Intrinsic Evidence Has Limits: State v. Rouse Restricts “Res Gestae” to Truly Contextual Facts, Reinforces 404(b) Foundations, and Reaffirms Written-Order Tolling Under the 180‑Day Rule

Introduction

In State v. Rouse, 2025 S.D. 29, the Supreme Court of South Dakota affirmed in part, reversed in part, and remanded for a new trial after clarifying critical evidentiary and procedural rules. The case arises from incidents in the Hughes County Jail involving inmate Isaiah Vaughn Rouse, who was convicted of three counts of aggravated assault (by physical menace with a deadly weapon) against corrections officers and one misdemeanor count of threatening a law enforcement officer. On appeal, Rouse challenged a denial under South Dakota’s 180‑day speedy trial rule, the sufficiency of the evidence on the aggravated assault counts, the admission of testimony about why he was in jail, and two jury instructions.

The Court’s opinion does three important things:

• Restricts the use of “res gestae” (intrinsic evidence) to truly contextual facts, holding that officers’ knowledge of a defendant’s unrelated, pending violent charge is not intrinsic to the charged jail incident and should not be admitted simply to explain officers’ fear.
• Reinforces that Rule 404(b) other-acts evidence requires a developed record—both similarity and proof by a preponderance—that was missing here.
• Reaffirms, via established precedent, that under the 180‑day rule, the filing of defense motions tolls the clock until written orders dispose of those motions, not merely an oral ruling.

The result: new trials were ordered on the three aggravated assault counts due to prejudicial evidentiary error; the misdemeanor conviction for threatening an officer stands.

Summary of the Opinion

Rouse, a maximum-custody inmate, refused commands and threatened to stab corrections officers while holding a sharpened pencil outside his cellblock. He was charged with three counts of aggravated assault by physical menace with a deadly weapon against three officers (January 13, 2023 incident) and one count of threatening an officer (February 25, 2023).

On appeal:

• 180-day rule: The Court affirmed denial of dismissal. Even under a narrower exclusion for another case’s trial, defense motions filed on September 7, 2023 tolled the clock, and—per Seaboy and Sparks—the clock did not resume because no written orders disposing of those motions were entered before trial. Rouse did not challenge that tolling rule on appeal.
• Sufficiency (aggravated assault): The Court affirmed the denial of judgment of acquittal. Considering threats and physical conduct (including the sharpened pencil held point-forward and refusal to comply), a rational jury could find “physical menace” beyond a reasonable doubt under SDCL 22‑18‑1.1(5).
• Evidentiary error (res gestae/404(b)): The Court held it was an abuse of discretion to admit testimony that officers knew Rouse was in jail on another aggravated assault (alleged knife stabbing). That fact was neither intrinsic (res gestae) to the charged incident nor admissible under Rule 404(b) on the sparse record presented. The error was prejudicial given how close the “physical menace” issue was, the lack of a limiting instruction, and the State’s reliance on the point in closing. The aggravated assault counts were reversed and remanded for a new trial.
• Jury instructions: The Court found no reversible error in two instructions. It cautioned, however, that borrowing “attempt” language from the general attempt statute risks confusing juries in physical-menace cases because actual fear is not an element and the crime is complete upon attempting to put another in fear by physical menace with a deadly weapon.

