STATE OF SOUTH DAKOTA v. MANUEL JESUS FRIAS

Pierre, SD - Criminal defense attorney represented Manuel Jesus Frias with a second-degree murder with a depraved mind, first-degree manslaughter with a dangerous weapon, and attempted first-degree robbery charges.

n February 2018, a grand jury indicted Manuel Jesus Frias (Frias) on

twelve counts. The counts relevant to this appeal include second-degree murder

with a depraved mind, first-degree manslaughter with a dangerous weapon, and

attempted first-degree robbery.#29145

-2-

[¶3.] The events leading to the charges began on the evening of January 4,

2018. Corey James Zephier (Zephier), Maria LeClair (LeClair)1, and Jacqueline

Nycole Zephier (Nycole)2 were at Scarlett O'Hara's nightclub (Scarlett's) in Sioux

Falls, South Dakota. Around 11 p.m., the party left Scarlett's to pick up Frias.

Frias was at his apartment with Leighlonnie Goodsell (Goodsell).3 When the party

arrived, Frias showered, and they all smoked methamphetamine (meth). Frias,

LeClair, and Zephier then left for Scarlett's around 1 a.m.

[¶4.] While in the shower, Frias received a text message from Crystal

Habben (Habben). Habben was Frias's friend and regularly purchased drugs from

him. She contacted Frias because earlier in the evening Samuel Louis Crockett

(Crockett) asked her to acquire meth. Habben used drugs with and sold drugs for

Crockett, but this was the first time he asked her to obtain meth.

[¶5.] Frias testified that he told Habben he would bring the meth to Lake

Andes the following day, as was their usual practice. But she informed Frias that

she had someone to drive her to Sioux Falls, and she would pick up the meth that

evening. Frias thought the drug deal would occur at 2 a.m. He testified that the

plan was for Habben to drive up, get into his car, drive around, do the transaction,

and then he would drop her off. He claimed Habben told him that he needed to find

a location because the person she was with wanted to weigh the meth. Habben



1. Maria LeClair was the girlfriend of Zephier and is the mother of his child.

2. Jacqueline Nycole Zephier is Zephier's sister.

3. Leighlonnie Goodsell was a friend and was intimate with Frias.#29145

-3-

suggested Beresford or Wild Water West, but Frias said to meet at 700 West Rice

Street in Sioux Falls (Rice Street Apartments), Zephier's former residence.

[¶6.] Contrary to Frias's testimony, Habben testified that Frias told her,

"[W]e should hit a lick.” Several experts testified that, among other things, "lick”

can mean "robbery.” Habben testified that Frias's plan was for her to get into his

car, and then they would drive away with Crockett's money. She claimed that they

were never going to provide meth to Crockett.

[¶7.] Around 1:42 a.m., Frias, Zephier, and LeClair left Scarlett's and drove

to Zephier's mother's apartment. At roughly 2:13 a.m., the trio journeyed to

Walmart, where LeClair fell asleep in the car. Frias and Zephier attempted to

purchase ammunition for Zephier's RAS47 at the Walmart.4 A Walmart employee

informed them that it was against store policy to sell ammunition between 10 p.m.

and 7 a.m. They spoke with an assistant manager about the store's policy but were

unsuccessful in purchasing ammunition. They left Walmart around 2:57 a.m. and

went to Frias's apartment.

[¶8.] Goodsell received a text at 2:53 a.m. from Frias stating, "Why you

leave, I went to hit this lick.” Frias testified that Goodsell had taken his car's title

earlier that evening, and he sent the message to encourage her to return it. Zephier

and Frias left Frias's apartment to meet up with Goodsell. On their way to meet

Goodsell, around 5 a.m., Habben notified Frias that she was in town. Frias changed

course to meet Habben at the Rice Street Apartments.



4. An RAS47 is a semi-automatic rifle, similar to an AK-47.#29145

-4-

[¶9.] When Habben exited her vehicle at the Rice Street Apartments,

Crockett retrieved a handgun from the backseat and then followed her. She asked

Crockett why he had a gun, and he told her to keep moving. At this time, Habben

had Crockett's money in her purse. Frias was waiting inside the front door of the

apartment. He opened the locked door to allow them to enter. They began to climb

the first flight of stairs with Habben in the lead, followed by Frias, and then

Crockett. Zephier was already in the building.

