third prong of plain error in South Dakota

2026Furthermore, we have held that not only must error be shown, but it must be “plain,” which we have described as “clear or obvious.” McMillen, 2019 S.D. 40, ¶ 23 , 931 N.W.2d at 732 (citations omitted) (noting caselaw which holds that “there can be no plain error to review when neither the Supreme Court nor this Court had resolved the issue beyond debate” (citation modified)). [¶41.] We must, therefore, assess whether Kujawa has established that the circuit court’s limitation on his cross-examination created an error that clearly or obviously violated the Confrontation Clause.

2024Plain error in failing to give a corroboration instruction [¶23.] “An error is ‘plain’ when it is clear or obvious.” State v. McMillen, 2019 S.D. 40, ¶ 23 , 931 N.W.2d 725, 732 (citing United States v. Roy, 408 F.3d 484, 495 (8th Cir. 2005)). “[Plain error]’s requirement that an error be ‘plain’ means that lower court decisions that are questionable but not plainly wrong (at time of trial or at time of appeal) fall outside the Rule’s scope.” Id. (alteration in original) (quoting Henderson v. United States, 568 U.S. 266, 278 , 133 S. Ct. 1121, 1130 , 185 L.

2026“Without the additional showing of prejudice, the error does not affect substantial rights under the third prong of plain error review.” Id. (citation modified).

2024Without the additional showing of prejudice, “the error does not ‘affect substantial rights’ under the third prong of plain error review and ‘[an appellate court] ha[s] no authority to correct it.’” State v. Guziak, 2021 S.D. 68, ¶ 22 , 968 N.W.2d 196, 203 ) (alterations in original) (quoting State v. Jones, 2012 S.D. 7, ¶ 17 , 810 N.W.2d 202, 206 ). [¶32.] O’Brien articulates a limited prejudice argument by essentially repeating his sufficiency of the evidence argument that “even if one reads R.M.’s statements as providing evidence of multiple specific instances of inappropriate touching, non

2021Without the additional showing of prejudice, “the error does not ‘affect substantial rights’ under the third prong of plain error review and ‘[an appellate court] ha[s] no authority to correct it.’” Jones, 2012 S.D. 7, ¶ 17 , 810 N.W.2d at 206 (quoting Olano, 507 U.S. at 741 , 113 S. Ct. at 1781 ). [¶23.] In Olvera, this Court distinguished Morrison and applied plain error review to analyze whether the State’s alleged breach of the plea agreement prejudiced the defendant.

2021Without the additional showing of prejudice, “the error does not ‘affect substantial rights’ under the third prong of plain error review and ‘[an appellate court] ha[s] no authority to correct it.’” Jones, 2012 S.D. 7, ¶ 17 , 810 N.W.2d at 206 (quoting Olano, 507 U.S. at 741 , 113 S. Ct. at 1781 ). [¶23.] In Olvera, this Court distinguished Morrison and applied plain error review to analyze whether the State’s alleged breach of the plea agreement prejudiced the defendant.

2024The third prong of plain error places the burden on the defendant to show “a ‘reasonable probability’ that, but for the error, the result of the proceeding would have been different.” State v. Fifteen Impounded Cats, 2010 S.D. 50 , ¶ 33, 785 N.W.2d 272, 283 (quoting United States v. Rush-Richardson, 574 F.3d 906, 911 (8th Cir. 2009)). [¶15.] Stevens argues that his convictions for counts (1), (2), and (3) were “obtained substantially on the uncorroborated testimony of Burgers, who is an accomplice.” Stevens cites State v. Beene for the proposition that South Dakota requires both cautionary and

2024See State v. McBride, 296 N.W.2d 551, 555 (S.D. 1980) (“No advantage could have been envisioned by -10- #30145 appellant’s counsel in withholding requests for these instructions.”); Grooms v. State, 320 N.W.2d 149, 152 (S.D. 1982) (“We cannot envision an advantage which could have been gained by withholding a request for this instruction.”); see also Smith v. Weber, 2005 S.D. 85, ¶ 10 , 701 N.W.2d 416, 419 (failure to give corroboration instruction was error but did not meet the prejudice standard required for the third prong of plain error review because the court did give a cautionary instru

2024The third prong of plain error places the burden on the defendant to show “a ‘reasonable probability’ that, but for the error, the result of the proceeding would have been different.” State v. Fifteen Impounded Cats, 2010 S.D. 50 , ¶ 33, 785 N.W.2d 272, 283 (quoting United States v. Rush-Richardson, 574 F.3d 906, 911 (8th Cir. 2009)). [¶15.] Stevens argues that his convictions for counts (1), (2), and (3) were “obtained substantially on the uncorroborated testimony of Burgers, who is an accomplice.” Stevens cites State v. Beene for the proposition that South Dakota requires both cautionary and