Analysis

Precedents Cited and Their Role

• SDCL 23A‑44‑5.1 and tolling precedents:
  • State v. Andrews, 2009 S.D. 41, 767 N.W.2d 181: Frames the 180‑day rule beginning at first appearance.
  • State v. Seaboy, 2007 S.D. 24, 729 N.W.2d 370; State v. Sparks, 1999 S.D. 115, 600 N.W.2d 550: Establish that tolling for defense motions extends “from filing until final disposition,” and that final disposition entails entry of a written order, not merely an oral ruling. The Court relied on this to affirm that the 180‑day clock stopped with Rouse’s September 7 motions and never restarted before trial due to the absence of written orders.
  • Cook v. Cook, 2022 S.D. 74, 983 N.W.2d 180: Confirms the Court will not entertain unchallenged determinations; Rouse did not contest the written-order tolling rule on appeal.
• Aggravated assault by physical menace:
  • State v. Robertson, 2023 S.D. 19, 990 N.W.2d 96; State v. Peneaux, 2023 S.D. 15, 988 N.W.2d 263; State v. Scott, 2019 S.D. 25, 927 N.W.2d 120; People ex rel. R.L.G., 2005 S.D. 119, 707 N.W.2d 258; State v. LaCroix, 423 N.W.2d 169 (S.D. 1988): These decisions articulate that “physical menace” requires more than words (some physical act), and the gravamen is the defendant’s attempt to put another in fear of imminent serious bodily harm; actual fear is not required. The Court applied this framework to uphold the sufficiency of the evidence.
  • State v. Frias, 2021 S.D. 26, 959 N.W.2d 62; Peneaux, supra: Set the sufficiency standard and deference to the jury on credibility and evidentiary weight.
• Res gestae (intrinsic evidence) and 404(b):
  • State v. Otobhiale, 2022 S.D. 35, 976 N.W.2d 759; State v. Hoadley, 2002 S.D. 109, 651 N.W.2d 249: Describe intrinsic (res gestae) evidence as that which completes the story of the charged offense, arises from the same transaction or series, or is so blended or connected with the crime that it explains circumstances or tends to prove an element.
  • State v. Taylor, 2020 S.D. 48, 948 N.W.2d 342: Requires a preponderance showing that the defendant committed the other act before the jury may consider 404(b) evidence.
  • State v. Hernandez, 2023 S.D. 17, 989 N.W.2d 525: Reiterates that propensity evidence cannot be used to infer conduct from character (Rule 404(a)(1)).
  • State v. Wright, 1999 S.D. 50, 593 N.W.2d 792: Notes the importance of a limiting instruction when 404(b) evidence is admitted.
  • State v. Belt, 2024 S.D. 82, 15 N.W.3d 732; State v. Carter, 2023 S.D. 67, 1 N.W.3d 674: Provide the abuse-of-discretion and prejudice standards for evidentiary rulings; “reasonable probability” of a different result is sufficient to undermine confidence in the outcome.
• Jury instructions:
  • State v. Pfeiffer, 2024 S.D. 71, 14 N.W.3d 636; State v. Black Cloud, 2023 S.D. 53, 996 N.W.2d 670: Establish review standards and the requirement to assess instructions as a whole.

Legal Reasoning: Why the Court Reversed and What It Reaffirmed

1) The 180‑Day Rule: Tolling Continued Until Written Orders

Although Rouse argued the trial-preparation days excluded for a different case should not have been tolled, the Court found that issue immaterial. By September 7, only 176 days had elapsed since the March 13 initial appearance. When Rouse filed motions on September 7, tolling commenced under SDCL 23A‑44‑5.1(4)(a) and—under Seaboy and Sparks—did not end until written orders disposed of the motions. Because no written orders were entered before trial, the clock did not resume. Rouse did not challenge that written-order requirement on appeal, foreclosing relief on the speedy-trial claim.

Takeaway: In South Dakota, an oral ruling does not end tolling for defense motions; only a written order does.

2) Sufficiency: “Physical Menace” Requires a Physical Act, Not Actual Fear

The Court applied settled law: “physical menace” under SDCL 22‑18‑1.1(5) requires conduct beyond words; however, actual fear by the victim is not an element. The focus is “what the defendant was attempting to do.” Here, Rouse ignored commands, stepped into the officers’ area, clenched his fists, threatened stabbing, refused to drop a sharpened pencil held point-forward, and complied only when faced with a taser. A rational jury could find an attempted imposition of fear of imminent serious bodily harm by physical menace with a deadly weapon.

Notably, the Court recognized that a sharpened pencil can be treated as a deadly weapon in custodial settings when used or threatened in a manner capable of causing serious injury, consistent with trial testimony and correctional context.

