State v. Pfeiffer

#30120-a-PJD
2024 S.D. 71

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

MAXTON PFEIFFER, Defendant and Appellant.

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APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA

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THE HONORABLE JEFFREY R. CONNOLLY
Judge

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CONOR DUFFY of
Duffy Law Firm
Rapid City, South Dakota Attorneys for defendant
and appellant.

MARTY J. JACKLEY
Attorney General

ERIN E. HANDKE
JENNIFER M. JORGENSON
Assistant Attorneys General
Pierre, South Dakota Attorneys for plaintiff
and appellee.

****

ARGUED
JUNE 5, 2024
OPINION FILED 11/26/24
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DEVANEY, Justice

[¶1.] Maxton Pfeiffer shot and killed his friend Ty Scott when Pfeiffer, Scott,

and others were hanging out at their friend Cody Siemonsma’s apartment. Pfeiffer

did not dispute that he swept Siemonsma’s .45 caliber pistol in the direction of Scott

and discharged the firearm. However, he maintained that he checked the pistol

before doing so and believed it to be unloaded. After a seven-day trial, the jury

found Pfeiffer guilty of first-degree manslaughter. He appeals, asserting the circuit

court erred by failing to instruct the jury that the State had the burden of proving

criminal intent beyond a reasonable doubt and by refusing to give a mistake of fact

instruction. He also challenges an evidentiary ruling and the sufficiency of the

evidence to support his conviction. We affirm.

Factual and Procedural Background

[¶2.] On June 13, 2018, Pfeiffer, who was 18 years old, spent the evening

with his friends at Siemonsma’s apartment in Keystone, South Dakota. This friend

group included Pfeiffer, Siemonsma, Scott, Joshio Villalobos, and Damon Picotte.

Most of them had been friends for a long time and regularly spent time together at

Siemonsma’s apartment because he was the only one with a place of his own. The

apartment was small, consisting of a bathroom and one room comprising the

kitchen, living, and sleeping areas. That evening, the group was watching YouTube

videos and talking. Siemonsma and Picotte also “smoked a bowl” of marijuana and

were drinking beer.

[¶3.] This friend group also liked to shoot guns together recreationally and

when hunting. A few days prior to June 13, Picotte purchased a .38 revolver, and

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he brought it to Siemonsma’s apartment to show his friends. Siemonsma also

owned five guns, including a Charles Daly model 1911 semi-automatic .45 caliber

pistol, which he kept by his bed on either the dresser or nightstand. The .45 caliber

pistol was stored in a holster with a full magazine in the handle and a spare

magazine in the holster.

[¶4.] Picotte was the first to arrive at Siemonsma’s apartment. He testified

that while he was showing Siemonsma his .38 revolver, which he claimed was

unloaded, either he or Siemonsma picked up Siemonsma’s .45 caliber pistol to

compare it to the .38 revolver. Picotte further testified that before they compared

the two guns, either he or Siemonsma removed the magazine from the .45 caliber

pistol and made sure it was unloaded. The two also compared the bullets used for

each gun. According to Picotte, after they were done comparing the guns, either he

or Siemonsma put the magazine back in the .45 caliber pistol and placed that gun

on Siemonsma’s dresser. Picotte further testified that as more people, including

Pfeiffer, arrived at the apartment, he passed around his .38 revolver for the others

to look at. He recalled that at some point, someone “dry fired” his revolver,

meaning the trigger was pulled with no bullet in the gun, but he did not remember

who dry fired it. He claimed, however, that when the gun was dry fired, it was

pointed at either the ground or ceiling.

[¶5.] Pfeiffer similarly recalled everyone looking at Picotte’s .38 revolver and

that it was dry fired. He testified that at one point after Picotte went outside to

smoke a cigarette, Villalobos was “messing around” with the .38 revolver by

pointing it at him and Siemonsma. At this time, Pfeiffer and Siemonsma were

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sitting on the foot of the bed approximately eight feet from the futon couch where

Villalobos was sitting next to Scott. According to Pfeiffer, Villalobos dry fired the

.38 revolver while pointing it at them. He further claimed that Siemonsma then

took one of his assault rifles, pointed it at Villalobos, and pretended to shoot. To

Pfeiffer, they were “joking around.” Villalobos testified that he did not “remember

doing that” with the .38 revolver and does not remember Siemonsma pointing a rifle

at him. Siemonsma testified that he did not point a rifle at anyone.

[¶6.] Pfeiffer testified that as his friends were handling these guns, he

decided to join in and picked up Siemonsma’s .45 caliber pistol from the dresser. He

claimed that he took the pistol out of its holster, removed the loaded magazine from

the handle, and “racked” the slide to eject any live rounds. When nothing ejected,

he believed that the pistol was unloaded. He testified that he then made a

sweeping motion with the pistol in the direction of where Scott and Villalobos were

sitting. As he did so, the gun discharged.

[¶7.] Siemonsma testified that he was in the hallway outside his apartment

when he heard a gunshot. He claimed he immediately looked into the apartment,

saw Pfeiffer make a racking-type gesture with his hands, and heard Pfeiffer shout,

“It should have been clear. It should have been clear.” Villalobos testified that

after he heard the gunshot, he and Scott stood up to check themselves to see if they

had been shot. He also heard Pfeiffer say, “I checked. I checked the gun” and saw

him make a gesture with his hands as if he was racking the slide of the gun.

[¶8.] Moments after Scott stood to check if he had been shot, he collapsed to

the floor. When Villalobos saw blood coming out of Scott’s mouth, he yelled, “Call

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911.” Pfeiffer and Siemonsma ran outside the apartment building to call 911. Both

calls were recorded and played for the jury at trial. Siemonsma told the 911

operator to send help because his friend just shot his other friend “on accident.” He

repeated two other times that it was an accident. At trial, Siemonsma explained

that he believed it was an accident “[b]ecause nobody was fighting and nothing was

going on.” Pfeiffer, who was emotionally distraught and struggling at times to talk

during his 911 call, told the operator that he accidentally shot his friend. After

receiving instructions from the 911 operator, Pfeiffer returned to the apartment and

pressed a towel to Scott’s wound until emergency medical personnel arrived.

[¶9.] Two firefighters and two paramedics arrived first on the scene.

