State v. Jones

appears beginning, challenges this to have or extends an conclusion Prom older and marriage provides investiga- which was doomed. Both thus a basis for further been a us, parties apparent experimentation.” in their tion shared ill-conceived and Before there therefore, contract; parties professional testimony sup- both should is no or data to equally port failure. Not all of ap- share its Connie’s statement. This statement parently conveys gas fault should be directed towards John. An that John can withhold alimony it, so, alimony, expel or and award of rehabilitative he decides to do not, record, per se, supportable. annoy purposely hypothesis on this It is Connie. Her it, clearly against and gas is reason evidence and that he can control his emit at and whim, her, an abuse of discretion. there is Straub v. to retaliate without “fur- 260, (S.D.1986); Straub, 381 investigation experimentation” ther and is (S.D. Herndon, highly questionable. Herndon v. 305 N.W.2d 917 1981). my appears Here editorial is comment: It dissertation, majority opinion, price gas going up in Sioux Falls. “genital warts” ais needless infliction of I am authorized to that state Justice pain upon parties These emotional John. joins special writing. AMUNDSON this from on or cohabited about November January then and married on 1993. any genital to have She had known of warts honeymoon went on a

before she subse- Furthermore,

quent thereto. another factual

assumption, without foundation fact in record, implications is that “were there

that John has homosexual tendencies.” Ac-

cording majority opinion, text of the Dakota, STATE of South Plaintiff not one fact establish there is this and Appellee, nothing Findings by there is of Fact judge such a base statement JONES, Appellant. Jason Defendant and upon. An intuition a fact. is not by retaliation, passing says Gas John for PEOPLE the State Intentional, says Connie. Connie. “A con- J.J., Dakota in INTERESTS thing,” says. testimony, trolled she Such Child, Concerning Minor D.C. thereon, majority opinion’s and the reliance Nos. 18172. collegiate by caused me to browse a book University Gideon E. Nelson of the of South Supreme Court of South Dakota. Florida, Biological Principles with Human (John Argued March Sons, Perspectives, Wiley 3-11 & Inc. 1980). page Noted 7 is dissertation on Sept. Decided biological knowledge

how new is attained.

Thereat, expressed scientists, it is efforts, particularly

research spe- areas of them,

cial significant interest make con- by challenging existing theory.

tribution an beginning

“The step design sig- crucial is to investigation questions

nificant for the to an- are, questions according

swer.” These treatise,

this “hypoth- stated in the form of a assumed, writer,

esis.” It is that the

intentional, theory, legal retaliation used as majority opinion,

rationale herein is in biological hypothesis.

the form of a “Hy- is,

pothesis, unproven conclusion that Barnett, Gen.,

Mark Atty. Geaghan, Frank Gen., Atty. Pierre, Asst. plaintiff appellee. Anderson,

Bruce Wagner, V. for defendant appellant. AMUNDSON, Justice. appeals

Jason Jones ju- his transfer from venile court to adult court and the subse- pursuant jury girls help three then ran back to the motel judgment quent entered M.L. second-degree rape. him of convicting verdict affirm.

We penis vagina. his into M.L.’s Jones inserted pleaded stop claims she with Jones to

M.L. put because “it hurt.” She also claims Jones FACTS attempt hand her in an over mouth July 12 and 13 of several On stop screaming. her from I.G. L.B. tes- juvenile girls a motel room Lake rented they screaming tified could hear M.L. as Dakota, Andes, party. for a These approached they the motel room. After en- ages of twelve and girls were between room, tering L.B. pushed Jones off of by oc- being Alcohol was consumed sixteen. M.L. and noticed blood “all over bed and room. The cupants and visitors motel legs.” [M.L.’s] girls had does not indicate that these record the After phoned police. I.G. then arriv- any parental supervision. motel, ing at Lake Police the Andes Officer if Mervin Durham asked M.L. she had been 1991, 18, July During afternoon of the the raped. answered Dur- M.L. “no.” Officer L.B., cousin, girls met who was with her ham the children to the Charles transferred (Jones). girls young The invited Jason Jones (Cen- County Mix Law Enforcement Center party. a and to the motel room for L.B. Jones ter) parents. to their contact room and went to the motel and L.B. Jones stepmoth- Center, drinking waiting the alcohol the started Jones’ at M.L. noticed While bleeding vagina. from purchased for them. she was the When er M.L.’s mother arrived she examined M.L. and evening progressed, four As Jones hospital take the in and decided to her to (the victim), I.G., L.B., and girls, M.L. E.H. Wagner, Dakota. The doctor ex- who South L.B. and in the motel room. I.G. remained amined discovered a laceration in the M.L. Jones, M.L., and E.H. in the motel room left approximately 2.5 vagina wall of centime- the for walked to the local bar to look I.G.’s and length. ters doctor testified at the boyfriend. After I.G. and L.B. left motel injury the was of a use of indicative room, the M.L. off and room shut TV by a penis force have caused and could been she dark. M.L. testified that re- became act. very in a forceful “wanted to mained the room because she to a pursuant Jones detained was stayed sleep.” because go to Jones behind 15, July 1991. a order on State filed motion “pass about to out.” he was August adult for to court on transfer 26, 1992, juvenile court 1991. On March sleeping that she until M.L. testified to ordered the matter transferred adult by unbuttoning up defendant woke her pending in court. the matter was While kissing pants.1 began then her her Jones court, history, psychological, social Meanwhile, stop. him to E.H. and she asked and psychiatric, dependency chemical sexual trying sleep E.H. on floor. testi- prepared. evaluations were object fied that M.L. did as contact say “no” to Jones court, started she heard M.L. After the transfer to adult kissing in time while the two one were presented case to a Charles Mix Jones’ adjacent progressed, Jury As this E.H. left an County bed. which issued indict- Grand 8, 1992, get May room I.G. and L.B. at bar. ment on 1992. On June bar, on a Upon reaching L.B. and I.G. a motion to dismiss based she told Jones filed a 23A-44-5.12 for trying to M.L. The violation of SDCL that Jones was “bone” (2) eighty day period shall one hundred 1. Jones claims the intercourse was consensual Such and that M.L. initiated contact. to run from the date the defendant commence appeared judicial on before a officer has first provides: 2. SDCL 23A-44-5.1 indictment, complaint. As information or indicted, (1) Every person informed or com- informations, indictments, complaints or or- plained against shall offense July pending on ders a new brought eighty within hundred to trial one period eighty day com- such shall one hundred computed days, such time shall be as July run from mence to provided in this section. right violation of his Sixth Amendment DISCUSSION speedy The trial court denied this trial. Issue 1 jury August A trial was held motion. denying Did the trial court err in Jones’ jury guilty found Jones 1992.3 motion to dismiss due to State’s failure to appeals. second-degree rape. Jones prosecute timely the matter in a fashion? Sixth Amendment the United

