State v. Clifford

#30754-a-JMK
2026 S.D. 16

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

CHRISTIAN ELLIOTT CLIFFORD Defendant and Appellant.

****

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

****

THE HONORABLE SANDRA H. HANSON
Judge

****

KYLIE BECK
JACOB CARSTEN of
Minnehaha County Public
Defender’s Office
Sioux Falls, South Dakota
Attorneys for defendant and
appellant.

MARTY J. JACKLEY
Attorney General

ANGELA R. SHUTE
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff and
appellee.

****

ARGUED
JUNE 3, 2025
OPINION FILED 03/11/26
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KERN, Retired Justice

[¶1.] Christian Clifford was convicted, after a jury trial, of aggravated

eluding, reckless driving, driving under suspension, and failing to stop at a stop

sign, stemming from events that occurred on April 6, 2023. During trial, the State

elicited testimony from law enforcement officers concerning a telephonic report

received earlier in the day on April 6, 2023. The report alleged that Clifford had

been involved in a family dispute and was driving a red Toyota Camry. Officers

patrolled the area of the reported incident and saw a red Toyota Camry. When an

officer attempted to stop the vehicle, the driver fled at high speeds through

residential neighborhoods. Pursuant to department policy, the officers did not

pursue the vehicle. Prior to trial, Clifford moved to exclude the caller’s statements

through the testimony of the responding officers, asserting that the information

contained in the call was hearsay and violated SDCL 19-19-401 and 19-19-404. The

court denied the motion and defense counsel requested a “continuing objection

under Crawford [v. Washington],” without further reference or proceedings on this

issue. Clifford appeals, claiming the circuit court erred by admitting testimonial

hearsay in violation of his Sixth Amendment right to confrontation. We affirm.

Factual and Procedural Background

[¶2.] On April 6, 2023, law enforcement received a call requesting assistance

because of a family dispute at 316 South Prairie Avenue in Sioux Falls. The

reporting party, a woman later identified to be either Anna Hall or Lindsey Hall,

alleged that Christian Clifford was involved in the dispute and was driving a red

Toyota Camry. Law enforcement issued a “be on the lookout” bulletin (BOLO), and

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several officers responded to the area. Around 2:00 p.m., Detective Christian

O’Brien with the Sioux Falls Police Department observed a red Toyota Camry

backing out of the alley next to 316 South Prairie Avenue and identified “a native or

Hispanic male with short hair in the driver’s seat.”

[¶3.] Detective O’Brien followed the Camry as it turned to travel south on

South Prairie Avenue. After passing through the intersection of South Prairie

Avenue and West 12th Street, Detective O’Brien activated his emergency lights.

Initially, the driver turned on the right blinker and appeared to be pulling over.

But the driver continued driving forward until the next intersection, where the

driver made a left turn onto West 13th Street and rapidly sped up. Detective

O’Brien followed the Camry onto West 13th Street and observed a cloud of dust that

had been spun up into the air. He realized that the Camry had already traveled at

least two blocks down the street. To make such progress, the Camry passed

another vehicle and failed to stop at a stop sign. Detective O’Brien did not pursue

the vehicle, in accordance with department policy prohibiting pursuit unless the

suspect in the vehicle is about to commit a dangerous felony and is an ongoing

threat to society.

[¶4.] Several officers were present in the area in response to the BOLO,

including Officer Carlos Puente, Detective Nelson Leacraft, and Officer Scott

Hildebrand. Officer Puente observed the Camry as it crossed the intersection of

South Prairie Avenue and West 12th Street and viewed the driver through the

driver’s window. Officer Puente identified Clifford as the driver based on prior

knowledge of his appearance through a known photograph. Detective Leacraft was

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parked south of the South Prairie Avenue/West 13th Street intersection facing

north in an unmarked truck as the Camry approached the intersection. Detective

Leacraft viewed the driver through the windshield and identified Clifford as the

driver based on prior knowledge of his appearance through photos and from in-

person surveillance involving another matter. A warrant was issued for Clifford’s

arrest in May 2023, and he was charged by complaint with a number of driving

related violations.

