State v. Bolden

#30146-a-JMK
2024 S.D. 22IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
MAX BOLDEN, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE ROBIN J. HOUWMAN
Judge
****
KRISTI JONES of
Dakota Law Firm, Prof. LLC
Sioux Falls, South Dakota
MANUEL J. de CASTRO JR
Sioux Falls, South Dakota Attorneys for defendant
and appellant.
MARTY J. JACKLEY
Attorney General
ERIN E. HANDKE
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
****
ARGUED
JANUARY 9, 2024
OPINION FILED 04/17/24
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KERN, Justice
[¶1.] Max Bolden shot and killed Benjamin Donahue in October 2019
outside a club in Sioux Falls. Bolden was indicted for first-degree murder, second-
degree murder, and possession of a firearm by a convicted felon. At trial, Bolden
claimed that he shot Donahue in self-defense. At the conclusion of the State’s case,
and again at the close of the evidence, Bolden moved for a judgment of acquittal on
the murder charges. The circuit court denied both motions. The jury returned a
guilty verdict on the charges of first-degree murder and possession of a firearm by a
convicted felon. Bolden appeals his first-degree murder conviction on the grounds of
insufficient evidence. We affirm.
Factual and Procedural Background
[¶2.] Although some of the facts are disputed, “we restate the evidence and
testimony ‘in a light most favorable to the jury’s verdict.’” State v. Seidel, 2020 S.D.
73, ¶ 2, 953 N.W.2d 301, 305 (citing State v. Huber, 2010 S.D. 63, ¶ 2, 789 N.W.2d
283, 286).
[¶3.] Bolden and Donahue were involved in similar social circles in Sioux
Falls, South Dakota, and had a contentious relationship in the months preceding
the October 26, 2019, incident. Bolden testified that Donahue sent him a number of
threatening text messages accusing him of being involved with the mother of
Donahue’s child. Bolden also asserted that he had a hostile face-to-face encounter
with Donahue during this time. At trial, Bolden and several others testified that a
few weeks earlier, Donahue became agitated with a group of individuals—including
Bolden—while standing outside Club David, a nightclub in downtown Sioux Falls,
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and brandished a gun toward the group. Bolden testified that because of this
incident he had decided to avoid future contact with Donahue.
[¶4.] In the early afternoon of October 25, 2019, Bolden and his girlfriend,
Krista Kruckenberg, took their children to purchase Halloween costumes. After the
family finished shopping, they went back to their home and began carving
pumpkins. Bolden’s brother brought his children over to participate in the activity.
Once the pumpkin carving was completed, the adults cleaned up the mess and put
the children to bed.
[¶5.] Bolden was invited to Club David to celebrate a friend’s birthday that
night but declined because he wanted to avoid the risk of an encounter with
Donahue. Instead, Bolden, Kruckenberg, and Armika Agic drove to Mitchell to see
one of Bolden’s friends who had invited him to hang out. They left Sioux Falls
around 9:00 that evening, leaving the children at home with Kruckenberg’s brother
who lived with the couple. The group eventually gathered at Thirsty’s, a bar in
Mitchell, where they had a couple of drinks. They stayed in Mitchell for a short
time before returning to Sioux Falls around midnight.
[¶6.] Bolden, Kruckenberg, and Agic returned to Bolden and Kruckenberg’s
home in Sioux Falls, where they had additional drinks as they planned to stay in for
the remainder of the evening. However, Bolden received a phone call and text
messages from a friend who requested that he come to Club David to help resolve a
dispute. One of Bolden’s friends, Thomas Roberts, was being held at gunpoint in
the bathroom at the club. Bolden knew the individual who pointed the gun at
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Roberts and believed that, because he knew the parties involved and what the
altercation was likely about, he could go down to the club and diffuse the situation.
[¶7.] Bolden drove to the club in a white Ford Explorer, accompanied by
Kruckenberg and Agic. They arrived around 1:00 a.m. and parked in the parking
lot south of the club near the Carnegie building. After Bolden parked the car, he
called both Roberts and the friend that had informed him of the altercation, but
neither party answered. Bolden felt uneasy about the situation, so Kruckenberg
handed Bolden a revolver before he got out of the car. He put the gun in his back
right pocket, got out the vehicle, and started walking toward Club David. Bolden
saw Roberts come out of the club and he attempted to talk to him, but Roberts
waved him off, jumped in his vehicle, and drove away.
