No Lesser-Included: SDCL 24-11-47.1 (Altered Jail Articles) Is Not a Lesser-Included Offense of SDCL 24-11-47 (Weapon Possession); “Weapon” Status Determined Objectively

Introduction

In State v. Hillyer, 2025 S.D. 30, the Supreme Court of South Dakota affirmed a conviction for possession of a weapon by a jail inmate under SDCL 24-11-47(3) based on an altered razor blade. The case arose after Richard Lee Hillyer, an inmate at the Pennington County Jail, removed a blade from a jail-issued razor, broke it in half, and retained one half—wrapped in tape and concealed in his mouth. He admitted doing so to cut himself and to influence his housing placement. A jury convicted him; the circuit court sentenced him, as a habitual offender, to 25 years.

On appeal, Hillyer raised four issues: (1) the refusal of his proposed lesser-included instruction for misdemeanor possession of an unauthorized article under SDCL 24-11-47.1 (altered authorized item), (2) denial of a motion for judgment of acquittal based on sufficiency of the evidence that the razor blade was a “weapon” under SDCL 22-1-2(10), (3) refusal to instruct jurors not to consider hypothetical uses of the razor during deliberations, and (4) cumulative error. The Court affirmed on all grounds.

The opinion’s most significant doctrinal development is its clarification of South Dakota’s lesser-included offense test: the Court expressly aligns the State’s three-pronged elements test with the U.S. Supreme Court’s “necessarily included” subset-of-elements approach in Schmuck v. United States, holding that SDCL 24-11-47.1 (altered authorized articles) is not a lesser-included offense of SDCL 24-11-47 (possession of a weapon by an inmate).

Summary of the Opinion

Lesser-included instruction: The misdemeanor offense of possessing an altered authorized item in jail (SDCL 24-11-47.1) is not a lesser-included offense of possessing a weapon in jail (SDCL 24-11-47(3)), because the lesser offense adds elements (that the item was provided/authorized by the jail and then altered) not contained in the greater offense. The Court clarifies that South Dakota’s three-prong “elements test” requires the lesser’s elements to be a true subset of the greater’s elements (the “necessarily included” standard from Schmuck).
Sufficiency of the evidence: A rational jury could find the razor blade was a “weapon” under SDCL 22-1-2(10). The definition is objective: it turns on an instrument’s character (calculated or designed to inflict death or serious bodily harm) or its manner of use. Hillyer’s subjective intent to self-harm is irrelevant.
Jury note on hypotheticals: The circuit court did not abuse its discretion by referring jurors back to the instructions when asked whether to consider how the razor “could be used hypothetically.” Where instructions correctly state the law, no further elaboration is required, and there was no showing of prejudice.
Unanimity: Generic unanimity instructions sufficed; the jury affirmed its unanimous verdict in open court. No additional unanimity instruction was required, and no polling was requested.
Cumulative error: Without individual error, there can be no cumulative error; the conviction was affirmed.

Analysis

Precedents Cited and Their Influence

State v. Willingham, 2019 S.D. 55, 933 N.W.2d 619 and State v. Giroux, 2004 S.D. 24, 676 N.W.2d 139: Provide the three-part lesser-included “elements test” and the “some evidence” requirement. Hillyer clarifies that courts need not reach “some evidence” unless the subset-of-elements test is satisfied.
Schmuck v. United States, 489 U.S. 705 (1989) and State v. Black, 494 N.W.2d 377 (S.D. 1993) (plurality): Establish the “necessarily included” rule—lesser offense elements must be a subset of the charged offense. Hillyer explicitly aligns South Dakota’s test with Schmuck, emphasizing that both the first and third prongs of the state test convey the same subset-of-elements principle.
State v. Hoadley, 2002 S.D. 109, 651 N.W.2d 249: Earlier South Dakota acknowledgment of Schmuck’s elements focus; Hillyer cements this alignment.
State v. Swan, 2019 S.D. 14, 925 N.W.2d 476: Reiterates that evidence supporting a lesser matters only after the elements test is met. Hillyer applies this sequencing: no subset-of-elements, no lesser instruction.
State v. Bolden, 2024 S.D. 22, 6 N.W.3d 238, State v. Seidel, 2020 S.D. 73, 953 N.W.2d 301, and State v. Strozier, 2013 S.D. 53, 834 N.W.2d 857: Define the de novo standard and deferential lens for sufficiency review. Hillyer uses this framework to uphold the jury’s finding that the razor blade was a weapon.
Time Out, Inc. v. Karras, 469 N.W.2d 380 (S.D. 1991), State v. Kaiser, 504 N.W.2d 96 (S.D. 1993), State v. Schrempp, 2016 S.D. 79, 887 N.W.2d 744, State v. Moran, 2003 S.D. 14, 657 N.W.2d 319, State v. Cottier, 2008 S.D. 79, 755 N.W.2d 120, and State v. Rhines, 1996 S.D. 55, 548 N.W.2d 415: Govern trial courts’ discretion when responding to jury questions during deliberations and prejudice review. Hillyer reinforces that referring jurors to correct instructions is a proper exercise of discretion.
State v. White Face, 2014 S.D. 85, 857 N.W.2d 387, United States v. Eagle Elk, 820 F.2d 959 (8th Cir. 1987), State v. Black Cloud, 2023 S.D. 53, 996 N.W.2d 670: Address jury unanimity—generic unanimity instructions suffice absent special circumstances; courts presume juries follow instructions. Hillyer applies these principles to reject the unanimity challenge.

