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Kristi Olson was discovered unconscious in her Dallas, South Dakota

home on June 1, 2017 at 7:00 a.m. by Samantha York, Kristi’s eldest daughter.1

York lived in a nearby home on the same property. She had called her mother

several times that morning, but received no answer. York knew Kristi should have

been awake because she planned to leave her home at 6:00 a.m. to drive to Sioux

Falls to trade in her truck. When York received no answer, she began to worry, so

she walked over to her mother’s house and noticed the truck still in the driveway.

She entered Kristi’s home through the front door, which she unlocked, and went

downstairs to Kristi’s room. There, she found Kristi lying in bed, unresponsive.

York frantically called 911 and woke up everyone in the home.

[¶3.] Layne Olson, Kristi’s eldest son, moved Kristi from her bed into the

living room and placed her on the floor to perform CPR. Kristi’s mother, Gay Lynn



1. Dallas is a small town in Gregory County located along route U.S. 18 about

five miles west of Gregory.

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Barry, and Layne performed CPR until an ambulance arrived at the home. When

medical professionals arrived, they observed abrasions and discoloration around

Kristi’s neck. The ambulance transported Kristi to a hospital in Gregory. Shortly

thereafter, doctors at the hospital pronounced her dead.

[¶4.] The Gregory County Sheriff’s Office, with assistance from the South

Dakota Division of Criminal Investigation, immediately began investigating Kristi’s

death. When Kristi’s children noticed that their mother’s cell phone was missing,

they relayed that information to the officers. The children mentioned Chance

Harruff, Kristi’s most recent boyfriend, who was known for having a tumultuous

relationship with Kristi and taking her cell phone. Law enforcement quickly

identified Harruff as a person of interest.

[¶5.] Harruff and Kristi had a history of verbal arguments and physical

altercations, but Kristi refused to report the domestic violence to law enforcement.

However, Kristi did confide in family and friends about the various acts of physical

abuse caused by Harruff and shared photos of her injuries. A major source of

contention in their relationship centered around phone calls and text messages

Kristi received from other men. Kristi assigned separate ringtones to text messages

and calls received from her former boyfriends. When Harruff heard the sound of

these ringtones, he knew that other men were contacting Kristi and the couple

would fight. On several occasions during their arguments, Harruff destroyed her

cell phones.

[¶6.] Several hours after York discovered Kristi’s body, law enforcement

asked Harruff to come in for questioning, and he did so voluntarily. During his first

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interview, Harruff provided the officers with an account of his whereabouts on the

previous day. Harruff told the officers he spent the day with Kristi in Sioux Falls

helping her purchase a new truck. The two returned to Kristi’s home in Dallas in

the evening and had supper with her family. Harruff told officers that the last time

he saw Kristi was around 6:00 p.m. when he left her house. According to Harruff,

he went to Mr. G’s Convenience Store in Gregory, talked with a friend who worked

there, Kristin Wallace, and then went to his apartment. After Wallace finished

work, she came to Harruff’s apartment for a few beers. Around 12:30 a.m., Harruff

and Wallace stepped out to get cigarettes. They returned to the apartment, and

Wallace stayed about 20 minutes before leaving. Harruff told the officers he stayed

home for the rest of the night.

[¶7.] Harruff further explained that after receiving numerous text messages

from Kristi, he decided to call her at 2:45 a.m. The conversation was about their

relationship and the texts she received from other men, but was not an argument.

Harruff ended the call so that he could talk with his new girlfriend in Colorado on

and off until morning. When asked, Harruff denied driving to Dallas or leaving his

apartment. Officers questioned Harruff about Kristi’s missing cell phone. He

informed the officers that he did not know where it was, but that Kristi must have

had it since she spoke on it and texted him well into the night. Harruff claimed the

last time he saw the phone it was in Kristi’s possession when he left her home for

the evening.