[¶8.] Shortly after Bolden had walked across the street to Club David,
Donahue pulled into the Carnegie building parking lot and parked his vehicle to the
southeast of the vehicle Bolden was driving. Donahue got out of his vehicle and
made his way toward the club. While Donahue was walking north toward the club,
Bolden was making his way south toward the parking lot, heading in Donahue’s
direction. As the two men neared each other, Kruckenberg and Agic got out of
Bolden’s vehicle and followed behind Donahue. At that same time, Darneisha
Williams, who was leaving the club, was walking toward the Carnegie building
parking lot behind Bolden.
[¶9.] Bolden and Donahue met face-to-face near the north entryway of the
parking lot. At this point, Kruckenberg and Agic were approaching the men and
were just a few feet away. The two men spoke for roughly ten seconds before
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Bolden pulled the gun from his back pocket and shot Donahue point blank in the
face between the bottom of his nose and the top of his upper lip. Donahue fell to the
ground and did not move. After Bolden fired the gun, he jumped back a step and
began walking in the direction of his vehicle. As he neared Donahue’s body, Bolden
bent over and fired a second shot into Donahue’s head just above his left ear. The
second shot was fired approximately five seconds after the first.
[¶10.] Bolden, Kruckenberg, and Agic walked to their vehicle, got in, and
drove out of the parking lot using the east exit, heading south down South Main
Avenue. Williams, who saw the entire encounter between Bolden and Donahue
from a distance of approximately ten feet or less, called 911 to report the shooting.
Because Williams was on probation and prohibited from going into bars, she gave a
false name to the dispatcher and left the area.
[¶11.] Cody Nachreiner, an officer with the Sioux Falls Police Department
(SFPD), was the first to arrive on scene and located Donahue’s body. Officer
Mathew Cook arrived next and entered the Carnegie building parking lot through
the east entrance. After locating Officer Nachreiner and Donahue, Officer Cook
began to administer CPR chest compressions on Donahue. Officer Hector Soto also
arrived and helped Officer Cook render aid.
[¶12.] Shortly thereafter, emergency medical services (EMS) personnel
arrived on scene and, with the help of law enforcement, moved Donahue’s body onto
a stretcher. The EMS personnel placed Donahue in the back of the ambulance and
performed various medical interventions while transporting Donahue to Avera
McKennan Hospital. Despite the efforts of hospital personnel, Donahue died at the
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hospital. Because of the violent nature of his death, his body was transported to the
morgue at Sanford Hospital until an autopsy could be conducted. Dr. Kenneth
Snell, a forensic pathologist and the county coroner, later concluded that Donahue’s
death was caused by a gunshot wound to his head.
[¶13.] Approximately ten to fifteen minutes after the shooting occurred,
Anthony Buss, a detective with the SFPD, arrived at the parking lot to help
maintain scene security. He also assisted crime lab personnel in photographing and
preserving items of evidentiary value in the area. Detective Buss looked for and
identified security cameras located near the scene, namely at the intersection of
10th Street and South Main Avenue and several cameras surrounding the Carnegie
building. He retrieved security footage from these cameras to aid the investigation.
Although Bolden and Donahue were standing beside a vehicle that partially
obscured the video footage of the shooting, Detective Buss was able to identify the
white Ford Explorer that fled the scene and the color of clothing that the suspect
was wearing.
[¶14.] Because many of the witnesses fled the scene after the shooting,
Detective Christopher Schoepf, the lead detective on the case, began trying to
identify the suspect from the video surveillance recordings. Detective Pat Mertes
also helped organize the investigation and went through the video surveillance to
try to identify the shooter. Brianna Anderson, a forensic specialist with the SFPD,
identified and photographed areas of interest at the scene. Aside from Donahue’s
body and the surrounding blood and tissue present as a result of the gunshot
wounds, law enforcement found a bullet fragment inside Donahue’s red stocking hat
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that was lying on the ground near his head. Notably, a gun was not discovered on
or near Donahue.
[¶15.] While the shooting scene was being investigated, Bolden, Kruckenberg,
and Agic were driving south and west of where the shooting took place. Eventually,
Bolden pulled over in a neighborhood and told Agic that he had to get out of there.
