The
SD Supreme Court handed down two decisions this morning:
- Accessory to felony upheld notwithstanding principal is
juvenile;
- Conviction for felonious violation of no-contact order
upheld;
Summaries
follows:
STATE
v. DUTTON, 2023 S.D. 29: Defendant was convicted, following bench trial, “as an
accessory to aggravated assault for intentionally harboring or concealing a
juvenile in the commission of a felony.” Defendant was sentenced to
4 years in prison, suspended, but also ordered to spend 20 days in county
jail. Defendant’s sole issue on appeal
is the alleged erroneous premise that a conviction for accessory to a felony
may be predicated upon an offense where the principal offender (a juvenile) is
not prosecuted as an adult. The SD
Supreme Court affirmed, stating:
[¶22.] [W]e hold that an
individual may be prosecuted, tried, and punished as an accessory to a crime
under SDCL 22-3-5 when the principal felony is based on the act of a juvenile,
regardless of the existence or status of any prosecution against the juvenile.
This
decision is unanimous (5-0) with opinion authored by Justice Kern.
STATE
v. SHIBLY, 2023 S.D. 30: Following a
jury trial, Defendant was convicted of one count of felonious violation of a
no-contact order and sentenced to 2
years in prison, suspended. Defendant
was also convicted of 6 misdemeanor counts of violation of a no-contact order. Defendant’s assertion of error on appeal are
described in the opening paragraph of the Court’s opinion:
[¶1.] [Defendant] was charged
with seven counts of violating a no contact order. While the alleged victim,
was testifying, she became emotional in front of the jury causing the circuit
court to recess the jury during her testimony. The court ordered [Victim] not
to communicate with anyone during the recess. In violation of this order,
[Victim] spoke with her mother.
[Defendant] moved for a mistrial, which was denied after the court
questioned [Victim] about the content of
the conversation and determined she had not spoken with her mother about the
case. [Victim] returned to the stand but became emotional again, and the court
recessed the trial for the day after [Victim] told the court she did not feel
well. [Defendant] again moved for a mistrial, which the court held in abeyance
until trial reconvened the following morning. After a hearing, the court denied
the motion but gave the jury a curative instruction. At the close of the
evidence, [Defendant] moved for a judgment of acquittal alleging insufficiency
of the evidence. The court denied the
motion. [Defendant] appeals, asserting the circuit court erred by denying his
motions for mistrial and judgment of acquittal.
The
SD Supreme Court affirmed, stating:
[¶29.] The circuit court was in
the best position to judge the emotionality of the situation and gauge the risk
of prejudice resulting from the cumulative acts of the witness. Based on our
review of the record, it is apparent that the circuit court did just
that—carefully evaluated the facts and circumstances surrounding [Victim’s]
conduct and its effect on the jury. The circuit court determined that the
conduct did not impact [Defendant’s] substantial right to a fair trial.
And
[¶32.] [A]fter reviewing the
evidence in the light most favorable to the jury’s verdict, we conclude that
there is sufficient evidence to support the verdict. [Victim] testified that
[Defendant] was “angry” when he was at her residence, knocking hard on the
door, and that she wanted him to stop calling her. There were eighteen calls to
[Victim’s] phone on the evening in question, including thirteen within the span
of about twenty minutes. The repeated nature of the unwanted calls, his arrival
at her residence to pound on the door, and the texts are evidence that
[Defendant] intended to vex or annoy [Victim] constituting malice.
This is a unanimous decision (5-0) with
opinion authored by Justice Kern.
These
decisions may be accessed at