[¶10.] Habben testified that Crockett and Frias started arguing while she

was at the top of the stairs. When she reached the second floor, she saw Zephier

standing there with his RAS47. As Crockett and Frias were arguing, Crockett

pulled out his gun. Habben testified that she saw Zephier run down the stairs with

his RAS47, yelling, "Give me the money, give me the money.” At some point,

Habben turned to see Crockett shoot Zephier. She heard a bunch of gunshots, and

then all three men were outside. When Habben went outside, she saw Zephier

motionless on the ground and Crockett on the ground trying to shoot Frias. She

testified that Frias kicked the gun out of Crockett's hand. Frias then turned

towards her and said they needed to leave. Habben testified that Frias had no

wounds and did not call 911.

[¶11.] Frias's account of the events differs. Frias testified that he did not

expect Crockett to get out of the vehicle. He had told Habben that he did not want

to meet anyone. He stated that he decided to go ahead with the meeting because he

wanted to complete the deal. According to his version, as the three were walking up

the stairs, he turned around to see Crockett pulling out a gun. He then jumped on #29145

-5-

Crockett and held the gun against Crockett's body. As a result, Frias could not grab

his own weapon. They struggled down the stairs ending up outside, where Frias

slipped on the steps, pushing himself away from Crockett. Frias was then able to

pull out his gun. Frias testified that, at this moment, Zephier ran out of the

apartment building swinging his RAS47. Zephier hit Crockett in the back with the

gun. Crockett then started shooting at both Zephier and Frias. Frias saw Crockett

shoot Zephier, which caused him to shoot Crockett. Frias testified that he tried to

help Zephier get up, but Zephier would not move. Frias then told Habben they

needed to leave. Frias claimed that he did not intend to rob Crockett. He also

stated that he did not receive any of Crockett's money from Habben.

[¶12.] When police officers arrived at the scene, they discovered the bodies of

Zephier and Crockett. Officers reported that Zephier was clearly deceased with the

RAS47 by his body. Crockett was alive, groaning, and had his hand on his gun.

[¶13.] Zephier sustained three gunshot wounds from roughly five feet away.

Crockett sustained gunshot wounds to the back-right side of his head, mid-back

traveling through his body to his shoulder, and right palm. He also had an inchlong curved laceration on his scalp inflicted from a frontal blow. None of the experts

could testify with certainty about the distance between Crockett and his shooter.

[¶14.] On January 16, law enforcement apprehended Frias in South Sioux

City, Nebraska. A jury trial commenced on August 5, 2019. The State requested

the circuit court to include instructions on the included offense of attempted

robbery. Frias objected because the State did not charge attempted robbery in the

indictment. The circuit court granted the State's motion and instructed the jury #29145

-6-

that, if it found the evidence insufficient to establish robbery, it must then consider

if Frias attempted to commit a robbery.

[¶15.] Among other counts, the jury returned a verdict of not guilty of

robbery. However, the jury did not circle "guilty” or "not guilty” for the included

offense of attempted robbery. The verdict form included an instruction after the

robbery charge stating, "**Only if you find the Defendant NOT GUILTY as to Count

8 [robbery], do you need to consider the included offense of Attempted Robbery.”

The circuit court received the verdict form and read it out loud in open court. When

the court reached the attempted robbery count, it stated, "The lesser included one is

not designated.” The court then continued to read the remaining counts. The jury

found Frias guilty, among other counts, of second-degree murder and first-degree

manslaughter with a dangerous weapon.

[¶16.] After reading the verdict, the court held a bench conference off the

record. It then dismissed the jury and asked counsel if they had anything to add to

the record before they adjourned. Both parties responded, "no.” The parties did not

make a record of the bench conference, and as a result, the parties did not place

their consent to the jury's discharge on the record.