Keystone Fire Department Chief Cory Jonas testified that when he entered the

apartment, he observed three males inside: one person on the floor bleeding, one

person standing over him, and another person holding a towel to the wounded

person’s chest. Chief Jonas asked for the location of the gun and was told it was on

the table to the right of the injured person. Chief Jonas did not touch the gun and

directed those in the apartment to go outside while the paramedics rendered aid to

Scott.

[¶10.] Chief Jonas testified that Highway Patrol Trooper Paige Erickson

arrived on the scene while he was assisting the paramedics. Chief Jonas told her to

“basically, be our security cover down there and make sure that the gun was

secure.” Trooper Erickson testified that she understood this as a request to “just

empty [the gun] and kind of put it off to the side.” She testified that the .45 caliber

pistol was on a table by the bed. Although she initially stated that the magazine

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was in the pistol, after having her memory refreshed by her written report, she

testified that the magazine was lying next to the pistol. She explained how she

picked the gun up and looked in the chamber while she “racked the slide,” after

which she saw “one unspent round eject[] itself” onto the floor. She then picked up

the unspent round and placed it on the table next to the pistol after she “locked the

slide back” to make it known that “the gun is now empty and safe.” She thereafter

stood in the doorway of the apartment to ensure no one entered and to await the

arrival of additional law enforcement officers.

[¶11.] Park Services Ranger Steven Wollman then arrived on the scene. He

testified that “the very first thing [he] noticed when” he entered the apartment was

“a very, very, strong odor of burnt marijuana inside the room.” After determining

that his assistance was not needed inside the apartment, he went outside. He

testified that the scene was chaotic; there was “an individual that was on the

ground in the grass that was crying and screaming and yelling” and “another

individual that was pacing and shouting comments to the individual on the ground.”

Ranger Wollman testified that he placed these individuals, later identified as

Pfeiffer and Picotte, in separate patrol vehicles to de-escalate the chaos at the scene

as more people began to congregate.

[¶12.] Pfeiffer was placed in the front seat of Ranger Wollman’s vehicle, and

the vehicle’s audio and video recording system was activated. The recording was

entered into evidence at trial. While only approximately 35 minutes of the

recording was played for the jury, Ranger Wollman testified that Pfeiffer was

“[v]ery distraught and very upset and very emotional” for the entire one hour and

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fifty minutes of the recording. Ranger Wollman further testified that he “initiated

an interview” with Pfeiffer to determine “[w]hat’s going on.” Pfeiffer told him that

he and his friends were “just sitting there, and they were all holding guns and

stuff.” He then described the events surrounding the shooting, stating, “And then

they were all empty. And then they’re pointing them at each other, and then he

points one at me [referring to Villalobos], and then they’re just joking. They’re just

sitting there shooting it like a cap gun.” Ranger Wollman replied, “Okay,” and

Pfeiffer continued, “I then I picked one up too and I take out the thing and jack a

shell out and nothing came out and I looked in there and didn’t see anything in

there, so I did a practice shot.”

[¶13.] Eventually, Pfeiffer, Villalobos, Picotte, and Siemonsma were

transported to the Rapid City Public Safety Building to be interviewed by law

enforcement. Deputy Sheriff Kent Pryzmus and Detective Barry Young interviewed

Pfeiffer approximately two hours later. The interview was recorded, and the

recording was entered into evidence at trial. Pfeiffer told the officers that he

believed the .45 caliber pistol was unloaded because he had removed the magazine

from the gun, racked back the slide, and no bullet ejected. But he also

acknowledged that he did not “get inside and look at it” after nothing came out of

the gun when he racked the slide. Pfeiffer then related that he swept the gun

toward Villalobos and Scott to mess with them and basically do what Villalobos had

done toward him—pointing the gun, firing the gun. He claimed to not remember

touching the trigger when he swept the gun, but he stated that “he could have done

it.”

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[¶14.] After the interview, Deputy Pryzmus told Pfeiffer that Scott had died. 1

He thereafter placed Pfeiffer under arrest, and on June 28, 2018, a grand jury

indicted Pfeiffer on one count of first-degree manslaughter in violation of SDCL 22-

16-15(3). The circuit court held a seven-day jury trial beginning March 7, 2022,

during which Siemonsma, Picotte, Villalobos, multiple law enforcement officers, the

two paramedics who tended to Scott, a forensic examiner, a forensic firearm and

toolmark examiner, and an expert in firearms and firearm functionality testified for

the State. Relevant to this appeal, Siemonsma, Picotte, Villalobos, and the law

enforcement officers provided the testimony related above.

[¶15.] Siemonsma further testified that when the paramedics arrived, they

asked him where the gun was located. He claimed that he went inside the

apartment, retrieved the .45 caliber pistol, which was on the table, and showed it to

the paramedics. He further claimed that after they saw it, they told him to put it

back, and he did. He could not recall whether he manipulated the gun in any way.

Describing his relationship with Pfeiffer, Siemonsma testified that the two of them

“went hunting a lot. Coyote hunting.” He testified that based on the time he had

spent with Pfeiffer shooting guns, he believed Pfeiffer was familiar with guns.

[¶16.] Regarding the events leading up to Pfeiffer firing the .45 caliber pistol,

Siemonsma testified that he did not recall comparing his .45 caliber pistol with

Picotte’s .38 revolver. He also did not recall anyone handling the .45 caliber pistol

1. At trial, the expert pathologist testified that the cause of death was a gunshot
wound to the chest. He further testified that the bullet entered Scott’s right
arm and traveled through his lungs and heart before exiting the left side of
his chest and lodging into his left arm.
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prior to Pfeiffer and replied “No” to the question whether he had ever, as a joke,

pointed a rifle at someone. Siemonsma testified that he did not believe there was

anything mechanically wrong with his .45 caliber pistol, and he did not recall any

occasions in which it failed to eject a live round or jammed when he tried to unload

it.

[¶17.] Picotte, in contrast, agreed during cross-examination that

Siemonsma’s .45 caliber pistol had, in the past, failed to eject the live round when

the slide was racked back. He explained that he and Siemonsma regularly shot

guns together, including Siemonsma’s .45 caliber pistol, and that the gun would

sometimes fail to eject a live round “because it [the gun] was dirty.” He also

testified that he previously had a conversation with a third person about how he

tried to shoot the .45 caliber pistol “but the round was jammed.” He agreed with the

statement that “the gun jammed sometimes, and [he] had to cock it back two or

three times” when it was dirty.

