#28293-a-SRJ
2019 S.D. 18

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                 ****

STATE OF SOUTH DAKOTA,                    Plaintiff and Appellee,

      v.

JARED JEROME STONE,                       Defendant and Appellant.

                                 ****

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

                                 ****

                   THE HONORABLE ROBIN J. HOUWMAN
                               Judge

                                 ****

MARTY J. JACKLEY
Attorney General

MATTHEW W. TEMPLAR
Assistant Attorney General                       Attorneys for plaintiff
Pierre, South Dakota                             and appellee.


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

                                 ****

                                          CONSIDERED ON BRIEFS ON
                                          JANUARY 7, 2019
                                          OPINION FILED 03/20/19
#28293

JENSEN, Justice

[¶1.]          Jarod Stone appeals his convictions for second-degree murder,

possession of a controlled substance, and possession of a firearm by a convicted drug

offender. Stone argues the circuit court committed multiple errors in pretrial

rulings and at trial, including: denying his motion to sever, allowing other acts

evidence and certain opinion testimony to be introduced at trial, denying his motion

for a mistrial, and denying his motions for judgment of acquittal. Stone further

argues that the cumulative effect of these errors justifies a new trial. We affirm the

convictions.

                           Facts and Procedural History

[¶2.]          On April 22, 2016, Stone and Lachara Bordeaux drove to the Lucky

Lady Casino in Sioux Falls. Stone entered the casino and Bordeaux entered

another nearby business. While Stone was playing video lottery, Baptise White

Eyes entered the casino. White Eyes and Stone had an antagonistic history arising

from a romantic relationship Stone had with White Eyes’s former girlfriend while

White Eyes was in prison.

[¶3.]          Shortly after White Eyes entered the casino, the two began arguing

and were asked to leave. After leaving the casino, White Eyes hit Stone in the face.

Stone retaliated by punching White Eyes. Stone then began moving away from

White Eyes, but White Eyes continued to follow Stone. Stone drew a handgun and

told White Eyes to stay away or he would be shot. White Eyes continued to move

toward Stone and Stone fired two shots at White Eyes. The first shot hit White

Eyes in the head knocking him to the ground. The second shot was fired after


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White Eyes fell, and missed White Eyes. White Eyes was taken to a nearby

hospital where he was pronounced dead.

[¶4.]        Bordeaux witnessed the shooting. She told Stone to get in her car and

they left the scene. Shortly after the shooting, Stone sent a text message to his

girlfriend Claressa Calderon stating, “I just killed someone I’m sorry.” Law

enforcement obtained the casino’s surveillance footage of the shooting and

distributed still shots of the shooter to the local media. Stone was identified and

law enforcement received a tip that he rented a room at a Sioux Falls hotel.

[¶5.]        The day after the shooting, a search warrant was executed for the

hotel room registered to Stone. During the search, law enforcement found a cup

containing several .380 caliber cartridges matching the manufacturer and caliber of

the shell casings found at the scene of the shooting. On a table in the room, law

enforcement also found a hotel receipt with Stone’s name on it, stationary bearing

Bordeaux’s name, and three glass pipes, one of which contained white residue later

identified as methamphetamine.

[¶6.]        On April 26, 2016, Bordeaux was located in Le Mars, Iowa and

interviewed by Detective Montgomery of the Sioux Falls Police Department.

Bordeaux explained that after the shooting, she and Stone obtained a different car

and drove to Minnesota. They then returned to South Dakota and again replaced

their vehicle before traveling to Minnesota, Illinois, and Iowa where Stone left

Bordeaux.

[¶7.]        The next day, Stone was stopped by law enforcement in South Dakota,

but evaded capture after providing false information of his identity. Stone’s vehicle


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was later found abandoned on Interstate 90 near Presho. A search of the vehicle

revealed a receipt from Wisconsin, a wig, and Stone’s South Dakota identification

card. Later that evening, Nebraska State Patrol stopped a vehicle traveling on

Interstate 80 with Stone in the back seat. After the other passengers exited the car,

Stone entered the driver’s seat and drove away. Law enforcement followed Stone,

leading to a high-speed pursuit across western Nebraska. Stone’s vehicle was

eventually stopped after crossing into Wyoming and Stone was taken into custody.