[¶8.] Officers contacted Kristi’s cell phone provider for the last known

information on her cell phone and discovered that a ping was emitted from the

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phone, somewhere between Dallas and Gregory, around 4:00 a.m. A review of

surveillance videos from various businesses in Gregory around that time frame

revealed further evidence of Harruff’s whereabouts. Footage from Mr. G’s

Convenience Store showed Harruff’s car driving into Gregory from the east and

parking near the dumpster at Mr. G’s. Harruff briefly got out of his vehicle and

then drove in the direction of his apartment. Officers searched the dumpster and

found a broken purple iPhone in a white kitchen trash bag. Witnesses identified

the phone as Kristi’s cell phone.

[¶9.] Later that evening, officers interviewed Harruff a second time to

confront him with the cell phone information. After giving several conflicting

explanations, Harruff admitted that he traveled to Kristi’s home around 4:00 a.m.

just to “see who was at the house.” Kristi’s home had a walkout basement and her

bedroom was on the lower level just beyond the living room. Harruff said that he

went to the door facing east on the lower level and spoke with her at the doorway.

While they were talking at the walk-out basement door, Kristi’s phone received a

text message from one of her male friends. The two had a verbal disagreement

about the message, and he grabbed her cell phone out of her hand. Harruff claimed

that Kristi hit him and in response, he shoved her in the chest with the heel of his

hand “pretty hard.” The punch knocked her back two steps, and she landed on a

knee.

[¶10.] He told the officers that he didn’t intend to hit her that hard, but he

was known for his unique ability to strike hard punches with the strength of a mule

kick, so much so that his former boxing coaches nicknamed him “The Mule.”

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Harruff claimed Kristi got up, slammed the door in his face and locked it, so he

drove back towards his home. When he arrived in Gregory, he tossed Kristi’s phone

in the dumpster at Mr. G’s and went home. Harruff claimed that he never entered

Kristi’s home during the confrontation, remaining only in the doorway, and that she

was alive when he left.

[¶11.] At the State’s request, Dr. Kenneth Snell performed an autopsy on

Kristi’s body. He concluded that the cause of Kristi’s death was asphyxia due to

manual strangulation and that her death was a homicide. A Gregory County grand

jury indicted Harruff for alternative counts of first-degree murder, second-degree

murder, and first-degree manslaughter.

[¶12.] During an eight-day jury trial, sixteen witnesses testified for the State,

including DCI Agents, EMTs, medical professionals, forensic pathologists, and

several of Kristi’s relatives and friends. The testimony of Gay Lynn Barry and

Samantha York focused on the events of June 1, and the conflicts between Kristi

and Harruff that occurred during their relationship. Additionally, Kristi’s friends

Marissa Bridges, Kristin Wallace, and Melvin Vosika testified regarding other acts

of domestic abuse, including Kristi’s statements describing her relationship with

Harruff. At the close of the State’s case-in-chief, Harruff moved for judgment of

acquittal. The circuit court denied the motion. Harruff called one witness in his

defense, a forensic pathologist, who testified that Kristi’s death did not appear to be

caused by strangulation, but instead could have resulted from her preexisting

medical conditions.

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[¶13.] The jury found Harruff guilty of second-degree murder in violation of

SDCL 22-16-7. After the trial, Harruff renewed his motion for a judgment of

acquittal, which the circuit court denied. The court sentenced Harruff to life in

prison. On appeal, Harruff raises two issues which we restate as follows:

1. Whether the circuit court abused its discretion by

admitting the testimony of Wallace, Bridges, and Vosika

in violation of SDCL 19-19-403.

2. Whether the circuit court erred in denying Harruff’s

motion for judgment of acquittal.

Standard of Review

[¶14.] Evidentiary rulings are reviewed for abuse of discretion. State v.

Stone, 2019 S.D. 18, ¶ 22, 925 N.W.2d 488, 497. An abuse of discretion is “a

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

decision, which, on full consideration is arbitrary or unreasonable.” State v.

Kvasnicka, 2013 S.D. 25, ¶ 17, 829 N.W.2d 123, 127–28 (quoting State v. Lemler,

2009 S.D. 86, ¶ 40, 774 N.W.2d 272, 286). Under the abuse of discretion standard,

“not only must error be demonstrated, but it must also be shown to be prejudicial.”