[¶17.] In August 2019, Frias filed a motion to arrest judgment, arguing that

the indictment did not charge the offense of attempted robbery, and the court did

not have jurisdiction to proceed to sentencing. Frias also filed a renewed motion for

judgment of acquittal. He argued that insufficient evidence established the element

of depraved mind, and the State failed to show that self-defense did not justify his

killing of Crockett.#29145

-7-

[¶18.] The State notified Frias and the circuit court that it was no longer

proceeding on the attempted robbery charge. Frias objected, claiming that South

Dakota's statutes do not authorize this action. During the hearing on Frias's

motions, Frias acknowledged that the circuit court presented his requested selfdefense instructions, allowed his arguments on self-defense, and did not prevent

him from presenting his theory of the case for self-defense.

[¶19.] The circuit court denied Frias's motion for judgment of acquittal

because sufficient evidence supported the verdict. It also rejected Frias's motion to

arrest judgment. However, it noted that it committed an error by dismissing the

jury without placing the parties' consent on the record but concluded that the error

was not prejudicial. At Frias's sentencing hearing, the court orally entered a

judgment of acquittal on the attempted robbery offense.5 After imposing a life

sentence on the second-degree murder conviction, the circuit court did not impose a

sentence on the first-degree manslaughter conviction.

[¶20.] Frias appeals, raising three issues. We need only address two:6

1. Whether the circuit court erred by denying Frias's motion

for judgment of acquittal.



5. The Judgment and Sentence entered for the counts upon which Frias was

convicted states that the court entered a judgment of acquittal for attempted

robbery, however, no separate written judgment of acquittal appears in the

record.

6. Frias also sought review of the circuit court's decision to instruct the jury on

the included offense of attempted robbery. We need not address this issue

because the circuit court acquitted Frias of attempted robbery. See State v.

Kvasnicka, 2013 S.D. 25, ¶ 24, 829 N.W.2d 123, 129 (issue before the Court

was moot because defendant was acquitted of disputed count).#29145

-8-

2. Whether the circuit court erred by denying Frias's motion

to arrest judgment.

Analysis and Decision

1. Whether the circuit court erred by denying Frias's

motion for judgment of acquittal.

[¶21.] Frias argues that the circuit court erred by denying his motion for

judgment of acquittal on the homicide convictions. "We review a denial of a motion

for judgment of acquittal de novo.” State v. Armstrong, 2020 S.D. 6, ¶ 12, 939

N.W.2d 9, 12. "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.” State v. Brim, 2010 S.D. 74, ¶ 6, 789 N.W.2d 80, 83 (internal

quotation marks omitted). "[T]he jury is the exclusive judge of the credibility of the

witnesses and the weight of the evidence.” Id. "In determining the sufficiency of

the evidence, this Court will not resolve conflicts in the evidence, pass on the

credibility of witnesses, or weigh the evidence.” State v. Bausch, 2017 S.D. 1, ¶ 33,

889 N.W.2d 404, 413.7

[¶22.] For Frias's second-degree murder conviction, he claims the State failed

to establish that he acted with a depraved mind because Crockett started the

altercation, it only lasted seconds, and Crockett posed a lethal threat.



7. We decline to adopt the manifest weight of the evidence standard advanced

by Frias. It runs contrary to our precedent by requiring this Court to weigh

the credibility of the evidence. See State v. Swan, 2008 S.D. 58, ¶ 9, 753

N.W.2d 418, 420 ("We will not usurp the jury's function in resolving conflicts

in the evidence, weighing credibility, and sorting out the truth.”) (quoting

State v. Pugh, 2002 S.D. 16, ¶ 9, 640 N.W.2d 79, 82).#29145

-9-

[¶23.] "Homicide is murder in the second degree if perpetrated by any act

imminently dangerous to others and evincing a depraved mind, without regard for

human life, although without any premeditated design to effect the death of any

particular person . . . .” SDCL 22-16-7. A depraved mind requires, "less culpability

than the element of premeditation required for first-degree murder.” State v.

Harruff, 2020 S.D. 4, ¶ 39, 939 N.W.2d 20, 30 (citing State v. McCahren, 2016 S.D.