2024See State v. McBride, 296 N.W.2d 551, 555 (S.D. 1980) (“No advantage could have been envisioned by -10- #30145 appellant’s counsel in withholding requests for these instructions.”); Grooms v. State, 320 N.W.2d 149, 152 (S.D. 1982) (“We cannot envision an advantage which could have been gained by withholding a request for this instruction.”); see also Smith v. Weber, 2005 S.D. 85, ¶ 10 , 701 N.W.2d 416, 419 (failure to give corroboration instruction was error but did not meet the prejudice standard required for the third prong of plain error review because the court did give a cautionary instru

2024The third prong of plain error places the burden on the defendant to show “a ‘reasonable probability’ that, but for the error, the result of the proceeding would have been different.” State v. Fifteen Impounded Cats, 2010 S.D. 50 , ¶ 33, 785 N.W.2d 272, 283 (quoting United States v. Rush-Richardson, 574 F.3d 906, 911 (8th Cir. 2009)). [¶15.] Stevens argues that his convictions for counts (1), (2), and (3) were “obtained substantially on the uncorroborated testimony of Burgers, who is an accomplice.” Stevens cites State v. Beene for the proposition that South Dakota requires both cautionary and

2024See State v. McBride, 296 N.W.2d 551, 555 (S.D. 1980) (“No advantage could have been envisioned by -10- #30145 appellant’s counsel in withholding requests for these instructions.”); Grooms v. State, 320 N.W.2d 149, 152 (S.D. 1982) (“We cannot envision an advantage which could have been gained by withholding a request for this instruction.”); see also Smith v. Weber, 2005 S.D. 85, ¶ 10 , 701 N.W.2d 416, 419 (failure to give corroboration instruction was error but did not meet the prejudice standard required for the third prong of plain error review because the court did give a cautionary instru

2024Plain error in failing to give a corroboration instruction [¶23.] “An error is ‘plain’ when it is clear or obvious.” State v. McMillen, 2019 S.D. 40, ¶ 23 , 931 N.W.2d 725, 732 (citing United States v. Roy, 408 F.3d 484, 495 (8th Cir. 2005)). “[Plain error]’s requirement that an error be ‘plain’ means that lower court decisions that are questionable but not plainly wrong (at time of trial or at time of appeal) fall outside the Rule’s scope.” Id. (alteration in original) (quoting Henderson v. United States, 568 U.S. 266, 278 , 133 S. Ct. 1121, 1130 , 185 L.

2024Plain error in failing to give a corroboration instruction [¶23.] “An error is ‘plain’ when it is clear or obvious.” State v. McMillen, 2019 S.D. 40, ¶ 23 , 931 N.W.2d 725, 732 (citing United States v. Roy, 408 F.3d 484, 495 (8th Cir. 2005)). “[Plain error]’s requirement that an error be ‘plain’ means that lower court decisions that are questionable but not plainly wrong (at time of trial or at time of appeal) fall outside the Rule’s scope.” Id. (alteration in original) (quoting Henderson v. United States, 568 U.S. 266, 278 , 133 S. Ct. 1121, 1130 , 185 L.

2023At the same time, in cases involving the third prong of plain error review, we have referred to prejudice as “a reasonable probability that, but for the error, the result of the proceeding would have been different.” State v. Fifteen Impounded Cats, 2010 S.D. 50 , ¶ 33, 785 -11- # 30048 N.W.2d 272 , 283; see also Neels v. Dooley, 2022 S.D. 4, ¶ 16 , 969 N.W.2d 729 , 735 (citing United States v. Dominguez Benitez, 542 U.S. 74 , 81–82, 124 S. Ct. 2333, 2339 , 159 L.

2023At the same time, in cases involving the third prong of plain error review, we have referred to prejudice as “a reasonable probability that, but for the error, the result of the proceeding would have been different.” State v. Fifteen Impounded Cats, 2010 S.D. 50 , ¶ 33, 785 -11- # 30048 N.W.2d 272 , 283; see also Neels v. Dooley, 2022 S.D. 4, ¶ 16 , 969 N.W.2d 729 , 735 (citing United States v. Dominguez Benitez, 542 U.S. 74 , 81–82, 124 S. Ct. 2333, 2339 , 159 L.

2023Whether the circuit court erred by denying Robertson’s motion for judgment of acquittal concerning the aggravated assault charge. [¶25.] This Court reviews the “denial of a motion for judgment of acquittal de novo.” State v. Armstrong, 2020 S.D. 6, ¶ 12 , 939 N.W.2d 9, 12 (quoting State v. Brim, 2010 S.D. 74, ¶ 6 , 789 N.W.2d 80, 83 ). “[A] motion for judgment of acquittal attacks the sufficiency of the evidence, which is a question of law[.]” State v. Ahmed, 2022 S.D. 20, ¶ 14 , 973 N.W.2d 217 , 221 (first alteration in original).

