State v. Bordeaux (2025 S.D. 55): Tightened Similarity Requirement for Rule 404(b) Intent/Common-Plan Evidence and Reversal Where “Violent When Drinking” Propensity Theme Dominates

Introduction

In State v. Bordeaux, the Supreme Court of South Dakota reversed a first-degree murder conviction and ordered a new trial after holding that the circuit court abused its discretion by admitting other-acts evidence under SDCL 19-19-404(b). The Court clarified and tightened the similarity standard for admitting prior acts to prove intent or a common scheme/plan, and it underscored the risk of prejudice when the prosecution frames a case around a propensity theme (here, “the defendant is a violent individual when he is drinking”). The majority also found prejudice based on the centrality of the inadmissible evidence to the State’s case and its repeated use in opening, closing, and rebuttal, coupled with a limiting instruction that permitted the jury to consider the prior assault for intent and common scheme.

The opinion is bifurcated: Justice DeVaney (for the Court) authored the analysis on admissibility (Issue One), and Chief Justice Jensen (for the Court) authored the prejudice analysis (Issue Two). Two justices dissented on prejudice (Justices DeVaney and Kern), emphasizing the strength of the forensic and circumstantial record pointing to homicide and intent.

Background and Key Issues

On January 1, 2020, Jeanette Jumping Eagle died from a single gunshot wound to the forehead in a Rapid City hotel room. Only her boyfriend, Dion Bordeaux, and his brother Giovanni were present. Bordeaux called 911, reporting a suicide. The State charged Bordeaux with first-degree murder (SDCL 22-16-4(1)) and introduced extensive forensic evidence suggesting staging—transfer bloodstains on Jeanette’s hand and the firearm, a non-contact “near contact” wound with stippling (suggesting the muzzle was off-skin), and blood patterns in the bathroom consistent with washing. Surveillance video showed Bordeaux and Giovanni walking calmly from the room.

Before trial, the State noticed its intent to offer other-acts evidence: Bordeaux’s September 2019 aggravated assault in Lincoln County on a distant cousin/friend, Kane Marshall, with a knife, after a night of drinking. The trial court admitted this evidence to prove intent and common scheme/plan, over defense objections, emphasizing a lack of eyewitnesses. At trial, the State opened by telling the jury Bordeaux “is a violent individual when he is drinking” and wove the prior assault throughout its case and summations. The jury convicted and the court imposed life without parole.

On appeal, the issues were:

• Whether admitting the other-acts evidence (the September 2019 stabbing) under Rule 404(b) was an abuse of discretion.
• Whether the error was prejudicial—i.e., whether there was a reasonable probability of a different result absent the error.

Summary of the Opinion

• Holding on admissibility (Issue One): The Supreme Court held the September 2019 assault was insufficiently similar to the charged shooting to be admissible to prove intent or a common scheme/plan under SDCL 19-19-404(b). The State’s use of the prior assault to depict Bordeaux as “violent when drinking” was impermissible propensity reasoning. Admission was an abuse of discretion (Justice DeVaney; unanimous on Issue One).
• Holding on prejudice (Issue Two): The majority held the error was prejudicial. The prior assault was a key component of the State’s narrative, it was not cumulative, it featured prominently in opening and closing, and the limiting instruction allowed the jury to use it on intent/common scheme. Given the record on intent, there was a reasonable probability the verdict would have been different absent the error. The conviction was reversed and remanded for a new trial (Chief Justice Jensen; two-justice dissent).

