Introduction to

The South Dakota
Supreme Court

and
Case Summaries for
Oral Arguments at the
October Term of Court
to be held
October 5 through October 7, 2020
University of South Dakota
Vermillion, South Dakota

 October 5, 2020
To our Guests Observing the
October Term Arguments of the
South Dakota Supreme Court
Ladies and Gentlemen:
Your Supreme Court welcomes you to our October Term.
This brochure has been prepared as part of the continuing
effort of the Supreme Court to promote increased public knowledge
of the state judicial system. We hope it will assist you in
understanding some of the functions of the Supreme Court and
make your observation of the Court hearings a more valuable and
enjoyable experience.

Sincerely yours,

David Gilbertson
Chief Justice

2

 Table of Contents
Title

Page

Chief Justice David Gilbertson ............................................... 1
Justice Janine M. Kern ........................................................... 2
Justice Steven R. Jensen......................................................... 3
Justice Mark E. Salter ............................................................ 4
Justice Patricia J. DeVaney .................................................... 5
Clerk of the Supreme Court .................................................... 6
Supreme Court Law Clerks .................................................... 7
Summary of Court Jurisdictions ............................................. 8
Supreme Court Process ........................................................... 9
Map of Appointment Districts .............................................. 11
Courtroom Protocol ............................................................... 12
Case Summaries for this Term of Court:
Monday, October 5, 2020
Tammen and Jurgens v. Tronvold ................................. 14
State v. Rus...................................................................... 17
Koenig v. London ............................................................ 20
Tuesday, October 6, 2020
State v. Evans ................................................................. 24
State v. Leader Charge ................................................... 28
Frye-Byington v. Rapid City Medical Center ................ 32
Wednesday, October 7, 2020
State v. Vortherms ......................................................... 35
Sierra Club v. Clay County Board of Adjustment ......... 37
State v. Ostby & Olmsted ............................................... 39
Glossary of Terms ................................................................. 41
The justices have extended an invitation to the public to attend any of the
Court’s sessions. To assist with the Supreme Court visit, persons in
attendance must abide by proper courtroom etiquette. The Supreme Court
employs security methods to ensure the well-being of all who attend its
proceedings and all attending the morning court sessions will be requested to
pass through a metal detector. Backpacks and book bags should not be
brought and other bags and purses are subject to inspection and search by
security personnel.

 Chief Justice David Gilbertson
Chief Justice Gilbertson was elected to a 4-year term as Chief Justice by the members of
the Supreme Court in September 2001, was re-elected to a second 4-year term as Chief
Justice by the members of the Supreme Court in June 2005, a third 4-year term in June
2009, a fourth 4-year term in June 2013 and a fifth 4-year term in 2017. He was appointed
to the Supreme Court in April 1995 to represent the Fifth Supreme Court District, which
includes Brown, Butte, Campbell, Clark, Codington, Corson, Day, Deuel, Dewey,
Edmunds, Faulk, Grant, Hamlin, Harding, Marshall, McPherson, Perkins, Potter, Roberts,
Spink, Walworth and Ziebach counties, and was retained by the voters in the 1998, 2006
and 2014 general elections.
Chief Justice Gilbertson received his undergraduate degree from South Dakota State
University in 1972 and his Juris Doctor from the University of South Dakota, School of
Law in 1975. He engaged in private practice from 1975 until his appointment to the circuit
court bench in 1986. He served as a Circuit Judge for the Fifth Judicial Circuit from 1986
until his appointment to the Supreme Court in 1995.
He served as President of the Conference of Chief Justices for the 2015-2016 Term. He has
previously held the positions of Board Member, First-Vice President and President-elect
and has chaired various committees. He also served as Chairman of the Board of Directors
for the National Center for State Courts for its 2015-2016 Term. From 2010 to 2016 he
served as the state court representative of the Criminal Rules Committee of the United
States Courts. In 2006 he was the recipient of the Distinguished Service Award from the
National Center for State Courts for his defense of judicial independence. He was the
recipient of the “Grass Roots” Award by the American Bar Association in 2014 also for his
defense of judicial independence. He is the past President of the South Dakota Judges
Association. He also serves on the Judicial-Bar Liaison Committee of the State Bar
Association and has served as a Court Counselor at South Dakota Boys State since 1995.
Chief Justice Gilbertson and his wife Deb, have four children.

1

 Justice Janine M. Kern
Justice Kern, who was appointed to the Supreme Court on November 25, 2014, by
Governor Dennis Daugaard, represents the First Supreme Court District, which
includes Custer, Lawrence, Meade and Pennington counties. She received a Bachelor of
Science degree in 1982 from Arizona State University and a Juris Doctor degree from
the University of Minnesota Law School in 1985. Justice Kern worked in the Attorney
General’s office from 1985–1996 serving in a variety of capacities including the
appellate division, drug prosecution unit and as Director of the Litigation Division. She
was appointed a Circuit Court Judge in 1996 in the Seventh Judicial Circuit comprised
of Custer, Fall River, Oglala Lakota and Pennington Counties and served 18 years on
the trial court bench. She is a member of the American Law Institute, the National
Council of Juvenile and Family Court Judges, the State Bar Association, the Pennington
County Bar Association, the American Bar Association Fellows and past President of
the South Dakota Judges Association. She served on the Council of Juvenile Services
from 2004–2013 and on the Federal Advisory Committee on Juvenile Justice from 2004–
2008 and on numerous other boards and commissions. Justice Kern and her husband
Greg Biegler make their home in the beautiful Black Hills.

2

 Justice Steven R. Jensen
Justice Jensen was appointed to the Supreme Court by Governor Dennis Daugaard. He was
sworn in on November 3, 2017. Justice Jensen represents the Fourth Supreme Court District
consisting of Union, Clay, Yankton, Hutchinson, Hanson, Davison, Bon Homme, Douglas,
Aurora, Charles Mix, Gregory, McCook, Turner and Lincoln Counties. Justice Jensen grew up
on a farm near Wakonda, South Dakota. He received his undergraduate degree from Bethel
University in St. Paul, Minnesota in 1985 and his Juris Doctor from the University of South
Dakota School of Law in 1988. He clerked for Justice Richard W. Sabers on the South Dakota
Supreme Court before entering private practice in 1989 with the Crary Huff Law Firm in
Sioux City, Iowa and Dakota Dunes, South Dakota. In 2003, Justice Jensen was appointed as a
First Judicial Circuit Judge by former Governor Mike Rounds. He became the Presiding Judge
of the First Judicial Circuit in 2011. Justice Jensen served as chair of the Unified Judicial
System’s Presiding Judges Council, president of the SD Judges Association, and has served on
other boards and commissions. In 2009, Justice Jensen was appointed as a Judicial Fellow to
the Advanced Science and Technology Adjudication Resource Center in Washington D.C.
Justice Jensen and his wife, Sue, have three children.

