*1 may modify the decision reverse or Dakota, rights of the have
substantial STATE of South Plaintiff prejudiced Appellee, been because administra- inferences, conclusions, findings, tive are: ... decisions Terry BIAYS, Jean Defendant law; error by Affected other Appellant. Clearly light errоneous of the No. 15331. record; in the entire evidence Supreme Court of South Dakota. capricious Arbitrary or or charac- by terized abuse discretion or clear- Considered on Briefs Jan. ly exercise of discre- unwarranted 18, 1987. Decided March tion. ... Peery previous that some of claims his reported as satisfac-
work reviews were contends, therefore,
tory; he that the De- just had no cause
partment Agriculture him and could not so as a terminate do
matter conclude the work of law. We along weighed
reviews evidence to be exhibits, testimony and
with the other no error of law
that there was committed
by taking not reviews conclu- work presented
sive. to the Com- The evidence Depart- action of supported
mission Peery. discharging Although
ment in
court re- might have reached
sult, feel that the we do not result reached clearly
by the is erroneous and Commission our judgment
we will not substitute for
that of the Commission. judgment
The of the circuit is af- court
firmed.
All the Justices concur. MILLER,
HEEGE, Judge, for Circuit
J., disqualified. Ledbetter, Gen., Atty. B. Asst.
Clair Pierre, appellee; Mark Y. plaintiff and Pierre, Gen., on Meierhenry, Atty. brief. *2 Molstad, dy Rоbert A. of Molstad was by Department Haivala & assumed the of Sturgis, appellant. for defendant and (DSS). Social Services Children had been mother, living Ramona, with their and her
HENDERSON, Justice. Gerald, boyfriend, a campground at near Rapid City. reports Past DSS included ref- CRIMINAL APPEAL/PROCEDURAL erences to Gerаld’s abuse of Ramona and BACKGROUND slapping Ramona’s of the infant child. For purposes clarity, of convenience and Both children were to returned Ramona we defendant-appellant shall refer to Terry staying after approximately one week with Biays Biays. Biays charged by Biayses. the (1) Aggravated Information with Count I— 1985, August In late the boy suffered a Assault; (2) Abuse, and Expose, Count II — leg, broken reportedly during incurred a Torment Punish a Mi- Examining fall from a at County nor. A Meade table his home. jury found her not (skull Wong physician of Assault frac- suspicions recorded his ture) guilty of but the above-described that such unlikely” a break “seemed (abrasion, bruises, Count II and contusions under have occurred the de- circumstances on face and body). Biays. seeks reversal scribed. His condition necessitated recu- contending she a Ap- was denied fair trial. сast, peration partial body in extending a pellate Biays counsel for was not trial from his requested waist his foot. DSS appeal: counsel. Three issues are raised on granted temporary custody and was of (1) in Both counts the Information arose (1) grounds boy both children on the event; from one home; proper would not receive care at (2) Biays’ rights constitutional were vio- (2) undergo Ramona and Gerald could in put lated that she was twice in problems treatment for alcohol while the offense; jeopardy for the same awаy. children were State’s misconduct ar- 30, 1985, (now August boy ap- On gument process denied her due old) proximately years and one-half law. girl (now approximately and the year Combining the first and second issues for old) again placed with Biayses. treating decision and then below the third However, Biays and her re- husband had separately, issue we affirm. cently adopt Sep- decided to a child. On 1985, 2, Philip- tember husband flew to the FACTS pines to complete paperwork which could Biays Henry, and her husband who adoption. culminate in He did not return Force, serves in the Air reside at Ellsworth early Biays until October 1985. had almost Air Rapid City. Shortly Force Base near custody exclusive and control of the two after in in their arrival South Dakota in children named the Information.1 Biays and her husband decided to become parents. April they foster In re- Biays girl mоody testified that children, boy ceived their first foster a playful much less than she was (born Douglas 1982) named January April. According Biays, September 2 on girl (born and a September named Edith 3, 1985, girl slipped in the bathtub 1984). leading placement Events Biays and bruised her forehead. claims Douglas and Edith аre set forth