ISSUES VI, 7,§ States Constitution and Article Constitution, Dakota provide denying the trial court err Did right criminal speedy defendant with the to a due to motion to dismiss State’s First, public trial. Jones claims he has been prosecute the matter in a failure time- denied his constitutional to a ly fashion? trial because he was not a trial within by allowing err 2. Did eighty day the one hundred limitation set out made State to use statements Jones requires SDCL 23A-44r-5.1. This statute professional during counselors all disposed criminal cases be within one impeachment proceedings for transfer days eighty hundred of the defendant’s first appearance judicial his trial adult court? before a officer. argues speedy provisions trial of failing 3. trial court give Did the err to apply juvenile SDCL 23A-44-5.1 to should proposed jury Jones’ instructions? proceedings because South Dakota’s Juvenile err in denying Did trial court procedures Court provide do not a similar judgment acquit- motion for a requirement of commencing time for the formal adjudicatory proceeding. disagree. tal? We trial court in transferring Did the err juvenile It is well recognized that a pursuant Jones to adult court to proceeding prosecution SDCL court is not a for special proceeding 26-11-4? crime but a which serves (3) again granted unavailability If defendant is to tried such follow- of because of evi- mistrial, trial, ing case, a new a an order for or an dence material to the state's when the attack, appeal period such or collateral shall prosecuting attorney has exercised due dili- mistrial, to date commence run from the of the gence to obtain such and evidence there are trial, filing granting a new of the order or the grounds reasonable to believe that such evi- filing of mandate on remand. dence bewill available at the later date and (4) following periods The shall be excluded in filed; provided a written order is computing the time for trial: (d) period delay resulting The of from the ab- (a) period delay resulting of from other defendant; unavailability sence or of the defendant, proceedings concerning the includ- (e) period delay A reasonable of when the de- ing limited but not to an examination and joined fendant is trial with codefendant hearing competency period during on and as to the time whom for trial has not run and trial; incompetent is stand which he to good granting there is cause for not a sever- filing disposition pre- time from until final of ance. other In all cases the defendant shall be defendant, including of motions mo- granted may a severance he so that be tried 23A-8-3; brought § tions under motions for a him; applicable within the time limits to and venue; change of time and the consumed in (f) periods delay specifically Other of not enu- charges of other the defen- herein, only merated if the court finds that dant; they good good are for cause. motion A (b) period delay resulting of from a con- not cause need be made the one within hun- granted request tinuance at the or with the day eighty period. dred provid- consent of the defendant counsel or his (5)If brought a defendant is to not trial before approved by ed it is and a court written trial, running of the time for as extended order filed. A defendant without counsel shall periods, excluded the defendant shall be enti- not be deemed to have consented to a continu- prejudice tled to a dismissal with of the offense ance unless he has been advised court of charged required by other and offense law right speedy to the effect trial and of his consent; joined charged. to be with the offense (c) period delay resulting from a contin- appellate represent granted by request 3. Jones' uance at the counsel did not him the court prosecuting attorney the continuance at trial. if is prosecution. which have ruled this issue have refused to a criminal as an alternative Gault, 1428, 18 apply procedure their rules criminal In re 87 S.Ct. (1967). juvenile juvenile A not be proceedings. will R.D.S.M. v. In L.Ed.2d 527 See criminally (Ak.1977); for an until the Officer, held liable offense 565 P.2d take (Ariz. adult juvenile to the Myers, has been transferred 116 Ariz. 569 P.2d 1351 jurisdiction C.T.F., offense. having 1977); over the In Interest Therefore, State, is not (Ia.1982); a minor SDCL 26-11-1. Robinson 707 S.W.2d subject requirements rules of (Tex.Cr.App.1986). procedure until transferred. On criminal Naturally, the minori Jones relies on filed a June motion to dismiss Court, ty by citing position P.V. v. District 23A-44-5.1, upon a violation