34, ¶ 10, 878 N.W.2d 586, 592). "If a person is able to act with a lack of regard for

the life of another, then that person can be convicted of second degree murder.”

State v. Laible, 1999 S.D. 58, ¶ 13, 594 N.W.2d 328, 332 (internal quotation marks

omitted).8 "[W]hether conduct is imminently dangerous to others and evincing a

depraved mind regardless of human life is to be determined from the conduct itself

and the circumstances of its commission.” Id. ¶ 14, 594 N.W.2d at 333. The circuit

court's instructions appropriately mirrored the definition of a depraved mind.

[¶24.] At trial, the State presented evidence that Frias shot Crockett in the

back-right side of his head, middle-back, and right palm. While the parties dispute

the events starting the altercation, it is undisputed that Frias and Crockett's scuffle

commenced in the apartment building, traveled down the stairs, and proceeded



8. Frias relies on Dorsey v. Florida, 74 So. 3d 521 (Fla. Dist. Ct. App. 2011) to

argue that the State failed to present evidence establishing a depraved mind.

However, Florida's definition of "depraved mind” differs from the current

definition contained in the criminal pattern jury instructions, which is based

upon our more recent cases addressing this issue. See South Dakota Pattern

Jury Instructions (Criminal) 3-24-13; State v. Hart, 1998 S.D. 93, ¶¶ 10-15,

584 N.W.2d 863, 864–66. Florida defines "depraved mind” as an act that: "(1)

a person of ordinary judgment would know is reasonably certain to kill or do

serious bodily injury to another; (2) is done from ill will, hatred, spite or an

evil intent; and (3) is of such a nature that the act itself indicates an

indifference to human life.” Dorsey, 74 So. 3d at 524 (emphasis added).#29145

-10-

outside where Frias killed Crockett. Frias sustained no bullet wounds, and he

failed to render aid after subduing Crockett. When law enforcement arrived at the

scene, Crockett was alive and moaning.

[¶25.] Frias's acts of firing multiple shots outside an inhabited apartment

complex and the locations of the wounds on Crockett's body establish his disregard

for human life. Although Frias contends the single wound on Crockett's palm is

evidence that Crockett was advancing, the jury reasonably could have concluded to

the contrary. The two wounds on Crockett's back, viewed in a light favorable to the

verdict, establish that he was retreating or, at a minimum, turned away when Frias

fired the fatal shots. Further, the State presented evidence that as Crockett laid

moaning on the snow-covered ground, Frias failed to render aid or call 911.

Meanwhile, Frias escaped the altercation unscathed.

[¶26.] Frias also asserts that the State did not establish second-degree

murder or first-degree manslaughter because it failed to show that his killing of

Crockett was unjustified. He argues that he held a reasonable belief that Crockett

would cause Zephier or himself great personal injury or death because Crockett

drew a gun on him. Frias contends the only reasonable conclusion was that

Crockett might try to kill him, which permitted him to use necessary and equal

force.

[¶27.] "Homicide is justifiable if committed by any person in the lawful

defense of such person . . . if there is reasonable ground to apprehend a design to

commit a felony, or to do some great personal injury, and imminent danger of such #29145

-11-

design being accomplished.” SDCL 22-16-35.9 The parties offered conflicting

testimony about the origin of the altercation. Frias testified that Crockett pulled a

gun, which forced him to push the gun against Crockett's body. They struggled

down the stairs and ended up outside. During the struggle, Frias yelled for Zephier,

who ran outside with his RAS47 and hit Crockett. Crockett then shot Zephier and

opened fire on Frias, resulting in Frias shooting Crockett.

[¶28.] The State contended that Frias and Habben planned to rob Crockett.

It presented evidence establishing that Frias texted individuals about a "lick,” he

attempted to purchase ammunition at Walmart, and both he and Zephier brought

weapons to the drug deal. The State asserted that Frias and Crockett started to

argue as they ascended the stairs. During the argument, Crockett lifted his jacket,

and Frias claimed he saw Crockett pull a gun. Frias and Crockett struggled down

the stairs and out the door. Meanwhile, Zephier ran down the stairs with his

RAS47 yelling, "Give me the money, give me the money.” Crockett then shot

Zephier, and Frias shot Crockett. Frias fled the scene without rendering aid,

disposed of his gun, and hid from law enforcement.

