*1 FACTS Dakota, Plaintiff of South STATE ongoing This matter arises out of an Appellee, custody dispute over Boettcher’s four-year- daughter, H.T. Boettcher old and her hus- early Custody were divorced 1986. band BOETTCHER, Kathy of H.T. was awarded to Jack and Millie Appellant. Thomas, paternal grandparents. the child’s No. 16385. proceedings ensued in Several attempted Boettcher obtain Supreme of South Dakota. Court In H.T. each instance was contin- 24, 1989. on Briefs March Considered ued with the Thomases and Boettcher was June 1989. Decided granted rights. only limited visitation 18,1988, January On Boettcher home, entered the Thomas administered a beating to Millie Thomas and force- severe fully subsequent- Boettcher took H.T. was charged ly with one count each of first assault, aggrava- degree burglary, simple taking ted assault and of an unmarried parent. minor child trial, Prior to Boettcher served state with a notice of intent to use statements at trial. The statements were related to Boettcher’s defense that she thought took H.T. because she the child being sexually grandfa- abused ther, Jack Thomas. The statements and offers of made several proceedings during the trial court reveal that:
1) in late 1985 and On various occasions mother 1986 Boettcher and her ob- a redness H.T.’s served area; 2) approaching Millie Thomas about On redness, diaper she excused it as Patrick, Gen., Atty. Diane Asst. on the rash; brief, Gen., Roger Tellinghuisen, Atty. A. 3) During a visit H.T. October Pierre, Jr., Codington Roger Ellyson, W. Boettcher, “Papa H.T. stated to Watertown, plain- County Atty., State’s for potty”; no hurt appellee. tiff and 4) occasion when Boettcher’s On one Wilka, P.C., Haverly Hagen Rita D. & H.T., watching H.T. re- aunt appellant. defendant and stating, go to the bathroom fused come”; “No, papa SABERS, Justice. 5) grandfather, H.T. referred to discretionary appeal This is a from a Thomas, “Papa”; as
pretrial suppressing order evidence of Ka- Boettcher, 6) visiting After H.T. would thy Boettcher’s re- hysterical and fearful of prosecution become burglary, fense in her as- home; childnapping. turning to the Thomas sault and We reverse. *2 2
7) early person may In 1986 or Boettcher A late 1987 not be convicted of a crime upon engaged her based conduct in which he
had
conversation with
cousin
a
of the use or threatened
expressed
because
use of
during which her cousin
upon
unlawful force
or
him
another
that she recalled
from
conversation
person,
or
which force
threatened use
in
years past which Jack Thomas was
person
thereof a
in
reasonable
his situa-
in
implicated
a sexual contact with
lawfully
tion
have been
unable to
young girls;
two
resist.
8)
foregoing
The
caused Boettcher to
Rome,
State v.
court
in
recently
This
held
being sexually
that
suspect
H.T. was
(S.D.1988)
N.W.2d 19
justifi-
426
that the
by
grandfather,
her
abused
cation/necessity
provided
by
defense
Thomas;
prosecutions
is
this section
available
un-
9)
made
con-
Boettcher
unsuccessful
(taking
der
22-19-9
of
SDCL
unmarried
Department
the
of
tacts
Social
by parent).
minor child
Services,
Attorney,
the States
a U.S.
test for
justification/necessi-
The
when a
agencies
Senator
several news
ty
under
22-5-1
properly
defense
SDCL
is
regarding
suspect-
for assistance
of fact
submissible
trier
is contained
H.T.;
ed sexual abuse of
v.
State
462
10)In
again attempted
1987 Boettcher
to
(S.D.1981):
H.T., which
obtain
of
at-
necessity
defense of
[T]he
[is]
tempt
denied in
was
December 1987.
evidence,
“when
raised
the offered
if be-
Following Boettcher’s notice of intent to
by
jury,
support
lieved
a find-
statements,
use
state
in li-
by
filed a motion
them that the offense ... was
ing
preclude
mine to
admission of
above
justified
fear of death or
reasonable
bodily
so imminent or
granted
evidence. The trial
harm
court
state’s
that,
Thus,
22, 1988,
according
ordinary
pursuant
motion.
on June
standards of
intelligence
morality,
desirability
plea bargain,
pled guilty
to a
Boettcher
avoiding
injury outweighs
of
the de-
degree burglary and state dismissed
first
sirability
avoiding
public
of
injury
charges against
the balance of the
her.
arising from the offense committed ...”
However, after issuance of
court’s de-
added).
(emphasis
Rome,
v.
