GILBERTSON, Chief Justice.
[¶ 1.] Eugene Edward Martin appeals his conviction on one count of first-degree murder and sentence of life without the possibility of parole for the premeditated killing of Robert Thunderhawk. Martin argues that the circuit court erroneously admitted into evidence a recording of a 911 call and allowed two officers to testify about several out-of-court statements made by Martin. Martin also argues that there is insufficient evidence in the record for a jury to have concluded that Martin acted with premeditation. Consequently, Martin asks us to reverse and remand with an order directing the circuit court to enter a judgment of acquittal or schedule a new trial. We affirm.
[¶ 2.] In May 2012, Martin, who had been homeless for several years, was living at a campsite in a drainage plain located in an undeveloped area of Sioux Falls. Clint Lawrence Cottonwood lived at his own campsite nearby. On the evening of May 2, 2012, Martin, Martin's girlfriend, Cottonwood, and Thunderhawk were drinking and socializing at Martin's campsite. Martin's girlfriend eventually left, and Martin, Thunderhawk, and Cottonwood fell asleep. The drinking resumed after they awoke the next morning.
[¶ 3.] Eventually, Thunderhawk began commenting about Martin's girlfriend's breasts. Martin became angry and attacked Thunderhawk, striking him with his fists. Although Cottonwood averted his eyes from the attack, he heard what he described as a "smack, smack" sound and then eventually "dink, dink, dink." At that time, Cottonwood saw Martin — completely unclothed and wielding a shovel — standing over Thunderhawk. Martin put his clothes back on and sat down in silence. Martin and Cottonwood sat there for some time, continuing to drink beer, until Cottonwood left to buy more. Rather than buy more beer, however, Cottonwood called his friend Kevin Skogstad. Cottonwood relayed the circumstances of the killing to Skogstad, and the two called 911.
[¶ 4.] Police officers arrived at the scene and discovered Thunderhawk's body at Martin's campsite, partially hidden under a tarp. Although Martin was sitting in a chair approximately eight feet away from where the victim lay, Martin claimed not to see the victim's body or the tarp. A shovel with a broken handle was located on the ground next to Martin's chair. The officers arrested Cottonwood and Martin, who were transported to the police station and interviewed by law enforcement officers. While alone in an interview room, Martin appeared to clean his fingernails and legs and said, "I know you are snitching." The following morning, at Martin's campsite, law enforcement located a long-handled shovel — matching a description given by Cottonwood — standing next to a small, freshly dug, trench.
[¶ 5.] A jury convicted Martin of first-degree murder, and the circuit court sentenced Martin to a term of life without the possibility of parole on January 13, 2014.
[¶ 7.] Our review of a circuit court's evidentiary ruling follows a two-step analysis: "first, to determine whether the trial court abused its discretion in making an evidentiary ruling; and second, whether this error was a prejudicial error that `in all probability' affected the jury's conclusion." Supreme Pork, Inc. v. Master Blaster, Inc., 2009 S.D. 20, ¶ 59, 764 N.W.2d 474, 491. We recently summarized the abuse of discretion standard in Gartner v. Temple:
2014 S.D. 74, ¶ 7, 855 N.W.2d 846, 850 (citations omitted) (internal quotation marks omitted).
[¶ 8.] Martin argues that the circuit court erred in admitting hearsay evidence in three instances: (1) a recorded 911 call in which Skogstad repeated statements made by Cottonwood, (2) testimony of Officer Stevens stating that Cottonwood told him that Martin "finished [the victim] off with a shovel[,]" and (3) testimony of Detective Olson stating that Cottonwood and Martin discussed how to dispose of the victim's body.