based (Colo.1980). Etc., 357, 609 199 Colo. P.2d 110 of his Sixth Amendment a violation Supreme In that the Colorado Court filed to a trial. motion was by the held that trial courts were bound year after been detained almost a Jones had statutory speedy trial re and constitutional approximately seventy-one juvenile as a quirements juvenile pro as well as adult days transfer court. from his adult P.2d find the ceedings. Id. 609 at 111. We statutory rights constitutional and “The majority position persuasive much more charged persons crimes ordi- with day apply the 180 not hold that rule does applicable juvenile court narily are not juvenile long recog proceedings. have “We (1978). § proceedings.” 43.C.J.S. Infants proceeding that a nized ... are proceedings and sentences “Juvenile crime, special pro a prosecution for but a solely in the interests of the conducted best as alter ceeding that serves an ameliorative Lohnes, 26-7-11; State v. child.” SDCL prosecution.” native to a criminal C.T.F. (S.D.1982). 409, 414 N.W.2d (citations omitted). “De at 866-67 statutory Dakota law dic linquency proceedings civil in nature and are adjudicatory hearings are juvenile tates of the of Criminal provisions [] Code procedure governed be rules of civil Robinson, apply.” do not 707 Procedure eh. 15-6. 26-7A-34 under SDCL SDCL S.W.2d at rigid requirements rules and -56. The of the eighty day rule is procedure of do themselves The one hundred criminal not lend juve right speedy trial is thoroughly pursuing purpose statutory, of but the to a juve entitled to proceedings. purpose nile court The of Juvenile’s are still constitutional. proceedings punish protections. is nile court not to constitutional juvenile’s to rehabilitate correct a rather Traditionally, juvenile delinquency pro- as to avoid future confrontations behavior so special proceed- held ceedings were to be accomplish In with the law. order to subject provisions ings that were not to the many goal, juvenile weigh court must constitutions; the state or of either federal deciding different factors before whether thus, enjoy protection juveniles did not court or a matter for trial in adult transfer rights in applicable crimi- of constitutional juvenile dispose of the case court. State 1967, In how- prosecutions of adults. nal Harris, (S.D.1993); re 619 494 N.W.2d ever, Supreme Court the United States L.V.A., (S.D.1977); 864 248 N.W.2d Gault, the landmark ease of In re decided Oftentimes, 26-11-4. as in this evalua 1, 1428, 18 L.Ed.2d 527 87 S.Ct. petition is prepared must be after a tions (1967). delin- The court held that when mi filed in to determine whether the order in the de- proceedings may result quency court. nor should be transferred to adult process clause of the child due tention obviously time and These evaluations take requires states to the 14th Amendment delay. can cause rights. The certain fundamental observe following found constitu- authority split is a as to whether Gault There pro- guarantees applicable in such procedure tional the rules of criminal should right notice of juvenile ceedings: ‘The to written applied speedy trial in to ensure charge in of the hear- jurisdictions specific advance proceedings. majority The 668 counsel,

