#31189-a-PJD
2026 S.D. 41
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
CHRIS DAVID KUJAWA, Defendant and Appellant.
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
THE HONORABLE MATTHEW M. BROWN
Judge
DEREK D. FRIESE of
South Dakota Office of
Indigent Legal Services
Sioux Falls, South Dakota Attorneys for defendant and
appellant.
MARTY J. JACKLEY
Attorney General
RENEE STELLAGHER
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff and
appellee.
CONSIDERED ON BRIEFS
APRIL 21, 2026
OPINION FILED 06/24/26
#31189
DEVANEY, Justice
[¶1.] Chris Kujawa was convicted of first-degree burglary and aggravated
assault with a deadly weapon after he entered the home of David Jasper and
threatened him with a handgun. At trial, he sought to impeach Jasper with his
prior felony convictions. The circuit court allowed cross-examination of Jasper
regarding his prior convictions, but not to the extent Kujawa requested. On appeal,
Kujawa claims the circuit court erred in this regard, and also alleges the court erred
in the way it responded to a jury question. We affirm.
Factual and Procedural Background
[¶2.] Kujawa rented one of Jasper’s storage units in Box Elder, where he
worked on vehicles and stored his welding equipment and tools. Jasper decided to
sell the storage units and notified Kujawa that he would need to remove his
personal property from the unit or make arrangements with the new owner.
Kujawa’s personal property was still in the unit when the sale closed.
[¶3.] Several months later, on January 6, 2025, Jasper was alone in his
residence in Box Elder when someone knocked at his door. When he opened the
door, he saw Kujawa, who put a pistol to Jasper’s head and forced his way through
the door into the home.1 Kujawa told Jasper to “say [his] prayers and prepare to die
for stealing all his stuff.” Jasper tried to explain that he did not steal Kujawa’s
property and that Kujawa needed to talk to the new owner of the storage units.
Kujawa ordered Jasper to turn around and drop to his knees, then kicked him in
1. These facts and the description of the events that follows were disputed at
trial. We relate the version that is consistent with the jury’s verdict.
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the back to lay flat on the floor, causing Jasper’s glasses to fly off and his nose to
bleed when his face hit the carpet. As Jasper lay on the floor with Kujawa’s foot
planted on his back, he heard Kujawa rack the slide of the gun and felt the gun
pressed to the back of his head. Kujawa told him, “It’s time for you to talk to your
maker. I got one in the chamber. This is it, you’re done.” He stated that Jasper’s
wife “was next.” At that point, Jasper thought he was going to die. After several
minutes, Kujawa suddenly left the home, leaving Jasper on the floor.
[¶4.] Eventually, Jasper got up and called his wife, Deedee, telling her what
happened. He was crying and sounded so panicked and scared that Deedee could
hardly understand him. She later testified at trial that, in the 15 years they were
together, she had “never heard him so upset” and “[h]e’s never cried.” When Deedee
arrived home moments later, she found him sitting on the bed, shaking and crying.
She called 911.
[¶5.] Law enforcement arrived soon thereafter, and Jasper was still sitting
on the bed, shaking and crying as he described what happened. Box Elder Police
Officer Stephanie Bright examined Jasper’s back but did not see evidence of
injuries, nor did she observe blood on his face or on the carpet. However, she did
see what appeared to be a bloodstain on his sleeve. Jasper declined medical
attention. He described the gun Kujawa was holding and what he was wearing.
[¶6.] Later, law enforcement found Kujawa at the residence of Oley Hansen,
who lived within walking distance of the Jaspers. Kujawa was arrested and, when
searched, did not have a firearm on him. The clothing he was wearing did not
match the description Jasper had provided the officers. Officer Bright took him to
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jail. Kujawa told her that he had been with Hansen that day and had gone with
him to pay a bill but was dropped off at Hansen’s house and did not go anywhere
else that day. He admitted knowing Jasper and said he used to rent a storage unit
from him, but he claimed he had not seen Jasper in months. Law enforcement
obtained a warrant to search Hansen’s house, but they did not find a gun matching
the description Jasper provided.
[¶7.] Kujawa was charged by indictment with Count 1: first-degree burglary
by entering or remaining in an occupied structure with intent to commit aggravated
assault (SDCL 22-32-1(1)), and Count 2: aggravated assault by attempting by
physical menace with a deadly weapon, to-wit: a firearm, to put Jasper in fear of
imminent serious bodily harm (SDCL 22-18-1.1(5)).
[¶8.] A jury trial commenced May 5, 2025. After the jury was selected and
excused for the day, the court and the parties addressed several matters. Defense
counsel informed the court that Jasper has a criminal history and discussed the
possible use of documentation for impeachment purposes if he denied having prior
convictions. The next day, before the start of trial, Kujawa’s counsel brought up an
issue regarding Jasper’s Triple I.2 Counsel explained that Jasper’s Triple I did not
show prior felonies, but “it should.” Defense counsel then provided the following
information:
There was a state and federal conviction. Both are felonies from
2002. However, his discharge from DOC wasn’t until September
of 2016. So I believe it falls within the 10 years. That was a
2. The State, in its brief, describes a Triple I as “the Interstate Identification
Index (III), an FBI-maintained database containing criminal history records
for individuals arrested or indicted for serious offenses.”
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grand theft, and he was essentially ordered to pay hundreds of
victims in excess of a million dollars in restitution. To be blunt,
Mr. Jasper’s kind of a con man. And he took family heirlooms
from people purporting to be able to fix them and took their
money and did nothing and ended up getting some time and
obviously having a substantial amount of restitution. So I think
it falls under 609(a)(2), that it’s a dishonest act that must be
allowed in but we wanted to address that one specifically
beforehand because it’s an older case. And I’m not sure that the
State knows about it because the Triple I didn’t have anything
in it.