[¶8.]        Stone was interviewed the next day by Sioux Falls detectives including

Detective Montgomery. Stone admitted to shooting White Eyes and firing two

shots. When discussing the second shot, Detective Montgomery suggested the

second shot could have been an involuntary reflex. Stone agreed the second shot

was unintentional. Stone stated he believed White Eyes was reaching for a gun

prior to the shooting. Stone also told law enforcement that he left of the scene of the

shooting because he had “dope” in his pocket. Stone was asked about the location of

the handgun used to kill White Eyes. Stone said he discarded the handgun a few

blocks from the casino after he fled the scene. The handgun was never recovered.

[¶9.]        Stone was indicted for first-degree murder, second-degree murder,

three counts of first-degree manslaughter (heat of passion, dangerous weapon, and

commission of a felony), unauthorized possession of a controlled drug or substance,

and possession of a firearm by a convicted felony drug offender. He pleaded not

guilty on all counts.

[¶10.]       Stone moved to sever the charge of possession of a firearm by a

convicted felony drug offender (Count VII) from the other charges in the indictment.


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He argued the use of his prior conviction for possession of a controlled substance to

prove the status offense in Count VII was prejudicial. The circuit court denied the

motion to sever.

[¶11.]       Prior to trial, Stone also moved to exclude other acts evidence

consisting of his criminal record and his actions following the shooting. Stone

argued this evidence was irrelevant and prejudicial. Stone also argued the evidence

infringed on his Fifth Amendment right to remain silent. The circuit court denied

the motion, except as to evidence of any crimes committed by Stone after he left the

scene of the shooting.

[¶12.]       At trial, the State asked Detective Montgomery about Stone’s

interstate journey and the following exchange occurred:

             [State:] And so on April 27th of 2016, was there finally a
             sighting of Mr. Stone?

             [Detective Montgomery:] Yes. Mr. Stone had gotten back into
             South Dakota and he was around the Presho exit here in South
             Dakota, and he had contact with a South Dakota State Trooper.

             [State:] And so based on this information, did Sioux Falls send a
             team out to that location?

             [Detective Montgomery:] We did. Mr. Stone was sent on his
             way at that point in time. He did not reveal his true identity.
             And he was sent on his way. And the car was eventually seized.

Stone objected, arguing Montgomery’s answer violated the court’s prior order

excluding evidence of other crimes and moved for a mistrial. The circuit court

denied the motion for mistrial determining the testimony did not violate the court’s

pretrial order.




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[¶13.]       Later during Detective Montgomery’s testimony, the State asked if the

second shot fired by Stone was a sympathetic reflex. Stone objected arguing a lack

of foundation and failure to disclose an expert opinion. The circuit court overruled

the objection, and Detective Montgomery answered,

             [l]ooking at the video now and looking at the evidence, it does
             not seem likely . . . . One of the things with witnesses and from
             the investigation, was the rounds went off fairly close together
             when fired and so . . . it makes it unlikely that it went that way
             as a sympathetic reflex shot. (Emphasis added).

[¶14.]       At the conclusion of the State’s evidence, Stone moved for a judgment

of acquittal on all counts. The circuit court entered a judgment of acquittal on first-

degree manslaughter, but denied the motion on all the other counts. The jury found

Stone not guilty of first-degree murder, but guilty on the remaining counts. Stone

was sentenced to life in prison on the conviction for second-degree murder. A five-

year concurrent sentence was imposed on the drug conviction, and a two-year

consecutive sentence was imposed on the firearm conviction. This appeal followed.

[¶15.]       Stone raises a number issues in this appeal that we state as follows:

             1.     Whether the circuit court abused its discretion in denying
                    the motion to sever Count VII.

             2.     Whether the circuit court abused its discretion by
                    allowing other acts evidence pertaining to Stone’s actions
                    after the shooting and by allowing certain opinion
                    testimony concerning “sympathetic reflex.”

             3.     Whether the circuit court abused its discretion in denying
                    the motion for a mistrial after other criminal acts were
                    presented at trial.

