Administrative Appeal Upheld; Other Acts evidence permitted in Rape Trial

 

The SD Supreme Court handed down two decisions this morning:

 

1. Administrative Appeal to Circuit Court upheld;

 

2. Other Acts Evidence permitted in Rape Trial.

 

Summaries follows:

 

KOVAC v. S.D. REEMPLOYMENT ASSISTANCE DIVISION, 2023 S.D. 45:  Kovac was ordered by an ALJ (affirmed by the DOL Secretary) to repay “$20,278.00 in federal pandemic unemployment benefits.” Kovac sought to file an appeal to Circuit Court by letter.  On the final day permitted for filing, the Hughes County Deputy Clerk rejected the appeal and mailed the letter back to Kovac advising non-compliance with various Supreme Court Rules.  Kovac secured counsel and attempted to again file an appeal – to no avail.  The trial court upheld the action of the Deputy Clerk, holding, inter alia, that Kovac’s failure to file a “case filing statement requirement under SDCL 15-6-5(h)” was jurisdictional and its omission deprived the court of authority to act.  The SD Supreme Court reversed, stating:

 

[¶27.] The case filing statement requirement under SDCL 15-6-5(h) is a Supreme Court Rule. There is nothing in SDCL 1-26-31 or in SDCL chapter 1-26 that requires the filing of a civil case statement as a jurisdictional prerequisite to perfecting an administrative appeal to circuit court.

 

In support of its holding, the Court cited and quoted the U.S. Supreme Court decision, Boechler, P.C. v. Comm’r of Internal Revenue, __ U.S. __, 142 S. Ct. 1493, 1497 (2022).  This decision is unanimous (5-0), with opinion authored by Chief Justice Jensen.

 

STATE v. ORTIZ-MARTINEZ, 2023 S.D. 46: Defendant was convicted by jury of 2 counts of rape and sentenced to 25 years on each count, with the sentences to run consecutively.  Defendant asserts on appeal that the State improperly introduced evidence of other uncharged acts of rape, and also error in instructing the jury appropriately in regard to “other acts” evidence.  The SD Supreme Court affirmed, holding that Defense Counsel had “opened the door” in cross examination, stating:

 

[¶34.] [O]ther acts evidence could be admitted by acquiescence, or where both parties elicit it, or when one party opens the door to the admission of other acts evidence. See State v. Taylor, 2020 S.D. 48, ¶ 34 n.4, 948 N.W.2d 342, 352 n.4 (quoting State v. Letcher, 1996 S.D. 88, ¶ 25, 552 N.W.2d 402, 406) (holding that a circuit court may permit the State to “introduce otherwise inadmissible evidence when a criminal defendant’s trial strategy has ‘opened the door’ to the evidence”). In fact, that happened here when defense counsel asked the forensic examiner, “She didn’t disclose multiple rapes though; did she? I watched that video. She didn’t disclose multiple rapes?” In a direct response to the question, the forensic interviewer confirmed that L.V. had disclosed multiple instances in which her stepfather had penetrated her digitally and with his penis “at the old house, the new house, as well as the camper.”

 

This decision is unanimous (5-0), with opinion authored by Justice Salter.

 

These decisions may be accessed at

 

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

Prison sentence for extreme road rage upheld; Clay County CPU litigation remanded

 The SD Supreme Court handed down two decisions this morning:

 

1. Extreme Road Rage incident in Sioux Falls results in prison sentence;

 

2. Clay County CPU litigation remanded;

 

 

Summaries follows:

 

STATE v. KWAI, 2023 S.D. 42:  As a result of an original near-accident encounter on a roadway in Sioux Falls and subsequent interactions between Defendant and Victim (road rage in the extreme), Defendant was charged with:

 

[¶9.] … aggravated assault (extreme indifference); aggravated assault (dangerous weapon; crowbar and/or metal pipe); aggravated assault (dangerous weapon; vehicle); aggravated assault (physical menace); hit and run (injury or death); and hit and run (property damage).

 

Victim sustained:

 

[¶8.] … a head injury requiring multiple staples to repair, nine broken ribs, a broken hip, and a fractured femur. [Victim] was in the hospital for approximately one month and underwent eight surgeries. [Victim] has used a wheelchair since the incident and suffers from memory and speech issues.

