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Armstrong has been an inmate in the South Dakota State Penitentiary

since his 2009 conviction of sexual contact with a person under sixteen. See State v.

Armstrong, 2010 S.D. 94, 793 N.W.2d 6. In 2016, Armstrong prepared an envelope

of letters and other documents to be sent to the Compass Center in Sioux Falls. The

Compass Center is an organization that provides services for victims of domestic

and sexual assault, including services to prisoners who wish to report sexual

harassment or assault occurring within the prison. Armstrong addressed the

envelope to “P.R.E.A.”—the acronym for the federal Prison Rape Elimination Act.

Under that Act, prison staff could not open Armstrong’s envelope and review the

documents before mailing.

[¶3.] Armstrong’s envelope arrived at the Compass Center on August 11,

2016. Michelle Markgraf, executive director at the Center, read and reviewed the

contents of the envelope. She observed that the envelope contained a three-page

letter addressed to PREA, an eighteen-page letter addressed to Governor Dennis

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Daugaard, a completed commissary order form, documents alleging Armstrong’s sex

offender treatment program was being used as a weapon against him, handwritten

quotes from this Court’s 2010 opinion affirming Armstrong’s 2009 conviction, two

drawings, and two stories. Only the letters to PREA and Governor Daugaard are

relevant to this appeal.

[¶4.] In his letter to PREA, Armstrong introduced himself and claimed that

he had sent previous, unanswered letters to the Compass Center. He then begged

for help, asking that PREA “read, copy, file and forward all but this letter to

Governor Daugaard[.]” He expressed concern that the Department of Corrections

had been withholding his mail and asked that the Compass Center “answer this

letter.” He further wrote, “I want you to know that I am absolutely serious about

what I said about [K.H.]. I have got nothing to lose and everything to gain by

raping and killing her or a guard.” “K.H.” is actually “C.H.”—a mental health

therapist at the penitentiary. Armstrong was housed in her unit.

[¶5.] Armstrong’s letter continued: “At least I will be serving time for a

crime that I actually committed and to be honest I would rather die of lethal

injection than sit in this cell suffering from untreated psoriasis and thoughts that I

can’t seem to stop.” He explained, “I know that I can not live like this much longer

and fight my own conscience every day to keep me from raping [C.H.] or a guard,

but if the warden and Governor are willing to sacrifice her I might as well.” Finally,

he wrote, “What would you do? Please let me know if or when you forward the

letter to Daugaard. I want to know where I stand and what I need to do in my near

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future. If you don’t respond by August 26, 2016 I will assume that I am on my own

and might as well die embarrassing South Dakota’s government.”

[¶6.] Armstrong’s letter to Governor Daugaard also referenced C.H. and

explained in even greater detail that Armstrong would rape and kill her unless

Governor Daugaard gives Armstrong “what [he] demand[s].” We need not restate

his exact words for it is sufficient to note that Armstrong’s language concerning

C.H. is disturbingly detailed, violent, graphic, and pornographic. Among the

threats, Armstrong presented Governor Daugaard “with four options” “to keep

[C.H.] from being raped and murdered.” He later reduced the Governor’s options to

two, which included the placement of several hundreds of thousands of dollars in

various accounts and required that Armstrong receive a full pardon. Armstrong

concluded his letter with the following statement: “If you choose to ignore this letter

I hope that when you force me to rape someone like [C.H.] or a guard that my

attorney will subpoena this letter . . . as evidence against South Dakota[.]”

[¶7.] After reading the contents of Armstrong’s letters, Markgraf notified

the South Dakota Division of Criminal Investigation. An agent interviewed

Armstrong who admitted that he had written the letters, but denied that C.H. was

in danger. However, when asked whether his writings were an actual threat, he

responded, “Actually, like I said I do not know. I mean if I have to do something

stupid like that I will.”

[¶8.] Ultimately, a grand jury indicted Armstrong on one count of

threatening to commit a sexual offense in violation of SDCL 22-22-45. The State

filed a part II information alleging Armstrong to be a habitual offender. The State

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also filed a notice of election to proceed on the doubling statute, which allows the

court to sentence a defendant to double the maximum term allowed for the

commission of the crime when the crime was committed while the person was

incarcerated. See SDCL 22-6-5.1. Armstrong pled not guilty.