[¶5.] Clifford was indicted on July 26, 2023, on four counts: (1) aggravated

eluding in violation of SDCL 32-33-18.2; (2) reckless driving in violation of SDCL

32-24-1; (3) operating a motor vehicle with a suspended driver’s license in violation

of SDCL 32-12-65(2); and (4) failure to stop at a stop sign in violation of SDCL 32-

29-2.1.1 The State also filed a part II information alleging that Clifford had been

convicted of two prior felonies.

[¶6.] Clifford filed a motion in limine on March 14, 2024, seeking to exclude,

inter alia, the following evidence:

• “Any reference, mention, or inference of any BOLO’s made in
regard[] to the Defendant;”

• “Any reference, mention, or inference . . . to any persons by
the name of Anna Hall or Lindsey Hall;” and

• “Any reference, mention, or inference of the Defendant being
associated with a red Toyota Camry[.]”

In support of the written motion in limine, Clifford argued such evidence was

“inadmissible to prove character,” relying exclusively on SDCL 19-19-404.

1. SDCL 32-33-18.2 was amended in 2024 and is now separated into first-degree
eluding and second-degree eluding, rather than aggravated eluding.
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[¶7.] A two-day jury trial was held on March 18 and 19, 2024. Before

selecting the jury, the circuit court considered the various motions in limine filed by

the parties, including Clifford’s motion to exclude specific prior wrongs or acts

pursuant to SDCL 19-19-404. Included within this motion was Clifford’s request to

exclude statements regarding the BOLO alert. Clifford argued that the use of the

word “BOLO” was unduly prejudicial, and Clifford’s counsel suggested that the

officers could instead testify that they “were looking to speak with [Clifford] in

regard to a police matter.” The State argued that defense counsel’s suggestion was

unacceptable because the existence of the BOLO created a legal basis to stop the

Camry, whereas law enforcement’s desire to speak to someone about a pending

matter did not.2 Further, the State asserted that the evidence was properly

considered as res gestae because it explained the circumstances leading up to the

attempt to stop the vehicle and the subsequent flight. The circuit court denied the

motion, reasoning that because law enforcement was legally permitted to stop the

vehicle because of the BOLO, its existence was part of the circumstances leading up

to the attempted stop and the officers should be permitted to explain why they were

trying to stop the car.

[¶8.] Clifford also argued that any reference to him being associated with a

red Toyota Camry should be excluded. In addition to the initial basis for exclusion

under SDCL 19-19-404 contained in the written motion in limine, counsel for

2. The State also informed the circuit court that it instructed the subpoenaed
officers that they could not mention the underlying facts leading to the
issuance of the BOLO or any details about the BOLO aside from the fact that
a BOLO had been issued.
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Clifford orally argued that such statements were precluded by SDCL 19-19-401, as

irrelevant; SDCL 19-19-403, as more prejudicial than probative; and SDCL 19-19-

801 through 803, as inadmissible hearsay. Counsel asserted that the statements

were uncorroborated “out-of-court statements used to associate Mr. Clifford with

the Toyota Camry.” He argued that “allowing that to come in as the officers were

looking for him in that vehicle without actual proper foundation or any actual

connection to the vehicle through proper testimony would impermissibly push the

jury towards consider[ation] of an improper association as actual evidence.”

Counsel told the court that Clifford did not own the vehicle or have any association

with it aside from the information provided by the caller. Notably, counsel did not

present any argument, facts, or circumstances regarding the Confrontation Clause,

particularly whether the caller’s statement about the red Toyota Camry relayed in

the BOLO was testimonial.

[¶9.] In response, the State argued that the description given by the caller,

including the information that Clifford was driving a red Toyota Camry, was

admissible for its “effect on the listener,” or, in other words, to explain why law

enforcement officers were looking for a red Toyota Camry in the area. The circuit

court denied Clifford’s motion, rejecting the three bases for exclusion that defense

counsel orally advanced—that the statement about the red Toyota Camry was

irrelevant, was more prejudicial than probative, and was inadmissible hearsay. The

court stated:

The motion will be denied. Although the Court’s not fully aware
of all the circumstances of the case, it does appear to me that a
red Toyota Camry and the defendant allegedly driving it is
certainly relevant to the charges against him. It does not

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appear to me to be a matter of unfair prejudice to him at all that
a red Toyota Camry be mentioned in association with him. I do
understand defense is arguing that hearsay was what led
officers to look for that vehicle in the first place, but I don’t
believe that the fact that hearsay is ultimately inadmissible in
court means that law enforcement officers can’t rely upon out-of-
court statements when making their investigations. It’s just
that when they come to present their testimony, they can’t do so
in the terms of presenting hearsay evidence to, you know,
outright testifying as to hearsay, put . . . that [] in front of the
jury. So this motion will be denied.