 

Jury convicted Defendant on all counts.  The trial court sentenced Defendants to 15 years (with 5 suspended) on aggravated assault, and a concurrent sentence of 2 years (with two years suspended) on felony hit and run.  Sentences on remaining counts were not imposed.  Defendant was given credit for 409 days served. 

 

Treating this appeal as a Korth brief appeal, the SD Supreme Court affirmed, holding, inter alia, that South Dakota’s “felony hit and run statute applies regardless of whether the defendant’s acts were intentional.”  Court’s opinion is unanimous (5-0), with opinion authored by Justice DeVaney. 

 

HAUCK v. CLAY COUNTY COMMISSION, 2023 S.D. 43: Petitioner sought a Conditional Use Permit (CPU) in Clay County for Recreational Campground, originally seeking to establish 408 camping sites.  The Clay County Planning and Zoning Commission denied the permit. Petitioner appealed to the “Clay County Commission, which was sitting as the Board of Adjustment,” which upheld the denial.  Petitioner sought relief in Circuit Court, requesting a writ of certiorari and writ of mandamus.  The Circuit denied review, holding that the request for writ of certiorari was untimely.   The SD Supreme Court upheld the denial of a writ of mandamus, but reversed and remanded in regard to the request for writ of certiorari.  The Court stated:

 

[¶10.]  Under SDCL 11-2-61, the thirty-day time to file an appeal to the circuit court of a decision by the Board of Adjustment begins to run upon the “filing” of that decision. Because we cannot determine from the settled record whether or when the Board’s decision was filed, we cannot determine whether the circuit court had jurisdiction to act in this case. We reverse the circuit court’s decision dismissing the petition for writ of certiorari and remand for further proceedings to determine the jurisdictional question of whether Hauck’s petition was timely filed.

 

This ruling is unanimous (5-0), with opinion authored by Justice Myren.

 

These decisions may be accessed at

 

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

Sculptor's Claims against Kevin Costner Survive; State's failure to give notice of Expert Tesimony held non-prejudicial

 

The SD Supreme Court handed down two decisions this morning:

 

1. Sculptor’s claims against Kevin Costner survive;

 

2. Failure by State to give notice of expert testimony found to be non-prejudicial;

 

 

Summaries follows:

 

DETMERS v. COSTNER, 2023 S.D. 40: This is a dispute between the Sculptor and Kevin Costner over several “bronze sculptures of buffalo and Lakota warriors on horseback.”  After the non-completion of the proposed “The Dunbar Resort,” Kevin Costner was sued but he won round #1 of this litigation because of his decision utilize the sculptures in connection with “Tatanka,” another project on the same site.  Subsequently, Costner listed the property for sale.  The listing agreement excluded the sculptures, designating them as items that Costner, as seller, would be retaining.  The Sculptor filed this 2^nd lawsuit. The trial court ruled for Costner, but the SD Supreme Court reversed and remanded.  The Court held that the Sculptor’s claims are not barred by res judicata and also that the trial court, “erred in its conclusion that Costner had no remaining obligation under the [parties’] Agreement.”  This decision is unanimous (5-0) with opinion authored by CJ Jensen.  Circuit Judge Douglas Barnett sat on this case, in lieu of Justice Salter.

 

STATE v. PRETTY WEASEL, 2023 S.D. 41: Defendant was found guilty, by jury, of 10 counts of sexual contact with a minor under 16 and of 1 count of 1^st degree rape. The trial court sentenced the Defendant to 10 years on the each of the 10 contact counts (to run concurrently) and 25 years on the rape count (to run consecutively to the 10 year sentences).  Defendant’s assertions of error on appeal related to the testimony of a witness who was “a mental health practitioner, who had served as the victim’s counselor.”  Defendant asserted that this witness’s testimony improperly bolstered the victim’s testimony and that the testimony was in the nature of expert testimony for which the State had failed to give proper notice to the Defendant. (NOTE: The State did give proper notice for a different expert who did, in fact, testify.)  The SD Supreme Court affirmed, rejecting both arguments. As to the State’s failure to give notice, the Court found that such failure was non-prejudicial, stating:

 

[¶40.] … even if this expert testimony had been excluded, it would have had no effect on the verdict because of the overwhelming nature of the other evidence presented to the jury.

 

This decision is unanimous (5-0), with opinion authored by Justice Myren.

 

These decisions may be accessed at

 

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