[¶9.] Prior to trial, Armstrong and the State stipulated that Armstrong is an

inmate in the penitentiary and has been previously convicted of two felony sex

offenses. The State presented the stipulation to the jury during trial. At the close

of the State’s case, Armstrong moved for judgment of acquittal. He argued that the

State had failed to present sufficient evidence that he directly threatened C.H. The

circuit court denied Armstrong’s motion.

[¶10.] Armstrong testified at trial and denied making any direct threats to

C.H. He explained that the only reason he sent the letters was to “get in front of a

jury” and “to go on record” with his complaints against the Department of

Corrections and against his sex offender treatment counselors who testified at his

previous trial. During the settling of jury instructions, Armstrong requested an

instruction that would inform the jury that “directly” as used in SDCL 22-22-45

modifies both “threatens” and “communicates.” He requested another instruction

on specific intent. The circuit court refused both instructions, and the jury found

Armstrong guilty.

[¶11.] Armstrong appeals, asserting the circuit court erred in denying his

motion for judgment of acquittal and in refusing his requested instructions.



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Standard of Review

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

State v. Brim, 2010 S.D. 74, ¶ 6, 789 N.W.2d 80, 83. We likewise review questions

of statutory interpretation de novo. State v. Johnsen, 2018 S.D. 68, ¶ 9, 918 N.W.2d

876, 878. We review the alleged error in refusing requested jury instructions under

the abuse of discretion standard. State v. White Face, 2014 S.D. 85, ¶ 14 n.1, 857

N.W.2d 387, 392 n.1. Jury instructions, while generally within the circuit court’s

discretion to grant or deny, must “be considered as a whole, and if the instructions

so read correctly state the law and inform the jury, they are sufficient.” State v.

Roach, 2012 S.D. 91, ¶ 13, 825 N.W.2d 258, 263 (quoting State v. Klaudt, 2009 S.D.

71, ¶ 13, 772 N.W.2d 117, 121).

Analysis and Decision

[¶13.] Armstrong asserts the circuit court abused its discretion in denying his

motion for judgment of acquittal because, in his view, the word “directly” as used in

SDCL 22-22-45 modifies both “threatens” and “communicates,” and the evidence

was insufficient to support that he “directly threatened or communicated a specific

intent to commit further felony sex offenses[.]” In the same vein, Armstrong

contends that the circuit court erred in refusing his requested instruction informing

the jury that “directly” modifies “threatens” and “communicates.” Finally,

Armstrong argues that the circuit court erred in refusing his requested instruction

indicating that SDCL 22-22-45 requires the jury to find that he acted with specific

intent.

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[¶14.] Because Armstrong’s arguments raise issues of statutory

interpretation, we begin our analysis by examining the text of SDCL 22-22-45,

which provides in relevant part:

Any person who has been convicted of a felony sex offense as

defined in § 22-24B-1 who directly threatens or communicates

specific intent to commit further felony sex offenses is guilty of

threatening to commit a sexual offense.

Whether “directly” modifies both “threatens” and “communicates”

[¶15.] Armstrong asserts that the word “directly” as used in SDCL 22-22-45

refers to the manner of delivery of the threat or communication and, therefore,

modifies both “threatens” and “communicates.”1 He further contends that the

absence of the word “indirectly” indicates legislative intent to criminalize only

threats “communicated or delivered, whether orally, through a letter, email or other

social medium, directly to the object of the threat.”

[¶16.] We construe statutes to determine the intent of the Legislature. State

v. Geise, 2002 S.D. 161, ¶ 10, 656 N.W.2d 30, 36. “The intent of the Legislature in

enacting laws is ascertained primarily from the language used in the statute.”