3

 Justice Mark E. Salter
Justice Salter began as a member of the Supreme Court on July 9, 2018, following his
appointment by Governor Dennis Daugaard. Justice Salter received a Bachelor of Science
degree from South Dakota State University in 1990 and his Juris Doctor degree from the
University of South Dakota School of Law in 1993. After clerking for a Minnesota state district
court, he served on active duty in the United States Navy until 1997 and later served in the
United States Naval Reserve. Justice Salter practiced law with the Sioux Falls firm of Cutler &
Donahoe, where he became a partner before leaving in 2004 to return to public service with
the United States Attorney’s Office for the District of South Dakota. As an Assistant United
States Attorney, Justice Salter focused on appellate practice and became the chief of the
office’s Appellate Division in 2009. He was appointed as a Circuit Court Judge by Governor
Daugaard and served in the Second Judicial Circuit from 2013 until his appointment to the
Supreme Court in 2018. Justice Salter served as the presiding judge of the Minnehaha County
Veterans Treatment Court from its inception in 2016 until 2018. He also serves as an adjunct
professor at the University of South Dakota School of Law where he has taught Advanced
Criminal Procedure and continues to teach Advanced Appellate Advocacy. Justice Salter
represents the Second Supreme Court District which includes Minnehaha County. He and his
wife, Sue, have four children.

4

 Justice Patricia J. DeVaney
Justice DeVaney was appointed to the Supreme Court by Governor Kristi Noem to represent
the Third Supreme Court District. She was sworn in on May 23, 2019. Justice DeVaney was
born and raised in Hand County and graduated from Polo High School in 1986. She received
her Bachelor of Science degree in 1990 from the University of South Dakota, majoring in
political science, and received her Juris Doctor degree from the University of Virginia School
of Law in 1993. Justice DeVaney began her career of public service as an Assistant Attorney
General in the South Dakota Office of Attorney General, where she practiced law from 1993 to
2012. She began her practice in the appellate division, then moved to the litigation division
where she spent seventeen years as a trial lawyer, prosecuting major felony offenses as well as
representing the State in civil litigation in both state and federal trial and appellate courts.
During her tenure at the Attorney General’s Office, she also handled administrative matters
for state agencies and professional licensing boards. Justice DeVaney was appointed by
Governor Dennis Daugaard as a Circuit Judge for the Sixth Judicial Circuit in 2012, where she
presided over criminal, civil and juvenile proceedings, heard administrative appeals, and
assisted as the second judge for the Sixth Circuit DUI/Drug Court. Justice DeVaney has
served as the Secretary-Treasurer, and is currently the President-Elect, of the South Dakota
Judges Association. She has also served on various other committees and boards in her
professional capacity and in the Pierre community, where she resides with her husband, Fred,
and their three children.

5

 Clerk of the Supreme Court
Shirley Jameson-Fergel is the Clerk of the South Dakota Supreme Court. It is the function of
this office to assist the Supreme Court, and especially the Chief Justice, in the organization of
the correspondence, exhibits, and other documentation related to the formal activities of the
Supreme Court. This includes monitoring the progress of appeals; scheduling oral arguments
before the Court; recording Court decisions, orders and directives; and controlling their
release and distribution. The Clerk’s office is also responsible for the management of all legal
records of the Court, compiling appellate statistics, and documenting and disseminating
Court rules.

6

 2020-2021 Supreme Court Law Clerks
Law Clerks are employed by the Court to assist the Justices with research and writing of
the opinion on the cases under consideration. In the photograph above from left to right,
Elle Onisciuc, Law Clerk for the Supreme Court; Jennifer Williams, Law Clerk for Justice
DeVaney; Kristin Derenge, Law Clerk for Justice Jensen; Erin Schoenbeck, Law Clerk for
Chief Justice Gilbertson; Cole Romey, Law Clerk for Justice Kern; and Jennifer Doubledee,
Law Clerk for Justice Salter

7

 Summary of Jurisdictions
for the South Dakota
Court System
Supreme Court
Five justices appointed by the Governor from judicial
appointment districts are subject to statewide electoral
approval three years after appointment and every eight
years thereafter. Retirement at age seventy.
Has court terms held throughout the calendar year.
Has appellate jurisdiction over circuit court decisions.
Has original jurisdiction in cases involving interests of state.
Issues original and remedial writs.
Has rule-making power over lower court practice and
procedure, and administrative control over the Unified
Judicial System.
Renders advisory opinions to the Governor, at his or her
request, on issues involving executive power.

Circuit Court
Circuit Court services are available in each county seat.
Counties ae grouped into seven circuits, served by forty-four
judges elected from within their circuits for eight-year terms.
Vacancies filled by the Governor, who appoints replacements
from a list of candidates recommended by the Judicial
Qualifications Commission.

8

 Trial courts of original jurisdiction in all civil and criminal
actions. Exclusive jurisdiction in felony trials and
arraignments, and civil actions involving damages of more
than $12,000. Jurisdiction of less serious civil and criminal
matters is shared with magistrate courts, over which the
circuit courts have appellate review.

The Supreme Court Process
The judicial system of South Dakota has two levels. The
circuit courts are the lower courts through which criminal
prosecutions and most civil lawsuits are processed. The
South Dakota Supreme Court is the state’s highest court and
the court of last resort for parties who seek to change
adverse decisions of the circuit court. The Supreme Court is
the final judicial authority on all matters involving the legal
and judicial system of South Dakota.
When an individual involved in a legal action is convinced
that the judge in the circuit court has made an error in
deciding the law of the case, that party may bring the case to
the Supreme Court for a remedy. This is called an “appeal”
and the court hearing the appeal is called the “appellate”
court. The party bringing the appeal is an “appellant” and
the other party—usually the party who was successful in the
lower court—is the “appellee.” Most of the work of the
Supreme Court involves its appellate jurisdiction.
In an appellate action, the Court may decide to hear “oral
arguments” in the case, in which both parties are permitted
to come before the Court and give a short presentation (an
argument) to support their position in the case. There is no
trial, the lawyers do not confront each other, and the Court
does not take testimony from witnesses. Usually, the
attorneys for the parties involved stand before the Court and
speak for twenty minutes to emphasize or clarify the main
points of the appeal. The members of the Court may ask
questions or make comments during the lawyer’s

9

 presentation. After hearing the oral arguments, the Court
discusses the case and one justice is assigned to write the
opinion in the case. Other justices may write concurring or
dissenting opinions to accompany the majority opinion, all of
which are published as formal documents by the West
Publishing Company in the North Western Reporter. The
Court’s opinions are also available online at: http://ujs.sd.gov/
In addition to its appellate jurisdiction, the Supreme Court
has its own area of “original” jurisdiction.
It is also
responsible for a wide range of administrative duties
involving the personnel and procedures of the court system
and the professional conduct of attorneys throughout the
state.
The five members of the Court (four justices and a chief
justice) are responsible for making decisions as a group
regarding appellate cases and other judicial business. It is
not unusual, however, for one of the judges from the circuit
court to be assigned to temporarily sit on the Supreme Court
bench to assist in the decision-making process. Such an
appointment may occur when a justice is disqualified. A
justice may be disqualified when the justice appears to have
a conflict or personal involvement in a case, or if there is a
vacancy on the Court caused by the illness or departure of a
justice.
All of those who sit on the Supreme Court must be licensed
to practice law in the state and permanent justices must be
voting residents of the district from which they are appointed
at the time they take office. There is no formal age
requirement for those who serve on the Court, but there is a
statutory requirement that a justice must retire shortly after
reaching the age of seventy. A retired justice, if available,
may be called back to temporary judicial service in any of the
state’s courts.