[¶18.] Mateo Serfontein, a forensic firearm and toolmark examiner, testified

that he was working for the South Dakota Division of Criminal Investigation on the

date of the shooting in June 2018 and was assigned to examine the .45 caliber pistol

fired by Pfeiffer, the magazines and unfired bullets associated with the .45 caliber

pistol that were recovered from the apartment, and the fired bullet removed from

Scott’s body during the autopsy. Serfontein explained that based on his

examination, the .45 caliber pistol did not have any functioning or mechanical

issues. He further testified that after confirming that the gun functioned properly,

he test-fired it and compared the test-fired bullets to the bullet removed from Scott’s

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body and determined they were fired from the same .45 caliber pistol. Serfontein

further testified that during the test-firing, the .45 caliber pistol ejected properly

and loaded through the magazine properly.

[¶19.] Serfontein also explained how a semi-automatic pistol operates:

So you would insert the magazine, pull the slide back and
release it to feed a round from the magazine into the chamber.
Now, when you pull the safety disengage and you pull the
trigger, it will discharge that round that’s in the chamber. Due
to the gasses and the pressure that builds up, it pushes the
bullet out of the barrel; it also pushes the slide back. As the
slide moves back, it extracts the cartridge case and it hits the
ejector which pushes it out of the ejection port.

Now, when the slide moves forward again, after it’s been all the
way back, it will pick up another cartridge round from the
magazine and push it into the chamber, which would make the
gun ready to fire again when you pull the trigger. This will
continue until the magazine is empty.

When discussing the discharge of a semi-automatic pistol, Serfontein agreed that if

the gun had a round in the chamber, the magazine was taken out, and the gun was

thereafter fired, it would extract and eject that round. He further explained that

under this scenario, because the magazine had been taken out, he would not expect

to find another live round in the pistol. However, he agreed with the statement that

“if the magazine was in the gun and there were more rounds in the clip, [the gun]

would automatically push the round back up in the gun[.]”

[¶20.] Irving Stone, a firearms expert called by the State, similarly explained

how a .45 caliber pistol operates with a loaded magazine. He explained that there

are two safeties on the .45 caliber pistol Pfeiffer fired—a grip safety and a thumb

safety—that must be disengaged to fire the gun. He further testified that after both

safeties are disengaged and the trigger is pulled with at least four and a half

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pounds of pressure, the firing pin “hits the primer, which in turn fires the cartridge,

and then it comes back, ejects it, and then loads the next [bullet].” According to

Stone, a person can manually eject a round without firing it by taking out the

magazine and, without putting a finger on the trigger, pulling the slide back to eject

the round.

[¶21.] Stone also relayed certain rules of gun safety, including that you “do

not point the firearm at anything you do not plan to shoot, period”; always check

that the firearm is unloaded; and “keep your finger off the trigger until you’re ready

to shoot.” He testified that to make a .45 caliber pistol “safe,” if it were handed to

him, “the first thing [he] would do is . . . make sure the magazine was out.” He

would then “pull the slide back, finger off the trigger, make sure it’s pointed in a

safe direction, . . . [p]ull the slide back[,]” “[l]ock the slide stop, pin on,” and “visually

look down in the chamber.” Next, he would “take [his] finger and [he] would stick it

down in the chamber to make sure there was nothing in there.” After this, he would

set the gun down “with the slide back so that way anybody that was around or

anywhere in the area would know that it was unloaded because you could see that.”

[¶22.] Stone further testified that he was asked to examine the .45 caliber

pistol fired by Pfeiffer to “see if the firearm was in good functioning, working order,

extraction, ejection, safeties, trigger, all of those things were correct and as close to

how the factory would have sent the firearm out when they built it.” Stone testified

that based on his inspection, he did not identify any modifications to the .45 caliber

pistol from its factory condition. He also determined that the .45 caliber pistol

functioned properly and did not have anything mechanically wrong with it. He

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opined that after disassembling the pistol to examine each piece of the firearm,

nothing looked out of place and the parts were in good shape. Stone testified that

an extremely dirty gun can malfunction, but in his opinion, the cleanliness of the

pistol fired by Pfeiffer was not a concern. He explained that the .45 caliber pistol

was not “spic and span,” but it was not “overly dirty either[.]”

[¶23.] After reassembling the .45 caliber pistol, Stone conducted extraction

tests to ensure the extractor and the ejector were working properly. While running

these tests, he handled the .45 caliber pistol in different positions to determine if

the gun would extract and eject “in those odd positions.” Ultimately, Stone

determined that there were no issues with the pistol fired by Pfeiffer and that it

would eject live rounds.

[¶24.] During cross-examination, Stone was asked to explain “bullet-nose

binding,” a topic that would later be addressed by a firearms expert called by

Pfeiffer. Stone testified that bullet-nose binding can occur when a bullet “is being

extracted out of the chamber, when it comes back, it hits the ejector and the nose

. . . would come out and would - - it could hit and stick against the side of the

ejection port and get bound up and then stuck, basically, at an angle.” He further

testified, however, that throughout his testing of the .45 caliber pistol fired by

Pfeiffer, bullet-nose binding did not occur. He generally agreed that in some cases

an extended ejector and an ejection port that is not milled to the proper dimensions

can make unloading live cartridges from the chamber difficult. However, he opined

that the .45 caliber pistol at issue did not have an extended or elongated ejector.

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[¶25.] After the State rested its case, Pfeiffer moved for a judgment of

acquittal. He argued that the State’s evidence established only that he acted

negligently, not recklessly. He further asserted that because the evidence

established he was not aware the .45 caliber pistol was loaded, the State failed to

prove that he was consciously aware of a high risk that the gun would fire a bullet.

In response, the State claimed that because Pfeiffer recalled touching the trigger of

the gun, “that is enough for the jury to make a conclusion that he had the required

general criminal intent to be convicted of this offense.” The circuit court denied

Pfeiffer’s motion.

