PIERRE, S.D. (KELO) — Prosecutors failed to prove that a Pennington County man engaged in threatening or harassing contact in phone calls to his ex-wife several days after he had attacked her, according to the South Dakota Supreme Court.

However, the justices also found that the trial judge didn’t err when he refused to acquit Jay Joseph Peneaux on several aggravated assault charges from the April 28, 2021, confrontation. A jury convicted Peneaux on all six felony and misdemeanor counts.

The Supreme Court publicly released the opinion Thursday. In it, Justice Patricia DeVaney wrote that prosecutors relied only on the ex-wife’s testimony regarding the phone calls.

“The May 2, 2021 statements made by Peneaux as charged in the count at issue cannot be described as obscene or lewd, nor can they be construed to suggest a lewd or lascivious act. Although threatening and intimidating, the comments made during these phone calls fall outside the ‘patently offensive’ language SDCL 49-31-31(1) ‘was designed to prohibit,'” Justice DeVaney wrote.

She continued, “Because there was insufficient evidence presented to the jury to support a
finding of guilt regarding Count 4, the circuit court erred in denying Peneaux’s motion for judgment of acquittal on the charge of engaging in threatening or harassing contact in violation of SDCL 49-31-31(1). Therefore, we vacate the Peneaux’s conviction on Count 4.”

Justice Mark Salter agreed with the court’s majority in finding that Circuit Judge Craig Pfeifle didn’t err in refusing to acquit Peneaux of the aggravated assault charges. But Justice Salter wrote that he wouldn’t have agreed to review Peneaux’s claim on the phone calls, saying that Peneaux had invited the error.

“Here, Peneaux is complicit in his own dilemma. During closing argument, Peneaux’s trial counsel asked the jury to find him guilty of Count 4 at three separate points,” Salter wrote. “Under the circumstances, Peneaux should not be surprised that the jury found him guilty of Count 4. Allowing review here would foster an incongruent rule under which a party can argue, with impunity, that a court or jury erroneously did exactly what the party wanted.”