State v. Bordeaux, 2006 S.D. 12, ¶ 8, 710 N.W.2d 169, 172. “We therefore defer to

the text where possible.” Geise, 2002 S.D. 161, ¶ 10, 656 N.W.2d at 36. “When the



1. Armstrong requested the following instruction:

Throughout the instructions, the adverb, directly modifies both

the words “threatened” and “communicated”.

In order to convict Mr. Armstrong as to Count 1, you must find

beyond a reasonable doubt that he directly threatened or

directly communicated specific intent to commit a further felony

sex offense.

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language in a statute is clear, certain and unambiguous, there is no reason for

construction, and the Court’s only function is to declare the meaning of the statute

as clearly expressed.” State v. Myrl & Roy’s Paving, Inc., 2004 S.D. 98, ¶ 6, 686

N.W.2d 651, 654 (quoting Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 49, 612

N.W.2d 600, 611).

[¶17.] From our review of the statute as a whole, we believe that the

Legislature did not intend for the word “directly” to modify “communicates.” First,

if the Legislature intended the adverb “directly” to modify the manner in which the

prohibited communication must be delivered, it could easily have said so, but it did

not. Second, this Court has indicated that the word “or” is ordinarily read as a

disjunctive and thus phrases separated by a disjunctive may be interpreted as

independent of each other. See, e.g., State v. Bosworth, 2017 S.D. 43, ¶ 23, 899

N.W.2d 691, 697–98; Fisher Sand & Gravel Co. v. S.D. Dep’t of Transp., 1997 S.D. 8,

¶ 27, 558 N.W.2d 864, 870; Candee Constr. Co., Inc. v. S.D. Dep’t of Transp., 447

N.W.2d 339, 344 (S.D. 1989).

[¶18.] Here, by including two clauses—“directly threatens” and

“communicates specific intent”—and separating the clauses with “or,” the

Legislature described two separate ways in which SDCL 22-22-45 can be violated.

One can violate the statute by directly threatening to commit a further felony sex

offense, which could include the scenarios suggested by Armstrong, i.e., where the

threat is stated or delivered directly to the object of the threat.2 Additionally, one



2. The State argued to the jury that Armstrong’s letters constituted a “direct

threat” because they contained a specific threat toward a specific victim.

(continued . . .)

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can violate the statute by communicating a specific intent to commit a further

felony sex offense, which encompasses a broader category of behavior that could

include threats communicated to or through third parties.

[¶19.] Moreover, the inclusion of the phrase “specific intent” after

“communicates” also supports an interpretation that the Legislature did not intend

“directly” to modify “communicates.” When a threat is stated or delivered directly

to the object of the threat, the intention of the person delivering the threat may be

more easily ascertained. In contrast, the author’s intent may not be as easily

ascertained when a communication is delivered indirectly. Therefore, requiring

proof that the person communicated “specific intent” ensures that the character of

the communication is such that there is no question as to what the author intended.

[¶20.] Armstrong, however, contends that the Legislature did not intend for

SDCL 22-22-45 to criminalize indirect threats. As support, he cites In re C.C.H.,

2002 S.D. 113, 651 N.W.2d 702 and State v. Paulson, 2015 S.D. 12, 861 N.W.2d 504.

Both cases can be distinguished based upon their facts and the issues raised.

[¶21.] C.C.H. involved a juvenile adjudicated on a disorderly conduct charge

for making threatening remarks to his teacher regarding another student. 2002

S.D. 113, ¶ 4, 651 N.W.2d at 704. The juvenile asserted as a defense that his words

________________________

(. . . continued)

While this is a correct application of at least one definition of the term

“direct” when used as an adjective describing the communication, Armstrong

correctly points out on appeal that the term “directly” (an adverb) pertains to

the manner of threatening or communicating. The State’s argument relates

to the nature of the communication and is more on point as to whether

Armstrong’s letters communicated a specific intent to commit a further felony

sex offense.

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were mere frustration, and therefore, protected speech under the First Amendment.

