STATE OF SOUTH DAKOTA v. KEVIN SCHERR 2002 SD 140
Annotate this CaseSTATE OF SOUTH DAKOTA
Plaintiffs and Appellants
v.
KEVIN SCHERR
Defendant and Appellee
[2002 SD 140]
South Dakota Supreme Court
Appeal from the Circuit Court of
The Seventh Judicial Circuit
Pennington County, South Dakota
Hon. Janine M. Kern, Judge
MARK BARNETT
Attorney General
SHERRI SUNDEM WALD
Assistant Attorney General
Pierre, South Dakota
Attorneys for plaintiff and appellee.
BETSEY HARRIS
Office of the Public Defender
for Pennington County
Rapid City, South Dakota
Attorney for defendant and appellant.
Considered on Briefs October 7, 2002
Opinion Filed 11/20/2002
#22185
SABERS, Justice
[¶1.] Kevin Scherr was charged with first degree murder (SDCL 22-16-4) and alternatively, second degree murder (SDCL 22-16-7). He was also charged with attempted first degree murder (SDCL 22-16-4 and SDCL 22-4-1). At the close of the State’s case, Scherr moved for a judgment of acquittal based on insufficiency of evidence. The motion was denied. The trial court granted the defense’s request for alternative lesser included offense instructions on all counts. The court gave the jury first degree manslaughter instructions for both the first degree murder count and the alternative second degree murder count. The jury also received aggravated assault instructions on the attempted murder count.
degree murder and was sentenced to life imprisonment for murder and 25 years consecutively for attempted murder. He appeals both convictions claiming insufficient evidence. We affirm.
FACTS
[¶3.] Early in the afternoon of February 27, 2001, Scherr entered Chari Smith’s home with a handgun and shot Smith, Sherin Harris, and himself. Smith died. Harris and Scherr both suffered life-threatening head wounds.
[¶4.] Early on the morning of the shootings, Smith, Harris and Scherr were at the Pennington County Courthouse for a hearing to determine whether a temporary restraining order against Scherr for Smith’s benefit would be made permanent. At the hearing, Smith testified that she was frightened of Scherr and that he had been driving by her home and phoning her. Smith also testified that although the two had dated, she did not consider the relationship serious. The restraining order was made permanent and Scherr was arrested immediately for violating the prior temporary order.
[¶5.] Scherr bonded out of jail that afternoon and went to see his brother, Kraig, at work. Scherr told his brother that everything had been “dropped” at court and did not tell his brother that he had been arrested. Instead, he told Kraig that someone threatened him in the courthouse parking lot. Scherr requested that his brother give him his .22 caliber gun and a tape recorder. He told Kraig that his reason for wanting the items was to “warn off” the person who threatened him and to record any possible confrontations. Scherr overcame his brother’s concerns about providing the gun and they left Kraig’s workplace and retrieved the gun, the recorder and half of a box of shells. Kraig testified that Scherr told him he needed only a few shells. Throughout their conversation, Scherr was “sad but calm.”
Smith’s home and walked to her front door. To get to the front door of her home, Scherr had to walk by the vehicles of both Smith and Harris. When he got to the front door he walked in without invitation. Harris testified that when he walked in the door, he said, “Think you’re pretty funny. Well I’m not going to jail.” She stated that Scherr had a gun in his hand and that he told them he was going to kill them and then kill himself. When Harris reached for the phone, Scherr told her to put it down and she did.
[¶7.] Scherr aimed the gun at Harris and tried to fire twice, but was unsuccessful as the gun only clicked. Harris began to struggle with Scherr and was ultimately shot in the head. Harris played dead, and as she was lying on the floor, she heard two more shots. After waiting awhile, she got up and saw Scherr and Smith lying on the kitchen floor. Harris ran to another home and emergency personnel were called. Smith was pronounced dead at the scene. Harris and Scherr were transported to Rapid City Regional Hospital where both underwent surgery.
STANDARD OF REVIEW
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.