(Emphasis added.) Counsel provided the court with the case file number for the
state conviction.
[¶9.] The State responded that it recently learned of Jasper’s felony
convictions and that Jasper would admit having them. Regarding the state grand
theft conviction, the State argued that “you don’t get to get into what caused it or
how many victims or what was stolen. It’s just the fact he has a felony conviction
that covers a deceitful type act. So I believe he will admit on direct that he has the
more recent federal felony as well as the grand theft felony.” When asked by the
court what the federal charge was, the State responded, “[i]t was possession of eagle
feathers.”3
[¶10.] Based on this information, the circuit court stated, “it appears in good
faith you can ask him if he’s got two felonies and one is a crime of dishonesty.”
3. Defense counsel did not refute the State’s description of the federal felony but
noted that “[t]here is another federal case, but because it’s sealed, it’s
connected to that grand theft, but I don’t know what the charge was because
the judgment’s sealed.” The exact nature, number, and date of conviction
regarding any federal offenses was not provided to the circuit court, nor did
defense counsel present arguments to the court regarding the federal
conviction. Thus, it is unclear when Jasper’s federal felony conviction
occurred, and whether there was more than one.
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Defense counsel asked “for a little more latitude with the grand theft, specifically”
and argued that Jasper “is a con man that frequently doesn’t pay people that he
owes money and doesn’t – swindles people out of money and has been doing that for
years and he’s very good at it and he’s going to be very charismatic on the stand[.]”
When the State objected that this was not permitted under SDCL 19-19-609 (Rule
609), defense counsel responded, “it’s not simply a 609, it’s a prior bad act as well.
So we can get into the facts of what occurred if it goes to something other than
character, which it would go to credibility in this case.” The State suggested such
evidence would constitute a “theft trial from 2022 [sic] in the middle of this trial
that has nothing to do with . . . the fact that he had a gun pointed at him.”
[¶11.] The circuit court then stated that, if Jasper “opens the door” by
suggesting he does not “swindle people or [he is] a great guy and . . . never touched
anybody else’s stuff or whatever,” then the issue could be revisited during trial. The
court explained that, unlike the parties, it was not fully aware of the facts of the
present case and could not assess whether the details of Jasper’s prior conviction
were relevant to this case. The court told the defense it was something they could
discuss further during trial, if necessary, but the defense would have to provide
further information and the court would “make a ruling at the time.” The court
reaffirmed that its initial ruling was that Jasper could not be asked what the crimes
were, or what the details were.
[¶12.] During its case-in-chief, the State called Jasper, who described the
details of the events in question as noted above. When asked if he had “two prior
felonies,” Jasper responded affirmatively. In response to the State’s question
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whether “one of those felonies [was] a crime of dishonesty from 2002,” Jasper said
“yes.” On cross-examination, defense counsel asked Jasper if he had “some state
convictions and some federal convictions,” and he confirmed he did. Defense
counsel then asked whether he had “convictions that are felonies that were actually
crimes of dishonesty,” and Jasper responded, “It was white collar, yes.” Counsel
began to ask a follow-up question but the State interrupted and requested a bench
conference.
[¶13.] The parties and the court then had an off-the-record discussion, after
which defense counsel continued by asking Jasper, “What is a white-collar crime?”
This prompted another objection from the State. The court again held a bench
conference and sustained the State’s objection. Defense counsel asked Jasper if it
was correct that “the initial crime” was in 2002 and Jasper confirmed that it was.
When counsel asked whether Jasper was “released from DOC in 2016,” the State
objected on relevance grounds and the court sustained the objection. Defense
counsel then started inquiring about Jasper’s “second felony” and whether it was in
2018. The State objected to the line of questioning, noting that Jasper had
“admitted under 609 and all of this is not relevant.” The court sustained the State’s
objections.
[¶14.] Defense counsel next cross-examined Jasper about apparent
inconsistencies between his account of the assault and his wife’s statements during
the 911 call that Jasper had been “pistol whipped” and was badly injured. Jasper
acknowledged this did not happen but denied that he told Deedee it had. Counsel
also questioned him about inconsistencies in what he told police about Kujawa
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kicking in the door and the fact there was no physical evidence of damage to the
door, as well as discrepancies in the number of times he said Kujawa kicked him.
During further cross-examination, defense counsel suggested that the reason
Kujawa went to Jasper’s home was to discuss money that he claimed Jasper owed
him, which Jasper denied.
[¶15.] The State called Deedee, who testified about the phone call she
received from Jasper and his emotional state when she arrived home. During crossexamination, the defense again pointed to some inconsistencies between what she
relayed during the 911 call and what Jasper testified to.
[¶16.] During a break in the proceedings, the court allowed the defense to
make a record regarding the bench conference that occurred during Jasper’s crossexamination. Counsel argued that Jasper’s response about his prior felony being a
“white collar crime” was an attempt to minimize his grand theft conviction and the
defense should have been allowed to examine him further about what that case was,
and what Jasper believed the term “white collar” meant. In presenting its
arguments, defense counsel did not provide the court with any additional
information about this prior case, as the court had instructed in its earlier ruling,
nor did they argue the evidence was admissible under any alternative evidentiary
rules. The State noted that, at the point the question was asked, Jasper had
already admitted twice that he was convicted of a crime of dishonesty and argued
“[t]hat is more than sufficient for purposes of what is allowed under [Rule 609(a)],
and no further discussion on what his actual crimes are is needed for clarification.”
The court explained its ruling, noting that Jasper had admitted his crime of
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dishonesty and that he “did not open the door” by referring to it as a white-collar
crime and, therefore, additional inquiry surrounding the crime was not permitted.
