster’s remark and its limited potential to influence the jury.

[¶35.]       The circuit court also considered Kryger’s motion for mistrial

concerning the automated portion of the phone call improperly played for the jury.

The circuit court noted the mechanized voice message did not specifically mention

why Kryger was incarcerated, the nature of Kryger’s past involvement with the

criminal justice system, or any inadmissible other-acts evidence. The circuit court

also presented a limiting instruction to the jury directing it to disregard the entire

automated portion of the message.

[¶36.]       Finally, the circuit court considered the encounter between Kryger and

the jury. The circuit court heard in-chambers testimony from the bailiff present

during the incident. The bailiff indicated the meeting was accidental and had

occurred when the jury stopped in an elevator on the same floor as Kryger as he was

waiting for a ride. The two deputies who were escorting Kryger were wearing

civilian clothes and were not armed or carrying restraints. The circuit court noted

Kryger was in civilian clothes and was not visibly restrained. Additionally, the

circuit court drew attention to the fact that the encounter was after hours and that

the jurors were accustomed to seeing participants in the case. The court also stated


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that the jury could already draw a reasonable inference that Kryger was being

escorted by law enforcement given the nature of the case.

[¶37.]        The circuit court’s review of these three occurrences and the decision to

deny Kryger’s motions for a mistrial were well-reasoned. The circuit court also took

adequate measures to minimize the impact of these errors and considered their

import at the conclusion of the trial in light of all the evidence. There is no showing

that any of the errors were intentional, and none of the errors went directly to the

question of Kryger’s guilt. The circuit court was in the best position to consider the

impact of these errors on the jury and determined that the errors did not deprive

Kryger of a fair trial. This decision is supported by the record, and there was no

abuse of discretion.

         6.   Whether the circuit court erred by denying Kryger’s proposed
              jury instructions regarding Kryger’s statements about his
              criminal mind, speculation and conjecture, and an alibi
              defense.

[¶38.]        Kryger challenges the circuit court’s decision to reject several of his

proposed jury instructions. Kryger’s first set of proposed instructions stated:

“Evidence that the Defendant described himself as having a criminal mind does not

in itself mean the Defendant possessed a [depraved mind/premeditated design].

You must consider any such evidence in conjunction with all other evidence

presented.” Kryger claimed the instruction was needed to mitigate the statements

admitted regarding Kryger’s criminal mind.

[¶39.]        Kryger also proposed five alternative jury instructions that he claimed

defined speculation and conjecture. He contended these jury instructions were

needed to respond to testimony from Dr. Snell, the testing procedures used during

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the investigation of Kirkegaard’s death, and the large number of items of evidence

collected by police during the investigation. The circuit court rejected Kryger’s

instructions, and instructed the jury as follows:

             Instruction No. 58. It is your duty to decide from the evidence
             what the facts are and whether the defendant is guilty or not
             guilty of the crimes charged. You must base that decision on the
             facts and the law.
                    First, you must determine the facts from the evidence
             received in the trial and not from any other source. You are
             entitled to consider the evidence in the light of your own
             observations and experiences in the affairs of life. You may use
             reason and common sense to draw deductions or conclusions
             from facts which have been established by the evidence.
             However, your verdict must not be based upon speculation,
             guess or conjecture.
                    Second, you must apply the law that I state to you, to the
             facts, as you determine them, and in this way, arrive at your
             verdict. You must accept and follow the law as I state it to you,
             whether or not you agree with the law.

[¶40.]       Finally, Kryger proposed an alibi jury instruction. The circuit court

ruled that Kryger was not entitled to an alibi instruction and instead instructed the

jury as follows:

             Instruction No. 16. The indictment charges that the offense
             was committed “on or about” a certain date. The proof need not
             establish with certainty the exact date of the offense alleged. It
             is sufficient if the evidence establishes beyond a reasonable
             doubt that the offense was committed on a date reasonably near
             the date alleged.

[¶41.]       “A trial court has discretion in the wording and arrangement of its jury

instructions, and therefore we generally review a trial court’s decision to grant or

deny a particular instruction under the abuse of discretion standard.” Spaniol,

2017 S.D. 20, ¶ 49, 895 N.W.2d at 345 (quoting State v. Whistler, 2014 S.D. 58, ¶ 13,

851 N.W.2d 905, 910). Jury instructions are considered as a whole. State v. Jensen,

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2007 S.D. 76, ¶ 19, 737 N.W.2d 285, 291. If they “correctly state the law and inform

the jury, they are sufficient.” Id. (quoting State v. Johnston, 478 N.W.2d 281, 283

(S.D. 1991)). A circuit court does not err simply by refusing “to amplify instructions

which substantially cover the principle embodied in the requested instruction.”

State v. Klaudt, 2009 S.D. 71, ¶ 20, 772 N.W.2d 117, 123.

