APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT CLAY COUNTY, SOUTH DAKOTA THE HONORABLE ARTHUR L. RUSCH Judge
The opinion of the court was delivered by: Wilbur, Justice
CONSIDERED ON BRIEFS ON JANUARY 9, 2012
[¶1.] Jeremy Zephier appeals his aggravated assault conviction arguing that the trial court abused its discretion in denying his (1) proposed jury instruction and
(2) motion for a new trial. We affirm.
FACTS AND PROCEDURAL BACKGROUND
[¶2.] Zephier was at Donita Wika's Vermillion apartment drinking beer with friends on a Friday evening. That same evening, Julia Marshall, Zephier's former girlfriend, was with her new boyfriend, Carlos Diaz. Marshall and Diaz visited several bars in downtown Vermillion where both consumed alcohol. When the bars closed, both Marshall and Diaz attended a house party. However, Marshall left the party without Diaz and went over to Wika's apartment which was located across the hall from her own apartment. Marshall continued to consume alcohol with Zephier, Wika, and their friends.
[¶3.] When Diaz realized Marshall had left the party, he went to her apartment complex to look for her. When Marshall did not answer her door, Diaz went across the hall to Wika's apartment where he heard noise and suspected Marshall was inside. Almost immediately after entering the apartment, Zephier attacked Diaz by striking him several times in the face with his fist and kicking Diaz when he fell to the ground.
[¶4.] With the exception of the foregoing, many of the relevant facts were subject to conflicting evidence at trial.*fn1 The evidence presented by Zephier
attempted to portray Diaz as an unwanted intruder into the apartment. Therefore, according to Zephier, his force was justified as self-defense and to prevent Diaz from trespassing. In contrast, the State presented evidence that Zephier had no legal justification for his use of force because Diaz simply went to Wika's apartment looking for Marshall. [¶5.] Before submitting the issue to the jury, the trial court rejected Zephier's proposed instruction regarding when it is lawful to use force in preventing a trespass. The rejected instruction provided, in relevant part:
Under certain circumstances it is lawful to use or attempt or offer to use force or violence upon or toward the person of another. The force or violence may be employed . . . . In preventing or attempting to prevent any trespass . . . . (Emphasis added.) [¶6.] Although the trial court rejected Zephier's instruction, it gave the jury South Dakota Criminal Pattern Jury Instruction 2-9-1. This instruction provided, in relevant part:
Under certain circumstances it is lawful to use or attempt or offer to use force or violence upon or toward the person of another . . . . In preventing or attempting to prevent an illegal attempt by force to take or injure property in a person's lawful possession . . . . (Emphasis added.)
[¶7.] The jury convicted Zephier of aggravated assault. Following the conviction, Zephier filed a motion for a new trial on the basis of an irregularity in the proceeding and newly discovered evidence. The trial court denied Zephier's motion. Zephier appeals to this Court arguing that the trial court abused its discretion in denying his proposed instruction and his motion for a new trial.
[¶8.] 1. Whether the trial court abused its discretion in denying Zephier's ...