Legal Reasoning

1) Lesser-Included Offense: Subset-of-Elements Clarified and Applied

The defendant sought a lesser-included instruction for the misdemeanor offense under SDCL 24-11-47.1, limited here to the second clause of that statute (possession of an item provided or authorized by the jail, altered for a different use). The charged offense, SDCL 24-11-47(3), proscribes possession by a jail inmate of a “weapon,” as defined in SDCL 22-1-2(10), i.e., a “dangerous” or “deadly” weapon—an instrument either (a) calculated or designed to inflict death or serious bodily harm, or (b) likely to inflict such harm by the manner in which it is used.

The Court reaffirmed that South Dakota’s elements test for lesser-included instructions is not an evidence-centric inquiry. Rather, it is categorical and element-based: the lesser’s elements must be fewer and must be a true subset of the greater’s. This aligns with SDCL 23A-26-8’s “necessarily included” language and with Schmuck. The Court explicitly clarified that both the first and third prongs of South Dakota’s test express the same subset-of-elements requirement.

Applying that rule, the Court concluded that SDCL 24-11-47.1 (altered authorized item) includes elements not in SDCL 24-11-47: namely, (i) the item was provided or authorized by the operator of the jail, and (ii) it was altered for a use other than its original purpose. Because the greater offense (weapon possession in jail) can be committed without proving either of those additional elements, the misdemeanor is not necessarily included in the felony. The fact that, on these facts, the evidence could support both offenses is immaterial; “post hoc” overlap in proof cannot supply what the statutes’ elements do not.

The Court added a practical observation consistent with legislative intent: treating SDCL 24-11-47.1 as a lesser-included for SDCL 24-11-47 would undermine the Legislature’s distinct proscription of weapon possession by inmates (and other contraband such as controlled substances and alcohol) by collapsing the distinct statutory schemes.

2) Sufficiency of the Evidence: “Weapon” Status Is Objective

The sufficiency dispute focused on whether a half razor blade is a “weapon” under SDCL 22-1-2(10). The Court emphasized the statute’s objective criteria. The inquiry turns on the instrument’s inherent character (whether it is calculated or designed to inflict death or serious bodily harm) or its manner of use (whether used in a way likely to inflict such harm). A defendant’s subjective intention is not part of the definition.

Viewing the evidence in the light most favorable to the verdict, a rational jury could find the blade qualified as a weapon: a razor is designed to cut; this blade demonstrably cut skin (Hillyer’s leg bore superficial cuts); and the jail sergeant testified from experience that razor blades are used as weapons in jail and could be used to cut someone even without a handle. The jury personally inspected the exhibit and could apply common sense. The Court thus affirmed the denial of judgment of acquittal.

3) Jury Note on “Hypothetical Uses”: Discretion and Adequate Instructions

When jurors inquired whether they should consider how the razor blade was used versus how it could be used hypothetically, the trial court referred them back to the existing instructions. That response is squarely within a trial court’s discretion where the instructions accurately state the law. Because the weapon definition permits consideration of an instrument’s character and, alternatively, the manner of use, the Court found no abuse of discretion and no prejudice.