In applying a multi-faceted test from the Eighth Circuit Court of Appeals to

determine whether a statement is a true threat outside of First Amendment

protection, we noted that C.C.H.’s threats were not “communicated directly” to the

intended victims. Id. ¶¶ 14–15, 651 N.W.2d at 706–07 (applying test from Doe ex

rel. Doe v. Pulaski Cty. Special Sch. Dist., 263 F.3d 833, 836–37 (8th Cir. 2001)).

However, the Pulaski County decision was vacated on rehearing en banc, and we

have since applied the test set forth by the en banc Eighth Circuit Court of Appeals

that originated from United States v. Dinwiddie, 76 F.3d 913, 925 (8th Cir. 1996).

See State v. Draskovich, 2017 S.D. 76, ¶ 9, 904 N.W.2d 759, 762 (quoting Doe ex rel.

v. Pulaski Co. Special Sch. Dist., 306 F.3d 616, 622 (8th Cir. 2002) (en banc)

(requiring an analysis of the entire factual context of the alleged threat when

deciding “whether the recipient of the alleged threat could reasonably conclude that

it expresses ‘a determination or intent to injure presently or in the future’”)).

[¶22.] Notably, in Draskovich, even though we examined whether the alleged

threat was communicated directly to the object of the threat, we did not find that

factor in and of itself to be dispositive when addressing a First Amendment defense.

2017 S.D. 76, ¶ 16, 904 N.W.2d at 764; see also Austad v. South Dakota Bd. of

Pardons and Paroles, 2006 S.D. 65, 719 N.W.2d 760 (concluding that inmate’s

statements threatening his parole officer were true threats even though they were

communicated to his mental health counselors rather than directly to the parole

officer). Moreover, Armstrong is not contending here that his threats were

protected speech. Rather, unlike the First Amendment defense raised with respect

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to the disorderly conduct charge in C.C.H., this case hinges on our interpretation of

the statutory language in SDCL 22-22-45 criminalizing specific types of

communications.

[¶23.] Paulson is also not on point. In Paulson, the defendant was convicted

of threatening a circuit court judge in violation of SDCL 22-11-15. 2015 S.D. 12,

¶ 4, 861 N.W.2d at 504. Under SDCL 22-11-15, “[a]ny person who, directly or

indirectly, utters or addresses any threat or intimidation to any judicial or

ministerial officer . . . with intent to induce the person either to do any act not

authorized by law, or to omit or delay the performance of any duty imposed upon

the person by law, or for having performed any duty imposed upon the person by

law, is guilty of a Class 5 felony.” Paulson alleged that the evidence submitted to

the jury was insufficient to support his conviction under this statute because the

writings at issue derived from another source and were not his own. Id. ¶ 15, 861

N.W.2d at 508. We rejected his argument, not only because evidence suggested he

was in fact the author, but also because we concluded that one may “indirectly”

threaten a judicial officer by offering another’s work. Id. ¶ 16. Here, Armstrong

admitted authoring the letters containing the threatening statements.

[¶24.] Armstrong nonetheless points to the fact that SDCL 22-11-15 includes

the words “directly” and “indirectly,” while SDCL 22-22-45 only includes the term

“directly.” He argues that if the Legislature intended SDCL 22-22-45 to include

indirect communication of threats, it would have included the term “indirectly” as it

did in SDCL 22-11-15. In support of this argument, Armstrong asks us to apply the

general rule of statutory construction that “the expression of one thing is the

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exclusion of another.” See, e.g., Aman v. Edmunds Cent. Sch. Dist. No. 22-5, 494

N.W.2d 198, 200 (S.D. 1992).

[¶25.] However, “[t]he general rule that the express mention of one thing in a

statute implies the exclusion of another ‘is merely an auxiliary rule of statutory

construction, to be applied with great caution[,]’” because application of the general

rule may not always be consistent with the Legislature’s intent. Argo Oil Corp. v.

Lathrop, 76 S.D. 70, 74, 72 N.W.2d 431, 434 (1955) (citation omitted). Such is the

case here. Construing SDCL 22-22-45 as Armstrong suggests would make the

second clause—“communicates a specific intent”—redundant. Indeed, directly

threatening to commit a sex offense, or directly communicating a specific intent to

commit a sex offense, carry essentially the same meaning. See Paulson, 2015 S.D.