10

 Under the terms of a constitutional amendment passed by
the voters in November 1980, vacancies on the Supreme
Court are filled by governor’s appointment.
This
appointment must be made from a list of two or more
candidates recommended by the Judicial Qualifications
Commission.
All Supreme Court justices must stand,
unopposed, for statewide approval or rejection by the
electorate in a retention election. For newly appointed
justices, the retention vote is held at the next general
election following the third year after appointment. After
the first election, justices stand for retention election every
eighth year.
Chief Justice Gilbertson was appointed in 1995 from District
Five. Justice Kern was appointed in 2014 from District One.
Justice Jensen was appointed in 2017 from District Four and
Justice Salter was appointed in 2018 from District Two.
Justice DeVaney was appointed in 2019 from District Three.
Chief Justice Gilbertson was retained in the November 2014
general election.

11

 In the Supreme Court
of the
State of South Dakota
Courtroom Protocol
The following list of Do’s and Don’ts was prepared for the
benefit of anyone attending one of the Court’s sessions. Your
cooperation in observing proper Courtroom protocol will
assure that the lawyers presenting argument before the
Court will not be unduly distracted and that the proper
respect for the judiciary will be maintained.
Your cooperation is appreciated.
DO
•

Remove caps/hats before entering the Courtroom

•

Enter the Courtroom prior to the commencement of an
argument

•

Stand when the Justices enter and leave the Courtroom

•

Listen attentively

•

Turn cell phones off before entering the Courtroom
DO NOT

•

Bring food, drinks, cameras or recording equipment into
the Courtroom

•

Enter or leave the Courtroom during the course of an
argument

•

Chew gum or create any distraction

•

Engage in any conversation once an argument begins

12

 Supreme Court of South Dakota
October 2020 Term
Nine cases are scheduled for oral argument during this term.
For these cases, attorneys are permitted to appear before the
Court to emphasize certain points of the case and respond to the
Court’s questions.
In addition to these oral arguments,
numerous other cases will be considered by the Court during this
term without further argument by the attorneys. These cases are
on the Court’s “non-oral” calendar.
After hearing oral
arguments each day, the Court will consider several non-oral
cases.
Case Summaries
The case summaries on the following pages have been prepared
only for the cases scheduled for oral argument. The case
number, date and order of argument appear at the top of each
summary.

13

 #29114,
#29138

MONDAY, OCTOBER 5, 2020 – NO. 1
Tammen and Jurgens v. Tronvold

On August 1, 2016, shortly after 6:00 p.m., Gerrit
Tronvold was driving southwest on Grey Goose Road in an
extended cab pickup towards the controlled “T-intersection”
with South Dakota Highway 1804. Tronvold failed to yield the
right of way, driving through the stop sign and turning left onto
Highway 1804. As he crossed the oncoming lane of traffic, he
did not see a motorcycle, ridden by Randall Jurgens and Lisa
Tammen (Plaintiffs), in the oncoming lane. The Plaintiffs
crashed into the side of Tronvold’s pickup truck near the rear
bumper, sandwiching the Plaintiffs’ left legs between the
motorcycle and the truck bumper. Both suffered life-threatening
injuries, which included amputation of their left legs above the
knee. Tronvold was not injured.
On the evening of the accident, Tronvold, a “rookie
member” of the Pierre Volunteer Fire Department (PVFD), was
traveling the 10 miles from his home to the Pierre fire station to
attend a monthly meeting scheduled for 6:30 p.m. Tronvold was
not responding to an active fire call or emergency at the time of
the collision. Although it is disputed whether attending the
monthly meeting was mandatory, Tronvold was required by City
ordinance to attend all PVFD meetings.
As a result of the accident, Plaintiffs brought a
negligence suit against Tronvold individually, the City of Pierre
(City), and the PVFD alleging vicarious liability under the
doctrine of respondeat superior. The City had a governmental
liability and auto policy through its participation in the South
Dakota Public Assurance Alliance (SDPAA), a government risksharing pool. The governmental liability coverage agreement
contained an
14

 Exclusion precluding coverage for “Fire Department, Fire
Fighting activities or Fire Department vehicles.” The PVFD
was insured through a policy from Continental Western
Insurance Company providing coverage for general liability and
automobile property damage. The policy contained an
Endorsement retaining governmental immunity to the extent
available under state law.
The PVFD and the City moved for summary judgment
alleging they were not vicariously liable for Tronvold’s actions
under the “going and coming” rule which provides that an
employee is not acting within the scope of employment while
commuting back and forth to work. Additionally, they argued
they had governmental immunity from suit. In response,
Plaintiffs asserted that the PVFD’s transportation requirements
for its volunteer firefighters placed Tronvold within the
“required vehicle exception” or the “special errand” exception to
the “going and coming” rule. They further alleged that the City
and PVFD waived governmental immunity to the extent of their
liability coverage. The circuit court granted summary judgment
to the City and PVFD concluding Tronvold’s commute was not
within the scope of his agency and that the City and PVFD were
immune from suit. The court held, however, that if the agency
determination was reversed there would be a question of fact for
the jury whether Tronvold’s actions were grossly negligent
precluding the immunity available for nonprofit fire departments
under SDCL 20-9-45.
Plaintiffs raise the following issues on appeal:
1.

Whether the circuit court erred in failing to apply
one of the exceptions to the “going and coming”
rule, which would place Tronvold’s acts within
the scope of his employment or agency, thus
rendering the City and PVFD vicariously liable
for his actions.
15

 2.

Whether the circuit court erred in holding that
the City of Pierre and the PVFD did not waive
governmental immunity by obtaining liability
insurance.

3.

Whether the PVFD’s Governmental Liability
Endorsement is void against public policy
because it defeats the intent of SDCL 21-32A-1
and is unfair to injured third-parties.