             4.     Whether the circuit court erred by denying Stone’s
                    motions for judgment of acquittal.

             5.     Whether the circuit court’s cumulative errors
                    substantiate a claim for a new trial.
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                                Analysis and Decision

               1.    Whether the circuit court abused its discretion in denying the
                     motion to sever Count VII.

[¶16.]         “A trial court’s denial of a motion to sever is reviewed for an abuse of

discretion.” State v. Dowty, 2013 S.D. 72, ¶ 28, 838 N.W.2d 820, 829. “[A]n abuse of

discretion arises only where the party requesting severance of joined counts can

make a ‘clear showing of prejudice to substantial rights.’” State v. Shape,

517 N.W.2d 650, 652 (S.D. 1994) (quoting State v. Dixon, 419 N.W.2d 699, 702

(S.D. 1988)). “The quantum of prejudice that must be shown is high, and requires

more than a showing of a better chance of acquittal at a separate trial.” Dowty,

2013 S.D. 72, ¶ 29, 838 N.W.2d at 829 (quoting State v. Waugh, 2011 S.D. 71, ¶ 13,

805 N.W.2d 480, 483-84). As we have previously elaborated,

               Any joinder of offenses is apt to involve some element of
               prejudice to the defendant, since a jury is likely to feel that a
               defendant charged with several crimes must be a bad individual
               who has done something wrong. However, if the notion of
               involuntary joinder is to retain any validity, a higher degree of
               prejudice, or certainty of prejudice, must be shown before relief
               will be in order.
Id.

[¶17.]         Stone claims the circuit court should have severed the charge of

possession of a firearm by a convicted drug offender, in Count VII, from the other

charges because evidence of his prior drug conviction to prove Count VII unfairly

tainted the jury’s consideration of the other charges.1 He maintains that the charge

for unauthorized possession of the controlled substance was particularly susceptible


1.       Stone does not argue the charges were improperly joined under SDCL 23A-6-
         23 so we only address his claim that the joinder of Count VII caused him
         prejudice.

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to jury bias. Stone also claims prejudice from the State’s refusal to accept his offer

to stipulate to the prior conviction to prove Count VII.

[¶18.]       Stone relies heavily on a theory that the circuit court misapplied Old

Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 644. The

defendant in Old Chief was charged with felony assault and possession of a firearm

by a convicted felon. At trial, the prosecution refused the defendant’s offer to

stipulate that defendant had been convicted of a felony, as proof of the status

offense, and instead introduced evidence showing the defendant had previously

been convicted of felony assault. Old Chief did not involve a severance issue, but

rather held that the prejudice considerations under Rule 403 of the Federal Rules of

Evidence substantially outweighed the probative value of evidence disclosing the

nature of the prior felony conviction. The court reaffirmed “the accepted rule that

the prosecution is entitled to prove its case free from any defendant’s option to

stipulate the evidence away,” but emphasized the rule has “virtually no application

when the point at issue is a defendant’s legal status, dependent on some judgment

rendered wholly independently of the concrete events of later criminal behavior

charged against him.” Id. at 190, 117 S. Ct. at 654-55.

[¶19.]       Stone misreads Old Chief’s Rule 403 analysis to suggest that evidence

of the nature of the prior conviction to prove Count VII was so prejudicial to the

charge of possession of a controlled substance that it required the court to grant the

motion to sever Count VII. On the contrary, it was not the degree of prejudice, but

the lack of relevance in the first instance that was determinative of the issue in Old

Chief. The defendant in Old Chief had offered to stipulate to “seemingly conclusive


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evidence of the element” necessary to prove the status offense of possession of a

firearm by a convicted felon. 519 U.S. at 186, 117 S. Ct. at 653. Because the nature

of the prior felony conviction was wholly irrelevant to proving the status offense, the

use of this evidence was unfairly prejudicial.

[¶20.]         Here, Stone was charged with possession of a firearm by a convicted

drug offender. Unlike Old Chief, evidence of the nature of the prior felony

conviction was a necessary element, and thus highly probative of the State’s case.

Further, the circuit court minimized the prejudice by limiting the State’s evidence

and allowing it to present “only a brief description of the prior charge,” and the date

and location of the prior charge. The State followed the court’s directive by asking a

single question about the prior conviction.2 In this regard, the State’s evidence was

no more prejudicial than the stipulation offered by Stone. The court also instructed

the jury that it must consider the evidence on each of the counts separately, and a

determination of Stone’s guilt or innocence on one count could not influence their

decision on other counts. “We presume the jury follows the trial court’s limiting

instructions.” State v. Ralios, 2010 S.D. 43, ¶ 47, 783 N.W.2d 647, 660; see also

State v. Janis, 2016 S.D. 43, ¶ 25, 880 N.W.2d 76, 83 (holding that the Court

assumes the jury followed general jury instructions).