[¶17.] The State continued its case-in-chief, calling Officer Bright and
another Box Elder Police Department officer, Gunner Grass, who both responded to
Jasper’s home and testified regarding Jasper’s distraught demeanor. Officer Bright
also testified about what Kujawa had told her regarding his whereabouts on the day
in question and when he had last seen Jasper. Additionally, the State called
Hansen, who said he knew both Kujawa and Jasper. He testified that Kujawa
stayed with him occasionally and had done so the night before the incident. Hansen
explained he had spent most of January 6 at the hospital where his wife was a
patient, and that he had not done anything with Kujawa that day. He testified
that, at one point during the day, he went home and saw Kujawa walking toward
Hansen’s house. Hansen testified that Kujawa told him about his encounter with
Jasper. According to Hansen, Kujawa said “he went down there to ask him for
money and when he knocked on the door, [Jasper] fell on the floor” and “[s]tarted
crying.” Kujawa told Hansen he did not collect any money from Jasper.
[¶18.] After the State rested, the defense rested as well, without calling
witnesses. During closing arguments, both sides referenced Jasper’s prior
convictions. The State acknowledged, at the outset of its argument, that Jasper was
a convicted felon. But the State then asserted that “when someone breaks in your
home and points a gun at you,” the fact you have a felony history does not mean
“you are not to be believed, you are not eligible to be a victim.” In response, defense
counsel argued to the jury that “[h]aving a felony conviction in and of itself allows
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you to question someone’s credibility” and emphasized that Jasper’s prior felony
dealt “specifically with dishonesty.” Counsel told the jurors this should “play into
[their] determination of whether or not [they] can trust what he’s saying.” As to the
State’s version of what happened, defense counsel asked the jury to consider that it
was “just as possible” that Kujawa “went over to collect a debt that he was owed”
and “instead of breaking into the house, [Kujawa] was invited in.”
[¶19.] During jury deliberations, the jury submitted a written question to the
court. The court met with counsel to discuss a response and then provided a written
response directing the jurors to review certain instructions, identified by the court,
that the court had previously given to the jury. After additional deliberations, the
jury returned a verdict finding Kujawa guilty of both counts. The court later
sentenced him to 12 years in the penitentiary on each count, to be served
concurrently.
[¶20.] Kujawa appeals, raising three issues, which we restate as follows:
1. Whether the circuit court abused its discretion in limiting
evidence of Jasper’s prior convictions under SDCL 19-19-609.
2. Whether Kujawa’s constitutional right to confrontation
was violated.
3. Whether the circuit court abused its discretion in
responding to the jury’s question.
Standard of Review
[¶21.] We review a circuit court’s evidentiary rulings for abuse of discretion.
State v. Rudloff, 2024 S.D. 73, ¶ 32, 15 N.W.3d 468, 481 (citing State v. Harruff,
2020 S.D. 4, ¶ 14, 939 N.W.2d 20, 25). Likewise, a circuit court has “considerable
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discretion in responding to jury requests during deliberations, and on appeal, [its]
decision will not be disturbed except for abuse of discretion.” State v. Hillyer, 2025
S.D. 30, ¶ 24, 23 N.W.3d 782, 790 (citation omitted). “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.’” Rudloff, 2024
S.D. 73, ¶ 32, 15 N.W.3d at 481 (citation omitted). “Under the abuse of discretion
standard, ‘not only must error be demonstrated, but it must also be shown to be
prejudicial.’” Id. (citation omitted). “To establish prejudice, one must show there is
‘a reasonable probability that, but for [the error], the result of the proceeding would
have been different.’” State v. Spry, 2026 S.D. 21, ¶ 28, 34 N.W.3d 192, 201
(alteration in original) (quoting State v. Carter, 2023 S.D. 67, ¶ 26, 1 N.W.3d 674,
686).
Analysis and Decision
1. Whether the circuit court abused its discretion in
limiting evidence of Jasper’s prior convictions
under SDCL 19-19-609.
[¶22.] On appeal, Kujawa contends the circuit court abused its discretion
when it limited the evidence that could be admitted under SDCL 19-19-609 (Rule
609) with respect to Jasper’s prior convictions.4 He argues the court applied a
4. SDCL 19-19-609 (Rule 609) states in pertinent part:
(a) In general. The following rules apply to attacking a
witness’s character for truthfulness by evidence of a criminal
conviction:
(1) For a crime that, in the convicting jurisdiction, was
punishable by death or by imprisonment for more than
one year, the evidence:
(continued . . .)
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“blanket rule” that impermissibly restricted the evidence to the fact that Jasper had
been convicted of two felonies, without being named, and that one of them was for a
crime of dishonesty. Kujawa further argues that the court should have permitted
him “to elicit, at minimum, testimony related to the dates, statutory names, and
nature of Jasper’s convictions.” He asserts that the court erred because it failed to
perform a balancing test under SDCL 19-19-403 (Rule 403) before determining what
evidence regarding Jasper’s convictions would not be admissible. Before addressing
the circuit court’s ruling, we first review the rule and make some general
observations about its applicability.
(. . . continued)
(A) Must be admitted, subject to § 19-19-403, in
a civil case or in a criminal case in which the
witness is not a defendant; and
(B) Must be admitted in a criminal case in which
the witness is a defendant, if the probative value of
the evidence outweighs its prejudicial effect to that
defendant; and
(2) For any crime regardless of the punishment, the
evidence must be admitted if the court can readily
determine that establishing the elements of the crime
required proving—or the witness’s admitting—a
dishonest act or false statement.