[¶10.] Following the court’s ruling, defense counsel stated: “We would just

note a continuing objection under Crawford3 of . . . any out-of-[court] testimony in

regard to prior associations with that red Camry.” No further reference to or

discussion of Crawford occurred.

[¶11.] The State called three witnesses in its case-in-chief: Detective O’Brien,

Detective Leacraft, and Officer Puente. The State also offered a certified copy of

Clifford’s driving record, showing that his driver’s license was suspended at the

time of the incident, and three dash camera videos from Detective O’Brien, Officer

Puente, and Officer Hildebrand, which showed the officers’ view of the vehicle as

they observed it.4

3. Defense counsel’s reference is to Crawford v. Washington, 541 U.S. 36, 59
(2004), in which the United States Supreme Court addressed the
Confrontation Clause, stating, “[t]estimonial statements of witnesses absent
from trial have been admitted only where the declarant is unavailable, and
only where the defendant has had a prior opportunity to cross-examine.”

4. Detective O’Brien provided the foundation for the admission of Officer
Hildebrand’s dash camera video.
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[¶12.] Detective O’Brien testified that he was in the area responding to

a BOLO when he observed a red Toyota Camry pulling out of the alley next to

the reported address. The State asked:

Q: And you kind of answered it there, but why was that red
Toyota Camry something of interest to you?

A: The reporting party that called in stated that Christian
Clifford was in a red Toyota Camry.

Q: And you then observed said Camry; correct?

A: Yes.

Detective O’Brien testified that he followed the Camry through the intersection of

South Prairie Avenue and West 12th Street before activating his emergency lights

to initiate a traffic stop. Instead of stopping, the Camry turned left onto West 13th

Street and fled at a “high speed, passing a vehicle, and going through a stop sign

without yielding.” Detective O’Brien estimated that the Camry was traveling

between 60 and 65 miles per hour in a residential area with a speed limit of 25

miles per hour and described the driving as “[e]xtremely fast and erratic” and

dangerous.

[¶13.] The State next called Detective Leacraft, who testified that he

responded to “a call for service” on April 6, 2023, “stating that a subject by the name

of Christian was there in a red Toyota Camry, which was the subject that [Detective

Leacraft’s] unit was previously aware of and looking for.” Detective Leacraft

testified that he was familiar with Clifford and identified him in the courtroom.

The State asked, “And what other information did you receive that day with

regard[] to a one Mr. Christian Clifford?” Detective Leacraft responded that “[t]he

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information was that he was at that current location and driving a red Toyota

Camry.” Detective Leacraft then testified that he observed the Camry as it

approached the intersection of South Prairie Avenue and West 13th Street and saw

the driver, whom he identified as Clifford. When Detective O’Brien activated his

emergency lights, Detective Leacraft observed Clifford look into the rearview mirror

while pulling the vehicle to the side of the road before turning onto West 13th Street

and fleeing at a high rate of speed.

[¶14.] The State inquired about the circumstances surrounding Detective

Leacraft’s identification:

Q: And was there anything blocking your view from seeing
the driver of that vehicle?

A: No, there wasn’t.

Q: No tinted windows on that vehicle?

A: I was looking straight through the windshield, and the
windshield obviously was not tinted.

Q: And the sun wasn’t in your eyes, anything like that?

A: No.

Q: So nothing obstructed your view.

A: No.

Detective Leacraft testified that he was familiar with Clifford’s appearance from

observing “him in person on surveillance” and in photos. He described Clifford’s

driving during this attempt to flee from law enforcement as “highly dangerous.”