[¶ 9.] Martin first argues that portions of the testimony of Officer Stevens — one of the officers who responded to the 911 call and spoke with Cottonwood at the scene — were inadmissible hearsay. Specifically, Martin objects to the circuit court permitting Officer Stevens to testify that Cottonwood told him that "[Martin] finished [the victim] off with a shovel." An examination of the trial transcript surrounding this statement, however, reveals that Martin's defense counsel opened the door for this testimony. On cross-examination, the following exchange took place between Martin's defense counsel and Officer Stevens:
In response to this questioning, on redirect examination, the following exchange took place between the state's attorney and Officer Stevens:
Defense counsel clearly raised the issue of what information Cottonwood relayed to Officer Stevens. Not only did Martin's defense counsel generally raise the issue of the content of Cottonwood's conversation with Officer Stevens, counsel specifically asked Officer Stevens whether Cottonwood said Martin punched the victim. The defense cannot ask whether Cottonwood said Martin struck the victim with his fists and then object when testimony is later introduced indicating instead that Cottonwood said Martin struck the victim with a shovel. At the very least, we are unable to say that the circuit court's conclusion that defense counsel opened the door to this testimony was arbitrary or outside the bounds of reason.
[¶ 10.] We are similarly unpersuaded that the circuit court abused its discretion in allowing Detective Olson's testimony. Specifically, Martin objects to the circuit court permitting Detective Olson — a detective who interviewed Cottonwood at the police station — to testify regarding Cottonwood's description of the shovels and the discussion that took place between Cottonwood and Martin regarding how to dispose of the victim's body. Again, from a review of the trial transcript, it appears that Martin's defense counsel opened the door for Detective Olson's testimony. On cross-examination, the following exchange took place between Martin's defense counsel and Detective Olson:
On redirect examination, the State asked Detective Olson to provide context for his answers to Martin's defense counsel's questioning. The following exchange took place between the state's attorney and Detective Olson:
Given defense counsel's questioning of Detective Olson regarding Cottonwood's and Martin's discussion, we are similarly unconvinced that the circuit court abused its discretion in permitting Detective Olson's testimony. The context provided by his answers to the state's attorney's redirect examination provided an explanation for why Martin would raise the possibility of killing his girlfriend or brother.
[¶ 11.] Finally, the circuit court did not abuse its discretion by admitting the recording of the 911 call into evidence. Martin argues that no hearsay exception applies. However, Martin ignores the antecedent requirement of excluding evidence as hearsay: the out-of-court statement must be "offered to prove the truth of the matter asserted." SDCL 19-16-1 (Rule 801(a) to (c)). Here, the State offered the recording during its direct examination of Skogstad. In responding to Martin's objection, the circuit court explicitly allowed the recording for a purpose other than to prove the facts asserted in the recording. The circuit court said:
The circuit court gave this disclaimer in the presence of the jury. Given the deference with which we review a circuit court's evidentiary determinations, Martin has not convinced us that the circuit court's decision was arbitrary or outside the range of permissible choices. Even if we did so decide, the objected-to statements made by Skogstad in the 911 recording — regarding information communicated to him by Cottonwood — are reproduced in the testimony of Officer Stevens and Detective Olson. Considering our conclusion that the circuit court did not abuse its discretion in allowing their testimony, Martin would have to establish that admitting the 911 recording was prejudicial error independent of the testimony of Officer Stevens and Detective Olson. Martin has not done so and, consequently, has not met his burden.
[¶ 13.] We review challenges to the sufficiency of evidence de novo. State v. Brende, 2013 S.D. 56, ¶ 21, 835 N.W.2d 131, 140. The ultimate question in such an appeal is "whether there is evidence in the record which, if believed by the fact finder, is sufficient to sustain a finding of guilt beyond a reasonable doubt." State v. Carter, 2009 S.D. 65, ¶ 44, 771 N.W.2d 329, 342 (quoting State v. Shaw, 2005 S.D. 105, ¶ 19, 705 N.W.2d 620, 626) (internal quotation marks omitted).
Brende, 2013 S.D. 56, ¶ 21, 835 N.W.2d at 140 (citations omitted) (internal quotation marks omitted). Therefore, "we accept the evidence and the most favorable inferences that can be fairly drawn from it that support the verdict." Carter, 2009 S.D. 65, ¶ 44, 771 N.W.2d at 342 (quoting Shaw, 2005 S.D. 105, ¶ 19, 705 N.W.2d at 626) (internal quotation mark omitted). "We do not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence on appeal." Id. "Consequently, the evidence is insufficient only `when no rational trier of fact could find guilt beyond a reasonable doubt.'" Brende, 2013 S.D. 56, ¶ 21, 835 N.W.2d at 140 (quoting State v. Plenty Horse, 2007 S.D. 114, ¶ 5, 741 N.W.2d 763, 765).