ing; right (1972), of the notification Supreme the United States Court cre appointed and to counsel case of indi- ated a four-factor determining test gency; whether an privilege accused has been self-incrimina- denied the tion; right speedy to a right to a trial under hearing and the based on the Sixth following Amendment. The testimony, sworn with the factors must be corresponding (1) (2) considered: length delay; The of the right of cross-examination.’ (3) delay; the reason for the whether the C.T.F., (1982) (cita- at 867-68 (4) right; accused asserted the whether omitted). tions prejudiced by the accused was delay. Id. Gault did state that all 530, 2192, at 92 S.Ct. at 33 L.Ed.2d at 116- rights constitutional of an adult criminal 17. None of these four factors are “either a prosecution are available delin- necessary or sufficient condition to the find Instead, quency proceeding. pre- the Court ing deprivation of a right speedy case-by-ease scribed a determination of the 533, 2193, trial.” Id. at at S.Ct. applicability rights of constitutional available L.Ed.2d at 118. juvenile proceedings predicated on fan- First, argues right that his to a treatment, tempered by the nature of the 13, 1991, triggered July juvenile hearing. Id. The Gault court stat- juvenile. he was arrested aas problem precise ed: “The is to ascertain the delay between the arrest and his trial as an impact process requirement upon of the due nearly adult was fourteen Such de months. proceedings.” 13-14, such 387 U.S. at lay presumptively prejudicial is and sufficient S.Ct. at 18 L.Ed.2d to warrant analysis. constitutional Id. case-by-case process analysis due presumptive “While such prejudice cannot applied Supreme the United States Court carry alone a Sixth Amendment claim with in In re Winship, 397 U.S. 90 S.Ct. regard out to the other Barker criteria ... it (1970), 25 L.Ed.2d 368 when it held that the part facts, mix of relevant and its process due clause extends a constitutional importance length increases with the of de beyond-a-reasonable-doubt stan — lay.” States, Doggett v. United U.S. proof adjudicatory dard of hearing. It -, -, 2686, 2693, 120 112 S.Ct. L.Ed.2d applied Pennsylva was also in McKeiver v. (1992) (citation omitted). nia, U.S. S.Ct. 29 L.Ed.2d requires second factor us to de (1971), juve when the Court held that a termine the delay. reason for this The first nile right does not have a constitutional to a eight delay months of this was caused the jury trial in delinquency proceeding. a juvenile proceedings. court’s transfer While Conspicuously from absent the United subject juvenile jurisdiction, court’s Supreme States Court decision in Gault is history, social psychological, psychiatric, the right speedy constitutional to a a dependency chemical and sexual evaluations delinquency proceeding. Supreme prepared were for hearing. the transfer All yet Court has to address this issue. Never- of these evaluations were ordered theless, this court that concludes the due court, one of which requested by was Jones. process clause of the 14th Amendment to the Approximately fifty-three one hundred days VI, United States Constitution and Article elapsed from the time the court ordered the 7,§ Constitution, pro- South Dakota first evaluation until evaluations were filed all juveniles vide right speedy with the to a with the court. The evaluations were con trial.4 ducted to aid the court in determining wheth juvenile must then determine jurisdic whether the er the We court should waive right speedy constitutional to a trial has been tion and transfer Jones to adult court. This violated in Wingo, this case. In Barker v. court outlined numerous factors which must 514, 2182, 407 U.S. 92 by juvenile S.Ct. 33 L.Ed.2d 101 be considered a court in a trans- Despite holding our that SDCL impermissible delay. 23A-44-5.1 whether there has been an apply juvenile proceedings, 855, does not Officer, to we do R.D.S.M. v. Intake 565 P.2d 858 (Ak.1977). guide determining consider it a valuable

669 L.V.A., factor is hearing. prejudice at 867. The fourth to fer Supreme have been codified at the defendant. The United Many of these factors States juvenile’s 'protect prejudice 26-11-4 to Court wrote that should be as Naturally, information takes rights. this in light sessed of the interests to a to Jones concedes he some time accumulate. designed to protect. two responsible “(i) for more than months Court three such identified interests: requested he eight-month delay because (ii) oppressive incarceration; prevent pretrial for the transfer prepare a continuance anxiety to minimize and concern of the ac hearing. cused; (in) possibility to limit the that Barker, impaired.” the defense will be 407 evaluations, other de- addition these 2193, 532, U.S. at at L.Ed.2d at 92 S.Ct. 33 request for an lays included State’s evaluation, psychological the time amended waiving juris- taken only testify witness was the called to securing indictment an diction and as on behalf. At trial there instances were adult, period as well as from indictment prosecution where witnesses testified adult, trial as an included to his which Jones’ they were to recall unable certain events. change to dismiss motion for motion prosecution lapse Jones claims the witness’ judge