(b) Limit on using the evidence after 10 years. This
subdivision (b) applies if more than 10 years have passed since
the witness’s conviction or release from confinement for it,
whichever is later. Evidence of the conviction is admissible only
if:
(1) Its probative value, supported by specific facts and
circumstances, substantially outweighs its prejudicial
effect; and
(2) The proponent gives an adverse party reasonable
written notice of the intent to use it so that the party has
a fair opportunity to contest its use.
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a. Rule 609
[¶23.] Rule 609 is an evidentiary rule that governs impeachment with
evidence of a witness’s criminal conviction for the purpose of attacking the witness’s
character for truthfulness. This version of our rule, which mirrors current Federal
Rule of Evidence 609, was adopted as Supreme Court Rule 15-42 and became
effective January 1, 2016. See 2016 S.D. Sess. Laws ch. 239. It was one of several
amendments to the rules of evidence in SDCL Title 19. Id. Prior to this, the rule
governing impeachment with a conviction was found in SDCL 19-14-12.5 See State
v. Swallow, 405 N.W.2d 29, 36 n.1 (S.D. 1987) (quoting SDCL 19-14-12).
[¶24.] Our current Rule 609 differs from SDCL 19-14-12 in several respects.
Under SDCL 19-14-12, before a court could allow convictions to be admitted into
evidence for the purpose of attacking the credibility of a witness, it was required to
“make a definite finding that the prior convictions are more probative than
prejudicial.” State v. Cross, 390 N.W.2d 564, 566 (S.D. 1986) (citations omitted).
The assessment, under SDCL 19-14-12, allowed for a consideration of the
5. Former SDCL 19-14-12 provided:
For the purpose of attacking the credibility of a witness,
evidence that he has been convicted of a crime shall be admitted
but only if the court determines that the probative value of
admitting this evidence outweighs its prejudicial effect to a
party or the accused and the crime
(1) was punishable by death or imprisonment in excess
of one year under the law under which he was convicted,
or
(2) involved dishonesty or false statement, regardless
of the punishment.
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prejudicial effect to “a party” or to “the accused.” See Swallow, 405 N.W.2d at 36
(noting the distinction between SDCL 19-14-12 and the then-existing version of the
federal rule, which referred only to a court weighing the probative value versus the
potential prejudice to the defendant).
[¶25.] In contrast, the current version of Rule 609 applies a different
balancing requirement for determinations of whether evidence of a conviction will
be admitted, depending on the nature of the conviction and the type of witness. See
generally 28 Wright & Miller’s Federal Practice & Procedure §§ 6134−6135 (2d ed.),
Westlaw (database updated April 2026) [hereafter Wright & Miller] (discussing
federal rule). With respect to crimes that are felonies, Rule 609(a)(1)(A) requires
evidence of a witness’s prior felony conviction to be admitted where the witness is
testifying in a civil case or in a criminal case in which the witness is not the
defendant on trial—with the caveat that admission of such evidence is “subject to”
the rule permitting a court to exclude otherwise relevant evidence if its probative
value is substantially outweighed by unfair prejudice or other identified dangers.
See SDCL 19-19-403.6 However, the balancing standard is different if the witness is
a defendant testifying in his or her own criminal case. In that instance, under Rule
6. SDCL 19-19-403 (Rule 403) states: “The 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.”
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609(a)(1)(B), evidence of a felony conviction must be admitted if “the probative value
of the evidence outweighs its prejudicial effect to that defendant.”7
[¶26.] Another key distinction between current Rule 609 and SDCL 19-14-12,
which is most relevant in this case, is the treatment of crimes of dishonesty. Under
Rule 609(a)(2), “[f]or any crime regardless of punishment, the evidence must be
admitted if the court can readily determine that establishing the elements of the
crime required proving—or the witness’s admitting—a dishonest act or false
statement.” This language has been interpreted as applying to a “fairly narrow
subset of criminal activity[.]” Christopher B. Mueller and Laird C. Kirkpatrick, 3
Federal Evidence § 6:46 (4th ed.), Westlaw (database updated July 2025); see
generally id. §§ 6:46−6:47 (describing how the 2006 amendments to Federal Rule of
Evidence 609 suggest a more limited approach when considering what crimes are
included in subsection (a)(2)); see also Wright & Miller § 6135. When determining
whether a conviction meets the requirements of this subsection, a circuit court
should be careful not to turn the process into “a ‘mini-trial’ in which the court
plumbs the record of the previous proceeding” regarding the details of the prior
conviction.8 See 1 McCormick on Evidence § 42 n.31 (9th ed.), Westlaw (database
7. Unlike the Rule 403 balancing required under Rule 609(a)(1)(A) when a court
considers whether to preclude a witness’s prior conviction, evidence of a
criminal defendant’s prior conviction can be precluded under Rule
609(a)(1)(B) without a heightened showing that the probative value is
“substantially” outweighed by “unfair prejudice” or other Rule 403 concerns.
Instead, a defendant’s felony conviction can be precluded if its probative
value does not outweigh the prejudicial effect.
8. In this case we need not analyze whether Jasper’s grand theft crime met this
subsection, as all parties and the court treated it as though it did.
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updated February 2025) (quoting Federal Rule of Evidence 609 advisory
committee’s note to 2006 amendment). If the crime falls within subsection (a)(2), no
weighing or balancing need occur before evidence of the conviction is admitted. See
id. § 42 n.10; United States v. Collier, 527 F.3d 695, 700 (8th Cir. 2008) (citation
omitted).
