*1 483 Co., 1995); 520 v. Allied Mut. Ins. Rogers SD 76 1998 614, (S.D.1994)(citing Kaberna v. 617 N.W.2d The PEOPLE of the State of South Dako- Lead-Deadwood Sch. Dist. School Bd. 40 ta, Y.C., Child, In the Interest of Minor (S.D.1989)); -1, 542, Lewis concerning L.S. and V.C. Co., 26, 33, Min. 74 S.D. Annie Creek (1951). limiting clause No. 20303. 47-21-2, any municipality “in which SDCL operating system,” not have an CATV Supreme Court of South Dakota. phrase may provide pro follows the “and Argued June system, to customers via a CATV gramming po § 9-35-16....” From the defined July Decided groups, sitioning of these latter word “may provide” after statute’s second use of separate
the earlier and reference MMDS legislative intent
systems, we conclude the competition municipalities be
was to limit providers only. Northern
tween CATV offering prohibited thus from
Electric was Pierpont oper services in because an
CATV already present there. On
ating hand, other the former statute did not providing an
prohibit Northern Cable from
MMDS
Conclusion declaratory in- We reverse the
junctive 47-21-2 was amend- relief as SDCL 1,1994 July
ed effective to lift restrictions cooperatives offering to mu-
electric CATV Further,
nicipalities. the version of SDCL
47-21-68 in effect at the time Northern Ca- began operations allowed Northern Elec-
ble
tric a member of Northern to become Cable.
Nonetheless, because the former version of 47-21-2 Electric
SDCL forbade Northern providing Pierpont, service to CATV statutory
could not avoid the restriction
acting through wholly subsidiary, its owned
Northern Cable. To the extent Northern providing
Cable was CATV service to Pier-
pont residents the time the former proscribed
version of SDCL 47-21-2 such
service, damages is entitled to seek Satellite
for interference with its exclusive franchise. part Affirmed in and reversed
part. MILLER, J., SABERS, C. JJ., GILBERTSON,
AMUNDSON and
concur.
484
degree robbery felony of a commission while armed with a firearm. Y.C.’s mother bag had found of caáh his room and immediately police. summoned the Y.C. is alleged magnum used a to have loaded .357 pistol from a to obtáin cash bank teller Bank in Worthing, First American South Da- kota. subsequently The moved
transfer the case to court. The circuit adult hearings August on the motion on held 29, 1997, September 1997. Dr. Vail court-, (Dr. Williams) Williams conducted a approved evaluation of Y.C. and testified on 15,1997. September hearing, [¶ 4.] At the close of the the court announced it would take the transfer motion under advisement and issued an “Order for to the Human Commitment Services Center” appro for “examination and treatment priate program successfully until the child completes program.” granted We request appeal State’s intermediate for. 3, 1997, and on November we reversed and the circuit court’s remanded order after hold committing it erred in Y.C. to a treat program deciding pending ment before Y.C., People transfer motion. See ex rel. 1997 SD N.W.2d 19, 1997, [¶ 5.] On remand November Abdallah, County Scott A. Lincoln State’s the circuit court denied the transfer State’s Canton, Attorney, appellant for State of apparently motion. The circuit court relied South Dakota. exclusively upon testimony of Dr. Johnson, Birgen May, Doyle Deborah A. in concluding could Williams Falls, appellee & Becker Sioux rehabilitated The preferred circuit court noted it would have GILBERTSON, Justice. send toY.C. the Human Services Center for a rehabilitation evaluation but believed this appeals [¶ 1.] The State of South Dakota previous precluded Court’s decision such a the circuit court’s denial of a motion to trans- again appeals. course of action.1 The State sixteen-year-old fer Y.C. to court in adult the circuit [¶ 6.] Whether court abused its charges connection with stemming from a denying discretion the State’s motion to July 1997 armed of a bank. We adult Y.C. to court. reverse.
STANDARD OF REVIEW
PACTS AND PROCEDURE
[¶ 7.] When the state files a motion
28, 1997,
July
transfer,
petition
[¶ 2.] On
it should be denied where the
County,
was filed in Lincoln
contrary
South Dakota
court finds that it would be
Y.C.,
charging
fifteen,
age
then
with first
to the best interests of the child and the
previous
26-7A-41).
1. Our
prohibited
(citing
decision
the cir-
37-38
SDCL
The
treatment,
ordering
cuit court from
not an evalu-
trial court was incorrect.