[¶15.] The State’s final witness was Officer Puente, who testified that he

responded to a dispatch call to the area of 316 South Prairie Avenue relating to “a

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BOLO subject that we were looking for in the area.” Officer Puente identified

Clifford as the subject of the BOLO and testified that law enforcement was also

informed that “Christian was driving a newer red Toyota Camry.” Prior to arriving

on scene, Officer Puente familiarized himself with Clifford’s appearance by

reviewing a known photo. Officer Puente proceeded to the area of South Prairie

Avenue and West 12th Street and observed the Camry as it crossed the intersection

immediately before Detective O’Brien activated his emergency lights. Officer

Puente testified that he saw the driver of the vehicle and identified him as Clifford.

Officer Puente’s dash camera video, admitted as Exhibit 3, showed his view of the

Camry and driver through the driver’s side window as the vehicle slowly traveled

through the intersection.

[¶16.] Officer Puente also described the character of the neighborhood, which

was in his patrol area, as generally “there’s a lot of people walking around

sometimes during those hours, and kids outside.” Given the time of day and

residential nature of the area, Officer Puente testified that Clifford’s manner of

driving as he fled down West 13th Street was “[p]retty reckless.”

[¶17.] The State rested its case, and Clifford then testified in his own defense.

He testified that he did not recall where he was on April 6, 2023 “[b]ecause nothing

really happened important that day.” He informed the jury that he neither owned

nor had ever driven a red Toyota Camry and that the last vehicle he owned was a

white 2012 Chevy Malibu. Additionally, Clifford testified that he was not driving

because his driver’s license was suspended. When asked on direct examination, he

admitted that he had previously been convicted of two felonies, one involving a

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crime of dishonesty. Clifford denied having family in the area of 316 South Prairie

Avenue or fleeing from law enforcement in that area on April 6, 2023. Following

Clifford’s testimony, the defense rested its case.

[¶18.] On the second and final day of trial, the parties presented their closing

arguments. The State replayed Detective O’Brien’s dash camera video for the jury

and argued that it satisfied the State’s burden to prove the elements of the offenses

charged beyond a reasonable doubt. Regarding the identity of the driver, the State

highlighted Detective Leacraft’s and Officer Puente’s testimony. The State argued

that both witnesses were familiar with Clifford’s appearance and identified him as

the driver after having a clear opportunity to see him in the vehicle.

[¶19.] During its closing argument, defense counsel attacked the credibility of

the identifications, arguing that Detective Leacraft and Officer Puente had

approximately ten seconds or one block of travel to observe the driver before making

an identification. Counsel also argued that the dash camera videos did not clearly

show the driver and that the jury was unable to assess the accuracy of the known

photos of Clifford reviewed by the officers prior to traveling to the area.

[¶20.] During its rebuttal argument, the State urged the jury to review the

videos admitted into evidence and consider the distance between the officers and

the Camry when they observed the driver. The State also reminded the jury to

“remember the circumstantial and direct evidence. The direct evidence in this case

is the videos and the testimony from the officers, the eyewitnesses that were there.

The circumstantial evidence would be that the red Toyota Camry is associated with

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Christian Clifford based on the BOLO that you heard testimony to from the

officers.” The defense did not object to this statement.

[¶21.] The jury returned a guilty verdict on all four counts. The circuit court

sentenced Clifford to a term of four years in the penitentiary for aggravated eluding,

one year in the county jail for reckless driving, 30 days in jail for driving under

suspension, and 30 days in jail for the stop sign violation. All four sentences were

suspended, and the sentences for counts 2, 3, and 4 were ordered to run

concurrently with the sentence for aggravated eluding. The aggravated eluding

sentence was ordered to run consecutively to two unrelated felony sentences Clifford

was serving.

[¶22.] Clifford appeals, raising one issue, which we restate as follows:

1. Whether the circuit court erred in admitting testimonial
hearsay statements in violation of Clifford’s Sixth
Amendment right to confrontation.