[¶27.] However, for a conviction to be admitted—under either subsection
(a)(1) or (a)(2)—the court must also consider whether it is too remote in time, i.e. “if
more than 10 years have passed since the witness’s conviction or release from
confinement for it, whichever is later.” SDCL 19-19-609(b). In that case, evidence
of such a conviction is admissible only if the court finds that “[i]ts probative value,
supported by specific facts and circumstances, substantially outweighs its
prejudicial effect” and the proponent seeking admission of the evidence “gives an
adverse party reasonable written notice of the intent to use it so that the party has
a fair opportunity to contest its use.” Id.; see Rudloff, 2024 S.D. 73, ¶¶ 45, 51, 15
N.W.3d at 484, 487 (affirming the circuit court’s exclusion of witness’s 22-year-old
conviction for false reporting, where the circuit court determined the conviction had
no probative value and there was danger of confusing the jury).9
9. Here, Jasper was convicted of grand theft in 2002, some 23 years prior to
Kujawa’s trial. Although defense counsel described Jasper as having been
discharged from the Department of Corrections in 2016, it is not evident in
the record when Jasper was released from physical “confinement” in that
case. See United States v. Stoltz, 683 F.3d 934, 939 (8th Cir. 2012) (rejecting
the argument that the ten-year period in Federal Rule of Evidence 609(b)
commenced upon discharge from probation, noting that the phrase “release
from confinement” means release from physical confinement). However, the
State did not argue below that the conviction was too remote such that the
balancing under Rule 609(b)(1) was required. Therefore, we need not address
(continued . . .)
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b. Scope of the evidence
[¶28.] This case presents the first opportunity in which we have been asked
to interpret how the provisions of Rule 609, effective in 2016, relate to a defendant’s
claim that a circuit court abused its discretion in limiting the scope of information
that could be admitted to impeach a witness with a prior conviction. The issue here
is what type of evidence is properly admitted, and excluded, when a conviction is
used for impeachment purposes under Rule 609(a). We note that the language of
Rule 609 refers only to “evidence of a criminal conviction” and does not specify what
type of evidence that entails. We have recognized that, “[a]lthough federal
interpretations of these rules [of evidence] are not binding on us, it is helpful to
‘turn to the federal court decisions for guidance in their application and
interpretation.’” State v. Wright, 1999 S.D. 50, ¶ 13 n.4, 593 N.W.2d 792, 798 n.4.
(citation omitted)
[¶29.] In his brief, Kujawa relies on decisions from federal courts interpreting
Federal Rule of Evidence 609(a) in support of his argument that the circuit court
erred in “applying a ‘blanket rule’ which deemed the nature of Jasper’s felony
convictions to be ‘categorically inadmissible.’” See United States v. Howell, 285 F.3d
1263, 1266−67, 1270 (11th Cir. 2002) (concluding that the district court erred in
limiting evidence of prior convictions of prosecution witnesses admitted under Rule
609(a)(1) by making “a blanket ruling that the fact and date of the witnesses’ felony
convictions could be admitted but nothing else,” without performing the required
(. . . continued)
the applicability of this subsection or the remoteness of the conviction at
issue here.
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balancing). The court in Howell held that “ordinarily, evidence of a witness’s felony
conviction shall include information about the nature of that conviction unless, after
Rule 403 balancing, the probative value of such evidence is outweighed by its
prejudicial effect.” Id. at 1268−69.
[¶30.] The Second Circuit Court of Appeals similarly ruled that the district
court erred when it limited the evidence of government witnesses’ convictions
admitted under Federal Rule of Evidence 609, “as a matter of policy, to the fact and
date of their felony convictions without permitting inquiry into the statutory names
of the . . . offenses of conviction.” United States v. Estrada, 430 F.3d 606, 615 (2nd
Cir. 2005). The court noted that evidence of a criminal conviction under Rule
609(a)(2), which is “per se probative of credibility,” should include the “essential
facts” of the convictions, including “the statutory name of each offense” and “the
date of conviction[.]” Id. at 615 (citation omitted). The court further determined
that the same principle would apply to convictions falling under Rule 609(a)(1),
noting that such essential facts are “presumptively required by the Rule, subject to
balancing under Rule 403.”10 Id. at 616 (citations omitted) (recognizing the
propriety of considering “essential facts” of a conviction, while limiting evidence of
underlying facts or details of the crime); see Wright & Miller § 6134 (noting that
10. Some federal court decisions, including United States v. Estrada, include the
“sentence imposed” in the list of essential facts that are presumptively
admissible. 430 F.3d 606, 615 (2nd Cir. 2005). However, we do not adopt
this view. There may be factors underlying a given sentence that have little
to do with a witness’s character for truthfulness. While courts have the
discretion to admit evidence of the sentence, they should be cognizant of the
possibility that admitting such evidence could, in some cases, inadvertently
open the door to further questions necessitating the application of other
evidentiary rules such as SDCL 19-19-404(a) and (b).
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“the ‘mere fact’ approach is hardest to justify with the language and structure of
Rule 609”) and 4 Weinstein & Berger, Weinstein’s Federal Evidence § 609.20[2]
(2025 update) (noting federal decisions supporting the view that “Rule 609(a)(1)
requires the trial court to admit evidence of the nature and date of each conviction,
subject to Rule 403 balancing”).
[¶31.] These authorities support the principle that a “blanket rule” allowing
the admission of only the fact that a witness has been convicted of an unnamed
felony under Rule 609(a)(1) or an unnamed crime of dishonesty under Rule 609(a)(2)
is not proper. With respect to crimes of dishonesty admitted under Rule 609(a)(2),
the essential facts—the name or nature of the offense and the date of conviction—
should be admitted. For convictions admitted under Rule 609(a)(1), these essential
facts may be admitted, subject to a proper balancing of the probative value of such
evidence versus the prejudicial effect, or other Rule 403 concerns. Courts retain
broad discretion under Rule 609(a)(1) to exclude evidence of the nature of the
offense if the balancing weighs against the admission of such facts. See, e.g., United
States v. Ford, 17 F.3d 1100, 1103 (8th Cir. 1994) (upholding the district court’s
ruling allowing the jury to be informed that the witness had a felony conviction, but
excluding the specific nature of the offense—a sex offense against a minor—as
overly prejudicial).