Mr. Edwin E. Evans, Mr. Mark W. Haigh, and Mr. Tyler W.
Haigh, Attorneys for Appellant Lisa A. Tammen
Mr. John R. Hughes and Mr. Stuart J. Hughes, Attorneys for
Appellant Randall R. Jurgens
Mr. Michael L. Luce and Ms. Dana Van Beek Palmer, Attorneys
for Appellee Pierre Volunteer Fire Department
Mr. Robert B. Anderson and Mr. Douglas A. Abraham,
Attorneys for Appellee City of Pierre

16

 #29165

MONDAY, OCTOBER 5, 2020 – NO. 2
State v. Rus

On June 25, 2019, Les and Arla Crago’s mailbox was
damaged. Mr. Crago notified the authorities. He provided
Chad Rus’s name as the individual he believed was responsible
for the damage. Unbeknownst to Mr. Crago, Rus called and left
a voicemail on Mr. Crago’s cellphone. In the message, Rus
notified Mr. Crago that, due to a flat tire, he drove into the
couple’s mailbox. Rus offered to replace the mailbox.
Acting on Mr. Crago’s belief, law enforcement officers
drove to Rus’s residence and observed a vehicle with damage to
its front passenger side parked in the driveway. To determine
Rus’s location on the evening of the incident, law enforcement
officers requested surveillance videos from a nearby bar and
elevator. On July 1, 2019, officers interviewed Rus. Rus
admitted to hitting the Crago’s mailbox,but denied driving
under the influence.
On July 11, 2019, the Aurora County State’s Attorney filed a
complaint charging Rus with misdemeanor counts of: (1)
driving a motor vehicle while under the influence of an
alcoholic beverage (SDCL 32-23-1(2)); (2) reckless driving
(SDCL 32-24-1); and failure to report an accident (SDCL 3234-6). A detailed report of the law enforcement officers’
investigation was attached to the complaint.
Based on the complaint and report, the Aurora County
magistrate judge issued a felony warrant for the arrest of Rus.
On July 25, 2019, officers arrested Rus. Later that day, Rus was
released on bail. On September 6, 2019, Rus moved for a
preliminary hearing. In the alternative, he requested the circuit
court to hold that, if he is convicted of the charged
misdemeanors, he will only face misdemeanor, not felony,
punishment.
17

 Under SDCL 32-23-4, if a defendant is convicted of a
third driving under the influence (DUI) offense, the defendant’s
punishment is enhanced from a misdemeanor to a class 6 felony.
Under SDCL 23A-4-3, a defendant “charged with an offense
punishable as a felony” is entitled to a preliminary hearing;
unless, the defendant waives his or her right to the hearing. At a
preliminary hearing, the court determines whether an offense
occurred and whether probable cause exists to believe the
defendant committed the offense. It provides the court an early
opportunity to dismiss groundless accusations.
Rus, prior to this case, received two separate convictions
for DUI on November 1, 2016 and February 1, 2011. Rus
claims he is entitled to a preliminary hearing. He argues, if
convicted of the charged DUI, he may receive a felony
punishment under SDCL 32-23-4. A preliminary hearing, he
argues, will properly inform him of the charges he faces and the
charges’ maximum punishments.
On September 25, 2019, the circuit court held a hearing.
The court denied Rus’s motion for a preliminary hearing and his
alternative request to limit his punishment to a misdemeanor.
The court reasoned, at this stage of the proceeding, Rus’s
charged offense was a misdemeanor, since the State had not
filed a supplemental information enhancing the offense’s
punishment to a felony. Therefore, he could not receive the
statutory rights accompanying a felony, which include a
preliminary hearing.
On October 22, 2019, the State filed a supplemental
information informing the circuit court that the charged offense
was Rus’s third DUI offense. The State notified the circuit
court that if Rus is found guilty of the charged DUI offense, Rus
is eligible for the DUI sentence enhancement. The
enhancement will elevate his offense from a misdemeanor to a
class 6 felony.
18

 Rus appealed the circuit court’s ruling. The
South Dakota Supreme Court granted Rus’s petition for
appeal from the intermediate order.
Rus raises the following issues on appeal:
1.

Whether a defendant is guaranteed a preliminary
hearing when charged with an offense punishable
as a felony.

2.

Whether denial of a preliminary hearing, when
charged with an offense punishable as a felony,
deprives a defendant of due process of law
guaranteed by the U.S. Constitution, Sixth
Amendment (through the Fourteenth
Amendment’s ‘Due Process’ Clause) and Article
VI, § 2 of the South Dakota Constitution.

Mr. Steven J. Bucher and Mr. Bert S. Bucher, Attorneys for
Appellant Chad Rus
Mr. John R. Steele and Ms. Rachel Mairose, Attorneys for
Appellee State of South Dakota

19

 #28916

MONDAY, SEPTEMBER 30, 2019 – NO. 3
Koenig v. London

On January 7, 2015, Donald London shot and injured
Trooper John Koenig of the South Dakota Highway Patrol. The
incident occurred during a standoff with law enforcement
officers at a family member’s farmhouse in rural Kimball, South
Dakota, where Donald was staying.
Donald, forty-two years old at the time of the shooting,
was previously diagnosed with paranoid schizophrenia and had
sought treatment. Donald’s thoughts could be detached from
reality and included his belief that his deceased wife was, in fact,
alive and being held captive by law enforcement or a foreign
intelligence agency.
In the days leading up to the standoff, officers had grown
increasingly concerned with what they believed to be Donald’s
erratic and dangerous behavior. On the evening of January 5,
law enforcement was contacted by a local bar due to Donald’s
involvement in an altercation. Officers later found Donald,
intoxicated and hysterical, walking on a county road in bitter
cold temperatures after his truck broke down. They released
him to his father, Michael London.
The next morning, January 6, Donald’s mother, Bonita
(Bonnie) London, called law enforcement dispatch, requesting
an ambulance be sent to the farmhouse after receiving a
troubling call from her daughter about Donald’s condition.
Bonnie was out of town caring for her mother. Officers went to
the farmhouse and recovered several weapons after resolving an
armed confrontation with Donald in the basement. They
confiscated three of the weapons and secured the others in a gun
safe, providing the key to Michael. Officers elected not to seek
a mental health hold based on Michael’s agreement to obtain
immediate mental health assistance for his son. Donald was
20

 evaluated by a mental health provider in Mitchell and returned
to the farmhouse later that day.
The standoff with officers the following day, January 7,
began with a law enforcement response to Donald’s threat to
shoot two local law enforcement officers. As officers from
multiple agencies arrived at the farmhouse, they established a
perimeter. Initially, Bonnie was at the farmhouse with Donald
and Michael, but left and was detained by officers.
Later, during the actual standoff, Donald left the
farmhouse armed and began walking toward an officer’s
position when Trooper Koenig, stationed nearby, intervened and
gave Donald commands to drop his weapon. Donald initially
complied but returned to reclaim the weapon and then began
firing, eventually hitting Trooper Koenig in the left shoulder
blade, seriously injuring him.
Donald pled guilty but mentally ill to three counts of
aggravated assault on a law enforcement officer. One count
related to Trooper Koenig’s shooting and the other two involved
Donald pointing a firearm at several other officers who were not
injured. The sentencing court imposed sentences for the three
offenses totaling thirty years in prison.
Once the criminal proceedings were completed, Trooper
Koenig and his wife, Karen (the Koenigs), brought this civil
action against Donald and Bonnie. Michael passed away ten
months after the shooting. The Koenigs originally named
Michael’s estate as a defendant but later dismissed their claim
against the estate.
The Koenigs asserted a general negligence claim against
Bonnie and further alleged that she negligently supervised
Donald and negligently entrusted him with firearms. They claim
specifically that Bonnie breached a legal duty by falsely telling
Donald hours before the standoff began that the Bureau of
21