[¶26.] In his defense, Pfeiffer first presented testimony from Dave Lauck, an

expert in firearms, particularly the type of .45 caliber pistol at issue here. Based on

his examination of this .45 caliber pistol and the bullet recovered from Scott during

the autopsy, Lauck opined that bullet-nose binding occurred when Pfeiffer racked

the slide back to eject any bullet that might be in the chamber. He believed this

occurred because the port through which the pistol ejects cartridges had not been

modified and elongated as it should have been in light of its extended ejector. In

particular, he explained that the cartridge (bullet and casing) “was trying to eject,

but it bound on the front sharp edge of the non-elongated ejection port” and bound

“between the ejector and the front leading edge of the ejection port.” He further

testified that the type of ammunition used in Siemonsma’s .45 caliber pistol

contributed to the occurrence of bullet-nose binding because it is the longest .45

caliber cartridge in overall length and thus needs “the most room to get out of the

ejection port.”

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[¶27.] Lauck confirmed his theory that bullet-nose binding occurred with this

.45 caliber pistol based on his observation of a visible “nick” or “scuff mark” near the

tip of the bullet removed from Scott during the autopsy. This nick, he testified,

supported his theory that the bullet collided with the edge of the ejection port when

Pfeiffer racked the slide back. In further support of his theory, Lauck testified that

“the lobe of the extractor has firing residue buildup in it” and “that residue will

lessen the extractor’s grip on the cartridge.” Lauck also noticed what he called

“brass track evidence over the front of the extractor nose,” which he explained

indicated to him “that a cartridge dropped into the chamber of this gun before the

slide even crossed over the top of it.” In his view, “[i]f the gun was operating

properly, we would not see that brass track on the nose of this extractor.” Another

important consideration, according to Lauck, was the position in which Pfeiffer

claimed he was holding the gun. Lauck testified that if Pfeiffer was holding the gun

sideways as he stated in his interviews and bullet-nose binding occurred, “once the

cartridge fell free from the grip of the extractor, gravity would come into effect and

literally drop that round right back into the chamber of the gun.”

[¶28.] When asked during cross-examination whether he test-fired the .45

caliber pistol at issue, Lauck stated that he did not do so because he did not want to

“alter the evidence unless it was necessary.” In his opinion, it was not necessary to

test-fire the pistol because, from his examination, “everything was in alignment for

the gun to bind.” Under further cross-examination, Lauck agreed that Pfeiffer

violated specific gun safety rules and that following the safety rules for clearing a

gun would have prevented the shooting. He further testified that he personally

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would not clear a weapon without sticking his finger in the chamber or without

bringing the gun up close for inspection to ensure there is nothing in there.

[¶29.] Lauck also agreed that if a magazine is in a .45 caliber pistol and the

slide is racked, the gun will become loaded, and after the trigger is pulled and the

bullet leaves the chamber, the gun “will cycle if it’s operating properly and kick the

empty out and put a new one in the chamber.” He then explained that if the

magazine is thereafter removed from the gun, the gun would still have a live round

in the chamber.

[¶30.] Pfeiffer testified on his own behalf. He stated that although he did not

receive any training in the use of firearms, he had experience using both rifles and

shotguns for hunting. And while he did not own a semi-automatic pistol, he

testified that he “had shot them with friends in the woods[.]” In regard to

Siemonsma’s .45 caliber pistol, Pfeiffer testified that he had previously fired the gun

maybe two or three times while hunting or shooting targets with Siemonsma. He

claimed he knew how to take the “clip out” and rack the slide “[t]o eject any bullet

that’s in the chamber.”

[¶31.] Regarding the events on the night Pfeiffer shot Scott, Pfeiffer testified

that when Villalobos was handling Picotte’s .38 revolver and Siemonsma was

holding his assault rifle, no one was upset or responding angrily. He agreed that

“everybody thought they were just joking around” and there was no “kind of conflict

or attitude or anything [like] that going on[.]” Pfeiffer testified that Scott “was kind

of laughing” and “was looking at his phone.” Pfeiffer further testified that he then

picked up Siemonsma’s .45 caliber pistol from the dresser next to the bed, racked

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the slide, and “tried to do what the other guys were doing” and “pointed it in their

direction and then it fired.” He stated he was not “aiming or anything like that.”

Rather, “it was a sweep.” He explained that he believed the pistol was unloaded

“[b]ecause [he] took out the magazine and racked the slide and nothing came out.”

He further explained that he thought he saw seven bullets in the magazine—which

holds a total of eight—when he took it out of the gun, and he noticed a live round on

the dresser next to the holster and another one on the TV stand. When asked if he

intended to pull the trigger, Pfeiffer stated that he thought his fingers were resting

outside the trigger guard, but then admitted that he must have touched the trigger.

He testified that after the gun discharged, he either put it on the bed or a table.

[¶32.] On cross-examination, Pfeiffer testified that two general rules of gun

safety include: “I think you’re not supposed to point it in the direction of anybody

and treat an empty gun as if it’s loaded[.]” When asked whether he followed “those

rules on June 13th of 2018,” Pfeiffer replied, “No, I did not.”

[¶33.] Prior to the defense resting, Pfeiffer’s counsel requested, outside the

presence of the jury, that the circuit court take judicial notice of a statement a

deputy state’s attorney had made in a document filed in response to Pfeiffer’s April

2021 bond modification motion. In the document, the prosecutor indicated that

Pfeiffer shot the gun “in the belief that the gun was not loaded.” 2 Pfeiffer argued

that this statement was admissible as an admission by a party opponent. The State

2. The statement was not made by any of the prosecutors who tried the case a
year later.
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objected, and the circuit court denied admission of the statement on relevancy

grounds and under SDCL 19-19-403.

[¶34.] During the settling of jury instructions, Pfeiffer requested that the

circuit court instruct the jury that the State has the burden of proving criminal

intent beyond a reasonable doubt by adding the following language to the

instruction identifying the elements that must be proven to convict him of first-

degree manslaughter: “In doing the act of the shooting of Ty Robert Scott, the

defendant acted with criminal intent.” Alternatively, Pfeiffer requested that the

court include additional language in the criminal intent instruction, which refers to

a person acting intentionally or recklessly, that the State has the burden of proving

that the defendant recklessly killed Ty Scott. The State objected, asserting that as

it relates to the elements instruction, the instruction it proposed properly set forth

the statutory elements. The State also argued that it was unnecessary to include

additional language regarding who carries the burden in the criminal intent

instruction because the court’s instructions as a whole sufficiently inform the jury

that the State must prove criminal intent. The court declined Pfeiffer’s requests to

add language to the elements or criminal intent instructions, concluding that the

court’s proposed instructions align with instructions approved by this Court in State

v. Birdshead, 2015 S.D. 77, 871 N.W.2d 62 and State v. Mulligan, 2007 S.D. 67, 736

N.W.2d 808.