2.       The only question about the prior conviction at trial was during Detective
         Montgomery’s direct testimony after identifying Stone:
               [State:] And, Detective Montgomery, is this the same Jared
               Stone who has a conviction for possession of controlled
               substance in Minnehaha County, South Dakota, on September
               17, 2013?

               [Detecticve Montgomery:] That’s correct.


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[¶21.]       In considering the motion to sever Count VII, the court balanced

judicial efficiency against the prejudice arising from the evidence of the prior drug

conviction. The record shows that several of the same witnesses would be called to

testify concerning the charges joined in the indictment. The court further noted

that Stone was charged with a single drug possession charge and the homicide

offenses against Stone were dissimilar to the prior drug conviction. Further, Stone

does not argue that the prior drug conviction caused any particular prejudice to the

homicide charges. Under these circumstances, Stone has failed to show the

“quantum of prejudice” necessary to demonstrate that the circuit court abused its

discretion in denying his motion to sever Count VII. Dowty, 2013 S.D. 72, ¶ 29,

838 N.W.2d at 829 (quoting Waugh, 2011 S.D. 71, ¶ 13, 805 N.W.2d at 483-84).

             2.     Whether the circuit court abused its discretion by allowing other
                    acts evidence pertaining to Stone’s actions after the shooting and
                    by allowing certain opinion testimony concerning “sympathetic
                    reflex.”

[¶22.]       “We review evidentiary rulings for abuse of discretion . . . . Under this

standard, not only must error be demonstrated, but it must also be shown to be

prejudicial.” State v. Bausch, 2017 S.D. 1, ¶ 12, 889 N.W.2d 404. “An abuse of

discretion refers to a discretion exercised to an end or purpose not justified by, and

clearly against reason and evidence.” State v. Bowker, 2008 S.D. 61, ¶ 38,

754 N.W.2d 56, 68. “With regard to the rules of evidence, abuse of discretion occurs

when a trial court misapplies a rule of evidence, not when it merely allows or

refuses questionable evidence.” State v. Asmussen, 2006 S.D. 37, ¶ 13, 713 N.W.2d

580, 586.



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             a.     Other Acts Evidence

[¶23.]       Stone argues the circuit court erred by allowing the State to introduce

other acts evidence of his travel to multiple other states after the shooting, and of

his attempts to elude law enforcement because it was offered to show his character.

He also claims this evidence violated his Fifth Amendment right against self-

incrimination. Stone contends that the State’s motive in introducing this evidence

was to highlight his decision to exercise his right to remain silent.

[¶24.]       “[R]elevant other acts evidence is admissible for any purpose other

than proving the character of the defendant or his propensity to act in conformity

therewith.” State v. Bertram, 2018 S.D. 4, ¶ 22, 906 N.W.2d 418, 426. Rule 404(b)

provides that other acts evidence “may be admissible for other purposes, such as

proving motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.” Id. (quoting SDCL 19-19-404(b)(2)). The court

must satisfy a two-part balancing test before the evidence is admitted:

             [f]irst, the court must determine whether the other-act evidence
             is relevant to some material issue in the case other than
             character (factual relevancy). Second, the court must determine
             whether the probative value of the evidence is substantially
             outweighed by the danger of unfair prejudice (logical relevancy).

State v. Birdshead, 2015 S.D. 77, ¶ 57, 871 N.W.2d 62, 81. “Upon a trial court’s

determination that the proffered evidence is relevant, ‘the balance tips emphatically

in favor of admission unless the dangers set out in Rule 403 substantially outweigh

probative value.’” State v. Lassiter, 2005 S.D. 8, ¶ 15, 692 N.W.2d 171, 176 (quoting

State v. Wright, 1999 S.D. 50, ¶ 14, 593 N.W.2d 792, 798); see also State v. Fisher,

2013 S.D. 23, ¶ 15, 828 N.W.2d 795, 800 (considering prejudice under Rule 404(b) of


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relevant consciousness of guilt evidence, this Court stated, “evidence does not cause

danger of unfair prejudice merely because its legitimate probative force damages

the defendant’s case.”)