Factual Context Highlighted by the Court

• Crime scene and forensics:
  • Jeanette found seated, gun in lap, right hand over grip, phone and charging cord intertwined with her right hand.
  • Stippling around entrance wound above right eyebrow, “near contact” shot, downward straight trajectory; no exit wound.
  • Transfer bloodstains on Jeanette’s hand and the gun; diluted blood in the bathroom sink; blood transfer on the bathroom door frame consistent with motion; a blood drop on bathroom floor.
  • Jeanette’s DNA on bloodstains; Bordeaux’s clothing had Jeanette’s blood; limited GSR on Bordeaux and Giovanni; significantly more GSR on Jeanette’s hands.
  • Surveillance video showed Bordeaux and Giovanni leaving calmly; Giovanni made sure the door was locked.
• Statements:
  • 911 call: Bordeaux said Jeanette shot herself; he was leaving and heard the shot.
  • Later interview: He admitted touching Jeanette after the shooting and washing blood from his hands; he said he had fired her gun earlier that evening near railroad tracks.
  • Giovanni testified Bordeaux said “I fucked up” and “I’m sorry” as they ran, and described the couple arguing earlier.
• Digital evidence: December 20, 2019 texts included “Bitch, I love you, now I got to kill you :(” from Bordeaux; Jeanette replied “W my own gun k.”
• Other act: September 2019 stabbing of cousin/friend after a night of drinking; witness Melissa Herrboldt described subduing, apologies, helping get the victim to the hospital, and her own post-event cleanup (disposing of knife and bloody items, later retrieved for police).

Analysis

Precedents and Authorities Cited

• Rule framework:
  • SDCL 19-19-404(b)(1)-(2): Bars propensity use of other acts; permits for motive, intent, plan, etc.
  • SDCL 19-19-403: Balancing probative value against unfair prejudice.
• Admissibility and similarity:
  • State v. Evans (2021 S.D. 12): Courts must ensure other acts are relevant to a non-character issue and conduct Rule 403 balancing; for common plan, “sufficient points in common” and a “concurrence of common features” are required.
  • State v. Wright (1999 S.D. 50): Other acts admissible to show plan/design when they reveal a consistent pattern (upheld admission in child-abuse context). Distinguished here.
  • State v. Boe (2014 S.D. 29): Other acts admissible when similar and relevant to a material issue; degree of similarity depends on the purpose for which offered.
  • State v. Otobhiale (2022 S.D. 35): Where specific intent is an element, proof of similar acts may be admitted; courts compare similarity between other acts and charged crime.
  • Novak v. McEldowney (2002 S.D. 162): Similar victims/crimes are factors in the similarity analysis.
  • State v. Smith (1999 S.D. 83): Cited by the trial court regarding heightened probative value where no eyewitnesses; the Supreme Court’s analysis here makes clear lack of eyewitness cannot substitute for insufficient similarity.
• Standard of review and prejudice:
  • State v. Taylor (2020 S.D. 48): Abuse of discretion is a decision outside the range of permissible choices.
  • State v. Carter (2023 S.D. 67): Prejudice requires a reasonable probability the verdict would have been different; probability sufficient to undermine confidence in the outcome.
  • State v. Thoman (2021 S.D. 10): Factors for harmless error assessment; improper evidence not prejudicial when minor, cumulative, and minimally referenced.
• Propensity and summation:
  • State v. Rouse (2025 S.D. 29): Reaffirms the prohibition on character/propensity evidence; the Court cites Rouse in condemning the State’s use of propensity here.
  • United States v. Holmes (8th Cir. 2005); United States v. Johnson (8th Cir. 1992): Closing argument is a critical locus of potential prejudice; when overall evidence is not overwhelming, improper argument is more likely to affect the verdict.

Legal Reasoning

1) The 404(b) Similarity Requirement—Intent and Common Scheme/Plan

The Court tightened application of the similarity requirement when other acts are offered to prove intent or a common scheme/plan:

• Different relationships: Jeanette was a romantic partner; Marshall was a distant cousin/friend and drinking companion. Labeling both “familial” was too coarse; the relational contexts were materially different.
• Different crimes and circumstances: The charged offense was a single gunshot to the forehead amid a volatile domestic relationship. The earlier act was a multiple-stabbing Knife assault with an unclear precipitating cause and heavy intoxication; the record lacked evidence of motive or purposeful intent in the earlier incident.
• Different instruments and aftermath: A firearm and alleged staging versus a knife and a third party’s cleanup (Herrboldt). The State’s “cover up” link failed; the prior cleanup was by a witness, not the defendant.
• Intoxication evidence did not align: The September 2019 assault involved obvious intoxication; there was no evidence Bordeaux was comparably intoxicated on January 1, 2020.