Analysis and Decision

[¶23.] Clifford asserts that the circuit court erred in permitting the State’s

witnesses to testify about the contents of the call to law enforcement on April 6,

2023, particularly that the caller stated that Clifford was driving a red Toyota

Camry. Because the caller did not testify, Clifford argues the court’s evidentiary

ruling violated the rule against hearsay in SDCL 19-19-802. He also argues that

the admission of the caller’s out-of-court statements were testimonial, depriving

him of his Sixth Amendment right to confront and cross-examine the witnesses

against him. See Crawford v. Washington, 541 U.S. 36 (2004). Clifford further

contends that he was prejudiced by the court’s admission of a testimonial hearsay

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statement, and claims that because he is asserting a violation of a constitutional

right, the State bears the burden to prove beyond a reasonable doubt that the

circuit court’s error was harmless.

[¶24.] “The Sixth Amendment to the United States Constitution provides

that a criminal defendant has the right to be ‘confronted with the witnesses against

him.’” State v. Dickerson, 2022 S.D. 23, ¶ 27, 973 N.W.2d 249, 258 (citations

omitted). In Crawford v. Washington, the United States Supreme Court “instructed

that the right to confrontation guaranteed by the Sixth Amendment requires

exclusion of out-of-court testimonial statements unless: (1) the witness is declared

unavailable to testify; and (2) the defendant had a prior opportunity to cross-

examine the witness.” State v. Richmond, 2019 S.D. 62, ¶ 24, 935 N.W.2d 792, 799–

800 (citing Crawford, 541 U.S. at 68–69) (emphasis added). The Supreme Court has

made clear that the Confrontation Clause “applies only to testimonial hearsay,” a

two-word phrase that requires exclusion if the statements are (1) hearsay and (2)

testimonial. Davis v. Washington, 547 U.S. 813, 823 (2006); Smith v. Arizona, 602

U.S. 779, 784 (2024).

[¶25.] “Testimonial statements are loosely defined as ‘a solemn declaration or

affirmation made for the purpose of establishing or proving some fact.’” State v.

Little Long, 2021 S.D. 38, ¶ 45, 962 N.W.2d 237, 254 (citations omitted).

“Testimonial hearsay includes, at a minimum, police interrogations and prior

testimony at a preliminary hearing, before a grand jury, or at a former trial.” Id.

(citation modified). Whether answers to questions posed by law enforcement are

testimonial depends on the primary purpose for the questioning and the

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surrounding circumstances. Davis, 547 U.S. at 822. Therefore, the determination

of whether a statement is testimonial or nontestimonial must be made after

consideration of the unique facts of each case. But here, we are presented with a

sparse record containing little detail about the circumstances under which the

challenged statements were made.

[¶26.] Moreover, as noted above, Clifford did not raise hearsay or

Confrontation Clause objections in his written motion in limine, although, on the

morning of trial, he did orally raise a hearsay objection in his argument to the

circuit court in support of his motion. However, the only mention of Crawford

occurred after the court issued its ruling denying Clifford’s motion when his counsel

requested a continuing objection to the admission of the challenged testimony. At

no time did Clifford ask the circuit court to determine whether the challenged

statement was testimonial, nor did he present any of the facts or circumstances that

must be considered before the court could determine whether the proffered

statements were testimonial.

[¶27.] “When a party deprives the trial court an opportunity to rule on the

issue by failing to object to argument at the time the objectionable comments are

made, he waives his right to argue the issue on appeal.” Veith v. O’Brien, 2007 S.D.

88, ¶ 67, 739 N.W.2d 15, 34 (citing State v. Janklow, 2005 S.D. 25, ¶ 47, 693 N.W.2d

685, 701); State v. Corey, 2001 S.D. 53, ¶ 9, 624 N.W.2d 841, 844 (citation omitted)

(“A defendant in a criminal case must give the trial court the opportunity to make a

ruling on an issue before it will be reviewed on appeal.”). Given the state of the

record here, we decline to address Clifford’s Sixth Amendment claim because he

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failed to preserve the issue of whether the statement at issue was testimonial and

whether its admission was in violation of the Confrontation Clause. See Marquez v.

United States, 903 A.2d 815, 817 (D.C. 2006) (where defense counsel objected on

“purely evidentiary grounds” based on hearsay, the court concluded the alleged

Confrontation Clause violation was not adequately preserved for appeal).