[¶35.] The circuit court also refused to give Pfeiffer’s requested instruction

defining recklessness and instead instructed the jury in accord with the pattern jury

instruction on recklessness. Finally, the court refused Pfeiffer’s requested mistake

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of fact defense instruction, reasoning that first-degree manslaughter is not a specific

intent crime or the type of general intent crime that would warrant such an

instruction.

[¶36.] After deliberating for over fourteen hours spanning two days, the jury

ultimately returned a verdict finding Pfeiffer guilty of first-degree manslaughter.

Pfeiffer filed a motion for judgment of acquittal and to set aside the verdict, which

the circuit court denied. The court sentenced Pfeiffer to thirty years in prison with

twenty-three years suspended and credit for time served. Pfeiffer appeals, asserting

the following restated issues:

1. Whether the circuit court properly instructed the jury on
the State’s burden of proving criminal intent.

2. Whether the circuit court erred in refusing to give a
mistake of fact instruction.

3. Whether the circuit court abused its discretion in denying
admission of a deputy state’s attorney’s statement in a
filing related to pretrial bond.

4. Whether the evidence is sufficient to sustain Pfeiffer’s
conviction.

Analysis and Decision

1. Whether the circuit court properly instructed the
jury on the State’s burden of proving criminal
intent.

[¶37.] Pfeiffer argues that although the circuit court instructed the jury on

criminal intent and on the definition of the words reckless or recklessly, the court’s

instructions as a whole “were inadequate to give the jury a full statement as to the

applicable law because neither instruction made any mention of the State’s burden

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to prove criminal intent.” 3 He further contends that he was prejudiced because “the

jury could have reasonably concluded that to convict [him], the State only had the

burden of proving the actus reus elements” identified in the instruction setting forth

the elements of first-degree manslaughter. In so contending, he notes that during

closing argument, the State focused particularly on the elements instruction when

arguing what the State was required to prove beyond a reasonable doubt.

[¶38.] As this Court recently explained,

A trial court has discretion in the wording and arrangement of
its jury instructions, and therefore we generally review a trial
court’s decision to grant or deny a particular instruction under
the abuse of discretion standard. However, when the question is
whether a jury was properly instructed overall, that issue
becomes a question of law reviewable de novo. Under this de
novo standard, we construe jury instructions as a whole to learn
if they provided a full and correct statement of the law.

State v. Black Cloud, 2023 S.D. 53, ¶ 50, 996 N.W.2d 670, 683 (quoting State v.

Schumacher, 2021 S.D. 16, ¶ 25, 956 N.W.2d 427, 433–34).

[¶39.] Notably, this is not a case wherein the circuit court failed to instruct

the jury on the applicable mens rea. See, e.g., State v. Jones, 2011 S.D. 60, 804

N.W.2d 409 (reversing because the circuit court erred in refusing to instruct on a

knowing mens rea). On the contrary, Instruction 19 provided:

In the crime of MANSLAUGHTER IN THE FIRST DEGREE,
the Defendant must have criminal intent. To constitute criminal
intent it is not necessary that there should exist a specific intent

3. Pfeiffer suggests the circuit court ruled that “criminal intent was not an
element of the crime that the State had the burden to prove.” A review of the
record does not support this suggestion. While there were multiple
discussions concerning whether criminal intent is an element such that it
should be listed with the instruction listing the statutory elements, the court
specifically recognized that the State has the burden of proving criminal
intent and that recklessness is the minimum mens rea.
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to violate the law. When a person intentionally or recklessly
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.

(Emphasis added.) The court further instructed the jury in Instruction 23 that:

The words “reckless” or “recklessly” (or any derivative thereof)
mean a conscious and unjustifiable disregard of a substantial
risk that one’s conduct may cause a certain result or may be of a
certain nature.

A person is reckless with respect to circumstances when a
person consciously and unjustifiably disregards a substantial
risk that such circumstance exists.

Although neither of these instructions specifically tells the jury that the State must

prove criminal intent or recklessness beyond a reasonable doubt, “our precedent

clearly indicates that each individual instruction need not apprise the jury of the

whole of the law.” See State v. Whistler, 2014 S.D. 58, ¶ 18, 851 N.W.2d 905, 912.

Rather, for jury instructions to be deemed sufficient, they must as a whole “correctly

state the law and inform the jury[.]” State v. Klaudt, 2009 S.D. 71, ¶ 13, 772

N.W.2d 117, 122 (citation omitted).

[¶40.] Here, the jury was instructed that it must consider the instructions as

a whole and “not disregard any instruction, or give special attention to any one

instruction[.]” Further, Instruction 14 informed the jury that the State has the

burden of proving every element beyond a reasonable doubt and that “[t]he burden

of proof never shifts to the Defendant, but rests upon the State throughout the trial.”

(Emphasis added.) Instruction 14 also informed the jury that “[t]he State has the

burden of proving the Defendant guilty beyond a reasonable doubt.” Additionally,

Instruction 33 provided:

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If under the [c]ourt’s instructions and evidence you find beyond
a reasonable doubt that the Defendant committed the acts
constituting the elements of the offense charged, then it is your
duty to find the Defendant guilty.

If any member of the jury has any reasonable doubt that the
Defendant committed the offense charged, or any reasonable
doubt upon any single fact or element necessary to constitute the
offense charged as defined for you by the [c]ourt, then it is that
juror’s duty to give the Defendant the benefit of the doubt and
vote for a verdict of not guilty.

(Emphasis added.)

[¶41.] From these instructions, as well as Instruction 19 on criminal intent

and Instruction 23 defining reckless, the jury was informed that the State retained

the burden of proof at all times; the burden of proof is beyond a reasonable doubt;

that Pfeiffer cannot be found guilty unless it is shown that he had criminal intent;

and that such intent can be found based on proof that Pfeiffer acted recklessly.

Taken in totality, these instructions sufficiently apprised the jury that the State

had the burden of proving every element and fact necessary to prove the

commission of the offense, including mens rea, beyond a reasonable doubt.