Y.C.,
5,¶
ation. See Ex reí.
reason omitted) (S.D.1994) (citation 662, 673 seven factors listed above were not intended N.W.2d omitted). (internal quotations judge to reduce the of the trial discretion hearings, in transfer nor was it the inten- ANALYSIS AND DECISION rigid pro- tion to create a or cumbersome purpose juvenile court “The [¶8.] by trial cedure be followed courts proceedings punish is not to but rather necessary all cases. It is not that evidence juvenile’s behavior rehabilitate and correct presented on all of factors at each these with the so as to avoid future confrontations hearing, the trial court or Jones, It is also law.” 521 N.W.2d express findings make on each factor. must protect public. SDCL 26- adequately (citation omitted). at 624 proceedings against a 11-4 criminal concerns emigrated to the States [¶ 10.] Y.C. United felony charged with a and lists seven age from the Ukraine at of seven. guide in transfer cases factors to courts Shortly parents thereafter his were divorced. providing part: relationship enjoyed a close with his Y.C. hearing, the court shall At the transfer mother, father, siblings but admitted contrary whether it is to the consider step-father. having some difficulties with his public of the best interest of the child and history began Y.C.’s extensive and troubled jurisdiction over the child. to retain prior robbery, as just years three to the bank following may considered The factors thefts and two assaults. Y.C. admitted four determining by the court whether dispositions as their These offenses as well child should be transferred: of the explained are below an examination (1) alleged felony The seriousness of the various factors. community to the and whether offense argues that the cir The State community protection requires in not trans cuit court abused its discretion waiver; court. examine ferring the case to adult We (2) alleged felony Whether the offense was if substantial evi the record to determine violent, aggressive, pre- in an committed support the trial court’s find dence exists to meditated, manner; or willful ings. (3) felony alleged offense was Whether persons property greater against or alleged crime [¶ 12.] Seriousness of against weight being given to offenses community protection persons; (4) that “[al- This Court has stated prospective complaint. merit of the alone though] the seriousness of the offense required to establish
The state is
transfer, when considered
prospective mer-
does not warrant
probable cause to show
criteria, may
it;
become
with the other
added).
(emphasis
deciding
making
During
factor in
a transfer.” State
stuff.”
the rob-
(S.D.1979)
Culton,
200, 202
bery,
repeatedly pointed
pistol
273 N.W.2d
(
L.V.A.,
(quoting
re
In
the bank teller and threatened to kill her if
S.D.1976)).
charged
has
with two
comply
she
with his
did
demands. Y.C.
-
degree robbery
serious crimes. Both first
complained
acting
that the teller was
scared
felony
and commission of
while armed with
“telling
grandmother
lies about her
be-
a firearm are class
felonies. See SDCL
two
interview,
During
sick.”
Y.C. indicat-
22-30-1, 22-30-6, 22-30-7, 22-14-12. The
angry
ed he was
with the teller because he
felony
of a
with a
commission
while armed
give
now believed “she didn’t
all the
[him]
firearm has
such a serious
been considered
money.”
that a
offense
conviction
a first offense
changed
[¶ 16.] After the
into
*4
mandatory
carries a
minimum sentence of
clothes,
bank,
“zig
fresh set of
left the
and
years
penitentiary
five
in the state
with this
zagged”
gravel
on
back to
roads
Sioux Falls.
any
to run consecutive to
sentence
other
throwing
Y.C. admitted
the clothes he had
imposed
princi-
sentence
for a violation of the
during
robbery
worn
the
and the ammunition
pal felony. SDCL 22-14-12.
If Y.C. were
that had
the revolver into a corn field
tried and convicted as
adult he could be
Worthing
somewhere between
and Sioux
up
years
fifty
sentenced
to 50
and a fine of
displayed
Falls. Y.C.
no remorse for his
thousand dollars for the two offenses. See
crime,
victim,
family.
the
or his
To
22-6-1;
the
22-14-12.
contrary,
throughout
his attitude
the video-
Alleged
the
[f
Whether
was
14.]
taped
chilling
interview is marked with a
.
Offense
Violent,
Aggressive,
Committed in an
slightest
indifference
of
devoid
indication
Premeditated, or
Manner
open
any
of remorse
contempt
and an
for
Willful
type
authority.
of
It is obvious Y.C. was
Y.C.
interviewed at the
was
Sioux
possible
consequences
aware
of his
Department
days
Falls Police
five
after the
actions as he
whether he
asked
would be
robbery. Prior to the start of this video-
charged
juvenile.
as an adult or a
These
interview,
taped
laughed
Y.C. smiled and
findings
acts are consistent with the
in Jen-
talking
when he overheard officers
about the
“premeditation,
sen of
unfeeling
coldness
Investigation
Federal
'Bureau of
and the
willingness
violently
to act
in carrying out
Investiga-
South Dakota Division of Criminal
¶
Jensen,
robbery[.]”