Stone, 2019 S.D. 18, ¶ 22, 925 N.W.2d at 497 (quoting State v. Bausch, 2017 S.D. 1,

¶ 12, 889 N.W.2d 404, 408).

[¶15.] The denial of a motion for judgment of acquittal is a question of law we

review de novo. State v. Brim, 2010 S.D. 74, ¶ 6, 789 N.W.2d 80, 83. The standard

is “whether the evidence was sufficient to sustain a conviction.” State v. Klaudt,

2009 S.D. 71, ¶ 14, 772 N.W.2d 117, 122 (quoting State v. Tofani, 2006 S.D. 63, ¶ 24,

719 N.W.2d 391, 398). When measuring the sufficiency of the evidence, “we ask

‘whether, after viewing the evidence in the light most favorable to the prosecution,

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any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” Id. “We accept the evidence and the most favorable

inferences fairly drawn therefrom, which will support the verdict.” Brim, 2010 S.D.

74, ¶ 6, 789 N.W.2d at 83 (quoting State v. Jensen, 2007 S.D. 76, ¶ 7, 737 N.W.2d

285, 288). “This Court will not resolve conflicts in the evidence, assess the

credibility of witnesses, or evaluate the weight of the evidence.” Id.

Analysis

1. Whether the circuit court abused its discretion by

admitting the testimony of Wallace, Bridges, and Vosika

in violation of SDCL 19-19-403.

[¶16.] Harruff acknowledged at the beginning of the trial that his

relationship with Kristi was a “volatile one,” and that both parties struck each other

during verbal arguments. He does not contend that the “other acts testimony”

provided by Wallace, Bridges, and Vosika about Kristi’s reports of domestic abuse

standing alone was unfairly prejudicial. Rather, Harruff argues that the testimony

was needlessly cumulative to the testimony of Barry and York, and that the circuit

court admitted other acts evidence in such quantity that it rose to the level of

character evidence prohibited by SDCL 19-19-404(a).2

[¶17.] Pursuant to SDCL 19-19-403, a “court may exclude relevant evidence if

its probative value is substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” The rule “favors the



2. “Evidence of a person’s character or character trait is not admissible to prove

that on a particular occasion the person acted in accordance with the

character or trait.” SDCL 19-19-404(a).

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admission of evidence in the absence of strong considerations to the contrary.” State

v. Wright, 1999 S.D. 50, ¶ 15, 593 N.W.2d 792, 799 (citation omitted).3

[¶18.] Prior to trial, the parties sought various pretrial rulings regarding the

admissibility of several types of evidence. Principal to many of the State’s pre-trial

motions was its request that the circuit court admit evidence concerning Kristi’s

and Harruff’s tumultuous domestic relationship. As part of this strategy, the State

moved the court to admit statements which contained a detailed list of Kristi’s

conversations with relatives, medical professionals, and friends. It also filed a

notice of intent to introduce other acts evidence under SDCL 19-19-404(b). Harruff

filed a motion to exclude other acts evidence pursuant to Rule 404(b).

[¶19.] The circuit court held a hearing to consider these motions. It

explained that it would first rule on the other acts evidence and the domestic

relationship and then address the admissibility of Kristi’s statements under the

confrontation clause and the various hearsay exceptions. The court observed that

the State had essentially offered the entire domestic relationship between Harruff



3. Similarly, Rule 404(b) is a rule of “inclusion, not exclusion.” State v. Huber,

2010 S.D. 63, ¶ 56, 789 N.W.2d 283, 301 (quoting State v. Janklow, 2005 S.D.

25, ¶ 33, 693 N.W.2d 685, 697). Evidence of other acts is permissible “when

appropriate to prove some fact other than character.” State v. Laible, 1999

S.D. 58, ¶ 20, 594 N.W.2d 328, 335. Evidence may be admissible to prove

“motive, opportunity, intent, . . . identity, absence of mistake, or lack of

accident.” SDCL 19-19-404(b)(2). “To determine the admissibility of other

acts evidence, the court must determine: (1) whether the intended purpose is

relevant to some material issue in the case, and (2) whether the probative

value of the evidence is substantially outweighed by its prejudicial effect.”

