by Sagi Schwartzberg

On March 18, 2026, the Supreme Court of South Dakota held that prisoner Kelly Warfield’s challenges to his conviction for simple assault of a prison guard and intentional destruction of property were without merit and affirmed said convictions.

In January 2021, Warfield’s cell at Mike Durfee Prison in Springfield, South Dakota, was searched by two guards. During the search, the guard found that Warfield’s television had been modified. Guard Christopher Day confiscated the television and took it to the front desk of the prison.

As Day walked to the front desk with Warfield’s television, Warfield followed him while holding an empty electric tea kettle (“Hot Pot”). As Day gave the guards at the front desk Warfield’s television, Warfield used the Hot Pot to strike and break a computer monitor at the front desk.

Warfield then walked toward a day room area, dropped the Hot Pot, and punched a wall-mounted television with his fists several times, damaging it beyond repair. Day and other guards rushed into the day room area toward Warfield. Warfield then turned around and walked toward the guards, at which point guard Don Schwint sprayed him with pepper spray.

This did not phase Warfield, and Day ordered him to “cuff up.” Warfield did not comply and instead proceeded to punch Day several times while Day did not strike back. Warfield was then taken to the ground by other guards and handcuffed.

Warfield was subsequently indicted on two counts of simple assault of a guard and one count of intentional destruction of property.

During pretrial discovery, the State produced surveillance video footage of the incident from two different camera angles. The video footage from both cameras contained a four-second skip in coverage, which started when Warfield turned around after striking the wall-mounted television in the day room and resumed when Warfield was throwing punches at Day.

While there was a third camera in the area, the footage from that camera was not produced by the State because it claimed that the camera did not capture the entire incident. As the video footage from the third camera remained on the computer server at Mike Durfee, Warfield sought access to the server, which the circuit court granted by a signed order allowing Warfield’s expert to examine the server. However, due to a breakdown in the relationship between Warfield and his expert, the server was not inspected, and the video footage from the third camera angle was recorded over.

At trial, the State presented testimony from several guards and further introduced the video footage from the two camera angles containing the four-second skip. The State’s witnesses explained that the four-second skip was caused by a bandwidth issue that occurs when all 899 cameras upload data to the server at the same time.

The witnesses also consistently described the incident, claiming that Warfield did not comply, was not attacked, and was only taken down after his assault on Day.

During the defense case, Warfield called a fellow prisoner, Marc Jones, who initially testified that the guards surrounded Warfield. However, he later confirmed that he only witnessed the very end of the incident.

Warfield then testified in his own defense that he kept his hands down by his side the entire time until he was pepper-sprayed. He also testified that he did not remember “everything that occurred” and that he “didn’t recall the interaction … seen in the video.” Warfield further testified that he believed his witness, Jones, may have been untruthful in his testimony.

At the conclusion of the presentation of evidence, Warfield requested that the circuit court instruct the jury on self-defense. The State objected, and the circuit court rejected Warfield’s request, finding insufficient evidence to support that theory.

The case was then submitted to the jury on two alternative counts of simple assault on a guard and one count of intentional destruction of property. The jury ultimately convicted Warfield of one count of simple assault on a correctional officer and one count of intentional destruction of property. Warfield appealed.

On appeal, Warfield raised several grounds. Warfield claimed that the State improperly charged him with assault, that the circuit court improperly admitted the video footage containing the four-second skip, that the circuit court erred in refusing to instruct the jury on self-defense, that the State prevented him from presenting a complete defense because it failed to preserve the video footage from the third camera angle, and that the circuit court erred in submitting both counts of simple assault of a correctional officer to the jury.

The Court concluded that all grounds raised by Warfield lacked merit.

First, the Court explained that a prosecutor’s charging decisions are generally not reviewable on appeal unless the defendant alleges facts implicating due process concerns. See: People ex rel. W.Y.B., 515 N.W.2d 453 (S.D. 1994). Here, Warfield failed to make any argument or state any facts that the State engaged in an abuse of power. Instead, the Court concluded, Warfield only alleged that the State should have used its discretion not to charge him, which was insufficient.

Secondly, in addressing Warfield’s argument that the circuit court erred in admitting the video footage with the four-second skip, the Court found that Warfield waived the argument because he did not object to its admission at the time it was introduced. The Court also noted that Warfield then used the four-second skip as a basis for his defense theory to argue reasonable doubt. See: State v. Heer, 11 N.W.3d 905 (S.D. 2024) (discussing waiver for failing to object at the trial level).

The Court also found that the circuit court did not abuse its discretion in refusing to instruct the jury on self-defense. After setting forth the abuse-of-discretion standard, the Court explained that “[n]othing in the record indicate[d] officers used unlawful force in the course” of their duty to handcuff Warfield and restore safety to himself, the guards present, and other prisoners.

The Court then turned to Warfield’s argument that the State prevented him from presenting a complete defense by failing to preserve the third camera video footage. The Court cited California v. Trombetta, 467 U.S. 479 (1984), in concluding that Warfield’s right to present a complete defense was not violated.

“Whatever duty the Constitution imposes on the states to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality…evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”

Here, the Court concluded that Warfield’s inability to obtain the video footage from the third camera was not because the State destroyed the footage, but rather because he and his expert had a falling out and his expert failed to inspect the server before the footage was recorded over.

Additionally, the Court pointed out that, even assuming the video footage from the third camera captured exculpatory evidence, Warfield was unable to show prejudice because the testimony during trial, along with the footage that was shown, provided that the “video footage from a different angle could not have put the whole case in a different light so as to undermine the confidence in the verdict,” the Court stated.

Lastly, the Court addressed Warfield’s argument that the circuit court erred in submitting two alternative charges of simple assault on Day to the jury, allegedly in violation of the Double Jeopardy Clause.

Warfield argued that both counts of simple assault against Day should have been dismissed and not gone to the jury. Relying on State v. Chavez, 649 N.W.2d 586 (S.D. 2002), Warfield claimed that “being charged twice with the same offense against the same correctional officer subjected him to double jeopardy…”

The Court explained that, in Chavez, the defendant was charged and convicted of six counts of aggravated assault after he fired a weapon at two guards, and the circuit court imposed a concurrent fifteen-year sentence for each of the six counts.

The Court ultimately held that Chavez could be convicted and sentenced only for one count of aggravated assault on each officer he assaulted, which would result in two convictions. Accordingly, it was not “permissible to punish a defendant more than once for one offense in violation of a single statute.”

Here, the Court concluded that Chavez did not apply because Warfield’s argument was that being charged with more than one offense arising out of the same transaction is impermissible, when in fact such charging is permitted. See: State v. Manning, 985 N.W.3d 492 (S.D. 2023). Therefore, the Court found no Double Jeopardy violation.

Based on the foregoing, the Court affirmed Warfield’s convictions. See: State v. Warfield (2026 S.D. 20).  

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