He and Kruckenberg got out of the vehicle and fled on foot. Agic moved to the
driver’s seat, drove the vehicle to her house, and parked it in the garage.
[¶16.] After further investigation, law enforcement identified the suspect as
Bolden. He was indicted on November 13, 2019, on charges of first-degree murder
(SDCL 22-16-4(1)), second-degree murder (SDCL 22-16-7), and possession of a
firearm by a felon (SDCL 22-14-15). The State filed a part II information the
following day, and the court issued an arrest warrant. However, Bolden was not
immediately arrested because he fled the state after the shooting. He was
ultimately apprehended in South Haven, Mississippi, on March 2, 2021—sixteen
months after the shooting.
[¶17.] Bolden’s jury trial began on August 19, 2022. The State called
fourteen witnesses during its case-in-chief, including two eyewitnesses to the
shooting, Agic and Williams, law enforcement officers, lab personnel, emergency
medical responders, and the forensic pathologist that performed Donahue’s
autopsy. 1
1. Kruckenberg was not called to testify at the trial.
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[¶18.] Agic, who testified under a grant of immunity from the State,
described in detail the events leading up to, during, and after the shooting. 2
According to Agic, she rode with Bolden and Kruckenberg in Bolden’s white Ford
Explorer to Club David. She testified that she remained in the vehicle with
Kruckenberg while Bolden went to speak to someone in the club. However, the two
women got out of the vehicle after Donahue parked his vehicle and began walking
toward the club. Agic heard the first gunshot just as she and Kruckenberg were
walking up to Bolden and Donahue. She testified that she could see that Donahue
had his hands in his pants as he approached and one hand in his pants as he
exchanged words with Bolden. Agic testified that prior to the gunshot she did not
see any type of physical altercation between Bolden and Donahue; “[t]hey were just
in each other faces[.]” Agic recalled that Donahue fell to the ground after the first
gunshot and was not moving. Bolden then approached Donahue and shot him a
second time in the head. Agic testified that she never saw Donahue with a gun.
[¶19.] Agic also testified that she left the parking lot with Bolden and
Kruckenberg after the shooting and drove toward 18th Street and into a
neighborhood where Bolden stopped the car. He ran from the car with
Kruckenberg, leaving Agic sitting alone in the backseat. Agic testified that she
drove the vehicle to her home and hid it in her garage. She admitted that later that
morning, in the early hours, Kruckenberg came to her house and asked for supplies
to clean the vehicle. Agic provided her with bleach and cleaning rags. Law
2. The State agreed not to charge Agic with being an accessory to a felony in
exchange for her cooperation during trial.
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enforcement interviewed Agic on October 29, 2019, and she admitted that the
vehicle was in her garage.
[¶20.] Williams, who knew both Bolden and Donahue, testified that she was
present at Club David on October 26, 2019. 3 After she walked out of the club, she
saw Bolden in front of her and followed behind him to the Carnegie building
parking lot. Williams saw Donahue walking toward the club through the parking
lot and saw the two men speaking face-to-face. She heard a brief conversation
between the two men and then saw Donahue’s hand go up in the air before she
heard a gun go off. Williams, who was standing in close proximity to the two men,
saw Donahue immediately fall to the ground and begin to bleed from his head. She
saw Bolden holding a gun and testified that she saw Bolden stand over Donahue’s
body and fire the second shot into his head. Williams said Donahue was lying on
the ground and was not moving before Bolden fired the second shot. She did not see
Donahue with a gun. She testified that she watched Bolden, Agic, and Kruckenberg
leave the scene, and, although she called 911 to report the shooting, she did not stay
at the site until law enforcement arrived.
[¶21.] Dr. Snell, the Minnehaha County coroner, testified that he performed
an autopsy on Donahue on October 28, 2019. He testified that Donahue was 6’4”
tall and weighed 242 pounds. During his examination, Dr. Snell discovered two
gunshot wounds to the body: one between the top of Donahue’s upper lip and the
bottom of his nose and one above the left ear. Dr. Snell testified that the gunshot
3. At one point during trial, Williams was held in contempt for refusing to
testify. In exchange for her testimony, the State agreed not to file a
probation violation against her.