Huber, 2010 S.D. 63, ¶ 56, 789 N.W.2d at 301 (quoting Janklow, 2005 S.D.

25, ¶ 34, 693 N.W.2d at 697). Once the court finds the evidence relevant, “the

balance tips emphatically in favor of admission[.]” Id. ¶ 59, 789 N.W.2d at

302 (quoting Janklow, 2005 S.D. 25 ¶ 34, 693 N.W.2d at 698).

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and Kristi as other acts evidence in addition to a series of specific instances of

physical abuse. The court, in reviewing this evidence, described the relationship as

“controlling and hostile,” fueled by Harruff’s “jealousy of Olson’s relationships with

other men.” This animosity triggered a cycle of domestic violence involving

“fighting and arguing, having make-up sex, then fighting and arguing all over

again; the fact that Kristi Olson would slap Harruff, he would slap her back.”

[¶20.] The circuit court then methodically examined the proffered evidence.

It found much of the evidence concerning the domestic relationship, including the

specific acts of abuse, probative and highly relevant to show the state of mind of

both Kristi and Harruff. The evidence was also relevant to prove Harruff’s motive,

intent, identity, and modus operandi. After conducting the requisite balancing test,

the court admitted portions of the State’s other acts evidence, concluding that “the

concerns of unfair prejudice or confusion [did not] substantially outweigh the

probative value.”

[¶21.] The circuit court held a second hearing to consider the proffered

testimony of Bridges, Barry, and York regarding the statements Kristi made to

them. Following the hearing, the court issued detailed findings of fact and

conclusions of law admitting certain statements of the decedent victim. In this

process the court carefully weighed the proffered testimony and again excluded a

number of statements and items of evidence under SDCL 19-19-403.

[¶22.] The circuit court also granted portions of Harruff’s 404(b) motion

precluding the State from needlessly referencing at trial a number of designated

acts. In its order, the court held in abeyance until trial any ruling on Harruff’s

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objection that some of the offered testimony was cumulative. The court also

indicated that it would give the jury an appropriate limiting instruction regarding

the appropriate weight to give the other acts evidence.

[¶23.] Review of Harruff’s argument that the testimony of Bridges, Wallace,

and Vosika was cumulative to that of Barry and York, requires analysis of their

trial testimony. We begin, as the circuit court did, with the other acts evidence

admitted through Barry. Barry testified about several text messages Kristi sent

detailing various accounts of physical abuse by Harruff. In one incident that

occurred in September 2016, Kristi told Barry she was bathing her daughters in the

bathtub when Harruff threw her phone. She stated that she slapped him in

response, and Harruff then hit her. Barry also testified about a text message in

which Kristi described Harruff’s tendency to take her phones, stating, “He’s broken

four phones in a month.” In another text, Kristi told Barry that her youngest

daughter did not “want to go to sleep because she says what if he kills you.”

[¶24.] Barry testified about other text messages where Kristi said Harruff

was unstable when he was drinking and that she was afraid of him. In one such

message, Kristi suggested having a code word she could text to Barry in case she

needed Barry to call the police for her. Within the same conversation, Kristi asked

Barry to buy a baby monitor that she could put in her room to summon help if

needed. Following Barry’s testimony, the circuit court gave the jury a limiting

instruction informing the jury that they could only consider the evidence to

determine Harruff’s intent, motive, identity and modus operandi.

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[¶25.] The State called York next. She, like Barry, testified about several

text message conversations she exchanged with Kristi regarding Harruff’s physical

abuse. Kristi also texted York about the incident where Harruff hit Kristi while she

was bathing her daughters in the bathtub. During her conversation with York,

Kristi sent her a picture of her face stating, “This is what Chance just did to me.”