 Alcohol, Tobacco, Firearms, and Explosives (ATF) were
coming to the farmhouse, causing Donald’s mental health to
spiral out of control. The Koenigs also contend that Bonnie
assumed a duty to supervise Donald’s conduct and effectively
entrusted him with weapons.
Bonnie moved for summary judgment on the negligence
claims, and the circuit court granted the motion. The court
found that Bonnie did not owe a legal duty to the Koenigs
because she lacked sufficient control over her emancipated adult
son and because his act of shooting Trooper Koenig was not
foreseeable. The circuit court also determined that Bonnie did
not assume a duty to supervise Donald and that she did not have
control over the firearms she was alleged to have entrusted to
Donald.
The Koenigs raise the following issues on appeal:
1.

Whether the circuit court erred when it added
a “duty to prevent a third party’s
misconduct” as an element of Trooper
Koenig’s negligence claim against Bonnie
for Bonnie’s own negligence.

2.

Whether the circuit court erred when it
determined that Donald’s aggressive
behavior toward law enforcement was not
foreseeable after construing the disputed
facts against the non-moving party, Trooper
Koenig.

3.

Whether the circuit court erred when it
dismissed Trooper Koenig’s negligent
supervision claim against Bonnie.

22

 Mr. Derek A. Nelsen, Mr. Eric T. Preheim, and Mr. Andrew
T. Fick, Attorneys for Appellants John Koenig and
Karen Koenig
Mr. Richard L. Travis and Mr. Aaron A. Fox, Attorneys for
Appellee Bonita London

23

 #29095

TUESDAY, OCTOBER 6, 2020 – NO. 1
State v. Evans

Harry David Evans and S.B. met through an online
dating site in 2016. At that time, she was going through a
divorce and was looking for companionship and help with taking
care of her large property in Pennington County where she
raised horses. Their relationship eventually turned romantic,
and Evans spent many nights at S.B.’s home while he continued
to help take care of her property.
In December 2016, S.B. attempted to end their
relationship because Evans was controlling, possessive, and
threatening. He had at least twice threatened to kill her and then
himself, and S.B. had called law enforcement multiple times
because of Evans’s conduct. However, she did not completely
sever her ties with Evans and continued their off and on intimate
relationship until approximately July 2017, when, on advice
from law enforcement, S.B. obtained a protection order against
Evans. By this time, S.B. had moved to a new property in
Custer County near Hermosa. Despite the protection order,
Evans continued to contact her. He would leave treats in S.B.’s
mailbox, farm related items at the end of her driveway, and love
letters near her vehicle. He also sent her threatening text
messages. S.B. believed Evans was stealing her mail and was
going through her trash. She reported this to law enforcement,
who set up game cameras around S.B.’s property in August
2017.
On the evening of September 5, 2017, after receiving
what she perceived to be a threatening message from Evans,
S.B. notified law enforcement. Around 11:30 p.m., Marshal
Daggett responded and searched her property and home, finding
no signs of Evans. After the Marshal left, S.B. took a bath, had
a glass of wine, took a sleeping pill, and fell asleep around 1:00
a.m.
24

 Before the sun rose, S.B. awoke to the sound of Evans’s
voice beside her in bed. She tried to get away, but Evans
overpowered her, forced sleeping pills into her mouth, and put
duct tape around her mouth, hands, arms, and legs. S.B. testified
that Evans wrapped her in a blanket and dragged her down the
stairs and outside into her vehicle. S.B. explained that she
blacked out and when she awoke, she was back at her house.
She described how Evans then cut away some of the duct tape
and raped her while her arms were still bound. Later that
morning, Evans forced S.B. to give him a ride to his truck he
had parked down the road. S.B. returned home, and shortly
thereafter, the Marshal arrived to check on her. She told him
what had happened and was taken to the hospital for a sexual
assault examination while law enforcement investigated the
incident.
During the investigation, state and tribal law
enforcement located Evans at the Prairie Winds Casino and
Hotel on the Pine Ridge Indian Reservation. State law
enforcement obtained warrants from a state circuit court judge
for Evans’s arrest and to search his vehicle and hotel room.
After Evans was arrested, a grand jury indicted him on six
counts, including rape, kidnapping, aggravated assault, and
burglary. Evans pled not guilty.
Prior to trial, the State filed a notice of intent to admit
other act evidence, namely testimony from Evans’s ex-wife
about Evans’s threatening behavior toward her in 1993 and
1994. Over Evans’s objection, the circuit court found the
evidence relevant and admissible to prove motive and common
plan.
Evans filed a pretrial motion to suppress evidence seized
as a result of law enforcement’s entry into and search of his
hotel room and the search and seizure of his vehicle that had
been parked outside the hotel. Evans, a non-Indian, asserted that
state law enforcement lacked jurisdiction to search and seize
25

 property located on an Indian reservation, despite the fact that
the crime being investigated occurred off the reservation. The
court denied the motion to suppress.
At the beginning of voir dire, 24 prospective jurors of the
55-member jury panel raised their hands when the circuit court
asked whether the length of the trial or nature of the charges
would “make it impossible for you to sit and be fair and
impartial jurors.” The court then recessed in chambers with
counsel, Evans, and the court reporter to individually address
each juror’s concerns. After brief questioning, almost entirely
by the court, and without either counsel raising a challenge for
cause, the court dismissed 20 of the 24 prospective jurors.
Neither counsel objected to this procedure, and after jury
selection continued in the courtroom, both counsel for Evans
and the State passed the jury for cause.
During the five-day trial, multiple witnesses testified,
including S.B., Evans’s ex-wife, the sexual assault nurse
examiner, and multiple law enforcement officers. Evans’s
theory of defense was that he and S.B. were still engaged in a
consensual, sexual relationship on the date of the incident and
that S.B. claimed he raped her to cover up her decision to allow
Evans into her home in violation of the protection order.
The jury found Evans guilty on all counts. Evans
appeals, asserting the following issues:
1.

Whether the circuit court abused its discretion in
admitting other act evidence from Evans’s exwife.

2.

Whether the circuit court failed to follow the
statutory procedures during jury selection such
that a structural error or other reversible error
occurred.
26

 3.