12, ¶ 14, 861 N.W.2d at 508 (quoting the Black’s Law Dictionary definition of a

“threat” as “[a] communicated intent to inflict harm or loss on another”). See also

Bosworth, 2017 S.D. 43, ¶ 19, 899 N.W.2d at 696 (citation omitted) (“We assume

that the Legislature intended that no part of its statutory scheme be rendered mere

surplusage.”).

[¶26.] Having determined that the Legislature did not intend for the word

“directly” to modify both “threatens” and “communicates,” we conclude that the

circuit court properly refused Armstrong’s requested instruction connecting

“directly” to both “threatens” and “communicates.” We further conclude that the

circuit court properly denied Armstrong’s motion for judgment of acquittal, which

was based on his incorrect interpretation of the statute.

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Whether SDCL 22-22-45 is a specific intent crime

[¶27.] Armstrong argues that SDCL 22-22-45 is a specific intent crime

because the statute includes the phrase “specific intent.” To determine whether a

crime requires specific or general intent, we examine the conduct proscribed by the

legislative enactment. State v. Taecker, 2003 S.D. 43, ¶ 25, 661 N.W.2d 712, 718.

“Specific intent has been defined as ‘meaning some intent in addition to the intent

to do the physical act which the crime requires,’ while general intent ‘means an

intent to do the physical act or, perhaps, recklessly doing the physical act which the

crime requires.’” State v. Rash, 294 N.W.2d 416, 417 (S.D. 1980) (citation omitted).

[¶28.] However, in State v. Huber, we acknowledged the confusion that often

flows from an attempt to distinguish between specific and general intent, in part,

because the terms can “have different connotations in different contexts.” 356

N.W.2d 468, 472–73 (S.D. 1984) (referring to “an entirely different connotation” of

“specific intent” when applied to the doctrines of diminished capacity and voluntary

intoxication). Ultimately, we concluded in Huber that the use of the term

“intentionally” in the statutes defining eluding and resisting arrest did not require

the giving of a specific intent instruction. Id. at 473. In so holding, we explained

that “[w]hether one consciously desires a result or is practically certain that a

particular result will follow an act goes toward determining whether an act was

done knowingly, purposely, recklessly, or negligently.” Id. But just because a

statute requires that an act be done intentionally or knowingly does not necessarily

make it a “specific intent” crime. Id.

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[¶29.] Although Armstrong did not couch his argument in these terms, we

note that at first blush, the Legislature’s use of the phrase “specific intent” in SDCL

22-22-45 may seem to imply that an actual intent to commit a further felony sex

offense is necessary. See SDCL 22-22-45 (“Any person who has been convicted of a

felony sex offense as defined in § 22-24B-1 who directly threatens or communicates

specific intent to commit further felony sex offenses is guilty of threatening to

commit a sexual offense.” (Emphasis added.)). But once the phrase is read in

context, the proper interpretation becomes apparent. SDCL 22-22-45 criminalizes

the act of communicating an intent to commit a further felony sex offense,

regardless of whether one has such an intent. Therefore, the use of the phrase

“specific intent” following the term “communicates” “does not designate an

additional mental state beyond that accompanying the act.” See Huber, 356 N.W.2d

at 473. Rather, the phrase “specific intent,” as used in SDCL 22-22-45, goes to the

type of communication prohibited.

[¶30.] Nevertheless, Armstrong contends that the circuit court erred in

refusing his requested instruction, which he characterizes as an “instruction on

specific intent.” We disagree. The circuit court properly refused Armstrong’s

instruction because it incorrectly suggested that the crime of threatening to commit

further sexual offenses is a specific intent crime, a term of art which should only be

used with respect to crimes that, unlike here, require some intent or purpose

beyond the intent to do the physical act that the crime requires. In addition, the

court properly refused Armstrong’s instruction as an incorrect statement of the law

because it required a finding that he acted with the “specific design or purpose to

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threaten C.H.” when nothing in the text of SDCL 22-22-45 requires that a threat be

directed to a particular person. Compare SDCL 22-22-45 (referencing only a threat

to commit a further sex offense), with SDCL 22-11-15 (requiring a threat to be

uttered or addressed “to any judicial or ministerial officer”).