judge. change The motion came memory prejudice. disagree. him caused We twenty days after the motion to dis- almost “Prejudice only when occurs ‘defense wit days and 90 the order of transfer. miss after accurately nesses are unable to recall events By judge appointed, as the time new ” past.’ distant United States v. Tra Jones, requested by mo- and ruled nakos, (10th Cir.1990) (quoting 911 F.2d 1422 dismiss, forty days than had tion more Barker, 2193, at 92 S.Ct. at U.S. transpired. 118). L.Ed.2d at “As the time between [Djifferent assigned weights should lengthens, commission of the crime and trial delay]. A deliberate [for different reasons may their witnesses become unavailable or delay attempt to order ham- sup If may memories fade. the witnesses per weighted heavily defense should be port prosecution, its case will be weak government. against the A more neutral ened, Barker, seriously so.” sometimes negligence reason such as or overcrowded at at at U.S. 92 S.Ct. 33 L.Ed.2d weighted heavily should be less courts prosecution 111. Failure of the witness’ considered since nevertheless should be memory support a does not claim responsibility the ultimate such circum- Trana Sixth Amendment was violated. See government must stances rest with kos, 1422; 911 F.2d United States v. Tercero Finally, rather than with the defendant. (9th Cir.1980), denied, F.2d cert. reason, witness, missing valid such as a 871, 66 U.S. 101 S.Ct. L.Ed.2d 809 justify appropriate delay. serve to should (1981); Mulligan, 520 F.2d United States Barker, 92 S.Ct. at (6th Cir.1975), denied, 1327 cert. 424 U.S. (footnote omitted). L.Ed.2d at 117 919, (1976); 1123, 96 47 S.Ct. L.Ed.2d 325 for responsible Jones is not all of While (5th 511 Shepherd, United v. F.2d 119 States delays, accept he must some of the these (5th Cir.), reh’g 514 F.2d Cir. 1072 denied responsibility. obviously his Jones contested 1975); ex rel. v. United States Walker to adult A review this transfer court. (2d Henderson, Cir.1974), 1311 cert. 492 F.2d indicates record a considerable amount 972, 3179, 41 417 U.S. S.Ct. denied spent scheduling preparing was for and time (1974); L.Ed.2d 1144 United States v. Hein hotly-contested hearing. transfer Addi- lein, 725, (D.C.Cir.1973); v. 490 F.2d State tionally, that Jones has not shown Morris, (1988); 749 P.2d 1379 230 Mont. delays were these deliberate. 1987). Ossana, (Utah P.2d 628 State factor, filed As for the third Jones a mo- right contemplated while to dismiss for of his to a Jones claims he suicide tion denial clearly Springfield Juvenile De- speedy trial. shows assertion incarcerated at preserve Facility. This is most unfortunate by appeal. this issue tention Jones proven has been have occurred streets California. Jones filed a motion in inordinately long because of an period prohibit limine to using any the State from delay incarceration. material contained in While before his the evaluations for substantial, proceedings adult court quite pursuant trial in adult court was it to SDCL justified. 26-7A-106.5 trial speedy “Our trial denied this mo- standards tion and stated that it recognize delay would allow the pretrial State is often both to use this impeachment pur- information for wholly justifiable_ inevitable and We at- poses if Jones took the stand. Jones now great weight tach to such considerations improperly contends he prejudiced be- balancing them the costs of impeached cause the State Jones with state- going probative forward with a trial whose professional ments he made to the counselors accuracy passage begun by of time has during the transfer proceedings. degrees question.” to throw into Doggett — -, U.S. at 112 S.Ct. at During cross-examination, State’s Jones (citations omitted). L.Ed.2d at 531 prior was asked about drug his use and the frequency of his blackouts. State also asked applying After Wingo the Barker v. fac- Jones: ‘"Wouldit be a fair statement that in tors, proven we conclude Jones has not you California lived on the streets?” Jones right he was denied his to a answered, “No, it wouldn’t.” At no time under either the Sixth Amendment of the during questioning did State refer to the VI, United § States Constitution or Article evaluations of Jones. State never used the of the South Dakota Constitution. State v. evaluations to veracity call Jones’ ques- into Stock, (S.D.1985); Barker, 361 N.W.2d 280 tion exposing prior inconsistent state- 92 S.Ct. 33 L.Ed.2d 101. ments. simply questions State asked about Alternatively, argues Jones that he items which were included in the evaluations. has been denied equal protection Nevertheless, the record indicates under the law because the one hundred object Jones did not to questioning on eighty day rule of SDCL 23A-44-5.1 did not grounds that the cross-examination violated apply to the proceedings. No au SDCL 26-7A-106. “This court repeated has thority proposition. is cited for this There ly held that predi reversible error cannot be fore, this issue is waived. Strickland v. upon cated the denial of a motion in limine Strickland, (S.D.1991). 470 N.W.2d 832 and that specifically object failure to during evidence complaint forecloses on ISSUE appeal.” issue on Gallipo, State v. Did the trial court allowing err State to (S.D.1990) (citing State v. use statements profes- made Novaock, (S.D.1987); 414 N.W.2d 299 sional during counselors pro- the transfer Olson, (S.D.1987)). 408 N.W.2d 748 Prior ceedings impeachment at his trial in claiming appeal, error on the trial court adult court? should have opportunity to rule on the During the proceedings, transfer Jones matter. Handy, State v. 450 N.W.2d 434 (S.D.1990). by many was evaluated psychologists Thus, since the trial court was evaluations, counselors. these Jones stat- never asked to applicability rule on the marijuana ed that he had daily during used SDCL 26-7A-106 the cross-examina tion, past basis in the this issue experimented properly and had is not with before this cocaine, crank, crack, and has mushrooms, acid, been waived. drugs. other street He also related that he ISSUE 3 experiences

