Rape convictions upheld; Evidence of “Advanced Consent” and Prior Sexual History properly excluded at trial.

 The SD Supreme Court handed down one decision this morning, holding inter alia:

 

1)    Rape convictions upheld; Evidence of “Advanced Consent” and Prior Sexual History properly excluded at trial.

 

STATE v. MALCOLM, 2023 S.D. 6: Defendant was convicted by a jury of 9 counts of 3^rd degree rape and sentenced to 50 years in prison by the trial court, with 15 years suspended. Defendant and Victim had been living together and Victim died after the encounter in question.  The cause of death for the Victim was determined to be, “fatal combination of Baclofen and Hydroxyzine toxicity, an apparent overdose for which police officers determined [Defendant] was not responsible.”  On appeal Defendant asserts 5 points of error including the argument that the trial court wrongly denied him the opportunity to present evidence of “advanced consent” by the victim before she passed out, consistent with their prior sexual history (evidence of which was also denied).  The SD Supreme Court affirmed, agreeing with the trial court that “advanced consent” is not a valid defense in a situation where the Victim is not capable of withdrawing consent when she is passed out. The Court’s decision is unanimous (5-0), with opinion authored by Justice Salter. 

The Court also rejected Defendant’s other assertions of error, with the exception of his “ineffective assistance of counsel” claim.  The Court declined to consider on this issue on direct appeal, “leav[ing Defendant’s] ineffective assistance claims for further development should he pursue a habeas corpus action.”

 

This decision may be accessed at

 

http://ujs.sd.gov/Supreme_Court/opinions.aspx .

 

 

 

SD Supreme Court addresses Military Retirement Pay for Reserve Member of National Guard

 

The SD Supreme Court handed down one decision this morning, holding inter alia:

 

1. Handling of military retirement pay for reserve member of national guard reversed and remanded

 

PARKER v. PARKER, 2023 S.D. 5:  Divorce Case.  The sole issue on is the trial court’s handling of military retirement pay.  This case is somewhat unique in that it deals with the prospective retirement of H who is a “reserve” member of the National Guard.  The trial court determined H’s “’monthly pay base’ to be $1,500.94.” The SD Supreme Court reversed and remanded, finding that the trial court committed “a legal error in the application of federal law to determine [H’s] high-3 amount.”  This ruling is unanimous (5-0), with opinion authored by Justice Salter.  Although requested by both sides, the Court declines to award either side appellate attorney fees. 

 

A PRACTICE POINTER for attorneys doing appellate work.  The Court expresses displeasure at how the parties created the record on appeal.  The 2^nd paragraph of the opinion explains:

 

[¶2.] This case comes before us with a rather sparse record. Missing are transcripts from the four-day divorce trial, and nearly all of the information relating to the property division issue presented here was not included in the record, but simply attached to the appellate briefs. See Batchelder v. Batchelder, 2021 S.D. 60,¶ 5 n.2, 965 N.W.2d 880, 882 n.2 (holding that the practice of attaching material not included in the record to briefs “does not comply with our rules for preparing appendices”); Klutman v. Sioux Falls Storm, 2009 S.D. 55, ¶ 37, 769 N.W.2d 440, 454 (“Documents in the appendix must be included within, and should be cross-referenced to, the settled record.”) (citing SDCL 15-26A-60(8)). 

 

This decision may be accessed at

 

http://ujs.sd.gov/Supreme_Court/opinions.aspx .

 

Consumer Advocacy Group Denied Access to SD Division of Insurance records

 

The SD Supreme Court handed down one decision this morning, holding inter alia:

 

1. Division of Insurance upheld in its denial of Captive Insurance Company records in regard to request made by consumer advocacy group. 

 

SCHUPP v. DIVISION OF INSURANCE, 2023 S.D. 4:  Person located in Maryland requested information from the SD Division of Insurance in regard to the “captive insurers” regulated by the Division.  The Division of Insurance denied the request.  The Office of Hearing Examiners agreed with the Division of Insurance.  The Circuit Court affirmed.  The SD Supreme Court also affirmed.  The Court observed in footnote 1 of the opinion:

 

The underlying purpose for which Schupp requested the records is not developed in the record. [H]is email address suggests he may be affiliated with a  consumer advocacy group.

 

The Court’s decision is unanimous (5-0), with opinion authored by Justice Salter.

 

This decision may be accessed at

 

http://ujs.sd.gov/Supreme_Court/opinions.aspx .

 

 

Three new decisions by the SD Supreme Court, Jan. 5, 2023

 The SD Supreme Court handed down three decisions this morning:

 

1)    Criminal sentence and order of restitution upheld;

 

2)   Romantic relationship ends in litigation;

 

3)   Ownership by “adverse possession” claim reversed in 3-2 decision.

 

 

Summaries follows:

 

STATE v. AT THE STRAIGHT, 2023 S.D. 1: Defendant was found guilty by jury of attempted 1^st degree murder, 4 counts of aggravated assault, commission of a felony with a firearm, and of being a habitual offender.  The trial court sentenced Defendant to 25 years, 15 years, and another 25 years, all to be served consecutively.  (No sentences were imposed on 3 charges.)  The trial court also ordered Defendant to pay restitution of $403,058.48.  Defendant’s appeal is predicated solely (apparently) upon the assertion that the trial court erred in not granting his motions for acquittal.  The SD Supreme Court affirmed in a unanimous (5-0) ruling, with opinion authored by Justice Myren.

 

ESTATE OF THACKER v. TIMM, 2023 S.D. 2:  There is a seemingly-endless set of facts in this dispute which runs some 8 pages, (¶¶2 - ¶19 of the opinion).  The plaintiff is the estate of the Man who entered into a long-term romantic relationship with the Woman, beginning in the 1980s.  No children were born of this relationship, but each had children from a prior marriage.  This action was commenced against the Woman, by the Man’s daughters (serving as co-guardians and co-conservators of his estate) in 2019, with the Estate being substituted as party plaintiff after his death in 2020.  The trial court denied the Estate’s claims.  The SD Supreme Court affirmed in a unanimous (5-0) ruling, with opinion authored by Justice Myren.

 

FUOSS v. DAHLKE FAMILY LIMITED PARTNERSHIP, 2023 S.D. 3: This is a dispute between neighboring landowner.  The trial court ruled in favor of Plaintiff in his lawsuit claiming ownership of land by adverse possession, as well as ownership of an accompanying easement.  The SD Supreme Court reversed and remanded, in 3-2 ruling, in favor of Defendants. The Court’s decision rejects Plaintiff’s claim and remand for resolution of one of the Defendants’ counterclaim.  The Majority opinion, authored by Justice Salter concludes as follows:

 

[¶61.] We conclude that the circuit court erred when it determined that Fuoss acquired title to the Disputed Area by adverse possession. The court incorrectly applied the doctrine of acquiescence to the facts here and further committed clear error by rejecting uncontroverted evidence of permissive use by Fuoss’s predecessors in interest. For much the same reasons, we further hold that the court erred by granting Fuoss a prescriptive easement allowing access to his land through the Partnership Property. The access easement is also not authorized as an easement implied by prior use or necessity. We reverse and remand for the court’s consideration of Mann’s counterclaim for fencing, which the court did not previously address given its adverse possession and easement rulings.

 

Both Justices Kern and Devaney dissent in part, with views expressed in an opinion authored by Justice DeVaney. 

 

NOTE:  The majority opinion runs 26 pages (some 61 ¶¶s) and the dissent runs 12 pages (some 22 ¶¶s).

 

These decisions may be accessed at

 

http://ujs.sd.gov/Supreme_Court/opinions.aspx .