[¶31.] Armstrong’s further argument that the circuit court’s general intent

instruction was insufficient is based upon his incorrect assertion that SDCL 22-22-

45 is a specific intent crime. However, we note that the circuit court actually gave

two instructions on intent. While the first was the pattern jury instruction

requiring general criminal intent, the second instruction further informed the jury

as to a particular mental state that the State must prove to find Armstrong guilty

under SDCL 22-22-45.3 Neither Armstrong nor the State objected to the court’s

second instruction.



3. The circuit court’s two intent instructions provided as follows:

Instruction No. 19

In the crime of Threatening to Commit a Sexual Offense, the

defendant must have criminal intent. To constitute criminal

intent it is not necessary that there should exist an intent to

violate the law. When a person intentionally does an act which

the law declares to be a crime, the person is acting with criminal

intent, even though the person may not know that the conduct is

unlawful.

Instruction No. 20

The State must prove that the defendant intended to issue a

threat or knew that his communications would be viewed as a

threat. The intent with which the act was done is shown by the

circumstances surrounding the act, the manner in which it was

done, and the means used.

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[¶32.] Notably, nothing in the text of SDCL 22-22-45 indicates a required

mental state. Nor has this Court previously examined the precise issue of what

mental state the communicator of a threat must have in order to be convicted under

this statute (or under other South Dakota statutes criminalizing the communication

of threats).4 During the settling of the instructions relating to intent, the circuit

court referred to Elonis v. United States, a case in which the United States Supreme

Court similarly addressed the question of what mental state is required by a federal

statute prohibiting “any communication containing any threat . . . to injure the

person of another[.]” 575 U.S. 723, ___, 135 S. Ct. 2001, 2004, 192 L. Ed. 2d 1 (2015)

(quoting 18 U.S.C. § 875(c)).

[¶33.] In Elonis, neither the defendant nor the government had “identified

any indication of a particular mental state requirement in the text of” the federal

statute. Id. at ___, 135 S. Ct. at 2008–09. However, the Court recognized “[t]he fact

that [a] statute does not specify any required mental state . . . does not mean that

none exists” because generally “a guilty mind is ‘a necessary element in the

indictment and proof of every crime.’” Id. (quoting United States v. Balint, 258 U.S.

250, 251, 42 S. Ct. 301, 302, 66 L. Ed. 2d 604 (1992)). Further, “a defendant

generally must ‘know the facts that make his conduct fit the definition of the

offense[.]’”5 Id. at ___, 135 S. Ct. at 2009 (quoting Staples v. United States, 511 U.S.



4. Paulsen, Draskovich, and Austad all addressed First Amendment defenses in

cases involving threats, rather than the required mental state for each

alleged offender.

5. We came to the same conclusion in State v. Jones, 2011 S.D. 60, 804 N.W.2d

409. In Jones, we read a knowledge requirement into the crime of third-

(continued . . .)

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600, 608 n.3, 114 S. Ct. 1793, 1798 n.3, 128 L. Ed. 2d 608 (1994)). Therefore, the

Court held that it is necessary to read a mens rea into statutes that are silent as to

the required mental state, but “only that mens rea which is necessary to separate

wrongful conduct from ‘otherwise innocent conduct.’” Id. at ___, 135 S. Ct. at 2010

(citation omitted).

[¶34.] In regard to the mens rea required under 18 U.S.C. § 875(c), the Court

disagreed with the defendant’s argument that the various definitions of the word

“threat” encompass an intent to inflict harm. Id. at ___, 135 S. Ct. at 2008. Rather,

the Court noted that these various definitions “speak to what the statement

conveys—not to the mental state of the author.” Id. “For example, an anonymous

letter that says ‘I’m going to kill you’ is ‘an expression of an intention to inflict loss

or harm’ regardless of the author’s intent. A victim who receives that letter in the

mail has received a threat, even if the author believes (wrongly) that his message

will be taken as a joke.” Id.