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located above Donahue’s lip was a contact wound, meaning the barrel of the gun
was touching Donahue’s lip when the gun was fired. The bullet entered the head
above the lip, traveled at a slight angle and exited below the right ear. He testified
that although the gunshot wound above the lip would not have immediately killed
Donahue, it could have knocked him unconscious. The second shot—fired from a
gun held approximately one foot from Donahue’s head—entered the head above the
left ear and traveled straight through Donahue’s brain and exited above the right
ear. Dr. Snell testified that this second shot was “an immediately fatal wound.” He
also indicated that in his opinion, the gunshot wounds appeared to be “consistent
with [bullets fired from] a medium caliber” gun.
[¶22.] Bolden moved for a judgment of acquittal on the murder charges at the
close of the State’s evidence, arguing that the State did not prove that he had the
requisite specific intent to be convicted of premeditated murder. Additionally,
Bolden argued that there was insufficient evidence to prove that he was acting with
a depraved mind and therefore he could not be convicted of second-degree murder.
The circuit court denied Bolden’s motion and the defense proceeded with its case-in-
chief.
[¶23.] Bolden’s defense was centered on his claim that he shot Donahue in
self-defense. In support of this theory, the defense presented testimony from
several individuals who knew that Donahue had a history of making threats and
pulling guns on people. But Bolden first called SFPD Detective Shelly Slattery
Carpenter, who testified that during the course of her investigation into the
incident she reviewed Donahue’s Facebook page. Detective Carpenter captured
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screenshots of some of Donahue’s Facebook posts from the week preceding his
death. Donahue’s posts, among others, included, “He ain’t done with me yet……….”
and “In case they thought I was lying about my aim wit big birtha, so how much
more dangerous am I with a hand gun when i dont have to be seen at all muffuckas
betta stop playing with me. This just food for thought !” Bolden admitted these
screenshots as evidence to demonstrate Donahue’s aggressive and threatening
behavior. 4
[¶24.] The defense then called Bolden to testify on his own behalf. He told
the jury that his nickname was “Mini” and that he was a 39-year-old father of four
who worked at a lawn care/snow removal business that he started in Sioux Falls.
Bolden indicated that he was 5’7” tall and weighed around 170 pounds. He
acknowledged having three prior felony convictions. Bolden testified regarding his
conflictual relationship with Donahue and stated that Donahue pulled a gun on him
in the weeks leading up to the shooting.
[¶25.] On the night of the shooting, Bolden indicated that he went to Club
David to help his friend, Roberts, who had been held at gunpoint in the club. When
Bolden arrived, he saw Roberts come out of the club so he got out of the car and
spoke with him briefly before Roberts drove off. Bolden explained that he got back
in the car and told Kruckenberg that things did not “feel right,” after which she
handed him a gun which he placed in his back pocket. He got out of the car and
4. Detective Carpenter was also present during a portion of law enforcement’s
interview with Williams and testified for the defense regarding several
statements made by Williams that were purportedly inconsistent with her
trial testimony.
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walked back toward the Club where he spoke briefly to Williams in the street about
what was going on with Roberts. 5
[¶26.] Bolden testified that he started walking back to his vehicle because he
wanted to go home when Donahue came out from behind a corner. Bolden said he
would have continued toward his vehicle, but Donahue, who Bolden described as
being as big as a bear, was directly in his path and confronted him stating, “I told
you I was going to catch your a**, and what did I tell you I was going to do to you
when I catch you?” Bolden described the situation further stating, “And so now I
am getting on my defense, because, like, I am scared. I put my hand in my pocket,
in my back pocket, and we still just standing there, and then he pulls out. And so
when he pulled out, I shot, and jumped back, because I feel like he going to shoot
me too because he pulled his gun out. Like, I seen this man pull his gun out. And I
promise to God, I am not lying, this man was trying to kill me. Like, I don’t know
what you all want me to do because that man was trying to kill me.”
[¶27.] Bolden reiterated that Donahue had his right hand in his pocket,
which made him believe that Donahue was holding a gun. When Donahue began to
move his hand, Bolden explained that he thought Donahue was going to shoot him
because he saw him pull a gun out, causing Bolden to reactively pull his gun from
his back pocket and shoot, closing his eyes as he did so. Bolden stated that he did
not see where he shot and did not know if he even hit Donahue.