As for unanimity concerns, the jury was twice instructed that the verdict must be unanimous, affirmed its unanimity in open court, and was not polled at the defense’s request. The presumption that juries follow their instructions controlled.

Impact

Doctrinal clarity on lesser-included offenses: Hillyer harmonizes South Dakota’s three-prong test with the federal “necessarily included” standard. Trial courts should first ask categorically whether the lesser’s elements are a strict subset of the greater’s. Only if so should they consider whether “some evidence” supports giving the instruction. This will curtail attempts to obtain lesser-included instructions by relying on case-specific factual overlap.
Charging and instructional strategy in jail-contraband cases: Prosecutors should consider charging alternative counts if both statutes might apply (e.g., SDCL 24-11-47 and 24-11-47.1), because the misdemeanor will not automatically be available as a lesser. Defense counsel cannot rely on 24-11-47.1 as a fallback lesser for 24-11-47; they must instead contest the “weapon” element or seek acquittal.
Objective “weapon” classification with common objects: The decision underscores that ordinary items (including razor blades) can qualify as “weapons” under an objective statutory definition, regardless of a defendant’s subjective purpose. In custodial settings, testimony about the item’s inherent cutting capability and its known use as a weapon may suffice to reach a jury on the “weapon” element.
Jury management: Trial courts retain broad discretion to refer juries back to correct instructions when questions arise during deliberations. Parties should ensure instructions faithfully track the statutory alternatives (character vs. manner-of-use) so that jurors have the tools to resolve such questions without ad hoc supplemental guidance.
Legislative scheme preserved: The ruling maintains the Legislature’s distinct treatment of weapons versus other unauthorized or altered items in custodial settings. It avoids collapsing the felony weapon statute into the misdemeanor altered-article statute.
Sentencing stakes highlighted: The case illustrates the profound sentencing consequences of the statutory line: conviction under SDCL 24-11-47 can expose a defendant—especially a habitual offender—to lengthy imprisonment, while SDCL 24-11-47.1 is a Class 1 misdemeanor. This increases the salience of the “weapon” element at trial and in plea negotiations.

Complex Concepts Simplified

Lesser-included offense: A lesser offense is “necessarily included” only if proving the charged (greater) offense always requires proving every element of the lesser. If the lesser includes any element the greater does not, it is not “necessarily included,” and the jury cannot be instructed on it as a fallback.
Objective “weapon” definition (SDCL 22-1-2(10)): The law focuses on the item’s nature or the way it is used—not on the defendant’s private purpose. An item can be a weapon because of what it is (e.g., designed to inflict serious harm) or because of how it is used (likely to inflict serious harm).
Motion for judgment of acquittal: The judge asks whether any rational juror could find the crime’s elements proved beyond a reasonable doubt when viewing the evidence in the State’s favor. Courts do not reweigh evidence or judge credibility at this stage.
Responding to jury questions: Judges have wide discretion to answer jury notes. If the existing instructions are correct, referring jurors back to them is generally sufficient and not error.
Jury unanimity: Unless circumstances require a special unanimity instruction, standard unanimity instructions suffice and jurors are presumed to follow them.
Habitual offender enhancement: A separate “part II information” can increase penalties based on prior convictions; it does not create a new crime but affects sentencing upon conviction of the underlying offense.

Conclusion

State v. Hillyer delivers a clear and consequential clarification of South Dakota’s lesser-included offense doctrine: the elements of the proposed lesser must be a true subset of the greater’s elements, consistent with the “necessarily included” standard of Schmuck. On that basis, misdemeanor possession of an altered authorized item in jail (SDCL 24-11-47.1) is not a lesser-included offense of felony possession of a weapon by a jail inmate (SDCL 24-11-47).

The Court also reinforces an objective approach to the statutory “weapon” definition, confirming that a defendant’s subjective intent—such as self-harm—does not control. Given the evidence (including juror inspection of the blade and testimony about its use in jail settings), the jury reasonably found the razor blade to be a weapon. Finally, the Court affirms the trial court’s measured handling of a jury inquiry and rejects any unanimity concerns.

Taken together, Hillyer strengthens doctrinal coherence in lesser-included analysis, preserves the Legislature’s distinct contraband schemes for custodial facilities, and provides practical guidance to courts and litigants on weapon determinations and jury management. It will shape charging strategies, jury instruction practice, and evidentiary presentations in jail-contraband and weapon-possession prosecutions going forward.