The Pennington County Courthouse and jail complex in Rapid City, in June 2023. (Seth Tupper/South Dakota Searchlight)

This story is one of two exploring the impact of South Dakota’s “stand your ground” laws. The companion article explores the ways prosecutors, politicians and defense lawyers view the laws.

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James Bialota Jr. believes he was defending himself when he took down a 12-year-old boy on a Rapid City playground.

Thanks to two recent updates of South Dakota’s “stand your ground” laws, the 45-year-old was granted a pretrial “immunity hearing” to make his case. The hearings amount to a “trial before the trial” for those who make a self-defense claim.

If defendants convince a judge they acted in self-defense by “clear and convincing” evidence – a step below the “beyond a reasonable doubt” standard used by a jury – they walk free. If they fail, the prosecution proceeds, and the defendant can still claim self-defense at trial. 

‘Stand your ground’ law alters criminal justice landscape

Bialota lost his immunity hearing and faces a simple assault charge. His case and others illustrate the circumstances under which accused assailants across the state have been granted such immunity hearings since their creation by the Legislature in 2022.

Bialota contends that the 12-year-old Native American victim and the boy’s friends had threatened Bialota on the day of the incident, July 24, 2021.

That Bialota’s case has dragged on for well over a year is in part tied to his self-defense claim. The Legislature had passed its 2021 “stand your ground” law by the time he was charged with simple assault. The Legislature set up a framework for self-defense immunity hearings in 2022.

At his immunity hearing, Bialota told police that the boy threatened to “kick his ass” when Bialota confronted him about a scuffle involving Bialota’s 7-year-old son.

“He said he was worried that his son was knocked out,” court documents say.

The father allegedly asked the boys if they’d dare to throw things at him, as he said they’d done to his son. He testified that they said “maybe,” and that the 12-year-old raised his hands and boasted about being a black belt in karate. 

Bialota told police he “nudged” the boy’s hands down, swept his legs and stood over him. Some witnesses took a video of the incident and posted it to TikTok, capturing the profanity laced period between the takedown and police’s arrival.

The video reportedly captured the father saying, in response to an inaudible statement from a witness, “I’d love to see that. I’m a combat veteran and I’ve killed.”

Bialota said he feared that, because of an injury to his left hand and wrist, he couldn’t “take a kid from in front and a kid from behind me, not a chance.”

Last October, Judge Scott Bogue ruled that Bialota’s response was unreasonably harsh. The defendant was agitated, Bogue wrote, and had exaggerated the extent of his son’s distress. Bialota told responding officers, for example, that the boys had been “beating the sh*t” out of his son for 20 minutes, and that his son had bruises “from his neck to his feet” – none of which was supported by the evidence, according to the judge. 

The 12-year-old’s assertion that he hadn’t issued a verbal threat to Bialota wasn’t credible, Bogue ruled, but the judge also concluded that such an utterance did not justify the grown man’s actions.

“The disparity in age and size weighs against such justification and in favor of an inference that the boy was merely displaying bluster and assuming a defensive stance against a significantly larger adult who was yelling and cursing back at him,” Bogue wrote.

The date for Bialota’s trial on two counts of simple assault has yet to be set.

Bialota maintains that a group of middle school children had been assaulting his son when he intervened. He contends that the assault on his son was a felony. He also said there were 17-year-olds on the playground that day who could have attacked him, and that the children had told his family to “go back to Europe.”

“I stopped a felony hate crime,” Bialota said. “No one should have to defend their son, call the cops and get charged with a crime.”

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Pokes and a punch

By his own admission in court, Christopher Zeller acted “inappropriately” toward a server at Hogie’s Bar in Glenham on Oct. 13, 2021. 

He harassed her with explicit sexual comments and questions about who she’d slept with, she said during court hearings. At one point, he poked her in the stomach and shoulder with his finger, she said. She ended her shift early, with Zeller allegedly calling her a “skank” as she walked out the door.