[¶42.] While it would not have been improper for the circuit court to include

the additional language requested by Pfeiffer within the intent instruction—that

the State has the burden of proving criminal intent beyond a reasonable doubt—it

is well settled that a court does not abuse its discretion by denying requested

instructions that amplify legal principles already embodied in the court’s overall

instructions. State v. Eagle Star, 1996 S.D. 143, ¶ 13, 558 N.W.2d 70, 73. Further,

as this Court has said, a circuit court “has discretion in the wording and

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arrangement of its jury instructions[.]” Black Cloud, 2023 S.D. 53, ¶ 50, 996

N.W.2d at 683 (citation omitted).

[¶43.] Finally, we note that Pfeiffer’s counsel read the court’s instruction on

criminal intent to the jury during closing argument and argued that the State has

to prove criminal intent and that criminal intent must be established beyond a

reasonable doubt. The State did not dispute this argument, and in its rebuttal the

State acknowledged, “We have to show [Pfeiffer] did an act that was reckless.”

[¶44.] We conclude that the circuit court’s instructions as a whole correctly

stated the law on mens rea and adequately informed the jury of the State’s burden

in that regard. Therefore, the court did not abuse its discretion in denying Pfeiffer’s

request to include additional language regarding the State’s burden within the

instructions at issue.

2. Whether the circuit court erred in refusing to give a
mistake of fact instruction.

[¶45.] Pfeiffer argues that the circuit court erred in concluding that a mistake

of fact instruction was not warranted. In his view, the mistake of fact instruction

went to the heart of his defense, and thus, the court’s refusal to give such an

instruction deprived him of the opportunity to present a complete defense. He notes

that “[a] criminal defendant is entitled to an instruction on his theory of the case

when evidence exists to support his theory.” State v. Charles, 2001 S.D. 67, ¶ 19,

628 N.W.2d 734, 738 (emphasis added). He then claims that because he presented

evidence of his mistaken belief that the gun was unloaded, the jury should have

been instructed on his mistake of fact defense. He further argues that he was

prejudiced by the circuit court’s error because, in his view, there is a reasonable

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probability that the jury would have reached a different verdict had he been able to

argue the mistake of fact defense “aided by an appropriate mistake of fact

instruction.”

[¶46.] In response, the State argues that “[f]or a mistake of fact instruction to

be given, the evidence in support of that instruction must utterly negate criminal

intent.” As support, the State cites State v. Waugh, wherein this Court said,

“[C]onsent may be a defense [to rape] where there is evidence offered and received

that the victim did indeed consent; however, that evidence would also have to

utterly negate any element of force, coercion, or threat.” 2011 S.D. 71, ¶ 25, 805

N.W.2d 480, 486 (alterations in original) (citation omitted). It is true that to

preclude a finding of guilt, an alleged mistake of fact, if believed by the jury, must

be one that would negate the existence of the requisite mens rea. See United States

v. Iron Eyes, 367 F.3d 781, 784, 785 (8th Cir. 2004) (noting that “[t]he applicable

principle is that if a defendant reasonably though mistakenly believes facts that

negate the mental state necessary for conviction of the offense with which he or she

has been charged, the crime simply has not been committed”); see also SDCL 22-3-

1(3). However, Waugh did not involve a mistake of fact defense or its relationship

to a requisite mens rea. Rather, it involved whether and when a consent defense is

appropriate in a rape case to rebut the element of force or coercion.

[¶47.] This Court, in Charles, considered the interplay between a mistake of

fact defense and the State’s burden to prove a particular mens rea. 2001 S.D. 67,

628 N.W.2d 734. The case involved a defendant who shot and killed his stepfather

with a rifle and was charged with first-degree murder, second-degree murder, and

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first-degree manslaughter. As Pfeiffer did here, Charles claimed that he did not

know the rifle was loaded and he requested a mistake of fact instruction. The

circuit court refused to give the instruction, and on appeal, this Court affirmed. We

recognized that a defendant is entitled to an instruction on a defense theory that is

supported by evidence. Id. ¶ 19, 628 N.W.2d at 738. However, we noted that “it is

not error for a court to refuse to amplify principles embodied in given instructions.”

Id. (citing State v. Walton, 1999 S.D. 80, ¶ 13, 600 N.W.2d 524, 528). We further

noted that to obtain reversal, the defendant must show prejudice from the circuit

court’s refusal to give a requested instruction. Id.; see Walton, 1999 S.D. 80, ¶ 12,

600 N.W.2d at 528.

[¶48.] We therefore reviewed the jury instructions as a whole and concluded

that the defendant “failed to show any error by the trial court in refusing to give his

proposed mistake of fact instruction.” Id. ¶ 20. Central to our holding was our

recognition, as noted in past cases, that “whenever an intent instruction involving

the defendant’s mental state is given, the mistake of fact concept is automatically

included and does not merit a separate instruction.” Id. (quoting State v. Johnston,

478 N.W.2d 281, 283 (S.D. 1991)); see also State v. Jensen, 2007 S.D. 76, ¶¶ 20–22,

737 N.W.2d 285, 291 (upholding denial of mistake of fact instruction as cumulative

to the instructions given to the jury on charge of misuse or alteration of a brand);

State v. Toben, 2014 S.D. 3, ¶ 21, 842 N.W.2d 647, 653 (concluding that although a

mistake of fact instruction may have assisted the jury on the question whether the

State proved the element of knowledge, the jury was adequately instructed on the

knowledge element, and therefore, the circuit court did not commit plain error by

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not sua sponte instructing on “a defense that serves only to negate the mental state

element of the charged offense”). 4

[¶49.] So too here, a review of the circuit court’s instructions as a whole

reveals the jury was correctly and fully instructed on the applicable law. As in

Charles, the circuit court adequately instructed the jury on the elements of the

offense and the applicable mens rea. See 2001 S.D. 67, ¶ 20, 628 N.W.2d at 738. In

particular, the court’s instructions informed the jury that the State was required to

prove beyond a reasonable doubt that Pfeiffer caused the death of Scott; the killing

was by means of a dangerous weapon; that Pfeiffer did so without any design to

effect Scott’s death; and Pfeiffer acted recklessly, i.e., with “a conscious and

unjustifiable disregard of a substantial risk that one’s conduct may cause a certain

result or may be of a certain nature,” or was “reckless with respect to

circumstances” because he “consciously and unjustifiably disregard[ed] a

substantial risk that such circumstance exist[ed].”