below. DSS; however, she reported this incident to employees knowledge no DSS claimed These two children were found in motel adults; report. Biays (as room testified did with intoxicated also these adults witnesses) parents. Temporary girl were not their custo- othеr that the would occa- relinquished custody neighbor’s fourteen-year-old 1. on two occasions: The next-door daughter neighbor babysat babysat approximately approxi- A for one hour next-door mately September September five hours on on 1985. bang sionally against the back of her head identical facts or circumstances. More- objects. over, Biays hard contends that State should compelled have been drop one of the two 16, 1985, noted that on *3 charges or charge her in an alternative girl’s puffy face was and hеr nose was fashion. She concludes that her constitu- runny. Biays girl getting believed the was rights tional were violated in that she was a cold. She said she became more con- subjected punishment twice for the same day cerned the next as her face was more offense. swоllen. 18, 1985, On took the state and federal constitutions Both our girl Rapid City Regional Hospital. Ex- against jeopar- prohibitions contain double aminations revealed occipi- Const, that she had an Const, V; amend. S.D. art. dy. U.S. tal-area skull accompanied by fracture VI, jeopardy Included within double § bleeding into the inju- brain. Various other coverage protection “against multiple is (bruises discolorations) ries and were also offense.” punishments same parts body. discovered on other of her Ex- 711, Pearce, v. 395 U.S. North Carolina amining physician Sutliff testified that the 656, 2072, 2076, 717, 23 L.Ed.2d 89 S.Ct. injuries appeared non-accidental. He fur- Ohio, (quoted in Brown v. 432 665 injuries ther stated that these could have 2221, 2225, 161, 165, 53 97 S.Ct. U.S. days prior occurred from one to seven 187, (1977)). v. L.Ed.2d 194 See State September 18, 1985, however, his best esti- 536, (S.D.1985) Feiok, 542 364 N.W.2d days mation was one to two before exami- J., (Hendersоn, dissenting); Grey State v. nation. 801, (S.D.1982). Owl, As 803 316 N.W.2d has stat- Supreme Court the United States 18, was arrested on September irresistible, argument “The seems to ed: us charged by 1985. She was Information and we do not doubt that the Constitution (1) Aggravated with Assault in violation of designed prevent as much to the crimi- 22-18-1.1(1)2; (2) Abuse, SDCL Ex- being punished nal from twice for the same Torture, pose, Cruelly Torment or Punish a being offense as from twice tried for it.” Minor, in a manner which does not con- Benz, 304, 308, United States v. 282 U.S. assault, aggravated stitute in violation of 113, 114, 51 S.Ct. 75 L.Ed. 357 SDCL 26-10-1.3 (18 Wall.) (quoting parte Lange, Ex 85 U.S. 163, 173, (1874)). 21 L.Ed. 878 With DECISION mind, inquire: these authorities in we now (Count charges Aggravatеd Were the I. AND II. I— Assault, Abuse, Expose, Tor- Count II — DOUBLE JEOPARDY CLAIM NOT ture, Minor) Cruelly or Punish a Torment SUSTAINABLE. brought against Biays tantamount to viola- Biays was conjunctively charged prohibitions tion of state federal with crimes Assault; against jeopardy? double (2) Abuse, Expose, Torture, Torment Initially, aggravated we note that Cruelly assault Punish a Minor. She advocates distinctly is a than abuse that the offense charging of both against crimes aggravated of a minor.4 The assault stat- her improper is as both crimes flow from provides: 22-18-1.1(1) 3. SDCL 26-10-1 provides: 2.SDCL tortures, abuses, Any person exposes, who tor- Any person whо: cruelly punishes ments or in a minor manner (1) Attempts assault, bodily to cause injury aggravated serious which does not constitute guilty is another, injury, felony. (Emphasis supplied.) causes such under circum- of a Class 4 manifesting stances extreme indifference to adopted 4. This Court has the "same evidence” life; the value of human jeopardy test in double cases. See State v. Pick- * * * * aggravated 548, 553, is ering, Aggravat- 88 S.D. 225 N.W.2d 100-01 assault. (1975). ed assault is a felony. plea jeopardy Class 4 of double is avail- "[T]he 700 upon any person “attempts
ute acts
who
Torment or
Punish a Mi-
bodily injury
cаuse serious
... or causes
By returning only
verdict,
nor.
injury,
such
under circumstances manifest-
fulfilling
its function of “de-
ing extreme
to the value
cid[ing]
questions
all
of fact” including
indifference
designated
human
It is
as a Class
[.]