[¶32.] On a final note, we observe that many of the cases and secondary
sources addressing this issue refer to both the name and nature of the offense; some
courts refer to the statutory name of the crime when discussing the “nature” of the
conviction, while others refer to a more general description of what the crime is. In
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our view, it is not so clear that there is a meaningful difference between the two
terms. But in any event, allowing a description of the crime does not mean that
evidence of the underlying details of the conviction should be admitted, as the
“nature of a conviction is distinct from the specific facts and circumstances
underlying that conviction.” United States v. Lopez-Medina, 596 F.3d 716, 737 n.16
(10th Cir. 2010) (citing Howell, 285 F.3d at 1268−69) (upholding admission of “the
nature of the defendant’s conviction, i.e., that it was for possession with intent to
distribute methamphetamine”); see Collier, 527 F.3d at 700−01 (upholding the
disclosure of the nature of the conviction, i.e., that it was credit card fraud); United
States v. Shelledy, 961 F.3d 1014, 1023 (8th Cir. 2020) (observing that “[t]he ability
to introduce the specific crime is not a license to flaunt its details” (alteration in
original) (citation omitted)).
c. Admission of Jasper’s grand theft conviction
[¶33.] We now address the circuit court’s ruling in this case, but given the
limited record the parties made below, we focus solely on the rulings related to
Jasper’s 2002 state conviction for grand theft.11 When seeking a ruling allowing
impeachment with this conviction, Kujawa argued it was admissible as a crime of
dishonesty under Rule 609(a)(2) and the State did not disagree with this premise.
The court granted Kujawa’s request and ruled that the conviction was admissible.
11. Kujawa makes a passing reference in his brief to the federal conviction,
which the State indicated was for “possession of eagle feathers,” and suggests
the circuit court should have “inquired further” to determine the name, date,
and nature of that conviction when making its ruling. But Kujawa did not
make any record, nor present any arguments below, regarding the name or
nature of that federal conviction. We therefore do not address it.
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Kujawa argues that the court nevertheless erred by limiting the facts he wished to
elicit with respect to this conviction, without conducting a Rule 403 balancing test.
As to that point, we note that the court did not state its reasons for its initial ruling
that no evidence would be admitted beyond the fact of the conviction and that it was
a crime of dishonesty. Instead, it referred to this as its “standard ruling.” Based on
our interpretation of the current version of Rule 609, this blanket refusal to allow
anything beyond the bare fact of conviction (“a felony conviction”) with no principled
basis for such a ruling constituted an abuse of discretion. This is particularly so
where the conviction was admitted under subsection 609(a)(2).
[¶34.] However, it is evident from the record here that Kujawa’s primary
objective was not limited to eliciting the statutory name or general nature of the
crime for impeachment purposes. Rather, he clearly sought to delve deeply into the
underlying details of the grand theft case and admit this information as “prior bad
acts” or character evidence to paint Jasper as a “con man.” This is beyond what is
permitted under Rule 609(a), which pertains only to the use of a prior conviction to
impeach a witness’s character for truthfulness.
[¶35.] Additionally, we note that the circuit court indicated during the
hearing that it was leaving open the possibility that something more might be
allowed, depending on how the trial unfolded. The court made it clear, however,
that defense counsel would have to come forward with additional information to
provide context for such a ruling. They did not do so, at least not based on the
record before us. The only additional record defense counsel made was to
memorialize the off-the-record bench conference regarding the claim that Jasper
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“opened the door” by referring to his crime of dishonesty as a “white collar” crime.12
But during this discussion, there was no additional information provided to the
court regarding the nature of the grand theft case that would suggest that Jasper’s
characterization of the crime was false.13 Moreover, beyond the question the court
had sustained—“What is a white-collar crime?”—defense counsel made no proffer on
the record as to what additional information counsel wanted to solicit from Jasper.
Under these circumstances, we see no error in the court’s determination that Jasper
had not opened the door to further impeachment, at least with regard to any
attempt to elicit the underlying details of the crime.
[¶36.] To the extent the circuit court abused its discretion in limiting the
evidence of the essential facts of the conviction by not allowing disclosure of what
the crime was, we must address whether Kujawa has established prejudice
warranting a reversal. In his appellate briefs, Kujawa has made little or no
argument to meet his burden to show there is a “reasonable probability” the
outcome of the trial would have been different had the jury been told that Jasper’s
crime of dishonesty was a grand theft. Spry, 2026 S.D. 21, ¶ 28, 34 N.W.3d at 201
12. Some authority exists to support the principle that additional “relevant
details of the crime may be admissible if the witness attempts to deny or
minimize his or her guilt.” See 4 Weinstein’s Federal Evidence § 609.20[2]
(2025 update) (emphasis added); see also United States v. Collier, 527 F.3d
695, 700 (8th Cir. 2008) (noting that the government was permitted, during
cross examination, to solicit additional information regarding the actual
amount of restitution the witness was required to pay in his prior criminal
case, where he minimized his culpability during his direct examination by
significantly understating the amount). But that did not occur here.
13. Black’s Law Dictionary defines white-collar crime as “[a] nonviolent crime
usu. involving cheating or dishonesty in commercial matters.” White-collar
crime, Black’s Law Dictionary (12th ed. 2024).