4. As explained above, although a mistake of fact instruction may be
unnecessary when the jury instructions in their totality properly set forth the
applicable law, if one is given, we caution that the pattern instruction on a
mistake of fact may not be a one-size-fits-all instruction. A question whether
a defendant’s conduct is reckless is a bit more nuanced than a question
whether a defendant charged with a crime requiring a knowing act did or did
not know a particular fact, or in the case of a specific intent crime, whether a
defendant did or did not act with the specified intent. Recklessness is instead
assessed by whether there was a conscious and unjustifiable disregard of a
substantial risk. Thus, when evaluating whether alleged conduct was
reckless, particularly when considering charges involving the use of high-risk
weapons like firearms, not all mistakes of fact, even when reasonable, will
necessarily negate a determination that there was a conscious and
unjustifiable disregard of a substantial risk.
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[¶50.] Further, because the evidence of Pfeiffer’s mistaken belief related to

whether the State failed to prove criminal intent, the circuit court’s instructions as

to the required mental state—along with its instruction that if any juror has a

reasonable doubt as to any fact or element necessary to prove the offense, it is that

juror’s duty to vote not guilty—adequately allowed Pfeiffer to present and argue his

mistake of fact defense. 5 Finally, although the court refused to give a separate

mistake of fact instruction, Pfeiffer presented his mistake of fact evidence to the

jury and argued that because of his mistaken belief that the gun was unloaded, the

State could not prove that he acted recklessly. Therefore, the lack of such

instruction did not preclude Pfeiffer from presenting and arguing this defense to the

jury. We conclude the circuit court did not abuse its discretion in refusing to give a

mistake of fact instruction.

3. Whether the circuit court abused its discretion in
denying admission of a deputy state’s attorney’s
statement in a filing related to pretrial bond.

[¶51.] While awaiting trial, Pfeiffer filed a motion to have his bond conditions

amended, and the State objected. In its written argument in support of its

objection, the State, via a deputy state’s attorney, stated that “Defendant killed Ty

5. As noted by a secondary source, a mistake of fact defense is different than
affirmative defenses such as self-defense and “is sometimes referred to as a
‘failure of proof’ defense because it is an attempt by the defense to suggest to
the factfinder that the prosecution failed in its burden to establish beyond a
reasonable doubt that the defendant acted with the required mental state for
the offense. In that sense, the defense is almost ‘unnecessary’ in the sense
that it merely restates the prosecution’s burden to establish with evidence
each material element includ[ing] any required mental element, beyond a
reasonable doubt.” 1 Wharton’s Criminal Law § 13:2, Mistake of Fact (16th
ed. 2024).
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by recklessly handling a firearm, pointing it directly at Ty and pulling the trigger,

in the belief that the gun was not loaded.” Pfeiffer filed a pretrial motion requesting

that the court allow admission of this statement at trial as a non-hearsay admission

of a party opponent under SDCL 19-19-801(d). The State objected, asserting among

other arguments that such statement is not admissible, and even if it is admissible,

it would only serve to confuse the jury. The circuit court determined that it would

consider the admissibility of this statement at trial.

[¶52.] At the conclusion of the trial, but before Pfeiffer rested his case, he

asked the circuit court to take judicial notice and allow admission of the deputy

state’s attorney’s statement based on the same arguments he previously advanced.

The State once again objected, noting that the statement was made to reflect what

Pfeiffer had told law enforcement. The State also asserted that because this

statement was made in a pretrial bond hearing, it is not relevant and, even if

relevant, it should be excluded under SDCL 19-19-403 because there is “an extreme

danger that the jury will confuse the issues and the burden.” The court denied

admission of the statement because it was not being offered against the State given

that the State did not present contrary evidence that Pfeiffer believed the gun was

loaded. The court alternatively ruled that the statement should be excluded under

SDCL 19-19-403.

[¶53.] On appeal, Pfeiffer contends that in denying admission of the

statement, the circuit court erroneously ruled that “Pfeiffer’s state of mind was not

at issue in the trial.” He further argues that the court abused its discretion in

denying admission of the statement because “it was directly probative of Pfeiffer’s

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lack of awareness of a substantial risk and went to disprove the State’s burden to

prove that he acted with reckless criminal intent.”

[¶54.] “This Court reviews a decision to admit or deny evidence under the

abuse of discretion standard.” State v. Stanley, 2017 S.D. 32, ¶ 21, 896 N.W.2d 669,

677. “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. Caffee, 2023 S.D. 51, ¶ 26, 996 N.W.2d 351, 360.

[¶55.] Contrary to Pfeiffer’s view, the circuit court did not rule that his

mental state is not an issue at trial. Rather, the court stated,

I’m not sure it’s being offered against the opposing party,
because ultimately here at trial, the State didn’t present really
any evidence to say that the defendant believed the gun was
loaded at the time. . . . More importantly, I think it’s . . . it’s not
relevant. . . . [J]ust because a State’s Attorney said something at
some point, and just because they’re a party opponent, doesn’t
mean that all - - everything the prosecutor has said in a brief
and in an oral argument along the way then suddenly comes in
just because it’s about the same subject matter. . . . Certainly his
[s]tate of mind and - - might be relevant here, but the State’s
position or understanding of what she asserted in that context is
not relevant[.]

[¶56.] Pfeiffer has not established that the circuit court abused its discretion

in denying admission of the deputy state’s attorney’s statement. The relevance of

this statement made with respect to a bond hearing held a year prior to trial is

minimal, given the absence of any contrary argument or evidence presented by the

State at trial suggesting that Pfeiffer believed the gun was loaded. See SDCL 19-

19-401 (relevant evidence “has any tendency to make a fact more or less probable

than it would be without the evidence” and “is of consequence in determining the

action”). For this same reason, the statement does not squarely fit under the

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category of non-hearsay statements as defined under SDCL 19-19-801(d) which are

“offered against an opposing party.” (Emphasis added.) Also, because the deputy

state’s attorney could not have personal knowledge of what Pfeiffer believed, it is

apparent that the statement was simply relating what Pfeiffer had reported to law

enforcement. Finally, the circuit court appropriately concluded that the statement

was excludable under SDCL 19-19-403 because the dangers of unfair prejudice,

confusion of the issues before the jury, undue delay, or waste of time substantially

outweighed any probative value. We conclude that the circuit court did not abuse

its discretion in denying admission of this statement.