[¶35.] After observing that the federal statute required “proof that a

communication was transmitted and that it contained a threat[,]” the Court

identified “the crucial element separating legal innocence from wrongful conduct” as

“the threatening nature of the communication.” Id. at ___, 135 S. Ct. at 2011

(citation omitted). Ultimately, the Court found that the mental state requirement is

satisfied if a “defendant transmits a communication for the purpose of issuing a

threat, or with knowledge that the communication will be viewed as a threat.” Id.

________________________

(. . . continued)

degree rape under SDCL 22-22-1(4), even though the statute was silent as to

mens rea. Id. ¶ 15, 804 N.W.2d at 414.

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at ___, 135 S. Ct. at 2012. However, the Court specifically declined to decide

“whether recklessness suffices for liability” under the federal law at issue because

neither the defendant nor the government “briefed or argued that point” and

because none of the lower courts had yet addressed that question. Id. at ___, 135 S.

Ct. at 2012–13.

[¶36.] Here, the crucial element in SDCL 22-22-45 separating legal innocence

from wrongful conduct, like the federal statute interpreted in Elonis, is the

threatening nature of the communication. Thus, we find the Court’s rationale in

Elonis to be persuasive and similarly conclude that SDCL 22-22-45 requires a mens

rea beyond what the Court in Elonis characterized (and rejected) as essentially a

negligence standard, i.e., whether a reasonable person would consider his or her

communication to be a threat. However, it is very difficult to discern the proper

label for a required mental state beyond negligence when applying our statutory

definitions of “knowing” and “reckless” to the context of a communication. A person

who is “aware that the facts exist which bring the act . . . within the provisions of

any statute” has acted “knowingly.” SDCL 22-1-2(1)(c). In regard to a threat,

therefore, “knowingly” means that a person must have an awareness that he or she

has issued a communication in a context wherein a reasonable person would

interpret it as a serious expression of an intent to injure. See Draskovich, 2017 S.D.

76, ¶ 18, 904 N.W.2d at 764 (defining what constitutes a threat). But the word

“recklessly” connotes a similar mental state, namely “a conscious and unjustifiable

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disregard of a substantial risk that [one’s] conduct may cause a certain result or

may be of a certain nature.” SDCL 22-1-2(1)(d).6

[¶37.] We further note that the negligence standard rejected by the Court in

Elonis aligns with the test for determining whether a communication is a “true

threat” such that it is not protected by the First Amendment. The interplay

between what is required to overcome a First Amendment challenge and what is

required to meet the elements of a particular statute criminalizing threatening

speech can admittedly be confusing. The former is centered upon the effect of the

communication on the recipient, while the latter requires an analysis of an

additional factor—the intent of the author. This additional factor requires proof

that the author knew that the communication is threatening in nature, and

inherent in that knowledge is an understanding of the effect such a communication

will have on its recipient. As one federal district court aptly explained: these two

tests apply in tandem such that “the defendant must be subjectively aware that his



6. It can become an exercise in hair-splitting to differentiate between “knowing”

and “reckless” conduct. Compare Elonis, 575 U.S. at ___, 135 S. Ct. at 2011–

12 (majority employing a knowledge requirement and referring to “whether a

defendant knew the character of what was sent,” or stated somewhat

differently, “with knowledge that the communication will be viewed as a

threat”), with Elonis, 575 U.S. at ___, 135 S. Ct. at 2015 (Alito, J., concurring

in part) (utilizing a recklessness standard, namely whether a defendant “is

aware that others could regard his statements as a threat”), and Elonis, 575

U.S. at ___, 135 S. Ct. at 2018 (Thomas, J., dissenting) (concluding the

statute requires only general intent, i.e., a defendant who “knew the words

used in [the] communication, and understood the ordinary meaning of those

words in the relevant context”). While reasonable minds can differ as to

which label is more appropriate, we, like the Court in Elonis, leave that

determination for another day, if and when it is squarely presented.

