Argued March 26, 2014
APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES COUNTY, SOUTH DAKOTA. THE HONORABLE JOHN L. BROWN, Judge.
MARTY J. JACKLEY, Attorney General, KELLY MARNETTE, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
BRAD A. SCHREIBER, JOAN BOOS SCHUELLER of Schreiber Law Firm, LLC, Pierre, South Dakota, Attorneys for defendant and appellant.
GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and WILBUR, Justices, concur.
[¶1] Derek Leroy Boe was convicted by a jury of aggravated assault, discharge of a firearm at a car, and possession of a firearm by a prohibited person. On appeal, he asserts, among other things, that the circuit court abused its discretion when it admitted evidence of his 2002 conviction for aggravated assault as other act evidence under SDCL 19-12-5 (Rule 404(b)).
[¶2] Boe and Tabetha Key began a romantic relationship in 2011. They lived together in Boe's home until an argument led Key to move out at the end of the year. Shortly thereafter, on January 21, 2012, Boe planned to spend the day and night at his friend Brad Nystrom's place. Boe was without his children for the weekend and
he and Nystrom planned to fix a tractor. While Boe was at Nystrom's, Key called and asked if she could come over. Boe said yes, and around noon, Key arrived. She parked her 1995 GMC Jimmy in Nystrom's shop and began to clean it out.
[¶3] At 4:00 p.m., Boe left for town to meet one of his children. He planned to come back and spend time with Key and Nystrom. He told Key that she could stay and continue cleaning out her Jimmy. While Boe was gone, his friend Colin Larson called him to see what his evening plans were. After Boe told him he planned to be at Nystrom's, Larson suggested they have a boys' night. Boe agreed, and Larson drove out to Nystrom's place. Larson admittedly dislikes Key. Once Larson arrived at Nystrom's, he asked Nystrom if he could tell Key to leave. Nystrom complied. But Key refused and locked herself and her Jimmy in Nystrom's shop.
[¶4] At 9:00 p.m., Boe returned. He knew Larson and Key were arguing and that Key refused to leave. Boe tried unsuccessfully to convince Key to leave. Boe decided he would hook a chain between his 1993 GMC Suburban and Key's Jimmy and pull her Jimmy out of the shop. After he got the chain hooked to her vehicle and started pulling, Key rammed her Jimmy into Boe's Suburban. She then drove away, heading north on Nystrom Road. Boe followed her in his Suburban. Key changed course and decided to go south toward the highway. When she turned around, she saw Boe's Suburban blocking the road. She ran into his Suburban, she later claimed, to move him out of the way. After she hit his Suburban, however, she slid into the ditch and her Jimmy became stuck.
[¶5] Boe later testified that when Key rammed his Suburban for the second time he did not believe she would stop until both vehicles were destroyed. With Key's Jimmy stuck in the ditch, Boe parked his Suburban on the road, grabbed a New England Firearms " Pardner" 20 Gauge Single Shot Shotgun, exited the vehicle, and walked toward Key's Jimmy. He claimed that he intended to use the shotgun to tap on Key's passenger-side window, break the glass, and get Key's attention. Boe thought she would respond by driving to town. Key later testified that when she saw Boe exit his Suburban and walk toward her, she did not see the shotgun. It is undisputed that when Boe was near Key's passenger-side window with the shotgun, it discharged and shattered Key's passenger-side window. Key was injured by flying glass and pellet fragments. She jumped out of her Jimmy and ...