*1 Dakota, Plaintiff of South STATE Appellee, MARSHALL,
Lawrence Fredrick Appellant. Defendant No. 17715. Supreme Court South Dakota. May on Briefs 1992. Considered Decided Jan. Barnett, Gen., Atty.
Mark Joan Boos Schueller, Gen., Atty. Pierre, Asst. plaintiff and appellee. Schroeder, M. County
Patrick Minnehaha Defender, Falls, Sioux for defendant Public appellant. SABERS, Justice. appeals judgment
Lawrence Marshall his of conviction for assault. We FACTS grand jury ag-
A indicted Lawrence for as a gravated assault result of incident wife, Elizabeth, his a re- Elizabeth. witness, testified that Lawrence luctant piece her three times with a struck first testified the blow landed on She opened a two inches nose and wound about photo long. A of the wound was admitted into evidence. She testified second hit her in the of the head and blow back she there no third then testified blow. Elizabeth admitted On cross-examination part had beers and that she consumed five day wine on the of a bottle of However, denied she was incident. she morning question. on Law- drunk asked her whether she had attorney rence’s fallen and hit her face. She admitted ever long ago” she had long, once “a time on her face. fallen that he also had been Lawrence testified alleged drinking morning *2 (3)both offenses must contain common testified that Elizabeth He assault. greater so that the offense during argu- elements him scratched grabbed and be committed without she fell back cannot He shoved her ment. committing offense. floor. Lawrence hit the a chair and over police officer that he told admitted (S.D. Wall, 481 N.W.2d Elizabeth, he but denied he backhanded hitting Lawrénce testified her with charged aggravated was Lawrence had fallen occasion Elizabeth that on one 22-18-1.1(2), under SDCL which assault her nose. drunk and skinned down while provides: ted that since acknowledged that he was bodily Elizabeth manner. cluded offenses: times for instructions to Lawrence On proposed jury (2) causing cross-examination, Lawrence admit- injury not The trial court refused to cut assaulting asked the bodily injury resulting in serious (1) intentionally causing nose he instructions jury had been Elizabeth. trial court to during the on two lesser claiming that in a reckless arrested because He also fall. injury, give give in- follows: Any person who: SDCL is vated assault Any person who: dangerous weapon; causes, bodily injury to another with a (2) Attempts guilty of [*] [*] 22-18-1 [*] Jfc defines a Class [*] [*] cause, simple [*] assault. [*] felony. knowingly [*] assault [*] Aggra- n [*] concluded that the proposed offenses did [*] [*] [*] [*] [*] [*] aggravated as- elements with share (5) bodily injury causes Intentionally not lesser included sault and thus were which does hot result to another offenses.1 bodily injury; serious guilty ag- found jury The Lawrence Simple as- trial court sen- gravated assault. The a Class 1 misdemeanor. sault is years peniten- tenced Lawrence agree that the first State and Lawrence argues appeals and tiary. Lawrence “legal of the test” were satis- two factors giving the erred less- the trial court Thus, only third fied in this ease. er included offense instruction. legal issue test is at here. prong of aggravated assault
must decide whether
DECISION
22-18-1.1(2)
common
contains
under SDCL
completed
so that
it cannot be
elements
trial court should
To decide whether a
committing simple
un-
assault
without also
a lesser included offense
submit
22-18-1(5).
der SDCL
tests
satisfied—a
jury
must be
two
a factual test.
v. Ta
test and
Aggravated assault under SDCL
(S.D.1990)citing
N.W.2d
pio, 459
assault)
weapon
22-18-1.1(2) (dangerous
(S.D.
N.W.2d
Gillespie, 445
committing sim
can
committed without
1989);
Scholten,
(2) included lesser penalty for the words legislature used different the Since the must be less than that of obviously in chapter, it offense; within the same (intentional (1) bod jury number above Although sought instructions struction Lawrence 22-18-1(5)). offenses, only challenged ily injury he has under on two lesser SDCL give in- court’s decision not to trial because Lawrence Marshall’s evidence does meanings. See Border different tended explain injured Revenue, 437 not how Elizabeth her nose. Dept. Paving States (statutes must be jury, In front of the Lawrence Marshall de according to intent as their construed *3 hitting Elizabeth with a He denied a and as whole from the statute termined pushed admit that he her and made her did subject). relating to the same enactments her He fall on face. testified that on a (court may consid 2-14-11 also SDCL See previous occasion Elizabeth was drunk and or arrangement position statutes er the when fell. the skinned nose she On purpose the show intended if it tends to day question, Elizabeth that admitted recognize thereof). Although we effect consumed a amount of she considerable inter frequently are used that these words morning. alcohol that context, we changeably, in this conclude The factual test has satisfied. been intended, “intentionally” where means that acts or instances “knowingly” includes as TEST FACTUAL likely the to occur even result where a request has been made to Where though not intended.2 charge on a jury the lesser-included of- do contain common These statutes not fense, judge the duty trial is deter- may aggravated commit elements and one If evidence had mined the evidence. 22-18-1.1(2) without assault under SDCL support present would a con- been which 22- committing simple assault under SDCL give refusal charge, of a lesser to viction Therefore, 18-1(5). refusal the trial court’s requested would re- the be “simple give the assault” instruction to error_ must suffi- versible There not error. evidence, however, when read cient legal Having test has light concluded that the most favorable to defen- satisfied, necessary dant, it to justify jury is not in con- not been which would and cluding the factual test we not address that that lesser offense was committed and in fact committed. MILLER, C.J., and WUEST AMUNDSON, JJ., 406, concur. 459 408-09 Tapio, v. N.W.2d State Scholten, 445 (S.D.1990) (quoting v. State
HENDERSON, J., dissents.