When York asked additional questions about the incident, Kristi said, “He hit me

hard . . . I think just a slap but I still can’t feel my face or hear out that side.” With

this foundation, the photo was introduced into evidence.

[¶26.] York also testified about a time when Kristi was hospitalized in Sioux

Falls in October 2016 and asked her to come to her hospital room right away. After

she arrived, York learned that hospital staff had escorted Harruff out of the

building because he slapped Kristi. York also described Kristi’s report of an

incident of abuse that had occurred during Christmas 2016. Kristi told York that

she received a text message from an ex-husband wishing her Merry Christmas.

This upset Harruff, and Kristi woke up to Harruff choking her. He then took her

phone. Eventually Kristi’s children discovered the burnt remnants of her phone in

the wood stove in the house.

[¶27.] York testified about taking Kristi to the hospital on another occasion

because Kristi was feeling ill and believed Harruff was drugging her. The

toxicology report from the hospital revealed that Kristi had methadone in her

system. York testified that she was not aware of any prescription her mother had

for methadone. Following York’s testimony, the circuit court again read the

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cautionary instruction to the jury advising them of the proper way to consider the

other acts evidence.

[¶28.] As the trial progressed, Harruff reiterated his objections to duplicitous

and cumulative testimony. The State notified the court of its plan to call Erin Cole

to offer other acts testimony involving Facebook messages she received from Kristi.

Because Cole did not testify at the pretrial hearings, the State proffered her

testimony for the circuit court’s consideration during a recess. The court excluded

the evidence, finding that Cole’s testimony was hearsay not within any exception

and cumulative to other evidence already received into evidence.

[¶29.] On the fifth day of trial, the circuit court permitted the State to elicit

the testimony of Wallace, Bridges, and Vosika. In addition to Wallace’s testimony

about her interactions with Harruff on the night of May 31 and the early morning

hours of June 1, Wallace testified that a few weeks prior to her death, Kristi

contacted Wallace and asked to talk to her. Wallace joined Kristi on her mail route

where Kristi confided in her about her relationship with Harruff, how she was

scared and worried, and that she believed Harruff was drugging her.

[¶30.] When Bridges took the stand, she explained to the jury that she was

living in an upstairs bedroom in Kristi’s house. On one occasion, Kristi asked her

whether she could hear Kristi screaming for help in the basement during her

arguments with Harruff. Kristi told Bridges that Harruff had banged her head

against a door and that she had called for help, but there was no response. Bridges

testified that in April 2017, she put a baby monitor in Kristi’s room so that she

could hear Kristi if she yelled for help. A month later, while she was in Kristi’s

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room, Bridges noticed that the monitor was unplugged. Other than Harruff,

Bridges was also the last person to see Kristi alive on the evening of May 31.

Bridges testified that she stopped by Kristi’s bedroom around 11:00 p.m. According

to Bridges, Kristi was calm and watching TV.

[¶31.] Vosika told the jury that he and Kristi were long-term friends and that

she confided in him about the ongoing physical abuse she suffered from Harruff.

According to Vosika, Kristi was afraid to call law enforcement because she said that

if Harruff got out of jail, he would kill her. Vosika explained that Harruff would

shove, choke, and beat her until he got his way. Vosika testified that, one night,

Kristi could not go to a movie because she was arguing with Harruff. Kristi stated

she didn’t want to set off Harruff and couldn’t “take the physical anymore.” Vosika

asked if Harruff was hitting Kristi and she said yes, but she would deal with it.

Later that evening, Vosika and Kristi ended up going to the movie. While there,

Kristi stated she wanted Harruff gone, but didn’t know how to get him to leave.

[¶32.] Following the testimony of Wallace, Bridges, and Vosika, the circuit

court again gave the jury a limiting instruction. Prior to closing argument, as an

additional precaution, the court advised counsel that although it gave the limiting

instructions three times during the trial, they were not to argue in closing that this

instruction was more significant or should be given greater weight than any other

instruction.