[¶28.] As to the hearsay objection that Clifford did raise below, we note that

the circuit court’s pretrial ruling was somewhat unclear as to the parameters of the

allowable testimony from the law enforcement officers when referring to

information related in the BOLO. The court acknowledged that the officers could

rely on hearsay when investigating a reported matter, but then stated that “when

they come to present their testimony, they can’t do so in the terms of presenting

hearsay evidence.” As Clifford notes on appeal, at trial, the State elicited testimony

from the officers regarding the caller’s statement that Clifford was in a red Toyota

Camry. He further notes that although the State argued such testimony was

admissible as background context explaining the officers’ actions, during the State’s

rebuttal argument in closing, the prosecutor used this testimony as substantive

evidence, offered for its truth, to prove identity. In particular, the State urged the

jury to consider the officers’ testimony “that the red Toyota Camry is associated

with Christian Clifford based on the BOLO.” However, Clifford did not object to

this statement, move to strike it from the record, or request a curative instruction.

Without an objection, “the trial court [is] not given an opportunity to consider the

objection or admonish the jury prior to submitting the case to them.” Janklow, 2005

S.D. 25, ¶ 44, 693 N.W.2d at 700.

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[¶29.] But even if the admission or use of such testimony for the truth of the

matter asserted violated the rule against hearsay, we are convinced, from our

review of the record, that Clifford has not established prejudicial error that

warrants reversal. See State v. Carter, 2023 S.D. 67, ¶ 26, 1 N.W.3d 674, 686

(citation omitted) (explaining that an error is prejudicial if there is a “reasonable

probability that, but for [the error], the result of the proceeding would have been

different”). The strongest evidence presented by the State to establish the driver’s

identity was the live testimony of two officers indicating that they were familiar

with Clifford’s appearance, had a clear opportunity to view the driver of the red

Camry, and positively identified Clifford as the driver.

[¶30.] Officer Puente’s dash camera video lends additional support to the

testimony that there was a clear opportunity to view Clifford. The video generally

depicts that it was light outside and Officer Puente’s view of the West 12th

Street/South Prairie Avenue intersection was not obstructed. Clifford drove

through the intersection in the red Camry at a low speed prior to Detective O’Brien

activating his emergency lights. Based on his position, Officer Puente had a clear

view of the side profile of the driver through the driver’s side window as the vehicle

passed through the intersection. Additionally, Officer Puente testified that he was

able to view Clifford through the windshield of the Camry as he stopped at a stop

sign prior to entering the intersection.

[¶31.] Detective Leacraft testified that he was familiar with Clifford’s

appearance, having viewed known photos of him prior to responding to the area,

and from observing Clifford on a prior occasion as part of surveillance involving

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unrelated matters. Detective Leacraft had an unobstructed view of Clifford as he

approached the intersection of West 13th Street and South Prairie Avenue. He

testified that he saw Clifford look into his rearview mirror as Detective O’Brien

attempted to initiate the stop.

[¶32.] Given this compelling testimony from the officers, the caller’s

statement was not the only evidence suggesting that Clifford was the driver and,

arguably, it was the weakest evidence on that point. The State did not mention the

caller’s statement in its initial closing argument, and, when mentioning the caller’s

statement during its rebuttal, the State reminded the jury of Detective Leacraft’s

and Officer Puente’s testimony and asked the jury to review the dash camera

footage. In light of that evidence, the caller’s statements are “merely cumulative or

corroborative of other evidence that was independently and properly admitted.”

State v. Podzimek, 2019 S.D. 43, ¶ 16, 932 N.W.2d 141, 147. Thus, Clifford has not

shown that there was error reaching a level of prejudice that “undermine[s]

confidence in the outcome.” Carter, 2023 S.D. 67, ¶ 26, 1 N.W.3d at 686 (citation

omitted). Accordingly, we affirm.

[¶33.] JENSEN, Chief Justice, and SALTER, DEVANEY, and MYREN,

Justices, concur.

[¶34.] GUSINSKY, Justice, not having been a member of the Court at the

time this action was considered by the Court, did not participate.

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