3) Evidence: Officers’ Knowledge of Unrelated Pending Charges Is Not Res Gestae

The State elicited that officers knew Rouse was in custody on aggravated assault—“believed” to be for a stabbing—and argued this was res gestae context for why they perceived danger. The Court rejected that theory:

• Not intrinsic: The prior, unrelated alleged stabbing had no transactional or logical connection to the jail incident. Its absence would not create a “chronological or conceptual void” in the story of the charged offense. It did not tend to prove any element.
• Misunderstood element: The trial court erred in reasoning that the jury was “entitled to know” the officers’ fear basis because actual fear is not an element of aggravated assault by physical menace. The gravamen is the defendant’s attempt, assessed by words and acts; the victims’ state of mind is not dispositive.
• 404(b) foundation absent: The State offered no details establishing similarity or that Rouse committed the prior act by a preponderance. Without a developed record, the evidence could not be admitted for motive, intent, plan, or scheme.
• Propensity risk and no limiting instruction: The testimony violated Rule 404(a)(1)’s bar on character/propensity use and, lacking a limiting instruction, invited the jury to treat “he’s in on a stabbing” as proof of bad character or a propensity to assault.

Prejudice was clear: The State emphasized the point in closing; the video lacked audio and was visually ambiguous about the pencil; and the “physical menace” question was close. There was a reasonable probability the verdict would have been different had the improper testimony been excluded. Thus, the aggravated assault convictions were reversed for a new trial.

Importantly, the Court distinguished admissible contextual or environmental evidence (e.g., correctional policies, the lethal potential of sharpened pencils demonstrated through non-defendant-specific incidents) from inadmissible defendant-specific propensity inferences. The former may be permissible under relevance and Rule 403; the latter is barred absent proper 404(b) foundations and instructions.

4) Jury Instructions: Cautions, But No Reversible Error

• Instruction 15 (physical menace and “attempt”): The Court approved including the explanatory sentences from Scott that the State need not prove actual fear and that “attempt” is sufficient. It cautioned, however, that borrowing language from the general attempt statute (SDCL 22‑4‑1) may confuse in this context; aggravated assault by physical menace is complete upon the attempt to instill fear by physical menace with a deadly weapon, without proof the defendant “failed” or was “prevented” from consummating some other crime. Any potential confusion here benefitted the defense by suggesting an additional element the State had to prove.
• Instruction 21 (admissions and confessions): Although the case involved an apology—not a confession—the pattern instruction left it to the jury to decide whether a statement was an admission or confession and cautioned that guilt cannot rest solely on such statements. The Court found no abuse of discretion in giving it as written, while noting it would also have been permissible to drop the “confession” language in a case with no confession evidence.

Impact

On Evidence Law in South Dakota

• Res gestae narrowed to truly intrinsic facts: Courts and litigants must resist using “context” as a backdoor for character evidence. Officers’ knowledge that a defendant is in custody for a different violent charge is not, without more, intrinsic to a new alleged assault. This decision will constrain prosecution attempts to weave unrelated pending charges into the narrative of custodial offenses.
• 404(b) rigor reinforced: Trial courts should require (1) a preponderance showing the other act occurred and (2) a developed record of similarity and non-propensity purpose before admitting other-acts evidence, coupled with a limiting instruction. Sparse proffers will not suffice.
• Victim fear versus defendant’s attempt: The Court’s emphasis that actual fear is not an element will shape relevance and Rule 403 analyses. Evidence offered solely to explain why a victim was afraid—particularly when it invites propensity reasoning—is unlikely to be admissible unless it bears on a specific, permissible purpose and rests on adequate foundation.

On Criminal Procedure and Case Management

• Written orders to end tolling: Seaboy/Sparks are reaffirmed. Defense motions stop the 180‑day clock until written orders dispose of them. Oral rulings are not enough. Prosecutors and courts must diligently generate and file written orders to restart the clock; defense counsel should understand that moving practice tolls time.
• Strategy implications: Filing defense motions late in the 180‑day period will toll the clock—sometimes helping the State. Counsel should weigh the timing of motions against speedy-trial interests and insist on prompt written orders to avoid open-ended tolling.