[¶33.] Despite the cautionary instructions, Harruff contends the circuit court

erred by allowing the testimony. The party objecting “to the admission of the other

acts evidence bears ‘the burden of establishing that the trial concerns expressed in

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[SDCL 19-19-403] substantially outweighs the probative value of the evidence.’”

Huber, 2010 S.D. 63, ¶ 59, 789 N.W.2d at 302 (quoting Janklow, 2005 S.D. 25, ¶ 38,

693 N.W.2d at 698). The party must show that “in all probability [the evidence]

must have produced some affect upon the jury’s verdict and is harmful to the

substantial rights of the party assigning it.” Id. ¶ 37, 789 N.W.2d at 295 (quoting

State v. Michalek, 407 N.W.2d 815, 818 (S.D. 1987)).

[¶34.] In Huber, we addressed a similar argument that the circuit court erred

by admitting other acts evidence that was substantially more prejudicial than

probative in violation of Rule 403. 2010 S.D. 63, ¶ 60, 789 N.W.2d at 303. Huber,

who was tried for the shooting death of his wife, alleged that a number of

evidentiary errors occurred at his trial, including the admission of approximately

fifty of the decedent’s out-of-court statements, which he alleged unfairly prejudiced

him. These statements described, in part, the abusive nature of their marital

relationship. Id. ¶ 57, 789 N.W.2d at 301.

[¶35.] Although we reversed and remanded for a new trial on other grounds,

we affirmed the admission of the statements, noting that “evidence of past abusive

conduct in a domestic situation is highly relevant in murder cases.” Id. This is

because the jury is entitled to a complete picture of the parties’ relationship. Id.

The defendant is “certainly not entitled to have the jury decide his case on a

pretense that his behavior and feelings toward the victim are nothing but routinely

warm and affectionate.” Id. (quoting Laible, 1999 S.D. 58, ¶ 23, 594 N.W.2d at

335).

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[¶36.] Here, the testimonies of Wallace, Bridges, and Vosika were not

needlessly cumulative, as they provided the jury with evidence of the nature of

Kristi’s and Harruff’s relationship at different times and described varying

incidents of abuse. The conversation with Wallace that occurred shortly before

Kristi’s death involved Kristi’s ongoing fear of Harruff and her belief that Harruff

was drugging her. Similarly, Bridges’ testimony was relevant to explain that

Kristi’s screams for help went unheard, requiring Bridges to install a baby monitor

following an incident where Harruff banged Kristi’s head against a door. Vosika’s

testimony established that the abuse was ongoing, and that Kristi was afraid

Harruff would kill her if she told law enforcement. It also explained Kristi’s desire

to handle the situation herself along with her wish that Harruff stay off the

property.

[¶37.] Even if some fragments of the testimonies overlapped, they did not

constitute evidence of character in violation of SDCL 19-19-404(a). While the

testimony was damaging to Harruff’s case, it was not unfairly so. “[E]vidence is not

prejudicial ‘merely because its legitimate probative force damages the defendant’s

case.’” Huber, 2010 S.D. 63, ¶ 54, 789 N.W.2d at 300 (quoting State v. Bunger, 2001

S.D. 116 ¶ 13, 633 N.W.2d 606, 610).

[¶38.] Based on our review of the record, it is apparent from the circuit

court’s careful evaluation of the evidence that it performed the requisite balancing

tests required and excluded cumulative, prejudicial, and irrelevant evidence where

appropriate. Additionally, the court gave an “appropriate, precisely tailored

cautionary instruction” to the jury before admitting the other acts evidence and

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cautioned counsel not to focus on this instruction in closing. Id. ¶ 60, 789 N.W.2d at

303. Harruff has failed to establish that the admission of the challenged testimony,

in all probability, produced some affect upon the jury’s verdict that was harmful to

his substantial rights. See id. ¶ 37, 789 N.W.2d at 295. We cannot say that the

circuit court abused its discretion in admitting the evidence.

2. Whether the circuit court erred in denying Harruff’s

motion for judgment of acquittal based on the insufficiency

of the evidence.