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conduct is objectively intimidating.” United States v. Carr, 314 F.Supp.3d 272, 281,

n.12 (D.D.C. 2018).

[¶38.] Finally, our statutes criminalizing other types of threats support our

conclusion that a mental state beyond negligence is required under SDCL 22-22-45.

Several of these statutes require a knowing and intentional mental state. For

example, under SDCL 22-11-15.2, a defendant must “knowingly and intentionally”

convey a threat to a constitutional officer or the officer’s immediate family. See also

SDCL 22-11-15.5, -15.6 (requiring that a defendant “knowingly and intentionally”

convey a threat to a law enforcement officer or the officer’s family); SDCL 22-11-31

(prohibiting harassment by sending or delivering a threatening communication

simulating fraudulent legal proceedings; “harasses” for purposes of this statute is

defined in SDCL 22-11-32 as “a knowing and willful course of conduct directed at

any person which seriously alarms or annoys the person and which serves no

legitimate legal purpose”).

[¶39.] Other statutes require a “specific intent” in the true sense of this term

because they require an intent beyond the intent to communicate a threat. For

example, under SDCL 22-11-15, the threat must be uttered, addressed, or

communicated “with the intent to induce the person either to do any act not

authorized by law, or to omit or delay the performance of any duty imposed upon

the person by law, or for having performed any duty imposed upon the person by

law[.]” (Emphasis added.) Likewise, SDCL 22-19A-1(2) prohibits the making of “a

credible threat to another person with the intent to place that person in reasonable

fear of death or great bodily injury[.]” (Emphasis added.) See also SDCL 22-11-19

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(prohibiting any person from witness tampering by, among other things,

threatening to injure any person or property with an intent to induce a witness in

an official proceeding to testify falsely, withhold evidence, or elude process).

[¶40.] In comparison to these other threat statutes, SDCL 22-22-45 does not

specify any particular mental state that must accompany the physical act the crime

requires, i.e., the direct threat or communication of a threat to commit a sex offense.

Nor does it require some intent in addition to the mental state accompanying the

physical act. Contrary to Armstrong’s suggestion, we decline to read a specific

intent requirement into a statute that is silent as to the required mental state. We

thus read into SDCL 22-22-45 only the intent necessary to separate speech deemed

criminal from that which is not.

[¶41.] Therefore, in order to be convicted under SDCL 22-22-45, a defendant

must have an intention to do the physical act (directly threaten or communicate a

specific intent to commit a further felony sex offense), along with the knowledge

that the nature of the communication and the context in which it is communicated

is such that a reasonable recipient would perceive it as a threat. An instruction

based upon this directive, unlike the instruction found to be erroneous in Elonis,

applies an objective (reasonable person) standard to the recipient of the

communication, rather than to the defendant, who must instead have subjective

knowledge of the character of the communication.7 While the majority opinion in



7. The jury instruction rejected in Elonis provided:

A statement is a true threat when a defendant intentionally

makes a statement in a context or under such circumstances

(continued . . .)

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Elonis likewise centered upon the necessity of having knowledge of the character of

a communication, the language of the Court’s ultimate conclusion seemed to go one

step further by requiring knowledge that the communication “will be viewed as a

threat.” 575 U.S. at ___, 135 S. Ct. at 2012 (emphasis added). This language

implies that a defendant must have knowledge that the actual recipient will in fact

view the communication as a threat. Because it is impossible for any defendant to

know with certainty how a communication will be viewed by its actual recipient, we

decline to adopt these precise terms. The circuit court’s Instruction No. 20, while

generally aligned with our directive here, was similar to the instruction in Elonis

because it required a finding that Armstrong “knew that his communication would

be viewed as a threat.” If anything, this instruction imposed a more onerous burden

on the State than necessary. Therefore, because Armstrong cannot maintain that

he was in any way prejudiced by the court’s instructions, we find no reversible error

in this case. See State v. Spaniol, 2017 S.D. 20, ¶ 49, 895 N.W.2d 329, 346

(indicating that reversible error requires that the instruction be both erroneous and

prejudicial).

Affirmed