1998 SD at
becoming
tion
involved
his case. Y.C.
vehicle
robbery.
to commit the bank
Addi-
Weight
Greater
Given to Offenses
tionally,
purchased clothing
worn
Against Persons
during the crime and loaded the revolver
charged
against
[¶ 18.] Y.C. is
with crimes
leaving Worthing..
before
Y.C. admitted
persons
property.
both
During
choosing
Worthing
the bank in
because
robbery,
course of the
Y.C. is accused of
Worthing is a small town that “doesn’t have
robbing
crap”
by pointing
pistol
the bank teller
they only
police
have one
officer so
threatening
at her
getting caught
the chances
head and
to kill her. The
would be re-
stated,
teller testified that the
duced.2 When the
robber
“Give
interviewer asked Y.C.
money,
me the
bitch”
nervousness was the reason he
and told her he would
could not
exactly
stupid
remember
what
shoot her if she
give
he had said to the
was
or did not
robbery,
replied,
money.
sought
teller
Y.C.
“/
him all of the
The victim
doing perfectly
counseling
knew what I was
don’t
to alleviate the intense trauma she
just
remember what I said.
yelling
has suffered. Rather
than demonstrating
¶¶
aggressive,
2. The offense was committed in an
to adult court in Jensen.
[¶ Williams went so as to char- rehabilitation, far vious about reservations acterize Y.C. as a young “nice man.”3 Dr. apparently trial court was intrigued by a 3. Dr. Williams admitted receiving Magnum. that he would not think end the .357 young was a "nice were man” if he on the youth that a fac- where fused to mandate presented by Dr. Williams troubled
scenario every possible DOC control and transfer must be afforded remain under Y.C. would in stat- at the Human Services Center chance at rehabilitation. “Neither the placed Yankton, would then required South Dakota. Y.C. ute nor our decisions have the court stipulate any violation would juvenile unsuccessfully to find that ex- have adult court. in automatic result hausted the resources this state’s justice programs prior rehabilitation emphasis great on place While we proceedings court.” transferring to adult child, we ex- have the best interests of the at 625. juvenile proceedings have never “that plained vacuum, free from the conducted in a been as a the record [¶ 41.] Consideration Harris, 494 N.W.2d of the state.” interests whole this Court with a firm and leaves Certainly, the State has an interest a definite conviction that mistake has crime, regard- its citizens protecting finding that Y.C. made. The trial court’s perpetrator’s age.4 The has less supported by could rehabilitated is not adequate protec- providing great a interest only substantial evidence evidence. a whole. community for the Addition- is the decision of trial court interests clear ally, Y.C. has made the State’s testimony Dr. brief mother and individual, the victim. protecting specific testimony of- The mother’s brief Williams. callously indicat- Shortly after arrest Y.C. logical fers no basis to conclude rehabilitation against his desire seek retaliation ed possible hope is rather forlorn based victim, the bank teller: love her The trial court mother’s child. out on fucking held me. When accepted That bitch Dr. truism that Williams’ jail, going go get out of I’m back threat were he would not be a rehabilitated up. money more fuck her There was any indi- society without realistic evidence given it to bank and she should cating prospects for an idealistic such me. Dr. not state that he outcome. Williams did juve- can be rehabilitated believes Y.C. that the facili- The record further indicates nile He was able to state system ties available psychiat- “possibly could benefit from such a security provide for the con- sufficient juvenile[.]” ric as a While orientation tinuing protection public. Y.C. could obviously Dr. guarantee possible, legally in the not be held *7 putting merely fears of Williams indicated his 26-11A-5; age 26- beyond the of 21. SDCL into fifteen-year-old “young “nice” man” a actuality practice, 11A-20. In DOC the adult juveniles beyond age 18 hold which Y.C. years. in reach less than two will provided significant evi- The State [¶42.] contrary wit- through numerous there been dence to the The State contends have community juvenile justice nesses from the to rehabilitate countless unsuccessful efforts Y.C., as contacts with through and out-of-home who had extensive probation attempt- hour opposed to to the two interview placement programs. Efforts assist Y.C. services, Dr. ultimate conclu- probation, community support cur- Williams’ through (cid:127) fews, Telling sion. are the observations counseling have failed. Y.C. con- representative of DOC that rehabilitation that he offered rehabilitative cedes has been very un- juvenile is program its juvenile facilities in South within services several likely Past conduct is record. appears argue given that a Y.C.’s Dakota. Yet Y.C. future con- obviously possible indicator of impermissi- a to adult court would con- properly has duct. The times Y.C. still at least one ble because there is exhausted, any is when length of time namely the ducted himself for has not he set- has in a institutional Training in In controlled Plankinton. School ting. significantly, Most neither rejected claim and re- we a similar ¶ at 620. average 52 at length 1998 SD we that the months. In Jensen noted