Taken together, the acts lacked the “sufficient points in common” and the “concurrence of common features” needed to infer the existence of a general plan or to make the prior act probative of intent without inviting propensity reasoning. The State’s “functionally identical” characterization was rejected.

2) Propensity Framing and Rule 403

The State framed the case from the outset around propensity—“the defendant is a violent individual when he is drinking”—and returned to that theme in summation to argue intent. The Court underscored:

• Propensity evidence is inadmissible (SDCL 19-19-404(b)(1)).
• Where similarity is weak, probative value is low; with a highly inflammatory prior act (a bloody stabbing), unfair prejudice risk is high.
• Trial courts must conduct genuine SDCL 19-19-403 balancing; the absence of an eyewitness cannot fill the probative-value gap created by insufficient similarity.

3) Prejudice Analysis

Applying the Thoman/Carter factors, the majority found prejudice:

• Centrality: The prior assault was a “key piece” of the State’s case on intent; it was not peripheral or cumulative (20 pages of testimony; integrated into opening, closing, and rebuttal).
• Limiting instruction: The instruction allowing the jury to consider the prior assault to determine “intent or common scheme” “further contributed to the error and prejudice”—it gave jurors permission to use inadmissible evidence for the very mental-state issue at the heart of the case.
• Overall strength on intent: Although the State’s evidence suggested homicide (and disputed suicide), intent and premeditation were not overwhelming. The State itself argued in closing that jurors could infer intentional killing without proving “why.” The 404(b) propensity theme filled that gap.
• Summation risk: The prosecution expressly bridged the prior stabbing to argue Bordeaux “gets violent when he’s drunk” and “acts without regard for his victims.” Given the record, this carried a substantial risk of affecting the verdict.

4) The Dissent on Prejudice

Justices DeVaney and Kern dissented on Issue Two, emphasizing:

• The defense’s sole theory was suicide; there was no manslaughter narrative at trial or on appeal.
• The forensic record strongly supported homicide: near-contact forehead shot with straight downward trajectory; transfer stains and evidence of staging; bathroom washing; calm exit on video; Bordeaux’s statements (“I fucked up”); and the earlier text exchange (“Now I gotta kill you” / “W my own gun”).
• Shooting someone in the forehead at close range “evinces an intent to kill”; there was “no reasonable probability” of a different verdict without the other-acts evidence.

The majority acknowledged the strength of some circumstantial aspects but maintained that intent/premeditation was not so overwhelming as to render the error harmless, particularly given how the State leveraged the prior act in argument and the limiting instruction’s scope.

Impact

Immediate Doctrinal Clarification

• Similarity threshold reinforced: To use prior acts for intent or common plan, prosecutors must demonstrate a close, case-specific similarity—not merely that both incidents were “violent,” occurred after drinking, or involved “familial” relationships.
• Common plan narrowed: The “general plan” concept demands a concurrence of distinctive features linking the acts; generic throughlines (e.g., late-night drinking; argument preceding violence) are insufficient.
• Lack of eyewitness does not bootstrap admissibility: The need for proof due to an absence of eyewitnesses cannot substitute for the required non-propensity relevance and similarity.
• Propensity themes are reversible error fuel: Opening statements and summations that frame other-acts evidence as character (“violent when drinking”) heighten prejudice risk and can precipitate reversal.
• Limiting instructions must match admissibility: If a prior act is admitted, instructions must confine jurors to a valid, non-propensity use supported by true similarity; a broad instruction (e.g., intent/common scheme) can aggravate prejudice when similarity is lacking.