5. This testimony is inconsistent with the video evidence shown to the jury that
depicts Bolden getting out of his vehicle only once before walking toward
Club David.
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[¶28.] Bolden testified that when he opened his eyes and saw Donahue down
on the ground, he walked toward Donahue’s hand which had a gun in it. In order to
pick up Donahue’s gun, Bolden testified that he switched his gun from his right
hand to his left hand. Bolden stated that as he began to bend over and pick up
Donahue’s gun, Donahue moved. Bolden testified that he shot Donahue again,
describing his actions as “out of reaction, out of fear, I just, boom.” When asked if
he had any alternative other than to shoot Donahue, Bolden said, “No. If I had to
stay for a minute, I am shot, and I might be dead. Like, looking at it from my
perspective, what else can I do? And I wasn’t there for that. I didn’t have no
problems with him.” He testified that he was not intending to kill Donahue.
[¶29.] Bolden acknowledged that after the shooting he immediately got into
his vehicle and fled the scene with Kruckenberg and Agic. When questioned about
this decision he stated, “I knew I shot him, and so I got up out of there. I am going
to be honest, I got up out of there.” After driving some distance in the city of Sioux
Falls, Bolden parked the car and left on foot with Kruckenberg, later calling his
brother to pick him up. Bolden testified that he headed for Chicago, Illinois, and
dumped the gun in a trash can somewhere along the way. While Bolden said he
thought about turning himself in during the sixteen months he was gone, he
testified that he knew he would go to jail regardless of whether he was acting in
self-defense.
[¶30.] Bolden then called a number of witnesses who testified, in varying
degrees, that Donahue had an aggressive and threatening demeanor and generally
carried a gun on his person. Roberts testified that Bolden had previously shown
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him text messages from Donahue, recalling one message which stated, “I am
popping you’re a** on sight, I don’t care if you with your kids or your girl.” Roberts
said Donahue accused Bolden of “messing” with the mother of Donahue’s child and
made similar threats to “[p]lenty of people.” On cross-examination, Roberts
admitted that he didn’t “know [Donahue] personally. I never dealt with this guy.”
Roberts also described the altercation at Club David that prompted Bolden to drive
to the club to try to help him.
[¶31.] Bolden next called Anthony Smith, a convicted felon who testified via
Zoom from Lubbock, Texas. Smith described three prior occasions where Donahue
pulled a gun on him. The first incident occurred at a barber shop and Smith
testified that Donahue threatened him with a .45 and held the gun to his throat.
Smith indicated that he reported this incident to the police department but never
told Bolden that Donahue had threatened him. 6
[¶32.] Bolden also called Eugene Nave, a three-time convicted felon known as
“Pumpkin,” who testified that Donahue originally had a “beef” with him which led
to a fight. Nave indicated that he pulled a gun on Donahue before Donahue could
pull one on him. According to Nave, Donahue also had issues with Bolden.
[¶33.] Bolden also called William Campbell, a convicted felon, who testified
that he was at Club David the morning of October 26, 2019, but did not see the
6. These specific instances of conduct by Donahue were admitted, without
objection, despite the testimony that Bolden was not aware of them. See
State v. Knecht, 1997 S.D. 53, ¶ 15, 563 N.W.2d 413, 419 (holding that a
defendant who was not aware of specific instances of violent conduct by the
alleged victim could not use such instances to show that his fear of the victim
was reasonable).
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shooting. Campbell stated that he contacted Bolden earlier that night about coming
to the club, but he knew Bolden would not come down because Bolden was “staying
in the house a lot lately” trying “to avoid [Donahue].” Campbell testified that he
was the person who sent Bolden the text message that morning telling him that
Roberts was being held at gunpoint in the bathroom. Campbell also described a
situation several weeks before the shooting where he, Bolden, and a group of friends
were attempting to joke with Donahue in front of the club. According to Campbell,
Donahue lifted his shirt, revealed a gun tucked in his pants, and told the group to
get away from him.
[¶34.] Josh Durrah testified about Donahue’s jealousy. Durrah reported that
Donahue believed that both he and Bolden were sleeping with Donahue’s girlfriend.
Durrah stated that a few weeks before the shooting, he was driving in Sioux Falls
when Donahue pulled up beside his car, brandished a gun at him, and followed him
around town. Durrah testified that he told Bolden of this encounter with Donahue.