(S.D.1989)).
v.
30
N.W.2d
See
State
868,
(S.D.1988)
Rich,
417 N.W.2d
870
HENDERSON,
(dissenting).
Justice
326,
Feuillerat, 292 N.W.2d
334
v.
in not
my opinion, the
court erred
In
trial
(S.D.1980).
not
This Court has
established
lesser offense instruction.
giving the
it
at the factual
fixed rule that will look
Therefore, I dissent.
legal
have
first.
addressed
test
light most favorable to
in the
Viewed
cases
v.
test first in such
as State
Good
Marshall,
could,
the evidence
so
Lawrence
(S.D.1990)
road,
591
and State
455 N.W.2d
concerned, form
jury
as the
a basis
far
(S.D.1982).
Cook,
This
N.W.2d 809
jury to
that
for the
conclude
Lawrence
can,
desires,
“legal”
apply
if it so
Court
rath-
Marshall was
“fact”
before the
test. Schmuck
test
aggravated assault.
er than
1443,
705, 109
States, 489 U.S.
S.Ct.
United
case,
(1989).
In said
argument;
flawed
it main-
First, attempts separate majority to Quoting spe- said cially concurring). from “intentionally.” Look- “knowingly” from concurrence, present writ- compare the cial Dictionary, “knowing- Law ing opinion: to Black’s ing author of this ly” is defined as: that: specially to make it clear I write consciously, intelligent- knowledge;
With determining lesser- purpose For the of willfully; intentionally. ly; instructions, evidence, included not, added). disputed must be viewed Black’s Law Dictio- (Emphasis whether light Lo and be- to the nary, (Abridged 5th ed. in the most defen- favorable knowing. Rich, hold, intent 417 N.W.2d there can be within dant. State v. Furthermore, Eakes, by citing majority majority opinion views This “knowingly.” presents light another definition in more favorable the evidence However, quote, However, exact (State). seen its when when even the verdict part of “know- “intentionally” clearly is to the light in a most favorable viewed ingly.” defendant, in this case does the evidence requested lesser-included support “knowingly” ordinarily means
The word intentional; Rich, supra. instruction. the act or omission necessary the actor intended it not least two cases where notably, at Most law, enough it is that he but to break included faced the same lesser this Court the act. intended dilemma, factual addressed the we offense 247, Eakes, 87 S.D. 206 N.W.2d test test first “assume[d] (1973), grounds, on other vacated Rich, 417 N.W.2d been met.” has 440, L.Ed.2d 310 94 S.Ct. U.S. Heumiller, supra. (S.D.1988); (1973). hurdle cleared. First Thus, abruptly hold that offense a lesser included longer is no Next, addressed. injury element is incorrect only assault is bodily injury person If a causes non-serious test, appears application of the
defy precedent. 14, 1992, Ias in the
On December dissent, writing this our Su- process of Library received a decision preme Court captioned Roy America v. United States of Star, (8th Bruno 979 F.2d Cir. One 1992). A federal trial court refused to instruct a on a lesser included offense same). (One requested Star Conviction F.2d, page 1320 of was reversed. On Appeals Eighth held: Circuit Court It that a well settled defendant any an instruction on
entitled to would included evidence if permit jury rationally to him find *5 aquit and to of (Emphasis him the offense. supplied). factual Finding that both the and met, tests have been given. assault should have been I,therefore, respectfully dissent. Dakota,
STATE of South Plaintiff Gen., Barnett, Jeffrey P. Atty. Mark Hal- Appellant, and lem, Pierre, Gen., plaintiff Atty. Asst. appellant. Douglas G. Fosheim of Fosheim Ha- EIDAHL, Catherine Defendant Julia berstick, Huron, and appel- for defendant Appellee. lee. No. 17986. AMUNDSON, Justice. Supreme Court of South Dakota. dismissing appeals an in- an order on Briefs Nov.
Considered (Ei- Eidahl charging formation Catherine 20, 1993. Decided Jan. dahl) driving or count control one having percent 0.10 of a vehicle while (DUI). more alcohol in her blood
FACTS again us after
This case is once before Eidahl, 486 remand in our facts pertinent The have 2:45 changed. approximately a.m. At