On Jail/Prison Litigation

• Deadly weapon proofs without propensity: The State may establish that otherwise common objects (e.g., sharpened “golf” pencils) can be deadly in a correctional setting through general policies, training, and non-defendant-specific incidents. But it may not bootstrap a defendant’s dangerousness by introducing knowledge of unrelated violent charges absent a valid 404(b) theory and robust foundation.
• Video evidence gaps: When surveillance lacks audio or clear angles, the State should pair it with careful, non-propensity testimony about the defendant’s physical acts and objective risk indicators; defense should highlight ambiguity and argue that threats without brandishing do not equal “physical menace.”

Complex Concepts Simplified

• Res gestae (intrinsic evidence): Facts so intertwined with the charged crime that they complete the story (e.g., immediate sequence of events, same transaction). Not a license to add unrelated prior bad acts just to make the defendant look dangerous.
• Rule 404(b) “other acts”: Allows prior acts for specific non-character purposes (motive, intent, plan, identity), but only with: (1) proof by a preponderance that the defendant committed the act; (2) demonstration of relevance to a permitted purpose; (3) Rule 403 balancing; and (4) a limiting instruction to cabin the use.
• Propensity evidence (404(a)(1)): Generally barred. The State cannot argue “he did it before, so he did it again.”
• Physical menace (SDCL 22‑18‑1.1(5)): A crime completed when the defendant, by a physical act plus threatening words, attempts to put another in fear of imminent serious bodily harm using a deadly weapon; the victim need not actually be afraid.
• “Deadly weapon” in context: An object becomes a deadly weapon if used or threatened in a manner capable of causing death or serious injury. In corrections, even a small sharpened pencil can qualify when wielded as a stabbing instrument.
• 180‑day rule tolling: The speedy-trial clock stops when defense motions are filed and restarts only when the court enters written orders disposing of those motions.
• Prejudicial error standard: An evidentiary error warrants reversal if there is a reasonable probability the outcome would have been different absent the error.

Practical Guidance for Remand and Future Cases

• For the State on retrial:
  • Build the case on the defendant’s on-scene conduct—commands ignored, threats uttered, object position, proximity, de-escalation steps—without referencing unrelated pending charges.
  • If 404(b) becomes relevant, develop a fulsome record: detail the other act; prove it by a preponderance; articulate a non-propensity purpose; and secure a tailored limiting instruction.
  • Use institutional testimony (policies, training, prior non-defendant incidents) to establish the deadly nature of a sharpened pencil in jail.
• For the defense:
  • File motions in limine to exclude extraneous “why he was in custody” evidence; demand strict adherence to 404(b) foundations and Rule 403 balancing.
  • Highlight video ambiguities, the lack of brandishing or lunging, and the distinct line between threats and physical menace.
  • Request precise jury instructions that avoid confusing general attempt-law language and emphasize that actual fear is not required.
• For trial courts:
  • Carefully police the intrinsic/404(b) boundary; when in doubt, require a 404(b) showing and give limiting instructions.
  • Avoid conflating “why the victim was afraid” with elements of the offense; keep the focus on the defendant’s acts and intent.
  • Enter written orders promptly on motion practice to clarify 180‑day computations for all parties.

Conclusion

State v. Rouse is a consequential evidentiary and procedural decision. It limits the reach of res gestae to evidence truly intrinsic to the charged crime, refuses to allow officers’ knowledge of a defendant’s unrelated pending charges to serve as “context,” and reiterates that Rule 404(b) demands a well-developed foundation and limiting instruction to avoid propensity misuse. Procedurally, it reaffirms that defense-motion tolling under the 180‑day rule persists until written orders are filed, not merely oral rulings.

Substantively, the Court also clarifies the proper lens for “physical menace”: the defendant’s attempt, through words plus physical acts, to instill fear of imminent serious bodily harm with a deadly weapon—without any requirement that the victim actually be afraid. While the sufficiency of the evidence was upheld, the improper admission of prior-charge knowledge created a reasonable probability of a different outcome, necessitating new trials on the aggravated assault counts.

Rouse will guide South Dakota courts and practitioners in drawing a sharper line between contextual evidence and impermissible character insinuations, in building and challenging 404(b) records, and in managing the 180‑day speedy-trial clock with the clarity of written orders.