Proving “nighttime” in Rapid City during July

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

 

1)    Proving “nighttime” in Rapid City during July

 

STATE v. ROBERTSON, 2023 S.D. 19: Defendant was convicted by jury of 1^st degree burglary, aggravated assault, and grand theft. The SD Supreme Court affirmed.  The facts show the incident occurred around 4:30 AM in Rapid City.  Two justices dissented on the 1^st degree burglary conviction.  Justice Myren authored the Court’s opinion as to the issues other than 1^st degree burglary.  Justice DeVaney authored the Court’s opinion as to 1^st degree burglary.  With respect to the 1^st degree burglary conviction, Justice Myren wrote a dissenting opinion, as to which Chief Justice Jensen agreed, stating that the state failed to produce evidence that the burglary occurred during “nighttime” as defined by SDCL 22-32-15.  A burglary which doesn’t occur during “nighttime” can only be prosecuted as 2^nd degree.  Circuit Judge Stoltenburg sat on this case, in lieu of Justice Kern.

 

This decision may be accessed at

 

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