has blackout when he drinks al- cohol. These evaluations revealed Jones had Did the trial court err in failing give to spent a considerable amount of time on the proposed jury Jones’ instructions? provides: 5. SDCL 26-7A-106 except subsequent proceedings in under this chapter adjudication, chapter disposition regarding No and related or 26-8C evidence any proceedings delinquency in 26-8A, chapter chapter under subsequent this or of the same child and in against 26-8B proceedings or 26-8C is concerning admissible a criminal the same child criminal, any proceeding, child in civil sentencing purposes. or other for give say That is that cannot a to not to consent trial court refused by defense there is evidence offered requested Jones: where following instruction and received that victim did indeed you that in order You are instructed consent, utterly that would also have to rape guilty Jones to be Jason of find force, negate or any element of coercion beyond you a degree must the second find threat. doubt mare [M.L.] that reasonable offered resistance, either before token unless than added). 922 (emphasis Id. at offered, [M.L.] resistance was or when In 1985 this court revisited the resistance you If not subjected to fear of violence. do issue, stating: doubt, find, beyond a that ei reasonable Jury in- [M.L.], The trial court in Instruction V or resistance [M.L.] ther offered jury statutory structed the as to re- violence, subjected to such fear of than quirements rape through of the use of (sic) guilty. you must find Jones Jason necessarily coercion. This included this on this court’s based instruction compulsion requirement element and the Havens, opinion in v. 264 N.W.2d 918 State resistance. of (S.D.1978). (S.D. Willis, v. State Havens, explained this court that 1985) added). (emphasis Legislature’s repeal and Dakota reen- of 22-22-1 was intended to actment “SDCL The next discussed case which rape place the statute to act modernize a victim’s v. resistance consent was State try perspective a the actor for proper Blalack, (S.D.1988). In that 434 N.W.2d 55 crime, not the victim.”6 Id. at opinion, former Chief Justice wrote: Wuest court stated: rape note a “We that a lack consent in of re by physical case need not be established legislature Although the eliminated the Jones, (citing sistance.” Id. at 60 ‘compels’as in the Model Penal word found Havens, (Minn.App.1986); Code, terminology that we feel ‘accom- ’ 922).7 264 N.W.2d at ... is to demonstrate plished sufficient compulsion. implied element Such of give In this the trial court refused gives necessity compulsion still rise “more proposed requiring instruction resistance more than token unless be- opinion based than token resistance” on its subjected is or when the victim fore offered longer no the law South Havens was violence. fear of light these deci- Dakota of more recent added). (emphasis Id. at 921 sions. the trial court instructed: Instead Later, opinion, in the the court Havens I in Count the use of allegation of stated: force, or or immediate coercion threats of great bodily harm victim appellant’s proposed first instruction rea- requires prove beyond ‘lack consent must be established the state longer alleged that the victim did simply no correct law. sonable doubt

resistance’ (2), (4) (3) provides: of this ... Aviolation of subdivision or SDCL 22-22-1 rape degree, is a Rape penetration section is in the second which is an act of sexual accom- any person plished of the follow- with under felony. Class ing circumstances: Blalack, 434 7. This in State v. statement made force, (2) Through the coercion or use (S.D.1988), again was used in State N.W.2d 55 great bodily threats of immediate and harm (S.D.1990): Gallipo, 460 N.W.2d 739 persons against the victim or other within the by apparent “Moreover, presence, accompanied victim’s of consent a victim in lack execution; power of or by showing rape solely established case is not (3) incapable, physi- If the victim is because Blalack, physical su- the victim. resistance giving incapacity, cal or mental consent compulsion pra. can be satis- The element of act; such or by showing out that the submitted fied victim (4) giving incapable If the victim is consent injury. of fear or Id." of violence any intoxicating, narcotic or anes- because of Gallipo at 743. hypnosis; agent thetic or or 672 freely voluntarily correctly jury