[¶29.] The circuit court properly included multiple instructions on selfdefense.10 Further, Frias admitted that the circuit court provided his requested



9. The Legislature repealed SDCL 22-16-35 with House Bill 1212. See 2021

S.D. Sess. Laws ch. 93, § 15. The repeal occurred after the circuit court heard

this matter.

10. The circuit court instructed the jury on justifiable homicide, the amount of

force a defendant is legally permitted to use, and the circumstances when a

defendant holds no duty to retreat. It also instructed the jury that the State

holds the burden of negating self-defense beyond a reasonable doubt.#29145

-12-

self-defense instructions, permitted his self-defense arguments, and did not prevent

him from presenting his self-defense theory. "Whether, under the particular facts of

each case, homicide was justified is for the jury to decide.” State v. Pellegrino, 1998

S.D. 39, ¶ 18, 577 N.W.2d 590, 598. The jury reasonably could have rejected Frias's

testimony on self-defense as only Habben and himself survived the incident. Based

on the evidence, the jury could have concluded that Frias started the altercation or

escalated the conflict and that the bullet wounds to the back of Crockett's head and

back demonstrated that the shooting was not justified. See State v. Stone, 2019 S.D.

18, ¶ 45, 925 N.W.2d 488, 502 (defendant presented evidence that he was

retreating, but it is for the jury to decide whether the killing was justified); State v.

Strozier, 2013 S.D. 53, ¶¶ 24-27, 834 N.W.2d 857, 865 (sufficient evidence

established that the defendant did not act in self-defense as the jury was properly

instructed on self-defense and presented with conflicting testimony). These

conclusions are reasonable, supported by the evidence, and negate Frias's selfdefense theory.

[¶30.] In viewing the evidence in a light favorable to the verdict, the jury

could have found beyond a reasonable doubt that Frias unjustifiably killed Crockett.

The circuit court did not err in denying Frias's motion for judgment of acquittal for

second-degree murder or first-degree manslaughter.

2. Whether the circuit court erred by denying Frias's

motion to arrest judgment.

[¶31.] We have yet to apply a standard of review to a circuit court's denial of

a motion to arrest judgment based on SDCL 23A-30-1, which provides, "A court

shall arrest judgment if an indictment . . . does not charge an offense or if the court #29145

-13-

does not have jurisdiction of the offense charged.” As a motion to arrest judgment is

rooted in law, de novo is the appropriate standard of review. See Sazama v. State ex

rel. Muilenberg, 2007 S.D. 17, ¶ 9, 729 N.W.2d 335, 340 (issues of jurisdiction are

"reviewed by this Court de novo”).

[¶32.] Frias raises two claims in support of his argument that the circuit

court erroneously denied his motion to arrest judgment. First, he points to the fact

that the charge of attempted robbery was submitted to the jury for consideration

even though the State failed to charge this offense in the indictment. This

argument fails at the outset because it does not fall under the umbrella of claims

properly addressed under SDCL 23A-30-1. Frias does not allege that the

indictment upon which he was tried did not charge an offense, nor does he claim

that the circuit court lacked jurisdiction to try the offenses charged in the

indictment. Frias's argument regarding the circuit court's submission of the

attempted robbery offense to the jury, rather than raising a constitutional or

jurisdictional defect in the indictment, simply challenges the court's discretion to

instruct the jury on an included offense.

[¶33.] Moreover, Frias's legal challenge to the submission of this charge to

the jury is contrary to our statutes. Because the indictment charged the offense of

robbery, it presumptively included the offense of attempted robbery. See SDCL

23A-26-8 ("A defendant may be found guilty of an offense necessarily included in

the offense charged or of an attempt to commit . . . the offense charged . . . .”). As

this Court discussed in State v. McCahren, an "included offense need not be charged

in an indictment, as it is already included in the offense charged.” 2016 S.D. 34, ¶ #29145

-14-

7, 878 N.W.2d 586, 591 (quoting United States v. McGeehan, 824 F.2d 677, 679 n.2

(8th Cir. 1987)).