[¶25.]       The circuit court found Stone’s actions following the shooting were

relevant to show intent and consciousness of guilt. The court also determined

Stone’s actions were probative to his claim of self-defense. Stone does not contend

that this evidence was irrelevant to his state of mind or to his claim of self-defense.

Instead, Stone focuses on the prejudice arising from its admission and his claim

that the evidence violated his Fifth Amendment right to remain silent.

[¶26.]       “We have previously stated that ‘an attempt by the accused to flee

following the alleged crime is circumstantially relevant to prove not only

commission of the act, but also the intent and purpose with which it was

committed.’” State v. Owens, 2002 S.D. 42, ¶ 82, 643 N.W.2d 735, 756 (quoting

State v. Fast Horse, 490 N.W.2d 496, 501 (S.D. 1992)). Further, we have recognized

that evidence of flight or concealment immediately after the events charged in the

indictment, may be relevant to show consciousness of guilt. See State v. Frazier,

2001 S.D. 19, ¶ 37, 622 N.W.2d 246, 259; Owens, 2002 S.D. 42, ¶ 79, 643 N.W.2d

735, 755; State v. Aesoph, 2002 S.D. 71, ¶ 48, 647 N.W.2d 743, 759. Stone

immediately left the scene of the shooting and eluded law enforcement for days

before his capture. This evidence also explained Stone’s actions of discarding his

gun and why the gun was never recovered.

[¶27.]       Before admitting the evidence, the court considered the impact of this

evidence and weighed the prejudice against its probative value. In doing so, the


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court limited the State from presenting evidence of any alleged criminal offenses

committed by Stone while on the run. The court also gave a limiting instruction for

the jury’s consideration of this evidence. Under these circumstances, the court did

not abuse its discretion in determining that the probative value was not

substantially outweighed by the danger of unfair prejudice.

[¶28.]       In support of his claim that this evidence violated his Fifth

Amendment right against self-incrimination, Stone seizes on the State’s argument

at the pretrial hearing. The State urged that the evidence was relevant to show

Stone “did not turn himself in to speak with law enforcement, rather he fled for

days going to extreme lengths to avoid law enforcement.” Notwithstanding the

arguments at the pretrial hearing, Stone does not point to evidence or comment by

the State at trial calling attention to any assertion by Stone of his right to remain

silent. Before the jury, “the test is whether the language used [by the prosecutor]

was manifestly intended or was of such character that the jury would naturally and

necessarily take it to be a comment” on the accused’s right to remain silent. State v.

Ball, 2004 S.D. 9, ¶ 22, 675 N.W.2d 192, 200. Stone has failed to make such a

showing.

[¶29.]       Additionally, Stone failed to show at any point after the shooting that

he unequivocally invoked his right against self-incrimination. The invocation of the

right to remain silent requires more than an ambiguous act, omission or statement.

Rather, “an accused who wants to invoke his or her right to remain silent [must] do

so unambiguously.” Berghuis v. Thompkins, 560 U.S. 370, 381, 130 S. Ct. 2250,

2260, 176 L. Ed. 2d 1098 (2010). As one court has stated:


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         Evidence of flight is relevant, material and admissible . . . . The
         prosecutor is entitled to comment on this evidence and draw
         reasonable inferences from it. The admission of evidence of flight from
         police officers does not infringe on a defendant’s right against self-
         incrimination. Flight is not an assertion of the right against self-
         incrimination and one’s right to remain silent does not encompass the
         right to flee from law enforcement officers performing their official
         duties.

People v. Dixon, 270 N.W.2d 488, 491-92 (Mich. Ct. App. 1978).

               b.     Opinion Testimony

[¶30.]         Stone also claims the circuit court erred by allowing Detective

Montgomery to present an opinion that the second shot fired by Stone was not a

“sympathetic reflex” action. He argues “sympathetic reflex” is a technical term that

escapes a layman’s understanding and no foundation was established to support

such an opinion by Montgomery. Stone also claims that the expert opinion was not

properly disclosed prior to trial. The State counters that Detective Montgomery’s

testimony was properly admitted as a lay opinion.