[¶39.] Harruff was charged with murder in the second-degree in violation of

SDCL 22-16-7 which provides:

Homicide is murder in the second degree if perpetrated by any

act imminently dangerous to others and evincing a depraved

mind, without regard for human life, although without any

premediated design to effect the death of any particular person,

including an unborn child.

In order to successfully prosecute a suspect for murder under this statute, the

prosecution must prove that the Defendant’s conduct established that he was acting

with a depraved mind. State v. Primeaux, 328 N.W.2d 256, 258 (S.D. 1982). This

mens rea requirement involves less culpability than the element of premeditation

required for first-degree murder. State v. McCahren, 2016 S.D. 34, ¶ 10, 878

N.W.2d 586, 592.

[¶40.] Harruff contends that the State’s evidence at trial focused on his anger

and jealousy in order to prove premeditation. Because the jury acquitted Harruff of

first-degree murder he argues that the State failed to establish sufficient evidence

to support the element of a depraved mind required for second-degree murder. In

Harruff’s view, he could be convicted of first-degree murder or first-degree

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manslaughter, but nothing more. He argues that “second-degree murder is not and

should not be a fall back option.”4

[¶41.] We rejected a similar argument in Laible, where the State sought a

first-degree murder conviction against the defendant for the shotgun slaying of the

defendant’s mother, but the jury returned a verdict of second-degree murder. 1999

S.D. 58, ¶ 11, 594 N.W.2d at 332. The defendant argued that the bulk of the

evidence presented was offered to prove premeditation and therefore he was either

guilty of first-degree murder or manslaughter, but could not be guilty of seconddegree murder. Id. We held if “a person is able to act with ‘a lack of regard for the

life of another,’ then that person can be convicted of second degree murder.” Id. ¶

13 (quoting State v. Hart, 1998 S.D. 93, ¶ 16, 584 N.W.2d 863, 866). After reviewing

the evidence, the Court concluded there was sufficient evidence “to show that [the]

defendant committed an imminently dangerous act evincing depravity of mind,

without regard for human life.” Id. ¶ 14, 594 N.W.2d at 333.



4. Although Harruff does not specifically argue that the jury’s verdict is

inconsistent, he alludes to this idea when arguing that second-degree murder

is not a fall back option. We previously addressed this issue in State v.

Mulligan, holding that “a criminal defendant convicted by a jury on one count

can not attack that conviction because it was inconsistent with the jury’s

verdict of acquittal on another count.” 2007 S.D. 67, ¶ 11, 736 N.W.2d 808,

814 (quoting United States v. Powell, 469 U.S. 57, 58, 105 S. Ct. 471, 473, 83

L. Ed. 2d 461, 464 (1984)). Juries are not required to explain their decisions.

Id. “Instead of speculating whether the inconsistent verdicts are evidence of

jury error, appellate courts should review the sufficiency of the evidence to

support the conviction that was rendered.” Id. ¶ 12, 736 N.W.2d at 815. The

jury’s finding that Harruff was not guilty of first-degree murder cannot be

used to support his argument that the evidence was insufficient to support a

second-degree murder conviction.

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[¶42.] Here, the State offered evidence that Harruff acted with a lack of

regard for the life of another by the act of strangulation. We have previously

observed that strangulation injuries indicate a deliberate use of force and that

choking another involves an imminently dangerous act that may cause death. State

v. Kryger, 2018 S.D. 13, ¶ 49, 907 N.W.2d 800, 815. Likewise, Harruff’s admission

that he struck Kristi in the chest with the force of a mule kick evinces a lack of

regard for her life in this case. Witnesses described Kristi as five-foot four-inches,

weighing 138 pounds, her body weakened from years of stomach surgeries and

ailments. In contrast, Harruff at the time of the killing was six-feet two-inches and

250 pounds. In sum, the evidence reflects that Harruff’s actions showed

indifference to human life and behavior evincing depravity.