[¶42.]       As to Kryger’s proposed state-of-mind instructions, the circuit court

pointed out that Kryger’s statements about criminal mind were couched in

ordinary, conversational terms and that Kryger’s proposed instructions would only

highlight the statements to the jury. The circuit court also noted Kryger had a full

opportunity to challenge the nature of his own remarks through the cross-

examination of Detectives Hoffman and Forster, and could further challenge these

statements in closing arguments. Moreover, the circuit court provided proper

instructions to the jury explaining the elements of the crimes and the intent

necessary for each one.

[¶43.]       The circuit court rejected Kryger’s instructions on speculation and

conjecture because it believed Instruction 58 was a better and more accurate

statement of South Dakota law. The court further noted that Kryger’s proposed

instructions suggested that the amount of evidence available in a case was more

important than the force of the evidence—which the court believed to be incorrect.

Finally, the court noted Kryger could still argue to the jury that it could not or

should not speculate about evidence even without the additional instructions.

[¶44.]       Finally, the circuit court reexamined evidence of Kryger’s whereabouts

around the time of Kirkegaard’s death to determine whether he was entitled to an


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alibi defense. Based on the mosque video, which placed Kryger in the vicinity of

Kirkegaard’s home, the fact that Kryger was only able to partially explain his

whereabouts on the night of March 14, 2014, and because Kryger had not complied

with timely notice of alibi under SDCL 23A-9-1, the court determined that the

evidence did not warrant an alibi instruction.

[¶45.]        The circuit court thoroughly analyzed each of Kryger’s proposed

instructions and provided adequate reasoning for rejecting them. Additionally, the

instructions provided to the jury were proper and accurate statements of the law.

Therefore, there was no abuse of discretion by the circuit court in denying Kryger’s

proposed instructions.

         7.   Whether the circuit court erred by denying Kryger’s motion for
              judgment of acquittal.

[¶46.]        Kryger claims the lack of proof present in the record demonstrated

that he was convicted in error based on speculation by the jury. Specifically, Kryger

argues the State failed to prove the premeditated design required for first-degree

murder, the depraved mind required for second-degree murder, and the intent

required for first-degree burglary. He also argues that the evidence was insufficient

for the jury to find force, coercion, or threats required for rape. He maintains the

circuit court erred in denying his motion for judgment of acquittal because “the

evidence [was] insufficient to sustain a conviction of the offense or offenses.” See

SDCL 23A-23-1.

[¶47.]        We review a denial of a motion for judgment of acquittal de novo.

State v. Bosworth, 2017 S.D. 43, ¶ 11, 899 N.W.2d 691, 694.

              When reviewing whether evidence is sufficient to sustain a
              conviction, we “consider the evidence in a light most favorable to
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             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.”

Id. (quoting State v. Janklow, 2005 S.D. 25, ¶ 16, 693 N.W.2d 685, 693).

[¶48.]       The evidence in this case does not match Kryger’s assertion that his

conviction was based on speculation and conjecture. Both direct and circumstantial

evidence existed linking Kryger to Kirkegaard’s death. Kryger’s sperm cell DNA

was found in Kirkegaard’s vagina after he initially denied knowing Kirkegaard or

having sex with her. Kirkegaard lived alone and the evidence suggested that she

did not have a relationship or any prior contact with Kryger. Further, Kirkegaard

returned home on the night of her death shortly after a family gathering,

diminishing the likelihood that she had brought Kryger into her home from another

location. Kryger admitted riding his bike during the timeframe that Kirkegaard

was killed, and he was seen on the mosque video riding his bike in the immediate

vicinity of Kirkegaard’s home around the time of Kirkegaard’s death. Three people

identified Kryger in the mosque video.

[¶49.]       Kirkegaard’s autopsy revealed ligature marks indicating

strangulation. She also had numerous other traumatic injuries, including a

fractured hyoid bone and thyroid cartilage, and multiple red marks in her vagina.

These injuries indicated a deliberate use of force, as well as an imminently

dangerous act done with a depraved mind.

[¶50.]       Kirkegaard’s purse was discovered missing from her home. The day

after her death, Kryger suddenly had enough money to buy an engagement ring for

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his girlfriend, a cell phone, and a calling plan. After his DNA was found on the

body, Kryger claimed in a phone call to Nagel that he had consensual sex with

Kirkegaard. However, the injuries to Kirkegaard and the circumstances

surrounding the night of Kirkegaard’s death provide no explanation or possibilities

as to how or why that consensual sex would have occurred.

[¶51.]       In the aggregate, and in a light most favorable to the guilty verdict, the

evidence is sufficient to sustain Kryger’s conviction on all crimes. The State’s

evidence and all favorable inferences support a rational theory of guilt in this case

and the jury’s ability to make that determination on each of the charges. Kryger

was not entitled to a judgment of acquittal and the circuit court did not err.

                                     Conclusion

[¶52.]       The circuit court did not commit prejudicial error in any of the issues

raised by Kryger, and thus, we need not address Kryger’s final argument that

accumulation of the court’s errors warrants a new trial. The evidence in the record

is sufficient to sustain Kryger’s convictions on all counts. We affirm.

[¶53.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,

Justices, concur.




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