[¶31.]         Lay witness testimony is governed by SDCL 19-19-701 which limits

such testimony to opinions “(a) [r]ationally based on the witness’s perception; (b)

[h]elpful to clearly understanding the witness’s testimony or to determining a fact

in issue; and (c) [n]ot based on scientific, technical, or other specialized knowledge

within the scope of [SDCL] 19-19-702.” If testimony qualifies as a lay opinion, no

foundation is required for the opinion. State v. Condon, 2007 S.D. 124, ¶ 30,

742 N.W.2d 861, 870. Conversely, if the opinion is offered as an expert opinion,

under SDCL 19-19-702, the basis for the opinion must rest on a reliable foundation

consistent with the standards from Daubert. State v. Guthrie, 2001 S.D. 61, ¶ 34,

627 N.W.2d 401, 416.

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[¶32.]       Detective Montgomery’s testimony was based upon his investigation

and personal knowledge of the case. But the question of whether the second shot

was a sympathetic reflex delves into whether Stone’s action was voluntary or

involuntary, seemingly requiring a judgment based upon some technical or

specialized knowledge. It is unclear whether there was an adequate foundation for

the opinion, or if Montgomery was qualified to offer such an opinion. Even if we

assume, however, that the circuit court abused its discretion by admitting the

opinion, Stone must show prejudice from the error. State v. Smiley, 2004 S.D. 119,

¶ 5, 689 N.W.2d 427, 429 (“[U]nder the abuse of discretion standard of review not

only must error be identified, but it must also be shown to be prejudicial.”).

[¶33.]       To establish prejudice, Stone must show that but for the circuit court’s

error the jury would have delivered a different verdict. Stabler v. First State Bank

of Roscoe, 2015 S.D. 44, ¶ 36, 865 N.W.2d at 485. Stone argues the evidence

suggesting the second shot was intentional supported the State’s claim that he

acted with indifference to human life and a depraved mind. However, the question

of whether Stone intentionally fired the errant second shot had little consequence

on the State’s case for second-degree murder. There was no dispute that Stone’s

first shot killed White Eyes and that the shot was intentional. Both eyewitness and

video evidence established that Stone pointed the weapon directly at White Eyes

and verbally stated his intention to shoot White Eyes before firing the fatal shot at

close range. See Kleinsasser v. Weber, 2016 S.D. 16, ¶ 24, 877 N.W.2d 86, 95

(explaining that the State must prove the defendant intended to do the physical

act); State v. Laible, 1999 S.D. 58, ¶ 14, 594 N.W.2d 328, 333 (holding shooting the


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victim in the face at close range showed an indifference to human life and a

depraved heart). Stone has not established that the jury would have delivered a

different verdict if the “sympathetic reflex” opinion had been excluded.

             3.     Whether the circuit court erred in denying the motion for a
                    mistrial after other criminal acts were presented at trial.

[¶34.]       “[T]his Court reviews the trial court’s ‘denial of a motion for mistrial

under the abuse of discretion standard.’” State v. Kvasnicka, 2013 S.D. 25, ¶ 17,

829 N.W.2d 123, 127 (quoting State v. Dillon, 2010 S.D. 72, ¶ 28, 788 N.W.2d 360,

369). “We will affirm a trial court’s denial of a mistrial unless we find abuse of

discretion resulting in clear prejudice.” Id. “Abuse of discretion is defined as ‘a

fundamental error of judgment, a choice outside the range of permissible choices, a

decision, which on full consideration, is arbitrary or unreasonable.’” Id. (quoting

State v. Lemler, 2009 S.D. 86, ¶ 40, 774 N.W.2d 272, 286).

             In order to justify a mistrial, the defendant must make an actual
             showing of prejudice. For purposes of determining whether
             there are grounds for a mistrial there must be error “which, in
             all probability, produced some effect upon the jury’s verdict and
             is harmful to the substantial rights of the party assigning it.”

State v. Mollman, 2003 S.D. 150, ¶ 23, 674 N.W.2d 22, 29 (quoting State v.

Anderson, 2000 S.D. 45, ¶ 36, 608 N.W.2d 644, 655).