[¶35.] Bolden also called David Moore, a convicted felon and friend of both
Bolden and Donahue. Moore was with Bolden in front of Club David several weeks
before the shooting when Donahue showed the group a gun. Moore testified that
Donahue pulled the gun out of his pocket, cocked it, and held it in front of him
telling the group to get away from him. Moore was unaware that Bolden and
Donahue had been having any kind of dispute.
[¶36.] Bolden’s final witness was Savannah Hernandez. Hernandez testified
that she was a Facebook and Snapchat friend with Donahue and that a week or two
before the shooting Donahue “was on live Facebook very aggressively threatening
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multiple people within a group of friends.” This friend group included Bolden.
Hernandez said Donahue was “[t]hreatening to shoot them. Threatening to pull up
on families. Come to people’s houses. It was like a lot of just anger.” She said
Donahue also posted videos of him “driving around talking about looking for
different people.” While Hernandez was not at Club David the morning of the
shooting, she became aware of the shooting from a Snapchat video posted by a
friend. She said the video showed “a ton of people around jumping back and forth
over the body, moving around. It was just a lot of different people everywhere.” 7
She did not see Donahue with a gun in the video, but she testified that she could
“guarantee somebody grabbed the gun” because she had “never not seen [Donahue]
with a gun.” (Emphasis added). She further explained that it was her opinion that
the gun was likely unregistered, which would mean that, knowing the group of
people that Donahue hung around with, somebody would have picked up the gun.
[¶37.] After the defense rested, the State called one witness in rebuttal.
Thereafter, Bolden renewed his motion for judgment of acquittal, asserting that “no
reasonable jury, based on the fact that the State has the burden of proof, beyond a
reasonable doubt, [could find] that he didn’t act in self-defense, that no reasonable
jury could convict him on these charges.” The circuit court denied Bolden’s motion
and the case was submitted to the jury for deliberation. The jury found Bolden
guilty of first-degree murder and possession of a firearm by a felon. The court
7. Bolden did not introduce, and the record does not include, the Snapchat video
purportedly showing people hopping over Donahue’s body. Hernandez was
the only individual to testify about such facts.
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sentenced Bolden to life in prison on the first-degree murder charge and thirty-five
years for possession of a firearm by a felon, with credit for time served.
[¶38.] Bolden appeals and raises one issue, which we restate as follows:
1. Whether the circuit court erred when it denied Bolden’s
motions for judgment of acquittal.
Standard of Review
[¶39.] “We review a denial of a motion for judgment of acquittal de novo.”
Seidel, 2020 S.D. 73, ¶ 32, 953 N.W.2d at 313 (citation omitted). “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 reasonable doubt.’” Id. (quoting State v.
Brim, 2010 S.D. 74, ¶ 6, 789 N.W.2d 80, 83). We “will not resolve conflicts in the
evidence, assess the credibility of witnesses, or evaluate the weight of the evidence.”
Id. (citation omitted). Instead, “we accept the evidence and the most favorable
inferences fairly drawn therefrom, which will support the verdict.” Id. (citation
omitted). “It is the jury’s responsibility, not ours, ‘to decide what conclusions should
be drawn from evidence admitted at trial.’” State v. Strozier, 2013 S.D. 53, ¶ 24, 834
N.W.2d 857, 865 (citation omitted). “Moreover, the jury is . . . the exclusive judge of
the credibility of the witnesses and the weight of the evidence.” Seidel, 2020 S.D.
73, ¶ 32, 953 N.W.2d at 313 (omission in original).
Analysis
1. Whether the circuit court erred when it denied
Bolden’s motions for judgment of acquittal.
[¶40.] Bolden was convicted of first-degree murder pursuant to SDCL 22-16-
4(1), which defines the offense as: “Homicide is murder in the first degree: (1) If
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perpetrated without authority of law and with a premeditated design to effect the
death of the person killed or of any other human being, including an unborn child[.]”
Bolden claims on appeal that the “[e]vidence at trial was insufficient to sustain a
conviction of murder in the first degree” and that the circuit court erred when it
denied his motions for judgment of acquittal. He presents two primary arguments
in support of his claim. First, he contends the State failed to prove beyond a
reasonable doubt that he was not acting in self-defense, and second, he asserts the
State failed to prove that he acted with the premeditation necessary to support a
first-degree murder conviction. After reviewing the record, we find sufficient
evidence in the record to sustain the conviction.