Whether the court erred in denying Evans’s
motion to suppress.

4.

Whether the court abused its discretion in
admitting Special Agent Globe’s testimony that
the physical evidence corroborated S.B.’s story.

Mr. Jason R. Ravnsborg, Attorney General, and Quincy R.
Kjerstad, Assistant Attorney General, Attorneys for
Appellee State of South Dakota
Mr. John R. Murphy, Attorney for Appellant Harry David Evans

27

 #29159

TUESDAY, OCTOBER 6, 2020 – NO. 2
State v. Leader Charge

In April 2019, a jury found Sean Leader Charge guilty of
two counts of sexual contact with a child under 16 (SDCL 2222-7). The victim is the sister of Mr. Leader Charge’s
girlfriend. On various occasions throughout 2018, Mr. Leader
Charge touched the ten-year-old victim’s chest, buttocks, and
vaginal region over her clothing.
The case was brought before the Honorable John L.
Brown in White River, South Dakota. Ms. Brandis, the City’s
Finance Officer, was a potential juror for the case. During the
jury selection process, Ms. Brandis, Judge Brown, and Mr.
Leader Charge’s attorney, Mr. Love, partook in the following
exchange:
MR. LOVE: Is there anybody who has, you know, a
plane ticket to Maui tomorrow morning, you know, some other
pressing reason that makes you think, you know, I just cannot
sit here in this courtroom for the next day and a half, two days
possibly and not have that on my mind? . . .
MS. BRANDIS: I’m the city finance officer and I am
the only person in my office.
MR. LOVE: Okay.
MS. BRANDIS: I got water bills, payroll. I know both
sides of the family and I just don’t feel I can be a fair juror.
MR. LOVE: So it sounds like the city of White River is
going to stop if you’re -MS. BRANDIS: Yeah, it will. These people won’t get
their water bills.
28

 MR. LOVE: Well, you know, don’t say that. They
might ask me to keep you all week. But it sounds like it would
put you quite a bit behind in your job?
MS. BRANDIS: Yes, it would, sir.
MR. LOVE: And in addition, something we haven’t
really gotten to yet but you said you know the family?
MS. BRANDIS: Yeah. I deal with them when they
come in my office.
MR. LOVE: Is there anything about your interaction
with the family that you think would make it difficult for you to
be here today?
MS. BRANDIS: The victim comes through my alley
because I live right across from the high school. She goes to the
playground and I visit with her. I just don’t feel I can do this.
MR. LOVE: You don’t think you could be fair -MS. BRANDIS: No.
MR. LOVE: -- and judge this case based just on what
you hear here today?
MS. BRANDIS: Right.
MR. LOVE: I guess I would ask that Ms. Brandis be
excused, Your Honor.
THE COURT: Ma’am, I typically don't grant excuses
for job-related reasons. Obviously, everyone is busy and I
appreciate that there are time frames to meet. We’ve got people
here that are in the middle of calving, important issues. There’s
always an excuse for that. I guess what my question really is is
we are trying to find a jury that can be fair and impartial and
29

 judge the facts of the case based solely on what comes in
through the evidence presented here in court. I know that a job
like you have, you’re the only one. It would certainly be
inconvenient for you. But you understand that the Defendant
and the State are entitled to have a fair and impartial jury and is
there any reason why you feel you cannot listen to the evidence
here -MS. BRANDIS: No -THE COURT: -- and present a fair verdict?
MS. BRANDIS: -- I can’t.
THE COURT: I’m going to deny the request to excuse
then at this point. Thank you.
MR. LOVE: Good try . . . . (The attorney continued
questioning potential jurors about work conflicts.)
Mr. Love passed the jury, containing Ms. Brandis, for
cause. The parties each had ten peremptory challenges. Neither
party used a challenge on Ms. Brandis resulting in her
placement on the jury. After a two-day trial, the jury found Mr.
Leader Charge guilty of both counts.
Mr. Leader Charge filed a motion for new trial on the
grounds of jury misconduct and irregularity. Circuit courts have
broad discretion when determining juror qualification. To
reverse a judgment of conviction, the circuit court must have
committed an error, and the error must have caused a material
prejudicial injury. Under SDCL 23A-20-13.1, a prospective
juror may be dismissed for cause when, among other reasons, a
prospective juror: holds substantial knowledge and an opinion
of the case; or is bias against a party, witness, or attorney; or
cannot try the issue impartially.

30

 At the motion for a new trial hearing, a witness testified
that, prior to the trial commencing, she discussed the case with
Ms. Brandis. Mr. Leader Charge’s girlfriend also testified that
she spoke with Ms. Brandis, prior to the trial, about the case;
and, during the trial, she observed Ms. Brandis by reading her
lips saying, “I don’t want to do this.” Ms. Brandis testified that
she had a short conversation with Leader Charge’s girlfriend,
prior to becoming a juror, but did not speak with her during the
trial. She also testified that she had not spoken to the testifying
witness about the case; she knew Mr. Leader Charge, but not
personally; she only considered evidence presented at trial; she
did not remember the voir dire process; and she did not know
the victim in the case. The jury’s bailiff did not observe any
juror making inappropriate contacts.
The circuit court found the jury did not consider
extraneous information during deliberations; no prejudice
occurred due to Ms. Brandis’s prior knowledge of the case; and
any presumption of prejudice as to knowledge of the case, a
juror’s ability to be fair and impartial, or inappropriate contacts
between a juror and a witness were rebutted and shown to be
harmless. The circuit court denied Mr. Leader Charge’s motion
for a new trial.
Mr. Leader Charge appeals his conviction and sentence
alleging the sole issue:
1.

Whether the circuit court erred by denying the
removal of juror thirty-one Ms. Brandis for cause.

Mr. Jason R. Ravnsborg, Attorney General and Ms. Brigid C.
Hoffman, Assistant Attorney General, Attorneys for
Appellee State of South Dakota
Mr. Robert T. Konrad, Attorney for Appellant Sean Leader
Charge
31

 #28952, #28969

TUESDAY, OCTOBER 6, 2020 – NO. 3

Frye-Byington v. Rapid City Medical Center
Jodie Frye-Byington sought medical care at Rapid City
Medical Clinic (RCMC) from 2008 to 2014 for complaints of a
constant cough, hoarseness, neck pain and swelling, difficulty
breathing, and chest pain. Several radiographic images taken
during this timeframe revealed a mass in her chest, but Jodie
asserts she was not initially told of its presence. Over time, the
mass grew to about seven centimeters in length, and doctors at
the Mayo Clinic removed the mass in September 2014. The
mass, known as a mediastinal mass, was determined to be
benign thyroid tissue that regrew after doctors removed her
thyroid prior to 2008.
In July 2016, Jodie commenced this action against
RCMC and three of its physicians alleging malpractice for
misdiagnosing her condition and failing to inform her of the
mass. Jodie’s principal claim was that Dr. Robert Burgess, an
Ear, Nose and Throat Specialist (ENT), was negligent for not
telling Jodie about the mass in 2008 when it was first seen on a
CT scan. Her claims against Dr. Michael Rafferty and Dr. Gary
Welsh, both family practice physicians, were that they similarly
failed to advise her of the mass. Jodie’s expert witness, a family
practice physician, concluded that the standard of care for a
physician required disclosure of the mass to the patient in all
instances.
Dr. Burgess moved for summary judgment, arguing that
Jodie’s claim against him was time-barred under South Dakota’s
two-year medical malpractice statute of repose. The circuit
court denied Dr. Burgess’ motion based upon the continuing tort
doctrine, which provides that an action may be deemed timely
even though the civil wrong began outside of the repose period it
if continues until a point within the repose period.
32