2023Whether the circuit court erred by denying Robertson’s motion for judgment of acquittal concerning the aggravated assault charge. [¶25.] This Court reviews the “denial of a motion for judgment of acquittal de novo.” State v. Armstrong, 2020 S.D. 6, ¶ 12 , 939 N.W.2d 9, 12 (quoting State v. Brim, 2010 S.D. 74, ¶ 6 , 789 N.W.2d 80, 83 ). “[A] motion for judgment of acquittal attacks the sufficiency of the evidence, which is a question of law[.]” State v. Ahmed, 2022 S.D. 20, ¶ 14 , 973 N.W.2d 217 , 221 (first alteration in original).

2023At the same time, in cases involving the third prong of plain error review, we have referred to prejudice as “a reasonable probability that, but for the error, the result of the proceeding would have been different.” State v. Fifteen Impounded Cats, 2010 S.D. 50 , ¶ 33, 785 -11- # 30048 N.W.2d 272 , 283; see also Neels v. Dooley, 2022 S.D. 4, ¶ 16 , 969 N.W.2d 729 , 735 (citing United States v. Dominguez Benitez, 542 U.S. 74 , 81–82, 124 S. Ct. 2333, 2339 , 159 L.

2022See Bamberg, 478 F.3d at 939 ; United States v. Smith, 450 F.3d 856, 859 (8th Cir. 2006) (describing the due process determination in terms of a prejudice inquiry prior to applying Olano’s fourth prong); United States v. Falcon, 477 F.3d 573, 577 (8th Cir. 2007) (same). -13- #29201 would be inconsistent with this Court’s ruling on direct appeal, the habeas court properly determined that res judicata precludes relief on this first ground upon which Neels alleged ineffective assistance of counsel. b.

2022See Bamberg, 478 F.3d at 939 ; United States v. Smith, 450 F.3d 856, 859 (8th Cir. 2006) (describing the due process determination in terms of a prejudice inquiry prior to applying Olano’s fourth prong); United States v. Falcon, 477 F.3d 573, 577 (8th Cir. 2007) (same). -13- #29201 would be inconsistent with this Court’s ruling on direct appeal, the habeas court properly determined that res judicata precludes relief on this first ground upon which Neels alleged ineffective assistance of counsel. b.

2022Id. (quoting United States v. Bamberg, 478 F.3d 934, 939 (8th Cir. 2007)).

2022See Bamberg, 478 F.3d at 939 ; United States v. Smith, 450 F.3d 856, 859 (8th Cir. 2006) (describing the due process determination in terms of a prejudice inquiry prior to applying Olano’s fourth prong); United States v. Falcon, 477 F.3d 573, 577 (8th Cir. 2007) (same). -13- #29201 would be inconsistent with this Court’s ruling on direct appeal, the habeas court properly determined that res judicata precludes relief on this first ground upon which Neels alleged ineffective assistance of counsel. b.

2021See, e.g., Olvera, 2012 S.D. 84, ¶ 14 , 824 N.W.2d at 116 ; Jones, 2012 S.D. 7, ¶ 17 , 810 N.W.2d at 206 . [¶25.] Guziak fails to establish prejudice under the third prong of plain error review. 4 She argues that her substantial rights were violated by the State’s implied 4.

2021See, e.g., Olvera, 2012 S.D. 84, ¶ 14 , 824 N.W.2d at 116 ; Jones, 2012 S.D. 7, ¶ 17 , 810 N.W.2d at 206 . [¶25.] Guziak fails to establish prejudice under the third prong of plain error review. 4 She argues that her substantial rights were violated by the State’s implied 4.

2012See U.S. v. Olano, 507 U.S. 725, 735 , 113 S.Ct. 1770, 1778 , 123 L.Ed.2d 508 (1993); see also Bowker, 2008 S.D. 61 , ¶ 46, 754 N.W.2d at 70 (citing State v. Nelson, 1998 S.D. 124 , ¶ 7, 587 N.W.2d 439, 443 ) (“When plain error is alleged, the defendant bears the burden of showing the error was prejudicial.”). [¶ 17.] Specifically, Jones has not shown that the State’s error affected the outcome of the proceedings where, as in this case, the trial court, after finding that there had been a material breach of the plea agreement used its discretion to grant Jones’s motion to reconsider.

2012See U.S. v. Olano, 507 U.S. 725, 735 , 113 S.Ct. 1770, 1778 , 123 L.Ed.2d 508 (1993); see also Bowker, 2008 S.D. 61 , ¶ 46, 754 N.W.2d at 70 (citing State v. Nelson, 1998 S.D. 124 , ¶ 7, 587 N.W.2d 439, 443 ) (“When plain error is alleged, the defendant bears the burden of showing the error was prejudicial.”). [¶ 17.] Specifically, Jones has not shown that the State’s error affected the outcome of the proceedings where, as in this case, the trial court, after finding that there had been a material breach of the plea agreement used its discretion to grant Jones’s motion to reconsider.