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(citation omitted). The only argument he makes is that Jasper’s description of his
grand theft conviction as a “white collar crime” may have left the jury with a
“dishonest characterization.” But he has failed to explain why Jasper’s grand theft
crime could not be considered a “white collar crime” or why the jury would consider
this to be a minimization of his admitted crime of dishonesty. Moreover, even if the
court would have allowed Kujawa to elicit the fact that this conviction was for a
grand theft, it is difficult to envision that the jurors would find Jasper less credible
if they were given this additional information. Here, the jury was made well aware
that Jasper had two felony convictions, with one of them being a crime of dishonesty
for which he was convicted in 2002. Telling the jury Jasper was convicted of a crime
of dishonesty likely had more impact on the matter of his character for truthfulness
than simply referring to the statutory name of the offense, particularly given that
many types of theft do not involve an act of dishonesty.
[¶37.] It is also noteworthy that the State began its closing argument by
telling the jury it would “have to trust the word of a convicted felon.” Defense
counsel’s closing argument also highlighted the fact that Jasper’s felony conviction
dealt “specifically with dishonesty” to argue he was not to be believed. But more
importantly, the reference to Jasper’s prior convictions was not the only impeaching
evidence the defense relied on. Defense counsel cross-examined Jasper regarding
inconsistent statements he made to law enforcement describing what occurred
during the incident; counsel also contrasted these statements with his trial
testimony, which differed in some respects. Impeachment of Jasper on the
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statements that relate directly to the crime at issue was more likely to impact the
jury’s assessment of the events in question than his 2002 felony conviction.
[¶38.] Furthermore, while Jasper’s credibility was clearly important, so too
was Kujawa’s. Although he did not testify, the jury heard about his lies to Officer
Bright that he had not seen Jasper for months and that, after running an errand
with Hansen that day, he was at Hansen’s residence and did not go anywhere else.
To the contrary, Hansen testified that Kujawa had not been with him. The jury
also heard Hansen describe how he saw Kujawa walking toward Hansen’s house
and that Kujawa explained he had gone to confront Jasper about money he said he
was owed, and when Kujawa knocked on the door, Jasper “fell on the floor” and
“[s]tarted crying.” It is apparent that the jury rejected this odd rendition and
instead believed Jasper’s account of what transpired—that he was on the floor and
crying because Kujawa forced his way into the residence and threatened to kill him
with a gun that was pointed at his head. This account was consistent with Jasper’s
demeanor and emotional state after the events, which was corroborated by Deedee
and both officers. We therefore conclude Kujawa has not established prejudice
warranting dismissal.
2. Whether Kujawa’s constitutional right to
confrontation was violated.
[¶39.] Kujawa argues the circuit court’s limitation of his cross-examination of
Jasper violated his rights under the Confrontation Clause of the United States
Constitution. See U.S. Const. amend. VI. He acknowledges that he did not present
this constitutional claim below and therefore asks the Court to review this
unpreserved issue for plain error. State v. Clemensen, 2025 S.D. 68, ¶ 48, 28
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N.W.3d 902, 918 (citation omitted) (noting that “[w]hen issue is not preserved for
appeal, this Court is limited to a review for plain error”).
[¶40.] “We invoke our discretion under the plain error rule cautiously and
only in exceptional circumstances.” State v. Krueger, 2020 S.D. 57, ¶ 38, 950
N.W.2d 664, 674 (quoting State v. McMillen, 2019 S.D. 40, ¶ 13, 931 N.W.2d 725,
729). “To establish plain error, an appellant must show (1) error, (2) that is plain,
(3) affecting substantial rights; and only then may this Court exercise its discretion
to notice the error if, (4) it seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. (citing McMillen, 2019 S.D. 40, ¶ 13, 931
N.W.2d at 729−30). We have explained that, under plain error review, an appellant
“must prove prejudice.” State v. Guziak, 2021 S.D. 68, ¶ 22, 968 N.W.2d 196, 203.
“Without the additional showing of prejudice, the error does not affect substantial
rights under the third prong of plain error review.” Id. (citation modified).
Furthermore, we have held that not only must error be shown, but it must be
“plain,” which we have described as “clear or obvious.” McMillen, 2019 S.D. 40,
¶ 23, 931 N.W.2d at 732 (citations omitted) (noting caselaw which holds that “there
can be no plain error to review when neither the Supreme Court nor this Court had
resolved the issue beyond debate” (citation modified)).
[¶41.] We must, therefore, assess whether Kujawa has established that the
circuit court’s limitation on his cross-examination created an error that clearly or
obviously violated the Confrontation Clause. We have held that a “circuit court
retains broad discretion concerning the limitation of cross-examination.” State v.
McCahren, 2016 S.D. 34, ¶ 25, 878 N.W.2d 586, 597 (citation modified).
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Furthermore, we have recognized that the Confrontation Clause is “generally
satisfied when the defense is given a full and fair opportunity to probe and expose a
witness’ infirmities through cross-examination, thereby calling to the attention of
the factfinder the reasons for giving scant weight to the witness’ testimony.” State
v. Kryger, 2018 S.D. 13, ¶ 14, 907 N.W.2d 800, 808 (quoting State v. Spaniol, 2017
S.D. 20, ¶ 24, 895 N.W.2d 329, 338).
[¶42.] Kujawa argues that “the circuit court committed plain error because it
significantly limited [his] ability to confront Jasper with his criminal history.” He
argues that “[a] reasonable jury may have interpreted Jasper’s testimony differently
had [his] counsel been permitted to pursue the line of questioning.” Beyond these
conclusory statements, however, Kujawa does not establish how the circuit court’s
ruling plainly rose to the level of a constitutional violation. “It is well settled that
the right to cross examine is not absolute.” State v. Karlen, 1999 S.D. 12, ¶ 38, 589
N.W.2d 594, 602. “An individual is only guaranteed ‘an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.’” Kryger, 2018 S.D. 13, ¶ 16, 907 N.W.2d
at 808 (quoting Spaniol, 2017 S.D. 20, ¶ 29, 895 N.W.2d at 340).