not consent the court instructed the on the penetration. of sexual Lack consent charged. act elements of the crime of by alleged not be need established the vic- Next, complains Jones the physical resistance. Lack consent tim’s of jury should have instructed “[t]he the by showing alleged the can be established [as word ‘force’ used in the instructions] does submitted out violence or victim offear of injuries not refer sustained once sexual added.)8 injury (Emphasis to herself penetration has not occurred.” It was error jury was also that if instructed Jones for the trial court to instruction refuse this good a belief that had reasonable and faith force reasonably explained because act engage M.L. consented to in an of sexual other the court’s instructions. It is well set Willis, penetration acquitted. he must be a may amplify tled that trial court refuse to 370 N.W.2d 193. substantially instructions which cover “Jury instructions are be con principle requested embodied in in whole, sidered as a and if the instructions Woodfork, v. struction. State N.W.2d 454 correctly when so read the law and (S.D.1990). state Additionally, 332 Jones has jury, they inform the are sufficient.” State v. any supporting authority, failed cite there Johnston, (S.D.1991). 478 N.W.2d 283 issue v. Rough fore this is waived. State statutory Instructions are on and deci- based (S.D.1989). Surface, 440 N.W.2d 746 A sional law. victim’s resistance is not listed Jones also claims the trial court rape element statute as an itself. prejudicial committed error it refused 22-22-1(2). legislative “Absent a in give following instruction: contrary, language tent the statute’s An of act sexual not con- intercourse does must be considered State v. conclusive.” rape, Schuster, (S.D.1993) initially where stitute the female con- 502 N.W.2d 568 act, Galati, penetration, sents to the (citing after State v. 365 N.W.2d 577 male, (S.D.1985) consent, her withdraws with- (citing and the Safety Consumer Product interruption penetration, out of continues Sylvania, v. Comm’n GTE 100 (1980))). against the act the will of the female S.Ct. L.Ed.2d 766 “Courts by means force. may interpret or construe statute in a plain language manner inconsistent with the proposed premised instruction is Galati, employed by legislature.” 365 authority jurisdiction. People from another at 577. Vela, Cal.App.3d Cal.Rptr. “The statute is clear on its face.” (Cal.App.1985). Schus- This court has never ter, person guilty N.W.2d at A 568. rape held that initial consent forecloses rape accomplishes and, where the actor sexual prosecution based on facts of this force, penetration “through case, the use of coer- adopt position we choose not to great bodily cion or threats of Therefore, immediate and the Vela ease. did persons harm the victim or other refusing not err this instruction. presence, accompanied within victim’s ISSUE 4 apparent power of execution.” SDCL trial court denying Did the err in 22-22-1(2). rape This section of the statute judgment motion for a acquittal? of, makes no mention and thus does not require, resistance the victim. Addition- The standard of review denial of ally, clearly judgment this court has acquittal removed resis- a motion for is whether requirement tance in recent decisions. See the State set forth sufficient evidence from Blalack, 55; Gallipo, jury 434 N.W.2d reasonably N.W.2d which the could find the reviewing After guilty and the in- charged. law defendant Bla crime lack, structions in this reviewing we conclude the trial 434 N.W.2d 59. When argues also appeal that the combination of this We consider will not this issue on because injected Willis, instruction and another instruction objection no was made at 193, trial. State capacity victim's mental issue as an which (S.D.1985). separate have should been set out in instructions. by jury, evidence, testimony, This if believed the this court consid- sufficiency of the introduced trial were in to the other evidence light most favorable the evidence ers jury’s guilty will to the verdict. guilty Id. “A verdict not be sufficient sustain the verdict. properly and all trial court denied if the state’s evidence favor- We conclude the set aside judgment acquittal. inferences drawn therefrom that can be Jones’ motion for a of able theory guilt.” Id. at 60. support a rational of ISSUE transferring in Did the trial court err to Applying principles the these pursuant Jones to court to 26- adult SDCL conclude that facts of this we 11-4? correctly motion for court denied Jones’ acquittal. of admits he en judgment It is well established transfer “[a] in with M.L. He gaged sexual intercourse hearing ‘critically important’ is a action de she to these acts. argues that consented We termining important statutory rights vitally equivalent not note that submission is juvenile.” of A.D.R., of the In Interest State, McNair 108 Nev. consent. (citations (S.D.1993) N.W.2d omit (1992). Rape can be shown when P.2d 571 ted). Jones claims the trial court abused its of fear of violence or the victim submitted out transferring discretion his case to adult Blalock, 22-22-1; injury. SDCL court. “An abuse of discretion ‘refers to N.W.2d at 60. purpose discretion to an end or exercised justified by clearly against, reason and that she told Jones to M.L. testified ” Horse, Flying evidence.’ State point stop and at one screamed. She testi (S.D.1990) (citation omit 607-08 put his over her mouth to fied Jones hand ted). also claimed she muffle her screams. M.L. Jones claims the trial court erred because tongue put it he in her bit Jones’ when probable did not show cause. mouth. argument totally lacks merit. 26-11- SDCL E.H., present who was when Jones and 4(4) specifically states: “The shall not state contact, say M.L. first made heard M.L. “no” probable required cause to to establish this, hearing E.H. to Jones. After decided Nevertheless, prosecutive show merit.” they help. girls The testified run for other juvenile probable court concluded “there is they heard M.L. scream as returned to the committed cause believe Jason Jones physician The who examined motel room. the offense.” in found a 2.5 centimeter laceration M.L. immediately provides for a vagina her after SDCL 26-11—1 factors wall of determining rape. physician The the lacera- consider whether also testified juvenile proceedings transfer adult court.9 tion was indicative of force. (2) provides: alleged pertinent part, offense was committed 26-11-4 Whether the violent, premeditated aggressive, will- in an or discretion, may, circuit court in its The manner; ful child, delinquent hearing, transfer case of a after (3) alleged offense was Whether proceeded against permit child such to be persons greater weight being property with or may with be in accordance the laws that force against persons; to offenses crimes, governing this state the commission (4) complaint. prosecutive The merit of the municipal petty offenses or ordi- violation required The not be to establish state shall petition filed nances. In such cases the under merit; prosecutive probable cause to show hearing chapter 26-8 The shall be dismissed. (5) desirability disposition The of trial and provided. shall be conducted as hereinafter proceeding offense in one entire hearing, shall At the transfer the court consid- alleged in the offense are child’s associates contrary only adults; er whether it would be to the best public to (6) of the of the retain ju- interest child or previous history of the record venile; jurisdiction over the child. following may (7) adequate protection be considered prospect factors of the determining public whether a child should be rehabil- and the likelihood of reasonable juvenile, he is have transferred: itation if found to offense, (1)The alleged alleged offense to the use seriousness of committed currently community protection procedures, and facilities and whether services waiver; community requires court. available to the juvenile required court is to consider California.” The trial court also found contrary “whether it would be to the completed fully best “Jones has not participat- or public interest of the child or of the to retain in programs ed during rehabilitative his jurisdiction over the child.” 26-11-4. placements SDCL in California because he has re- “[Tjhere in must be substantial evidence away. sisted same run and He does not juvenile support finding record to court’s appear amenable to the rehabilitation servic- contrary that it would be to the best inter- es juvenile available within the South Dakota ests of the child OR public to retain system.” attempted away Jones to walk Harris, jurisdiction over the child.” 494 from one facility. South Dakota After con- (cita- (emphasis original) in N.W.2d at 624 sidering past history, prior antisocial omitted). tions Neither the best interests of enforcement, contacts with law difficulties the child nor the best interests of the State juvenile authorities, with the California runa- Id. controlling are considerations. juvenile facilities, ways from psycho- serious logical problems, and sexual and his severe case, In correctly the trial court con drug dependency, and alcohol the trial court sidered the best interests of both Jones correctly concluded that Jones must be ordering transfer. transferred and dealt with as an adult. also considered other factors outlined in necessary 26-11—4. “It SDCL is not conclusion, ample there is evidence presented evidence be on all of these factors support the record to findings the court’s hearing, at each transfer or that reasons for transfer. The trial court did not express findings court must make on each abuse its ordering discretion in Jones’ trans- Harris, factor.” 494 N.W.2d at 624. “The Harris, fer to adult court. 494 N.W.2d at findings upon court’s of fact which its order upon is based ‘shall not be set aside review Affirmed. erroneous, clearly regard unless and due given shall opportunity to the of the trial MILLER, C.J., and WUEST and judge credibility court to of the witness SABERS, JJ., ” concur. 1). Id. (quoting es.’ SDCL 26-11 — (cid:127)HENDERSON, Justice, Retired concurs juvenile Jones contends the court’s result, finding that “Jones committed the offense aggressive, an violent and willful manner” KONENKAMP, J., having not been a clearly reviewing erroneous. After the member of the Court at the time this case presented evidence hearings, the transfer Court, was submitted to partici- did not we do not find the finding court’s pate. clearly erroneous. Jones continued to have despite sexual intercourse with M.L. her re HENDERSON, (concur- Retired Justice quest stop. put his hand over her result). ring in attempt quiet mouth an her screams. requires, “Every SDCL person 23A-44-5.1 screaming