[¶41.] “When a homicide defendant raises self-defense or justification, the
State must prove beyond a reasonable doubt that the killing was without authority
of law.” State v. Smith, 2023 S.D. 32, ¶ 48, 993 N.W.2d 576, 592 (citation omitted).
SDCL 22-18-4.1 provides that: “A person is justified in using or threatening to use
deadly force if the person reasonably believes that using or threatening to use
deadly force is necessary to prevent imminent death or great bodily harm to
himself, herself, or another, or to prevent the imminent commission of a forcible
felony.” Further, “[a] person who uses or threatens to use deadly force in
accordance with this section does not have a duty to retreat and has the right to
stand his or her ground, if the person using or threatening to use the deadly force
is: (1) Not engaged in a criminal activity, and (2) In a place where the person has a
right to be.” SDCL 22-18-4.1(1)-(2).
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[¶42.] Bolden first argues that he “was justified in his use of force” and that
“[he] was permitted by statute to use deadly force to protect himself because he was
not engaged in criminal activity and was in a place he had a right to be.” However,
this argument disregards the requirement that a person must “reasonably
believe[ ]” that “deadly force is necessary to prevent imminent death or great bodily
harm[.]” See id. Therefore, Bolden must have had a reasonable belief that
Donahue was about to severely injure or kill him. In this regard, Bolden contends
that his actions were reasonable because he was “confronted on a street in the early
morning hours by a man hellbent on revenge and armed with a deadly weapon[.]”
As such, Bolden claims it was “reasonable for [him] to believe that his only option to
prevent his own imminent death was to use a deadly weapon himself.”
[¶43.] With respect to Bolden’s belief that Donahue was going to hurt or kill
him, Bolden testified that in the moments leading up to the first gunshot Donahue
confronted him and said, “I told you I was going to catch your a**, what did I tell
you I was going to do to you when I catch you?” He also said that Donahue had his
hands in his pockets and Donahue was known to carry a gun on his person.
However, the State presented evidence to prove Bolden was not acting in self-
defense. Williams testified that she heard Donahue say, “Maybe we should just
quash this[.]” When asked what “quash” meant, Williams responded, “Like leave it
alone or something.” Further, Williams said that Donahue did not display any
aggressive actions toward Bolden and she did not see Donahue with a gun.
[¶44.] In justifying the second shot, Bolden testified that, although Donahue
fell to the ground after the first shot, he was uncertain if the first gunshot even hit
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Donahue because he did not see any blood. Bolden testified that, in his view, he
still believed Donahue could have been a threat. Bolden stated Donahue’s body
moved when he reached down to retrieve Donahue’s gun from his hand: “And then
[Donahue] lunged, jumped - - his body jumped, and I shot again.” Bolden said the
second gunshot was a reaction based on fear.
[¶45.] Regardless, the State offered evidence to prove Bolden did not act in
self-defense with respect to the second gunshot. Williams testified that after the
first shot she saw Donahue fall to the ground and saw blood coming from his head.
She told the jury that she did not see Donahue holding a gun, nor did she see
Donahue’s body move after he fell to the ground. She recalled that Bolden shot once
and then shadowed over Donahue’s body before he shot again. Similarly, Agic
testified that Donahue fell to the ground after the first gunshot and did not move
before Bolden shot again. Agic said that she did not see Donahue with a gun and
there was no physical altercation between the two men leading up to the shooting.
[¶46.] On appeal, Bolden neglects to address or negate the substance of Agic
and Williams’s testimony. Rather, he attempts to lessen their credibility as
witnesses—a tactic immaterial to our analysis on review. Williams and Agic’s
credibility is a determination left to the trier of fact. Their testimony gave the jury
sufficient evidence to conclude that Bolden’s actions were not in self-defense, and
Bolden has not refuted that evidence aside from his own testimony and attacking
the witnesses’ credibility on cross-examination.
