We have further held that "[p]hysical menace 'requires more than words: there must be some physical act on the part of the defendant.'" State v. Scott, 2019 S.D. 25, ¶ 19, 927 N.W.2d 120, 127 (quoting In re R.L.G., 2005 S.D. 119, ¶ 10, 707 N.W.2d 258, 261).
"[A]n attempt to put another in fear exists when the defendant does 'any act toward the commission of the crime but fails or is prevented or intercepted in the perpetration thereof.'" State v. Scott, 2019 S.D. 25, ¶ 19, 927 N.W.2d 120, 127 (citation omitted). Similarly, the plain language of SDCL 22-18-1.1(8) provides that an attempt to place the victim in fear of death or imminent serious bodily harm by impeding the victim's breathing is sufficient to prove an aggravated assault.
Physical menace 'requires more than words: there must be some physical act on the part of the defendant.'" State v.Scott, 2019 S.D. 25, ¶ 19, 927 N.W.2d 120, 127 (quoting In re R.L.G., 2005 S.D. 119, ¶ 10, 707 N.W.2d 258, 261). [¶16.] Ahmed argues his conviction for aggravated assault against Erickson is not supported by sufficient evidence because he never pointed the gun at Erickson and his singular use of the N-Word indicates the threatening act was solely directed towards Range.
However, the "domestic" notation does not signal an essential element of the underlying offense. SeeState v. Outka , 2014 S.D. 11, ¶ 14, 844 N.W.2d 598, 604 (holding that "domestic abuse is not an element of simple assault" even where the simple assault is designated as one involving domestic abuse); see alsoState v. Scott , 2019 S.D. 25, ¶ 25, 927 N.W.2d 120, 128 (holding that the "domestic notation in [the defendant's] judgment and sentence did not alter his conviction for aggravated assault").[¶36.] Wilson was convicted in 2015 of one count of aggravated assault and four counts of simple assault, all involving Steve.
Scott, 2019 S.D. 25, ¶ 19, 927 N.W.2d 120, 127 (quoting In re R.L.G., 2005 S.D. 119, ¶ 10, 707 N.W.2d 258, 261).
We review a circuit court's evidentiary rulings for an abuse of discretion. State v. Scott , 2019 S.D. 25, ¶ 11, 927 N.W.2d 120, 125. "Not only must this Court find that the [circuit] court abused its discretion, but it must find that the [judge's] consideration of the erroneously excluded evidence might and probably would have resulted in a different finding by the jury in order to warrant a reversal of the circuit court." O'Day v. Nanton , 2017 S.D. 90, ¶ 17, 905 N.W.2d 568, 572.
We review a circuit court's evidentiary rulings for abuse of discretion. State v. Scott , 2019 S.D. 25, ¶ 11, 927 N.W.2d 120, 125. "Not only must this Court find that the [circuit] court abused its discretion ..., but it must find that the [judge's] consideration of the erroneously excluded evidence might and probably would have resulted in a different finding by the jury in order to warrant a reversal of the [circuit] court." O'Day v. Nanton , 2017 S.D. 90, ¶ 17, 905 N.W.2d 568, 572.