 During the six-day jury trial, the Appellees objected to
Jodie’s expert witness’ testimony, alleging some of her opinions
were not previously disclosed. The Appellees also objected to
Jodie’s effort to support her malpractice allegations by claiming
additional negligent conduct by an RCMC doctor not named in
her suit. The court overruled these objections. Additionally,
Jodie’s counsel asked to call two rebuttal witnesses after the
defense rested, arguing they were necessary to introduce two
documents to rebut Dr. Burgess’ testimony that he had not
previously seen the documents. The court denied the request,
explaining that Jodie’s counsel should have offered the
documents as exhibits in its case in chief.
At the close of Jodie’s case and again the at the close of
evidence, the Appellees moved for judgment as a matter of law
arguing Jodie’s expert failed to produce testimony establishing
Dr. Burgess’ standard as an ENT specialist was not met. In
addition, the Appellees moved for judgment as a matter of law
contending Jodie’s expert had failed to provide testimony
sufficient to support the malpractice claim against all of the
named providers. The court denied these motions and also
denied Jodie’s proposed jury instruction describing RCMC’s
liability for the negligent conduct of its medical providers.
The jury returned a verdict in favor of RCMC and the
named physicians. Jodie raises the following issues on appeal:
1.

Whether the circuit court abused its discretion
when it denied her request to call two rebuttal
witnesses.

2.

Whether the circuit court abused its
discretion when it denied her proposed
jury instruction.

33

 By notice of review, the Appellees also raise the
following additional issues:
1.

Whether the circuit court erred when it denied Dr.
Burgess’ motion for summary judgment.

2.

Whether the circuit court erred when it denied Dr.
Burgess’ motion for judgment as a matter of law.

3.

Whether the circuit court erred when it denied the
Appellees’ motion for judgment as a matter of
law.

4.

Whether the circuit court abused its discretion
when it allowed expert testimony alleged to be
previously undisclosed.

5.

Whether the circuit court abused its discretion
when it allowed evidence of an unnamed
provider’s alleged negligent care to be attributed
to the named defendants.

Mr. R. Shawn Tornow, Attorney for Appellant Jodie M. FryeByington
Mr. Lonnie R. Braun, Mr. Gregory J. Bernard, and Ms.
Kimberly Pehrson, Attorneys for Appellees Rapid City
Medical Center, LLP, Gary L. Welsh, M.D., Robert C.
Burgess, M.D., and Michael C. Rafferty, M.D.

34

 #29070

WEDNESDAY, OCTOBER 7, 2020 – NO. 1
State v. Vortherms

In the early morning hours of Saturday, July 1, 2017,
Shannon Fischer and his girlfriend, Anna Mason, were driving
home in their Subaru from the Luverne, Minnesota drive-in
theater. Fischer’s eleven-year-old daughter, S.F., was sleeping
in the backseat.
Near the Brandon exit on I-90, Defendant Joshua
Vortherms attempted to pass the Subaru in his white truck.
Vortherms had consumed alcohol before driving. He was
travelling at approximately 95 miles-per-hour, seconds before he
lost control of his vehicle and crashed into the Subaru. Both
vehicles veered into the ditch, and the Subaru flipped over onto
its passenger side.
Fischer and Mason both died at the scene due to multiple
blunt force trauma. S.F. was pinned in the backseat of the
Subaru. First responders removed her from the vehicle. She
was treated at the hospital for a broken leg. Vortherms suffered
a gash to his head and was bleeding heavily when officers
arrived. He was taken by ambulance to Avera McKennan
Hospital in Sioux Falls.
At the hospital, a state trooper ordered a draw of
Vortherms’s blood. The trooper did not obtain a search warrant
because he did not believe he had time before Vortherms went
into surgery. Hospital staff drew Vortherms’s blood
approximately one hour after the accident was first reported to
law enforcement. The draw produced a BAC of .159.
Vortherms was charged with vehicular manslaughter and
driving under the influence. Vortherms filed a motion to
suppress the blood draw prior to trial, arguing that a warrant was
required for the blood draw under Missouri v. McNeely, 133 S.
35

 Ct. 1552 (2013). The circuit court denied the motion, holding
that the draw was permitted under the exigent circumstances
exception to the Fourth Amendment. A jury convicted
Vortherms on vehicular homicide and driving under the
influence. The court sentenced Vortherms to fifteen years in the
state penitentiary.
Vortherms appealed and raises the following issues:
1.

Whether the trial court erred when it denied
Vortherms’s motion to suppress a warrantless
blood draw by applying the exigent
circumstances exception to the Fourth
Amendment.

2.

Whether Vortherms’s trial counsel committed
cumulative errors that amounted to ineffectual
assistance of counsel under the Sixth
Amendment.

Mr. Jason R. Ravnsborg, Attorney General, and Ms. Brigid
Hoffman, Assistant Attorney General, Attorneys for
Appellee State of South Dakota
Ms. Nichole A. Carper, Attorney for Appellant Joshua
Vortherms

36

 #29226

WEDNESDAY, OCTOBER 7, 2020 – NO. 2

Sierra Club v. Clay County Board of Adjustment
Travis and Jill Mockler applied for a conditional use
permit in February 2019 to operate a concentrated animal
feeding operation (CAFO) in Clay County, South Dakota. The
Clay County Planning Commission granted the permit, and
Sierra Club appealed. After multiple hearings, the Clay County
Board of Adjustment affirmed the permit decision with
additional conditions.
In September 2019, Sierra Club filed a petition in circuit
court seeking a writ of certiorari and reversal of the decision to
grant the Mocklers’ permit. It alleged that its members’ due
process rights were violated because the wrong County entity
(Board of Adjustment rather than Board of County
Commissioners) heard the appeal from the Planning
Commission’s decision and because they were not provided a
fair and impartial hearing. Sierra Club further claimed that the
Board failed to regularly pursue its authority when it approved
the permit and that its decision was illegal in light of Clay
County’s ordinances governing CAFOs.
The Mocklers filed a motion under SDCL 15-6-12(b)(1)
to dismiss Sierra Club’s petition for lack of subject matter
jurisdiction. They asserted that Sierra Club does not have direct
standing to seek relief because it is not a person aggrieved by the
Board’s decision. They further claimed that Sierra Club does
not have representational standing because Sierra Club’s
members are not persons aggrieved, and even if they are, the
claims asserted or relief requested requires participation of the
individual members. The Clay County Board of Adjustment
joined the Mocklers’ argument.
The circuit court granted the Mocklers’ motion to
dismiss, concluding that Sierra Club failed to establish on the
face of its petition that it has direct or representational standing
37