“credibility
”
weight
life
of the witnesses and ...
felony,
4
whereas the abuse of a minor
Painter,
оf the evidence.”
70 S.D.
person
section seeks to deal with
“who
277, 281,
(1944).
17 N.W.2d
14
See
... a minor in
abuses
a manner which
Jenkins,
(S.D.
State v.
260 N.W.2d
aggravated
does not constitute
assault
1977);
Brewer,
_”
It is
4 felony.
classified as a Class
(and
N.W.2d 409
It is the
not
*4
22-18-1.1(1) (emphasis
See SDCL
add-
§§
judge)
the
who should
if
determine
State
ed)
added).
(emphasis
and 26-10-1
It is
proving
has carried its burden of
a defend-
possible
person may
therefore
that a
be
ant guilty
charged.
of the offenses
State
guilty
aggravated
found
of both
assault of
Bean,
(S.D.1978);
v.
265 N.W.2d
891
(in
22-18-1.1)
a minor
violation of SDCL
Nelson,
v.
State
129 N.W.2d
(in
and abuse of that same minor
violation
expert
54
There
testimony,
26-10-1).
Brammer,
of SDCL
v.
State
Cf.
opinions,
the form of
adduced at
trial.
(S.D.1981) (where
701 (1931)). prosecutorial The “same offense” 75 L.Ed. misconduct ar- explained gument. is not in this case. As we have If object fails to above, prosecutor’s remarks, crime of the preclud- each contained ele- he is asserting ed from Simply overlap appeal. ments. because there is an error on proof, prosecution Padgett, (S.D.1980). in the 291 N.W.2d second is not prohibited once it is established that there Affirmed. are different elements for different crimes. only felony was convicted of and MORGAN, SABERS, MILLER, existed, possibility time until such JJ., concur. verdict, came in with its that she WUEST, C.J., concurs specially. could have been convicted of two offenses. WUEST, Chief Justice (concurring spe-
Therefore, disagree reject Biays’ we cially). jeopardy” arguments. “double concur, I I point but would out that
III.
permits
SDCL 23A-6-23
two or more of
charged
fenses to be
in the same indict
PROSECUTORIAL MISCONDUCT
separate
ment in
offense,
counts for each
ARGUMENT NOT PRESERVED
*5
charged
offenses
are of the same or
FOR APPEAL.
similar character or are based on the same
great
devotes a
deal of her
act or transaction or оn two or more acts or
opening
and her
reply
brief
entire
brief to a
together.
transactions
connected
How
process
argument,
due
asserting
law
ever,
counts,
a defendant convicted on two
was denied a fair trial be
relating
single offense,
to a
may only be
improper argument by
prose
cause of
sentenced on one count. As a matter of
jury. Essentially, Biays
cutor before the
is practice,
jury
should be instructed the
claiming that the State “switched horses”
defendant
guilty
only
can be found
closing argument.
in
appears,
its
It
аt the
count
the counts are different statements
trial,
argued
that the State
that Counts I
Teutsch,
of the same offense. See State v.
separate
II
arose from
incidents. Dur
N.W.2d
See
ing
closing argument,
the second half of its
also,
(S.D.
Myott,
guments. that not We once during
did counsel make a record these closing arguments. We also note that In DELANY, Karon K. Plaintiff struction 30 notified the that “the final Appellee, argument help of counsel is intended to you understanding ap the evidence and DELANY, Defendant, Albert L. plying the law as set forth in these instruc tions, their remarks are not evidence.” added.) (Emphasis question highly We Delany, Appellant. Ben Defendant and evidence, that under the State was No. 15207. any prosecutorial impropriety and/or that it affected the ultimate results of this Supreme of South Dakota. Court repeatedly trial. This Court has held that on Briefs Oct. Considered preserve any a record must be made to 18, 1987. Decided March prejudicial, prosecutorial error on miscon sandbag by duct. remain Counsel cannot
ing silent and then come before the Su
preme contending alleged Court error for