State
cision in
available to
essential
necessity
jury
is a reasonable fear
ments of the defense had not been met.
imminent or
death or
court,
This
Holding
danger
harm.
that imminent
did
(S.D.1981),adopted
previ-
the rationale
exist,
not
we denied the use of the necessi-
Baker,
ously set forth
ty
proceed
defense and did not
to discuss
(Mo.App.1980)
recognized
S.W.2d
other,
subjective
more
elements of this
necessity
the defense of
should
that
involve defense.
of the
a consideration
“circumstances sur-
The defendant
in this case should be
rounding
crime
based
reason-
denied the
necessity/justifica-
defense of
Citing Baker,
person standard.”
able
we
tion since she did not meet the essential
stated:
standards of the defense.
I would affirm.
evidence,
offered
if
believed
[W]hen
finding by
jury,
*4
MILLER,
(dissenting).
Justice
escape
jus-
them that the offense of
concurred I
v. Rome
and
contin-
by
tified
a
fear of death or
reasonable
support
holding.
conclude,
ue to
its
I
how-
bodily
emergent
harm so imminent or
ever, that the
clearly
facts here are
distin-
that, according
ordinary
standards of
guishable from those in Rome.
intelligence
morality,
desirability
and
avoiding
injury outweighs
the de-
clearly
As was so
stated
this court in
sirability
avoiding
public
injury
Miller,
State v.
(S.D.1981)
(1) bodily whether harm or death is im- bodily harm that is imminent or emergent; minent or according to ordinary standards of intelli- (2) whether reasonable fear exists of gence morality. dissent, In his harm; death or accurately Chief Justice has set forth the (3) person ordinary whether a stan- adopted standards which this court has intelligence morality dards of or considering necessity. the defense of desirability avoiding think that the These standards have not been met here. danger outweighs imminent the offense sought to be introduced committed. simply defendant was too remote.1 This court has examined the Miller stan- Watkins, majority Even if the is correct in its dard in both State v. holding Rich, (S.D.1982) that the Watkins, (S.D.1988). proper childnapping charge, N.W.2d 868 fense is Within prosecution escape, logic for its totally this court held that rationale and fails when determining the threshold element applying aggravated such defense to the compelled 1. I feel Depart- note that the trial court in of Court Services in October and a findings prop- its of fact and conclusions of law Report July, ment of Social Services erly distinguished this case from Rome. The investigated (the child); possible sexual abuse of concluded, specifically trial court inter alia: concerns; noted Defendant’s but identified the undated, grandfather’s that "... the custodial (Con- perpetrator as the Defendant’s brother.” unspecified, and unconfirmed contact with two 8); permit clusion the Defendant to use "[T]o relayed ap- female children was to Defendant justification/necessity as a defense in this (1) proximately year prior one to the actions circumstances, under the aforementioned giving (Conclusion 6); rise to the crime" “[T]he sanctioning every parent be noncustodial redness in the area was observed some relitigating means of determination (IS) prior fifteen tionally, months to these actions. Addi- jury. meaningless before a It would render (the child) history had a of mild to child determinations (Conclusion diaper 7); severe rash." di- "[A] (Conclusion 9) courts." custody investigation by vorce Department charge. presented assault no proof testimony directly
offer Therefore, aggravated charge. assault necessary us to examine other
testimonial records to ascertain whether proposed defense is available.2 absolutely
There were no facts submitted
by defendant to the trial court which would
justify the use of the aggravated
defense on assault. su- Watkins,
pra; see also (S.D.1982). Nasser,
N. Dean Jr. of Nasser Law Of- fices, plaintiff appel- lant. Woods, Fuller, Comet Haraldson of DEUSCHLE,
Charles Plaintiff Smith, Shultz & for defendants Appellant, and appellees. MORGAN, Justice. COMPANY, BAK CONSTRUCTION Company, Western Insurance leg This is the final of an administrative Appellees. Defendants and (Deuschle) appeal by Charles Deuschle from a decision of the De- South Dakota No. 16369. partment (Department), of Labor Supreme compensation nied Deuschle’s worker’s Court South Dakota. claim. We affirm. Considered on Briefs Feb. 1989. pack Deuschle smoked a and a half of Decided June 1989. cigarets daily many years and had a
family history of heart disease. He was employed by Company Bak Construction (Bak) grader operator ap- as a motor proximately began three months he when suffering pains. Sunday, chest On October developed pains Deuschle chest watching while at These television home. pains subsided Deuschle was able sleep. day reported The next he for work work, again experienced and while at chest pain. pain again The chest occurred throughout day but would subside af- preliminary hearing 2. An grandmother, additionally examination of the her in kneed transcript indicates that defendant went to the the stomach and hit her on the head with a grandparents’ gained farm house and access to allegedly attempted up bottle. Defendant tie entryway guise giving under the the child grandmother tape with duct and tried to gift. allegedly a Christmas Defendant then telephone choke her with a cord. Defendant grabbed grandmother around the neck and alleged have stated several times that she sprayed strug- some substance into her face. A going "get grandmother. rid” of the gle ensued in which defendant struck