[¶ 14.] Martin argues that the State did not present evidence sufficient for a rational jury to find that Martin killed the victim with a premeditated design. First-degree murder occurs when one human being kills another "without authority of law and with a premeditated design to effect the death of the person killed[.]" SDCL 22-16-1, -4(1). "Premeditation" is defined in SDCL 22-16-5.
Proof of premeditation may be inferred, State v. Owens, 2002 S.D. 42, ¶ 96, 643 N.W.2d 735, 757-58, from "1) the use of a lethal weapon; 2) the manner and nature of the killing; 3) the defendant's actions before and after the murder; and 4) whether there was provocation[,]" State v. Wright, 2009 S.D. 51, ¶ 60, 768 N.W.2d 512, 532 (quoting State v. Owen, 2007 S.D. 21, ¶ 36, 729 N.W.2d 356, 367) (internal quotation mark omitted).
[¶ 15.] All four factors are present in the record. Several pages of Cottonwood's testimony are particularly useful. Cottonwood testified as follows:
[¶ 16.] First, a rational jury could infer premeditation because Martin used a lethal weapon to kill the victim. A deadly — or lethal — weapon is statutorily defined as "any firearm, stun gun, knife, or device, instrument, material, or substance, whether
[¶ 17.] Second, a rational jury could infer premeditation from the nature of the killing. According to Cottonwood's testimony, the killing took place in multiple phases. Martin first struck the victim with his fists. He then stopped and helped the victim get up before striking him again. Martin stopped striking the victim with his fists, got undressed, and then started striking the victim with a shovel. At some point, Martin again temporarily ceased the attack in order to retrieve a longer-handled shovel with which to continue beating the victim. Therefore the second factor weighs in favor of a finding of premeditation.
[¶ 18.] Third, a rational jury could infer premeditation from Martin's actions before and after the murder. A rational jury could view Martin's removal of his clothing before beating the victim with a shovel as a conscious attempt to avoid the transfer of physical evidence to his clothing. Detective Olson also testified that he observed Martin "sucking" his fingernails in an attempt — in Detective Olson's view — to clean underneath his fingernails. The State presented, and the jury viewed, a recording of this conduct. Detective Olson also testified that he witnessed Martin rubbing and scratching his legs in a manner that led Detective Olson to believe Martin "was trying to remove something or get something off his leg or clean his legs[.]" Finally, the jury also heard testimony that the victim's body was covered with a tarp, and that one of the shovels used to beat the victim was found next to a freshly dug trench near the camp. Because "[a]ttempts to conceal or dispose of evidence may also support an implicit finding of premeditation[,]" Owens, 2002 S.D. 42, ¶ 97, 643 N.W.2d at 758, this third factor also weighs in favor of a finding of premeditation.
[¶ 19.] Finally, a rational jury could infer premeditation from evidence that the victim provoked Martin. Cottonwood described the victim as "mouthy" and said the victim repeatedly commented on Martin's girlfriend's breasts. According to Cottonwood, Martin finally "got mad enough" to physically attack the victim. Considering this provocation, the use of a deadly weapon, the prolonged and intermittent nature of the attack, and Martin's apparent efforts to conceal or dispose of evidence, this evidence, if believed by the jury, was sufficient to establish Martin's guilt of premeditation beyond a reasonable doubt.
[¶ 20.] The circuit court's decision to allow the objected-to testimony of Officer Stevens and Detective Olson, as well as the 911 recording, was not arbitrary or unreasonable; consequently, it was not an abuse of discretion. Similarly, the record reflects ample evidence that, if believed, would be sufficient for a rational trier of
[¶ 21.] ZINTER, SEVERSON, WILBUR, Justices and KONENKAMP, Retired Justice, concur.
[¶ 22.] KERN, Justice, not having been a member of the Court at the time this action was assigned to the Court, did not participate.