[¶43.] Alternatively, Harruff attacks the sufficiency of the evidence

supporting his second-degree murder conviction. We note, however, that the State

offered an abundance of evidence of the verbally abusive and physically violent

nature of the relationship between Kristi and Harruff. As we have explained in

detail above, several witnesses testified about numerous occasions where Harruff

fought with Kristi and punched, slapped, pushed, and choked her.

[¶44.] The State also presented substantial evidence of Harruff’s guilt arising

from his activities on the night in question. Wallace testified that she was working

at Mr. G’s Convenience Store around 9:45 p.m. when Harruff came in to buy a 12-

pack of beer. According to Wallace, Harruff was visibly upset. In fact, his anger

was so overwhelming that he punched his hand and railed about an argument he

had with Kristi earlier in the evening. Wallace testified that after she got off work,

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she went to his apartment to continue their discussion about Kristi. The two then

went briefly to her nephew’s home for cigarettes and returned to the apartment.

When they returned, Harruff continued to talk about Kristi’s conversations with

other men and said that he was “f * * *ing done with her.” Wallace saw Harruff

drink four or five beers before she left the apartment.

[¶45.] Harruff’s inconsistent statements to the police were also damaging to

his case. During Harruff’s first interview, he lied to the police about where he was

that night. Instead of indicating that he went to Kristi’s house, Harruff told them

he never left his apartment. Despite Harruff’s deception, the officers were able to

independently piece together evidence of his movements that night. Harruff also

attempted to cover his tracks by calling Kristi’s phone around 7:00 a.m. even though

he knew it could not be answered. During his second interview, Harruff continued

to lie even after being told the police had found Kristi’s phone. Eventually, he did

admit going to Kristi’s house and hitting her.

[¶46.] When York found Kristi’s lifeless body, she had bruising around her

neck. At trial, the State called Dr. Snell, the forensic pathologist who concluded

that she died of asphyxia caused by manual strangulation. To explain his findings,

Dr. Snell described the external and internal injuries to Kristi’s neck. He testified

that he observed abrasions on both sides of Kristi’s neck with slightly curved

abrasions on the right side consistent with the shape of a fingernail. Beneath the

abrasions, Dr. Snell found fresh internal hemorrhages in the deep musculature of

the neck consistent with having forceful pressure applied around the neck.

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[¶47.] Dr. Snell’s examination of Kristi’s face, eyes, lip, and upper portions of

her neck revealed the presence of petechial hemorrhages, which are ruptures of

small blood vessels due to increased pressure. The hemorrhages appeared only

above the abrasions to the neck and not below, which suggests they were caused by

pressure applied to Kristi’s neck in the area of the abrasions. Dr. Snell testified

that during strangulation, a person will become unconscious in approximately 10 to

15 seconds, and that death will occur after three to five minutes of continuous

pressure.

[¶48.] In addition to Harruff’s admissions, the record contains strong direct

and circumstantial evidence of guilt. Over the course of the eight-day trial, the jury

considered the evidence presented which included the testimonies of the witnesses,

text messages, photographs, the differing opinions of the parties’ pathologists

regarding the cause of Kristi’s death, medical reports, and lab tests. In rendering

its verdict, the jury performed its function by passing on the credibility of the

witnesses, resolving any conflicts in the evidence, and weighing the evidence. State

v. Miller, 2014 S.D. 49, ¶ 27, 851 N.W.2d 703, 709.

[¶49.] After viewing the evidence in a light most favorable to the verdict, a

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. See Klaudt, 2009 S.D. 71, ¶ 14, 772 N.W.2d at 122. Based on our

review of the record, the evidence is sufficient to support the conviction of seconddegree murder and the circuit court did not err by denying Harruff’s motion for

judgment of acquittal.

The circuit court did not abuse its discretion by permitting the

testimony of Wallace, Bridges, and Vosika. Further, even if the testimony was

cumulative to some degree, Harruff has failed to establish that the challenged

evidence was unfairly prejudicial or that it affected the jury’s verdict. The evidencepresented by the State was sufficient to sustain a conviction of second-degreemurder. We affirm.