[¶43.] Kujawa has failed to demonstrate that he was denied a full and fair
opportunity to call into question Jasper’s credibility. The jury heard that Jasper
had been convicted of two felonies, with one being a crime of dishonesty, which
Kujawa later called to the jury’s attention during closing argument. Additionally,
as noted above, Kujawa extensively cross-examined Jasper regarding alleged
inconsistencies between his testimony and other evidence presented at trial.
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Kujawa fails to present any authority from this Court that establishes “beyond
debate” that his inability to cross-examine Jasper to the extent he wished—by
inquiring into additional details regarding Jasper’s convictions—was a “clear or
obvious” error rising to the level of a Confrontation Clause violation. See McMillen,
2019 S.D. 40, ¶ 23, 931 N.W.2d at 732 (describing what constitutes an error that is
“plain”). Therefore, “we need not address the remaining plain error review
considerations.” State v. Richter, 2025 S.D. 58, ¶ 22, 27 N.W.3d 777, 786.
3. Whether the circuit court abused its discretion in
responding to the jury’s question.
[¶44.] During jury deliberations, the jury submitted the following written
question to the circuit court: “Is a guilty verdict possible on Count One First Degree
Burglary, if there is a reasonable doubt as to the involvement of a weapon?” The
court convened the parties to discuss an appropriate response. Defense counsel
argued that the jury was asking a “question of law” and that the court should
respond directly by telling the jury, “no, you cannot convict if you do not believe
beyond a reasonable doubt that a weapon was used.” The State disagreed with
defense counsel’s proposal and argued the answer could be found in the jury
instructions previously given, specifically Instructions 17 and 28.
[¶45.] Instruction 17 contained the elements of the crime of first-degree
burglary, “each of which the State must prove beyond a reasonable doubt,” and
included the element that “[t]he defendant unlawfully entered or unlawfully
remained [in an occupied structure] with the intent to commit the crime of
aggravated assault.” Instruction 28 stated in its entirety:
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An element of the crime of First-Degree Burglary is that the
unlawful entering or unlawful remaining in an occupied
structure was with the specific intent to commit the crime of
aggravated assault, that is, with the specific intent to attempt
by physical menace with a deadly weapon to put another in fear
of imminent serious bodily harm. The offense is complete when
the unlawful entering or unlawful remaining is made with such
specific intent regardless of whether the aggravated assault is
committed.
(Emphasis added.) Kujawa’s counsel indicated that, if the court was inclined to
refer to Instruction 28, the court should also include Instruction 28A, which
addressed specific intent.
[¶46.] The circuit court pointed to the language of Instruction 28 and noted
that a “juror could read that and understand that . . . it would be a factual
impossibility to menace someone with a deadly weapon if there’s no deadly weapon.”
The court determined it would respond to the jury, in writing, that “[t]he jury is
instructed to review Instructions 17, 28, and 28A.”
[¶47.] On appeal, Kujawa argues the court abused its discretion by not
answering the jury’s question directly, in the manner he requested. He argues that
the court’s failure to provide a specific answer lacked clarification that “all elements
must be proven beyond a reasonable doubt to return a guilty verdict” and “allowed
the jury’s confusion to impact the verdict.” He asserts that “[h]ad the circuit court
properly informed the jury that the involvement of a weapon was an element the
State must prove beyond a reasonable doubt, the jury would have returned a
different verdict.”
[¶48.] We have recognized that, when considering a jury’s question, “[i]f the
court in the exercise of sound discretion concludes that information or further
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instructions are not required, it may properly refuse such a request.” Hillyer, 2025
S.D. 30, ¶ 25, 23 N.W.3d at 790 (citing State v. Rhines, 1996 S.D. 55, ¶ 178, 548
N.W.2d 415, 454). Moreover, where “the jury instructions are correct statements of
the law, no further instruction is necessary” and the court may “properly [refer] the
jury to those instructions.” Id. (quoting State v. Schrempp, 2016 S.D. 79, ¶ 25, 887
N.W.2d 744, 751 for the principle that “[r]eferring the jury to instructions already
given is not error”).
[¶49.] The instructions referenced by the court in its response were agreed to
by both parties during settling of instructions. Together, Instructions 17, 28, and
28A accurately explained the elements of first-degree burglary and that in order to
convict Kujawa of this count, the jury must find, beyond a reasonable doubt, that
Kujawa acted “with the specific intent to attempt by physical menace with a deadly
weapon to put another in fear of imminent serious bodily harm.”14 “We presume
that juries follow their instructions[.]” State v. Black Cloud, 2023 S.D. 53, ¶ 43, 996
N.W.2d 670, 682 (citation omitted). The circuit court did not abuse its discretion in
answering the juror’s question.
[¶50.] We affirm.
14. Other instructions provided further direction for the jury. For example,
Instruction 14 reads, in part, that the State has the burden to prove “every
element of the offense charged beyond a reasonable doubt” and that if
reasonable doubt exists, “your verdict must be not guilty.” Instruction 39 told
the jury that “[i]f any member of the jury has any reasonable doubt . . . upon
any single fact or element necessary to constitute the offense charged as
defined for you by the court, then it is that juror’s duty to give the Defendant
the benefit of the doubt and vote for a verdict of not guilty on that charge.”
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[¶51.] JENSEN, Chief Justice, and SALTER, MYREN, and GUSINSKY,
Justices, concur.
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