[¶35.]       In denying the motion for mistrial, the circuit court concluded that the

evidence of Stone’s brief intermediate contact with law enforcement near Presho did

not violate the court’s pretrial order explaining,

             Detective Montgomery has said that Mr. Stone didn’t reveal his
             true identity. I don’t believe he indicated that he committed a
             crime of false impersonation. And I believe that the statement
             made by Detective Montgomery is in compliance with the
             [c]ourt’s ruling that he can testify and witnesses can testify
             about relevant evidence of flight and attempts at concealment.
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[¶36.]       The order prohibited evidence “regarding other criminal offenses or

alleged criminal acts along this route of travel . . . .” To commit the crime of false

impersonation under SDCL 22-40-1, a person must falsely impersonate another by

offering a fictitious name, or provide other false information to law enforcement

about his or her identity. Although Detective Montgomery testified that Stone

failed to reveal his true identity, he offered no testimony that Stone gave a false

name or lied about his identity to law enforcement. Moreover, the State did not

present any evidence that Stone was charged with any crimes or was alleged to

have committed any crime for failing to reveal his true identity.

[¶37.]       Having properly determined that Detective Montgomery’s testimony

did not violate its pretrial order, the court did not abuse its discretion in denying

the motion for a mistrial. Further, Stone has failed to show actual prejudice, or

that this testimony had a clear impact on the jury’s verdict. Kvasnicka, 2013 S.D.

25, ¶ 17, 829 N.W.2d at 127.

             4.     Whether the circuit court erred by denying Stone’s motions for
                    judgment of acquittal.

[¶38.]       Denial of a motion for acquittal is reviewed de novo. State v. Quist,

2018 S.D. 30, ¶ 13, 910 N.W.2d 900, 904. When conducting our review, we

“determine whether the evidence was sufficient to sustain the conviction.” Id.

(quoting State v. Guthmiller, 2014 S.D. 7, ¶ 21, 843 N.W.2d 364, 371). “To do so, 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.’” Id. (quoting Dowty, 2013 S.D. 72, ¶ 15,

838 N.W.2d 820, 825). “If the evidence, including circumstantial evidence and
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reasonable inferences drawn therefrom sustains a reasonable theory of guilt, a

guilty verdict will not be set aside.” State v. Martin, 2017 S.D. 65, ¶ 6, 903 N.W.2d

749, 751. We address each of Stone’s challenges to his convictions:

             a.     Possession of a controlled drug or substance

[¶39.]       The crime of unauthorized possession of controlled drug or substance is

set forth in SDCL 22-42-5 and provides that “[n]o person may knowingly possess a

controlled drug or substance unless the substance was obtained directly or pursuant

to a valid prescription or order from a practitioner, while acting in the course of the

practitioner’s professional practice or except as otherwise authorized . . . .” At trial,

Stone generally moved for judgment of acquittal on all the charges, including the

charge of unauthorized possession of controlled drug or substance. On appeal,

Stone argues the State’s evidence was insufficient to show that he possessed a

controlled substance because he claims he no longer had control of the hotel room

where the glass pipe with methamphetamine residue was found and was not

physically occupying the room at the time of the search.

[¶40.]       To establish possession,

             “[a] defendant’s dominion or right of control over a controlled
             substance does not have to be exclusive and can either be
             actual—i.e., when the controlled substance is found on the
             defendant’s person—or constructive—i.e., when the defendant
             ‘has dominion or control over . . . the premises upon which the
             [controlled substance was] found[.]’”

State v. Fischer, 2016 S.D. 1, ¶ 27, 873 N.W.2d 681, 693. “When a person has

dominion or control over either the narcotics or the premises upon which narcotics

were found, constructive possession is shown.” State v. Barry, 2004 S.D. 67, ¶ 9,

681 N.W.2d 89, 92-93.

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[¶41.]       Stone was a registered guest in the hotel room where the pipe

containing the methamphetamine residue was found. The pipe was located in a

prominent location on a table in the room. A hotel receipt confirming Stone had

rented the room was located next to the pipe. A container of cartridges matching

the manufacturer and caliber of the casings found at the scene of the shooting was

also found in the room. Although Bordeaux’s personal stationary was found in the

room, there was no evidence she was ever in the room without Stone. On the day of

the shooting, Bordeaux testified that she and Stone drove to the casino and left

together after the shooting. Within hours after Stone and Bordeaux fled out-of-

state together, law enforcement executed the search warrant for the hotel room.