[¶47.] The State also offered into evidence the surveillance videos from the
shooting, which importantly show the close proximity of the witnesses to the two
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men. Although the view of the initial confrontation and gunshots is substantially
blocked by a parked car, the video showed Donahue and Bolden approach one
another, talk to each other for roughly ten seconds, and then Bolden jump back
after the first gunshot. The video then shows Bolden moving toward Donahue’s
head, bending over the place where Donahue’s body was lying, and then walking to
his vehicle before he left the scene. Upon consideration of the testimony and
exhibits contained within the record, we conclude there is sufficient evidence in the
record for a rational trier of fact to have determined that Bolden was not acting in
self-defense and that the killing was without authority of the law.
[¶48.] Yet, Bolden claims in his reply brief that the circuit court erred in
denying his motions for judgment of acquittal because “there was no testimony, nor
evidence, that Bolden [shot the gun] with a premeditated design to effect the death
of Donahue.” Bolden’s claim is unpersuasive.
[¶49.] We have recognized that “‘[p]remeditated design to effect death’ is . . .
an intention, purpose, or determination to kill or take the life of the person killed,
distinctly formed and existing in the mind of the perpetrator before committing the
act resulting in the death of the person killed.” State v. Krueger, 2020 S.D. 57, ¶ 22,
950 N.W.2d 664, 671; see also SDCL 22-16-5. “Premeditation may be inferred from
the facts and circumstances surrounding the murder.” State v. Derek at the
Straight, 2023 S.D. 1, ¶ 24, 984 N.W.2d 715, 720–21 (citation omitted). “The
significant factors to be considered in determining premeditation include: [1] the
use of a lethal or deadly weapon, [2] the manner and nature of the killing, [3] the
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defendant’s conduct before and after the murder, and [4] the determination of the
presence or absence of provocation.” Id. at 721 (alterations in original).
[¶50.] Aside from attempting to discredit the State’s witnesses, Bolden
argues only that he did not have the requisite specific intent to be convicted of first-
degree murder. He claims that he did not have “a premeditated design to kill
Donahue as he didn’t even know he’d see Donahue that evening, let alone intend to
kill him, nor did he intend to kill him when he did see him [in the parking lot][.]” In
so arguing, Bolden ignores the reality that “[a] premeditated design to effect death
sufficient to constitute murder may be formed instantly before committing the act.”
Krueger, 2020 S.D. 57, ¶ 22, 950 N.W.2d at 671 (emphasis added); see also SDCL
22-16-5. Even if Bolden drove to Club David without the intent to kill Donahue, he
could have, as a matter of law, formed such intent in the seconds before he fired the
gun.
[¶51.] It is well-settled that “we will not set aside a jury verdict unless ‘the
evidence and all reasonable inferences to be drawn therefrom fail to sustain a
rational theory of guilt.’” Seidel, 2020 S.D. 73, ¶ 36, 953 N.W.2d at 314. Apart from
his own testimony, Bolden fails to refute the State’s evidence of premeditation. The
record includes evidence that showed Bolden used a gun to shoot Donahue point
blank in the face. He did so without provocation, as there was evidence introduced
that Donahue told Bolden right before the shooting that they should put their bad
history behind them. Even setting aside the first shot, the delivery of the second
shot as described by Agic and Williams, and supported by the surveillance video,
reveals that Bolden bent low over Donahue’s body just before he fired another
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round. Both witnesses testified that they saw Bolden shoot Donahue a second time
in the head while Donahue was lying on the ground bleeding, motionless, and
unarmed. Bolden then immediately left the scene, fled the state, went on the run
for nearly a year-and-a-half, and disposed of the gun used to shoot Donahue
somewhere between Sioux Falls and Chicago.
[¶52.] The jury considered the credibility and demeanor of Agic, Williams,
and Bolden and the witnesses he called in his defense. The circuit court gave the
jury seven instructions properly setting out the law of self-defense. It was
ultimately the responsibility of the jury to evaluate the evidence presented. It is
not within our province to “reweigh evidence or pass on the credibility of witness
testimony.” Id. ¶ 39, 953 N.W.2d at 315. Based on our review of the record there is
sufficient evidence to permit a rational trier of fact to conclude that the essential
elements of first-degree murder were established beyond a reasonable doubt.
[¶53.] Affirmed.
[¶54.] JENSEN, Chief Justice, and SALTER, DEVANEY, and MYREN,
Justices, concur.
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