She and Zeller each testified that he tried to speak to her in the parking lot, but she drove off. 

Shortly afterward, bar owner Kevin Holgard, who is also a Walworth County commissioner, emerged from the bar’s kitchen and struck up a conversation with Zeller. When the topic turned to the server, Holgard grew agitated, demanding that Zeller apologize. He said he tried, but Holgard said “no, you didn’t.”

Holgard then poked Zeller in the shoulder, saying “How do you like it?”

Zeller punched Holgard in the face and knocked him out. 

Zeller and witnesses testified that he helped Holgard to his feet and offered him a ride home. Zeller is a volunteer firefighter in Mobridge, and said he was ready to render aid if necessary.

Holgard declined the help. He didn’t call law enforcement, either. Instead, he went home.

His family and friends encouraged him to go to the hospital, where he learned he had a concussion and a fractured bone in his face. By then, “someone else” had contacted law enforcement, Holgard said.

The injury had a long tail. Holgard was foggy and had blurred vision. In November of 2021, he closed his bar for more than a week to recover. 

He told the judge he has no memory of the altercation. He only remembers waking up the next day.

“I had headaches for six weeks,” Holgard said in court.

At Zeller’s immunity hearing, his lawyer, Paul Andrews of Rapid City, argued that Holgard’s pokes to Zeller’s shoulder and his proximity to Zeller put his client in fear of imminent harm. 

Judge Gregg Magera rejected that argument and wrote that “striking Kevin Holgard in the face with a closed fist in response to being poked was not a reasonable or appropriate response,” Magera wrote.

Zeller is charged with alternate counts of aggravated assault and simple assault. A jury could find him guilty of the felony, the misdemeanor or both. A jury could also hear his self-defense claim and find him not guilty.

Andrews declined to comment on the details of the case for South Dakota Searchlight, citing the upcoming October trial.

Noise complaint turns violent

According to prosecutors, James Wendell Peterson Jr. followed and shot his neighbor in the leg after that neighbor and the neighbor’s girlfriend confronted Peterson at home about how loudly he’d been playing his drums.

According to Peterson, who now faces aggravated assault charges, he was defending himself from a man who’d allegedly later admit that he’d been willing to fight over the situation.

The incident began on Oct. 19, 2022, when the man Peterson would later shoot and others arrived at Peterson’s door in north Rapid City.

A legal brief filed by Peterson’s Pennington County public defender says that “the female involved in the altercation was in the doorway of the trailer, yelling at the occupant.”

The victim was involved in, “at the very least,” a verbal altercation with Peterson. 

“(The victim) did not dispute that he was willing and able to engage in a physical altercation,” the brief says.

The victims were trespassing, the defense lawyer wrote.

“Mr. Peterson was within his rights under the circumstances to stand his ground and defend his home and father.”

Peterson’s immunity hearing request was granted, and the hearing took place last month. Pennington County Deputy State’s Attorney Roxanne Hammond told South Dakota Searchlight that the hearing included testimony on Peterson following the victim as they walked away, hurling insults at the victim’s girlfriend before firing.

The judge has yet to rule on Peterson’s self-defense claim.

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Shots fired, shots returned

A 21-year-old Huron man named Abidas Miranda Colon is locked up in the Beadle County Jail on attempted murder charges and has been since early February.

His lawyer says he shouldn’t be there. 

According to a Huron Police Department report in Colon’s criminal case file, the arrest stemmed from an incident on Feb. 1. That day, a 33-year-old man came looking for his wife at the home where Colon had been staying.

The man allegedly pounded on the door. He suspected his wife was inside of what he described as a known drug house, the report says. He left for a while, one witness said, but soon returned and fired two rounds from a handgun at the apartment.

Colon fired back from the window with an AR-15, according to the witness, who was the apartment’s legal resident.

Police found one slug from a handgun outside, the court record says, and a total of 14 shells from the AR-15. A search warrant later turned up 19.7 grams of methamphetamine, plastic baggies and a scale.