This evidence, along with Stone’s admission to possessing an illegal substance in his

pocket at the time of the shooting, was sufficient to allow a jury to reasonably infer

that Stone had dominion and control over the hotel room and knew the illegal

substances were in his room. “No guilty verdict will be set aside if the evidence,

including circumstantial evidence and reasonable inferences drawn therefrom,

sustains a reasonable theory of guilt.” State v. Laplante, 2002 S.D. 95, ¶ 19,

650 N.W.2d 305, 310.

[¶42.]       Stone’s argument incorrectly suggests a jury could find the element of

possession only with evidence that he was found with or near the

methamphetamine. As argued by Stone, “the absence of evidence that the

Appellant was present when the police entered the hotel room demonstrated a lack

of control. Allegations of flight made by the State suggest dominion had been

abandoned.” The amended indictment charged Stone with unlawful possession of a


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controlled substance “on or about” April 22, 2016. Stone does not allege time is an

essential element of possession of a controlled substance, and the jury could have

determined he possessed the methamphetamine shortly before police officers

actually discovered it. See SDCL 23A-6-9 (“The precise time at which an offense

was committed need not be stated in an indictment or information, but it may be

alleged to have been committed at any time before the filing thereof, except when

the time is a material element of the offense.”); State v. Wilkinson, 2007 S.D. 79, ¶

36, 739 N.W.2d 254, 263 (“[T]he use of the term ‘on or about’ in an indictment

‘relieves the government of proving that the crime charged occurred on a specific

date, so long as it occurred within a reasonable time of the date specified’”).

             b.     Possessing of a firearm

[¶43.]       Possession of a firearm by convicted drug offender is established under

SDCL 22-14-15.1, which states, “[n]o person who has been convicted of a felony

under chapter 22-42 or of a felony for a crime with the same elements in another

state may possess or have control of a firearm.” (Emphasis added.) Detective

Montgomery testified that Stone was previously convicted of possession of a

controlled substance in Minnehaha County, but Stone claims the State presented no

evidence that this prior conviction was a felony. While Stone’s conviction was never

identified as a felony by Detective Montgomery, a Facebook post from Stone’s

account was introduced at trial admitting to having a felony on his record, but

questioning whether that should require him to give up his guns. This message,

along with Detective Montgomery’s testimony, was sufficient for a jury to infer that

Stone’s prior drug conviction was a felony.


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             c.     Second-Degree Murder

[¶44.]       Second-degree murder is defined as, “any act imminently dangerous to

others and evincing a depraved mind, without regard for human life, although

without any premeditated design to effect the death of any particular person,

including an unborn child.” SDCL 22-16-7. Stone argues that since he attempted to

retreat from White Eyes and warned him to stay away before firing his gun, the

State failed to establish that the killing was committed with a depraved mind or

without a regard for human life.

[¶45.]       The State provided evidence showing that Stone intentionally shot

White Eyes in the head at close range. This evidence was sufficient for a prima

facie case of second-degree murder. See Kleinsasser, 2016 S.D. 16, ¶ 24, 877 N.W.2d

86, 95; Laible, 1999 S.D. 58, ¶ 14, 594 N.W.2d at 333. The court also fully

instructed the jury on Stone’s self-defense claims. While there was evidence that

Stone was retreating from White Eyes, the question of whether Stone was justified

in using deadly force against an unarmed man, under all the circumstances, was a

question for the jury. See Quist, 2018 S.D. 30, ¶ 15, 910 N.W.2d 900, 904-05

(explaining it was the jury’s role to resolve factual conflicts and weigh the

credibility of the defendant’s and the State’s cases).

             5.     Whether the circuit court’s cumulative errors substantiate a
                    claim for a new trial.

[¶46.]       Based on our rulings above, we decline to examine this issue. See

State v. Hemminger, 2017 S.D. 77, ¶ 41, 904 N.W.2d 746, 759 (declining to review a

claim of cumulative error based on the Court finding a lack of error on the case’s

other issues).

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[¶47.]     We affirm all of Stone’s convictions.

[¶48.]     GILBERTSON, Chief Justice, and KERN and SALTER, Justices, and

SEVERSON, Retired Justice, concur.




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