eight stay eleven for a at Plankinton is adult, they Camp program, nor discharge report can be rehabilitated when Boot nor show no remorse evidence a desire to states: improper ways. change Even Dr. their cooperative Mr. has [C] been a and re- point. byY.C Williams had to concede this spectful group member. He has demon- admissions, respect his own shows no supportiveness group strated toward mem- society’s his victims. This combined rules or ability well bers as as the to confront grave with easts his lack of remorse doubts group members as needed. He has dis- concerning prospects his rehabilitation played high integrity placing level of him which the foundation of the circuit strike at category respect among group in a his promised has all court’s decision. Y.C. peers. rampage continue on with his criminal upon returning have concerns his given opportunity. reported his home Mr. [C] environment. Society protected must from vio- phase camp latter of boot that his agony lent crime of its It is effects. recently gotten cousins trouble of little or no comfort to a victim of violent may get deported with the law and back to family crime and the victim’s the vic- Ukraine, occurs, Russia. If that Mr. [C] damaged tim’s destroyed life was or expressed strong desire return to his youth rather than adult. Protection of father Russia so he can be with his society sought accomplished must be whether my It is cousins. recommendation that through or rehabilitation incarceration. Ob- Mr. return to siblings [C] his mother and viously preferred rehabilitation is the route any Sioux Falls. That contact with the in dealing juveniles, but it cannot be super- cousins should be monitored Here, accomplished in all cases. is no there proved until Mr. vised has [C] himself substantial evidence conclude rehabilita- capable remaining free during crime juvenile sys- can be within the achieved probation period. long As as Mr. [C] tem of this State. to utilize chooses the skills and tools he has Therefore, despite [¶44.] the deferential developed Camp, particularly the Boot review, we standard hold the trial court self-control, self-discipline, and self-es- has abused its discretion and reverse. We teem, he in making should be successful do so as no there is substantial evidence upon returning outside to his home
the record to the trial court’s find- environment. ings of fact. DRILL SENIOR INSTRUCTOR NAR- very intelligent RATIVE: This cadet MILLER, C.J., and SABERS and logical. well as He is calm and consider- JJ., KONENKAMP, concur. ate, very respectful. He was awarded AMUNDSON, J., for his scholastic achievement here at dissents. Camp. Boot highly He is motivated and AMUNDSON, *8 (dissenting). Justice bearing maintains his at all times. He had , I [¶ 47.] dissent. (3) one(l) positive counselings three and negative. extremely He should do well at [¶ Was the trial court’s decision not Currently home. he is anxious about ei- justified this based on record? I hold would remaining US, ther with his mother in the that it was and there was no of discre- abuse returning or to his father who lives in the A.D.R., In re tion. 499 N.W.2d (Russia). Ukraine (S.D.1993). question There no happened graduated? [¶49.] is that Y.C.’s What [¶ 50.] after he conduct before and after his arrest was less He was returned the same environment hand, than exemplary. the other gotten On we have where had first into trouble and a young completed man has successfully obviously supervised who was and monitored highly programs two structured while under as recommended. This is not the first time jurisdiction Department the of the of Correc- juvenile we have seen this in area. In the (DOC). fact, words, tions completing In after system gets the other the often them omitted)., Therefore, my program then track of based on through the and loses review record, they judicial the law anew. them until violate this conclude that a mind could have that a transfer decided to adult program Is there required was court and such .decision man, psy- young this who the where not amount to an abuse discretion. being chologist to as a victim testified shock, subject peers who cultural was communist, telling or him
calling commie him Russia, who a child go and is back by parents’ of his
affected dissolution
marriage, salvaged. can be The State de- high-risk
picts offender this individual as hand, other properly
and
so. On the
that such individuals
State’s witness stated
place prison this individual in an adult away key?
throw I think not. While
majority emphasizes public interest
incarceration, obviously trial public
thought significant there giving
interest in this individual a reasonable productive
chance to become a member
society. encouraging re Considering
ports progress of Y.C.’s his attend
ance at some state correction programs possibilities
al for further
rehabilitation, there substantial evidence court’s decision. trial (S.D.1993) (cita omitted).
tions judges It is true that some question in resolved the transfer
same manner as trial court this did However, applying
case. the abuse case, this do not
discretion standard to “we made a
determine whether we mind, decision, judicial
like whether a facts,
considering the law could have v. Wil decision.” similar
reached a
kins, (citations (S.D.1995)