Practical Consequences for South Dakota Litigation

• Prosecutors:
  • Build a non-propensity chain of reasoning anchored in specific, distinctive similarities tied to the permitted purpose (intent, plan, etc.).
  • Limit rhetoric: Avoid “violent when drinking” or similar characterizations; do not argue the prior act as proof of present intent by character.
  • Consider whether other, less prejudicial evidence can carry intent to mitigate Rule 403 concerns.
• Defense:
  • Press the similarity analysis: Different relationship, weapon, motive, intoxication, and aftermath are potent dissimilarities.
  • Object to propensity framing in openings/closings; request curatives; preserve prejudice arguments.
  • Scrutinize limiting instructions; propose narrow, purpose-specific language if admission is inevitable.
• Trial courts:
  • Conduct searching Rule 404(b)/403 analyses on the record; articulate the non-propensity purpose and precise similarities.
  • Do not elevate “lack of eyewitness” into a proxy for probative value.
  • Tailor limiting instructions to the specific, properly admitted purpose; exclude “common scheme” or “intent” if similarity is inadequate.

Complex Concepts Simplified

• Rule 404(b) other-acts evidence: A rule that generally bars using someone’s past misdeeds to show they have a bad character and therefore likely did it again. It allows prior acts only for specific, non-character reasons (e.g., to show intent), but only if the prior act is genuinely similar in ways that make it probative for that purpose.
• Propensity reasoning: The forbidden logic “once violent, always violent.” Even if true in a commonsense way, the law forbids juries from convicting for who a person is rather than what the State can prove they did in the charged incident.
• Common scheme/plan: A higher bar than “similarity in outcome.” The prior and current acts must share distinctive features that reveal a single overarching plan (e.g., same method, signature, or operational pattern).
• Rule 403 balancing: Even relevant evidence can be excluded if its unfair prejudice significantly outweighs its value—especially when it risks inflaming the jury or inviting forbidden reasoning.
• Prejudice standard (“reasonable probability”): Not “more likely than not,” but a probability sufficient to undermine confidence in the verdict. Central, inflammatory, and heavily emphasized improper evidence is more likely to be prejudicial.
• Forensic terms:
  • Stippling: Tiny marks caused by unburned gunpowder striking the skin, suggesting the gun was close but not pressed against the skin.
  • Transfer bloodstain: Blood deposited by contact with a bloody object rather than by gravity; often suggests movement or staging.
  • Gunshot residue (GSR): Particles produced when a firearm is discharged; presence on a person’s hands can result from firing, being near a gunshot, or secondary transfer; quantities can be reduced by wiping/washing.

Key Takeaways

• State v. Bordeaux sharpens South Dakota’s Rule 404(b) gatekeeping: Similarity must be concrete and purpose-driven; generic overlap (alcohol, argument, violence) will not do, particularly for intent or common-plan theories.
• Propensity themes—especially “violent when drinking”—are legally toxic. Their use in openings and closings magnifies prejudice and can compel reversal.
• Limiting instructions must be carefully crafted; they cannot cure admission of evidence that should not have come in, and if overbroad, they may compound prejudice.
• The prejudice holding is fact-intensive but instructive: when 404(b) evidence is central, vivid, and exploited in argument, and the State’s proof on the mental-state element is less than overwhelming, the reasonable-probability standard is met.
• The dissent signals close cases ahead: where forensics and circumstantial evidence strongly show homicide and intent, courts may find errors harmless. But Bordeaux warns that courts should not rely on that to admit weakly similar prior acts in the first place.

Conclusion

State v. Bordeaux is a significant evidentiary decision. It recalibrates how South Dakota courts admit prior bad acts under Rule 404(b), particularly when the proponent seeks to prove intent or a common scheme/plan. The Court’s insistence on specific, substantive similarity—and its intolerance for propensity themes masquerading as intent proof—align with the rule’s core purpose: ensuring juries decide cases based on what happened in the charged event, not on who the defendant might be. The decision also offers a pragmatic roadmap for assessing prejudice: centrality, repetition, and strategic use of improper evidence—especially in opening and closing—can undermine confidence in the verdict, even in cases with strong forensic narratives. Practitioners should recalibrate charging and trial strategies accordingly; trial courts should fortify their 404(b)/403 analyses and jury instructions to avoid reversible error.