Witnesses heard M.L. for Jones to indicted, or complained against informed “get her, yet off’ of Jones continued the brought offense shall be to trial within pushed intercourse until L.B. him off M.L. eighty one days hundred period [.] Said ” court found Jones had to run commences from the date the defen- extensive criminal record which included “nu appeared judicial dant first before a officer drug burglaries, thefts, merous motivated on the matter. In Jason Jones’ runaways several from group 13,1991; homes in starting July however, date reports relating Written and other certifying materials court shall enter an order to that ef- mental, physical, history child's findings and social fect. The order shall contain of fact may upon be considered the court.... which the court's decision is based. The (cid:127) If the findings court finds that a child should be upon held shall not be set aside review unless erroneous, proceedings proceeded against clearly criminal or regard and due shall be petty municipal for a offense or opportunity violation of ordi- judge of the trial court to competent jurisdiction, nance in a credibility court of of the witnesses.... 10,1992, he examined physician well testified begin August until did morning, bleeding appearance. Ms later that she was days after initial her over 180 profusely vaginal All of tMs from the area. time from periods of are excluded Certain rape. established forcible evidence 180-day window. Ju- 23A-44-5.1 however, appear do not proceedings, venile my opimon, Jones’

on this list. a function the criminal

proceeding 180-day subject

prosecution is guaranteed both Amendment of the United States

the Sixth VI, § and Article 7 of the South

Constitution Thus, join I cannot Dakota Constitution. In the Matter OF ESTATE respective on its rationale. majority opinion STEED, T.Mae Deceased. Rather, delayed my justification for the No. 18486. Wingo, from Barker 407 U.S. .trial arises (1972), 2182, 33 L.Ed.2d 92 S.Ct. Supreme Court of Dakota. tests, majority opimon. cited Various evaluations, try as and the debate to May on Briefs Considered adult, delays along two with months Sept. Decided Jones, requested by necessary were to insure prejudiced by rights. He was not Barker, delays. these delay, supports 2193. As Barker

S.Ct. at exception to create is no need another

there 180-day rule. trial, pre-

During blatantly violated a State psy- ruling that information from Jones’ only be admissi-

chological evaluations would impeaching

ble Jones. asked sev- State upon taken questions

eral based information Although possi- it is

from these evaluations. have

ble of the information could that some sources, through State

been found admissible diligent make that effort. State’s

failed to

argument, past drug issue use did not

was raised when Jones testified he question, mght in weak at

black on the out

best.

Although repugnant I find it that State confi

improperly utilized information from already psychological

dential evaluations court, I am inadmissible

deemed beyond a doubt

not convinced reasonable jury have a verdict

that the would returned Larson, this error. guilty absent State (S.D.1994); v. Youn (S.D.1990). Bluntly,

ger, complainant’s sug vagina tear

sizeable entry greatly influ

gests and had to forcible jury.

ence Witnesses heard her scream

ing. was blood witness testified there One legs. A complainant’s

all over the bed

Case Details

Case Name: State v. Jones

Court Name: South Dakota Supreme Court

Date Published: Sep 14, 1994

Citation: 521 N.W.2d 662

Docket Number: 18161, 18172

Court Abbreviation: S.D.