 to appeal under SDCL 11-2-61. The court determined Sierra
Club lacks direct standing because it is not a person aggrieved
by the Board’s decision and lacks representational standing
because it “cannot prove [its] members are aggrieved without
evidence from those members.” The court also rejected Sierra
Club’s argument that its petition sought a mandamus relief under
SDCL 11-2-35, noting the petition did not plead or request such
relief, and under SDCL 11-2-16.1, a writ of certiorari is the
exclusive avenue to appeal a decision to grant a conditional use
permit.
Sierra Club appeals, asserting the circuit court erred in
determining that it lacked direct standing under SDCL 11-2-61
and representational standing under SDCL 11-2-35 and SDCL
11-2-61.
Mr. Mitchell A. Peterson and Mr. Reece M. Almond, Attorneys
for Appellant Sierra Club
Mr. James Simko, Attorney for Appellee Clay County Board of
Adjustment
Mr. Brian J. Donahoe and Mr. Daniel B. Weinstein, Attorneys
for Appellees Travis Mockler and Jill Mockler

38

 #29205,
#29206

WEDNESDAY, OCTOBER 7, 2020 – NO. 3
State v. Ostby and Olmsted

On March 20, 2019, two Deadwood law enforcement
officers responded to a tip about potential drug trafficking
activity at an apartment complex where Carrie Lynn Ostby
resided. Ostby’s next door neighbor, April Roberts, reported
that she found a baggie, containing what she believed to be
methamphetamine, in the only dryer located in the community
laundry room, immediately after she observed Dana Olmsted
take the clothes out of the dryer and return to Ostby’s apartment.
Roberts further reported that a few weeks earlier, she had found
a similar baggie, with what she believed to be
methamphetamine, in the hallway of her apartment complex,
and that she observed heavy traffic in and out of Ostby’s
apartment.
The officers field-tested the substance in the baggie
found in the dryer, and it tested positive for methamphetamine.
One of the officers was also aware of an ongoing drug
investigation into Ostby’s apartment after there had been other
reports of foot traffic in and out of the apartment at all hours of
the day and night. He was also aware that another officer, a
month earlier, had observed a man enter Ostby’s apartment
while leaving his vehicle running outside and the driver’s door
left open, and return after two minutes. After leaving Ostby’s
apartment, the man was stopped for a traffic violation and
methamphetamine was found in his possession during the stop.
Knowing this information, officers decided to talk to
Olmsted. They knocked on Ostby’s apartment door, and once
Olmsted asked who was at the door, the officers announced:
“Police.” After they identified themselves, Olmsted did not
respond. They knocked again, but nobody came to the door.
The officers heard movement inside the apartment and decided
to enter the apartment to prevent the possible destruction of
39

 evidence of criminal activity. Officers asked the property
manager to unlock the door but had to force their entry because
the door was held shut with a knife. Once inside, the officers
arrested Olmsted. Ostby was not present at the apartment.
While one officer secured the apartment, the other officer
obtained a search warrant for Ostby’s apartment, her vehicle,
and Ostby’s and Olmsted’s urine. Finding probable cause, the
magistrate judge granted the officer’s request.
The subsequent search of the apartment produced several
baggies containing methamphetamine. Olmsted and Ostby also
tested positive for methamphetamine. Olmsted and Ostby were
indicted on charges of possession of a controlled substance and
unauthorized ingestion of methamphetamine. Olmsted and
Ostby both filed motions to suppress the evidence obtained as a
result of the search warrant, arguing that the affidavit in support
of the warrant lacked probable cause.
The circuit court granted both motions to suppress
finding that the search warrant was not based upon probable
cause. The court granted the State an intermediate appeal. The
State, now raises the following issues:
1.

Whether the affidavit in support of a search
warrant contained sufficient evidence to show
probable cause.

2.

Whether the good faith exception applies to the
exclusionary rule.

Mr. Jason R. Ravnsborg, Attorney General, and Ms. Erin E.
Handke and Ms. Brenda Harvey, Assistant Attorney
Generals, Attorneys for Appellant State of South Dakota
Mr. Ellery Grey, Attorney for Appellee Carrie Lynn Ostby
Mr. Robert D. Pasqualucci, Attorney for Appellee Dana Olmsted
40

 Glossary of Terms
Affirm - When the Supreme Court “affirms” a circuit court’s
action, it declares that the judgment, decree or order must stand
as decided by the circuit court.
Appeal - The Supreme Court’s review of a circuit court’s
decision in a lawsuit. The Supreme Court does not consider new
evidence or listen to witnesses. Rather, it reviews the record of
a case and applies the proper law to determine if the circuit
court’s decision is correct.
Appellant - The person who takes an appeal from the circuit
court to the Supreme Court. (In other words, the person who
does not agree with the result reached in circuit court.)
Appellee - The person in a case against whom an appeal is
taken; that is, the person who does not want the circuit court’s
decision reversed. Sometimes also called the “respondent.”
Brief - A document written by a person’s attorney containing
the points of law which the attorney desires to establish, together
with the arguments and authorities upon which his legal position
is based. The brief tells the Supreme Court the facts of the case,
the questions of law involved, the law the attorney believes
should be applied by the Court and the result the attorney
believes the Court should reach.
Defendant - The person sued by the plaintiff or prosecuted by
the state in the circuit court.
Oral Argument - An opportunity for the attorneys to make an
oral presentation to the Supreme Court when the appeal is
considered. Oral arguments also give the Court an opportunity to
ask the attorneys questions about the issues raised in their briefs.

41

 Plaintiff - The person who brings a lawsuit in the circuit court.
Record - All the papers filed in a circuit court case including
any transcripts. This includes the original complaint, motions,
court orders and affidavits and exhibits in the case.
Remand - The Supreme Court “remands” an appealed case back
to the circuit court for some further action. For example, the
Supreme Court might remand a case to the circuit court and
require that court to hear additional evidence and make further
factual findings that are important in deciding the case.
Reverse - When the Supreme Court “reverses” a circuit court
decision, it finds that a legal error was made and requires that
the decision be changed.
Transcript - A document that contains a verbatim account of all
that was said in a circuit court case by the parties, the attorneys,
the circuit judge, and any witnesses. The transcript is prepared
by the court reporter and it is reviewed by the Supreme Court as
part of the appeal process.

42

 NOTES

43