Colon was charged with attempted murder and aggravated assault, either of which could draw prison time for a conviction.

Colon’s lawyer has requested an immunity hearing. Colon was entitled to be in the home, they argued, had no duty to flee and had the right to return fire to defend himself.

Beadle County State’s Attorney Michael Moore told South Dakota Searchlight that he does not believe Colon – or any defendant – is legally entitled to such a hearing, but said in an email to the judge that “it is for the court to decide.”

Moore has filed a brief arguing that Colon has not made a case for self-defense worthy of a hearing. The brief also argues that the state’s stand your ground law has not established how to evaluate a self-defense claim to determine if a defendant deserves one.

“It would be impractical to require the State to have an immunity hearing by a simple notice filed by the Defendant,” Moore wrote in a June 9 court filing.

Left for dead after taking swings

At least one person in South Dakota lost at both his self-defense immunity hearing and his jury trial.

That man, 28-year-old Steven Tuopeh, is now serving a life sentence without the possibility of parole at the South Dakota State Penitentiary for the murder of 32-year-old Christopher Mousseaux. 

Tuopeh and a co-defendant, 30-year-old Jeff Pour, had a run-in with Mousseaux on Oct. 10, 2021, outside a bar near a soup kitchen just east of downtown Sioux Falls.

Security footage showed Mousseaux taking at least one swing at the two men, though Judge James Power would later write that it was unclear if the swing, aimed at Pour, actually connected with Tuopeh. 

Mousseaux then hopped toward the street, and was followed by Tuopeh and Mousseaux. Before long, Mousseaux fell down, and the co-defendants attacked with “a flurry of punches and kicks,” captured by the soup kitchen’s security cameras.

The video didn’t show that Mousseaux had any weapon, Power wrote, and it “also does not show Chris fighting back against the assault from the two men.”

Tuopeh’s defense lawyer argued that Mousseaux had adopted a fighting stance when pursued. Power granted a self-defense immunity hearing based on that, as well as the swings he took at the bar and in the street.

The judge did not, however, find that those actions were met by a level of force a reasonable person would see as necessary to neutralize the threat.

Had Tuopeh feared for his safety, Power wrote, he could have stayed behind as Mousseaux hopped away. Power noted that Tuopeh could have easily found “safety in numbers as he was with several individuals outside the pub that night.”

Particularly after Mousseaux fell down, Power wrote, “the danger to Tuopeh has ceased; but it is then, when he first uses force.”

Mousseaux, found bloodied and unconscious outside the soup kitchen, never regained consciousness. He died in the hospital three days after the incident.

Tuopeh was convicted of second-degree murder. His life sentence on that conviction, finalized on April 25, was mandatory under South Dakota law.

Pour pleaded guilty to manslaughter in March. He’s scheduled to be sentenced on July 21.

Domestic violence charges dropped

At least one person has walked free as a result of the updated stand your ground laws.

The female defendant was charged with aggravated assault, simple assault and interference with 911 communications after a Dec. 27, 2021, domestic dispute. South Dakota Searchlight is not using her name because the charges were ultimately dismissed.

According to court documents, the woman hit the alleged victim with a beer mug. The court record contains few details beyond that. Sam Clemens of the Sioux Falls Police Department said that the male victim was struck in the back of the head, and that he wasn’t armed at the time. Clemens could not share what the woman might have told officers about self-defense because, he said, because such statements are for the courts to weigh.

The woman’s defense lawyer filed a notice in April 2022 arguing that her actions were in self-defense. Both sides appeared before Judge Jennifer Mammenga to discuss immunity on July 1 – the day the state’s law officially sanctioning self-defense immunity hearings took effect. Mammenga ruled in favor of the defense from the bench, and the assault charges were dismissed. Minnehaha County Deputy State’s Attorney Mark Joyce dismissed the remaining 911 interference charge seven days later.