4. Whether the evidence is sufficient to sustain
Pfeiffer’s conviction.

[¶57.] Pfeiffer argues that the State failed to present sufficient evidence to

sustain a finding beyond a reasonable doubt that he “intentionally or recklessly

[did] an act which the law declares to be a crime[.]” In his view, the State’s evidence

established only that he failed “to conform his conduct to basic gun safety rules,”

which he asserts is at most negligent conduct, not reckless. He further asserts that

“[b]ecause it was undisputed by the State that Pfeiffer believed the gun was not

loaded, no reasonable jury could have found beyond a reasonable doubt that Pfeiffer

had consciously disregarded a substantial risk[.]”

[¶58.] “A question regarding the sufficiency of the evidence to sustain a

conviction is reviewed de novo.” State v. McReynolds, 2020 S.D. 65, ¶ 11, 951

N.W.2d 809, 814. “In measuring the sufficiency of the evidence, we ask whether,

after viewing the evidence in the light most favorable to the prosecution, any

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

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reasonable doubt.” State v. Peneaux, 2023 S.D. 15, ¶ 24, 988 N.W.2d 263, 269

(quoting State v. Frias, 2021 S.D. 26, ¶ 21, 959 N.W.2d 62, 68). “If the evidence,

including circumstantial evidence and reasonable inferences drawn therefrom[,]

sustains a reasonable theory of guilt, a guilty verdict will not be set aside.” State v.

Podzimek, 2019 S.D. 43, ¶ 30, 932 N.W.2d 141, 149 (citation omitted).

[¶59.] Under SDCL 22-16-15(3), “[h]omicide is manslaughter in the first

degree if perpetrated: . . . [w]ithout any design to effect death, including an unborn

child, but by means of a dangerous weapon[.]” Further, to sustain the finding of

guilt here, the evidence must establish that Pfeiffer acted with criminal intent,

namely that he acted recklessly. Under SDCL 22-1-2(1)(d) and the circuit court’s

instruction, “[t]he words, ‘reckless, recklessly,’ and all derivatives thereof, import a

conscious and unjustifiable disregard of a substantial risk that the offender’s

conduct may cause a certain result or may be of a certain nature. A person is

reckless with respect to circumstances if that person consciously and unjustifiably

disregards a substantial risk that such circumstances may exist[.]”

[¶60.] Here, although the State did not dispute that Pfeiffer believed the gun

was unloaded, Pfeiffer’s belief in that regard did not foreclose the jury from finding

that he was reckless. Rather, evidence of his belief was just one fact among all

evidence presented at trial that the jury considered when determining that Pfeiffer

acted with a conscious and unjustifiable disregard of a substantial risk that his

conduct may cause a certain result or may be of a certain nature. As this Court has

explained, “[t]he key question to determine whether conduct is reckless or negligent

‘depends upon [one’s] awareness of the risk [one’s] behavior creates’” and whether

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the person consciously disregarded a substantial risk. McReynolds, 2020 S.D. 65,

¶ 14, 951 N.W.2d at 814–15 (citation omitted). Further, “[a]lthough it is not always

possible for the State to directly establish that a defendant was aware of a risk, it

can be done indirectly through the defendant’s conduct.” Id. (citation omitted).

[¶61.] As it pertains to Pfeiffer’s awareness and whether he consciously and

unjustifiably disregarded a substantial risk, the State presented evidence that

Pfeiffer had knowledge of firearms, including semi-automatic guns, and knowledge

of gun safety rules, including that one is to “treat an empty gun as if it’s loaded” and

never point a firearm, loaded or unloaded, at a person. The obvious rationale

underpinning these and other gun safety rules identified by the experts at trial is

the risk of death that could occur if such rules are not followed. By his own

admission, Pfeiffer nevertheless swept the gun in the direction of Scott and

Villalobos and took “a practice shot.” Given Pfeiffer’s admitted knowledge of gun

safety rules, the jury could have concluded that such actions constituted a conscious

and unjustifiable disregard of a substantial risk, regardless of Pfeiffer’s mistaken

belief that the gun was unloaded.

[¶62.] The jury also heard Pfeiffer admit that, although he racked the slide

and did not see a round eject, he did not look inside the chamber to confirm the

pistol was unloaded. Further, although Pfeiffer maintained that he removed the

magazine prior to racking the slide, the jury may have concluded otherwise based

on the evidence that a live round ejected from the .45 caliber pistol when Trooper

Erickson, who was the first law enforcement officer to handle the pistol after the

shooting, picked up the gun and racked the slide. Importantly, consistent with the

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testimony from all the experts, including Pfeiffer’s, the most plausible explanation

for why a live round would be in the chamber after the shooting was that the

magazine was still in the pistol when it was fired, an action that would have

automatically reloaded a live round into the chamber. 6 Thus, if the jurors believed

that the magazine was in the pistol at the time Pfieffer racked the slide back to see

whether it was loaded, they could have concluded that he unintentionally, but

recklessly, loaded a bullet into the chamber when he released the slide. See 1

Wharton’s Criminal Law § 13:2, Mistake of Fact (16th ed. 2024) (noting that “a jury

could convict an individual of reckless manslaughter for their reckless mistake of

thinking a gun was unloaded when they pointed it at someone and pulled the

trigger”).

[¶63.] Under this Court’s standard of review, “it is the function of the jury in

resolving factual conflicts, to weigh the credibility of those who testify, and

ascertain the truth.” State v. Janklow, 2005 S.D. 25, ¶ 22, 693 N.W.2d 685, 695

(quoting Moran, 2003 S.D. 14, ¶ 36, 657 N.W.2d at 328). Based on our review of the

evidence in a light most favorable to the prosecution, we conclude that the evidence

is sufficient to sustain Pfeiffer’s conviction of first-degree manslaughter.

[¶64.] Affirmed.

[¶65.] JENSEN, Chief Justice, and KERN, SALTER, and MYREN, Justices,

concur.

6. The experts testified that if the magazine was not in the pistol when Pfeiffer
shot Scott, the only other way a live round would have thereafter been found
in the chamber was if someone had manually inserted another bullet in the
gun after the shooting. There was no evidence at trial that such occurred.
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