[¶34.] Frias's second claim is that the circuit court did not have jurisdiction to

impose his sentence because the attempted robbery verdict was blank. According to

Frias, because a "full determination of guilt” did not yet exist, the court could not

proceed to sentencing under SDCL 23A-27-1, which requires a court to wait fortyeight hours after such a determination before imposing a sentence. This argument

fares no better than the first, as it does not encompass a legitimate basis for

bringing a motion to arrest judgment. Motions to arrest judgment are concerned

with subject matter jurisdiction. See Rhode Island v. Texieira, 944 A.2d 132, 139

(R.I. 2008) (A motion to arrest judgment solely examines "subject matter

jurisdiction.”). The circuit court indisputably had subject matter jurisdiction under

SDCL 16-6-12 to try and determine all the offenses submitted to the jury and

thereafter impose a sentence.

[¶35.] Frias's second claim is instead centered upon procedural issues—

whether the circuit court erroneously dismissed the jury without obtaining the

parties' consent on the record under SDCL 23A-25-10, and whether it erroneously

accepted an incomplete nonunanimous verdict. He claims this prematurely ended

the jury's deliberations, prohibited him from having his case determined by that

particular tribunal, and violated his right to due process.

[¶36.] A motion to arrest judgment under SDCL 23A-30-1 is not the

appropriate vehicle for such procedural claims. See United States v. Figueroa, 337

F. Supp. 645, 652–53 (S.D.N.Y. 1971) (motion to arrest judgment is not the #29145

-15-

appropriate motion to challenge the court's procedural infirmities); State v. Comes,

64 S.D. 537, 268 N.W. 724, 726 (1936) (motion to arrest judgment improper to

dispute juror's residency); State v. Paul, 41 S.D. 40, 168 N.W. 739, 740 (1918)

(motion to arrest judgment improper to dispute sentence); Texieira, 944 A.2d at 138

(motion to arrest judgment does not "permit a defendant to obtain belated review of

. . . challenges that could have and should have been raised during . . . trial”) (first

alteration in original); see also United States v. Sisson, 399 U.S. 267, 280–82, 90 S.

Ct. 2117, 2125, 26 L. Ed. 2d 608 (1970) (discussing the history of a motion to arrest

judgment).11

[¶37.] Finally, even if Frias's alleged procedural infirmities occurred, Frias

fails to establish prejudice. The court ultimately acquitted Frias of attempted

robbery. Therefore, he is in no worse position than if the court had not included

attempted robbery on the verdict form, and he cannot claim that the absence of a

verdict on the attempted robbery count affected the other counts. See generally

State v. Mulligan, 2007 S.D. 67, ¶ 11, 736 N.W.2d 808, 814. Additionally, at the

post-trial motions hearing, the court noted that it asked the parties during the

bench conference if they wanted the jury to deliberate further on the counts. Both

parties responded, "no.” Frias then raised no objections to the jury's dismissal.



11. Frias cites to North Carolina v. Tucker, 575 S.E.2d 770 (N.C. App. 2003)

claiming a motion to arrest judgment can address other issues. North

Carolina, instead of having a "motion to arrest judgment,” has a "motion for

appropriate relief” which provides grounds for the motion that our statute

does not include. See N.C. Gen. Stat. Ann. § 15A-1415; N.C. Gen. Stat. Ann.

§ 15A-1411. The same issue arises with Louisiana v. Foret, 479 So. 2d 526

(La. Ct. App. 1985) as Louisiana also provides additional grounds for a

motion to arrest judgment including, a non-responsive verdict. See La. Code

Crim. Proc. Ann. art. 859.#29145

-16-

Finally, because of his acquittal on the attempted robbery charge, Frias is not at

risk of a double jeopardy violation.

For all the above reasons, the circuit court correctly denied Frias’s motion to arrest judgment. We affirm