unanimity instruction in South Dakota

2024See Muhm, 2009 S.D. 100 , ¶ 34, 775 N.W.2d at 520 (finding harmless error “when the trial court fails ‘either to select specific offenses or give a unanimity instruction’ if ‘the record indicate[s] the jury resolved the basic credibility dispute against defendant and would have convicted the defendant of any of the various offenses shown by the evidence to have been committed.’”).

2013Therefore, “[w]here the prosecution declines to make an election on a duplicitous count and the evidence indicates the jurors might disagree as to the particular act defendant committed, a standard unanimity instruction should be given.” Id. ¶ 33, 775 N.W.2d at 519 . [¶ 15.] Following the settling of jury instructions at trial, the State raised concerns about duplicity and jury unanimity.

2014Muhm, 2009 S.D. 100 , ¶ 32, 775 N.W.2d at 518-19 (either or rule) (citing 1A Charles A. Wright et al, Federal Practice and Procedure § 145 (4th ed.2014)); State v. Weaver, 290 Mont. 58 , 964 P.2d 713, 720 (1998).

2014Muhm, 2009 S.D. 100 , ¶ 32, 775 N.W.2d at 518-19 (either or rule) (citing 1A Charles A. Wright et al, Federal Practice and Procedure § 145 (4th ed.2014)); State v. Weaver, 290 Mont. 58 , 964 P.2d 713, 720 (1998).

2014In assessing the evidence, the defendant’s acts should be viewed in a “commonsense manner,” taking into account “whether the acts occurred in ‘a separate time frame’ ” or separate “ ‘identifying place.’ ” State v. Marko, 107 Wash. App. 215 , 27 P.3d 228, 231 (2001) (quoting State v. Petrich, 101 Wash.2d 566 , 683 P.2d 173, 177 (1984)). [¶ 24.] For two reasons, we conclude that this case presents the first situation, where a special unanimity instruction was required.

2014In assessing the evidence, the defendant’s acts should be viewed in a “commonsense manner,” taking into account “whether the acts occurred in ‘a separate time frame’ ” or separate “ ‘identifying place.’ ” State v. Marko, 107 Wash. App. 215 , 27 P.3d 228, 231 (2001) (quoting State v. Petrich, 101 Wash.2d 566 , 683 P.2d 173, 177 (1984)). [¶ 24.] For two reasons, we conclude that this case presents the first situation, where a special unanimity instruction was required.

2014State v. Tiegen, 2008 S.D. 6 , ¶ 14, 744 N.W.2d 578, 585 (employing de novo standard of review to a claimed constitutional error).

2014State v. Tiegen, 2008 S.D. 6 , ¶ 14, 744 N.W.2d 578, 585 (employing de novo standard of review to a claimed constitutional error).

2014In assessing the evidence, the defendant’s acts should be viewed in a “commonsense manner,” taking into account “whether the acts occurred in ‘a separate time frame’” or separate “‘identifying place.’” State v. Marko, 27 P.3d 228, 231 (Wash. Ct. App. 2001) (quoting State v. Petrich, 683 P. 2d 173, 177 (Wash. 1984)). [¶24.] For two reasons, we conclude that this case presents the first situation, where a special unanimity instruction was required.

2014In assessing the evidence, the defendant’s acts should be viewed in a “commonsense manner,” taking into account “whether the acts occurred in ‘a separate time frame’ ” or separate “ ‘identifying place.’ ” State v. Marko, 107 Wash. App. 215 , 27 P.3d 228, 231 (2001) (quoting State v. Petrich, 101 Wash.2d 566 , 683 P.2d 173, 177 (1984)). [¶ 24.] For two reasons, we conclude that this case presents the first situation, where a special unanimity instruction was required.

2014In the first situation, but not the second, [the court] should give the unanimity instruction.” People v. Russo, 25 Cal.4th 1124, 1135 , 108 Cal.Rptr.2d 436 , 25 P.3d 641 (2001).

2014In the first situation, but not the second, [the court] should give the unanimity instruction.” People v. Russo, 25 Cal.4th 1124, 1135 , 108 Cal.Rptr.2d 436 , 25 P.3d 641 (2001).

2024O’Brien acknowledges trial counsel did not object to the instructions given by the court or propose a unanimity instruction at trial and thus requests this Court to exercise its discretion to review this alleged error for plain error. 3 [¶28.] “We invoke our discretion under the plain error rule cautiously and only in ‘exceptional circumstances.’” State v. McMillen, 2019 S.D. 40, ¶ 13 , 931 N.W.2d 725, 729 (quoting State v. Bariteau, 2016 S.D. 57, ¶ 23 , 884 N.W.2d 169, 173 ).

2024Sufficiency of the evidence [¶18.] “Sufficiency of the evidence challenges raise questions of law reviewed de novo.” State v. Boe, 2014 S.D. 29 , ¶ 27, 847 N.W.2d 315, 322 (citing State v. Wheeler, 2013 S.D. 59 , ¶ 7, 835 N.W.2d 871, 873 ).

2020“Additionally, with plain error analysis, [Babcock] bears the burden of [proving that] the error was prejudicial.” State v. Greenwood, 2016 S.D. 81, ¶ 16 , 887 N.W.2d 726, 729 . ‘“Prejudice’ in the context of plain error requires a showing of 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 727, 283 (quoting United States v. Rush-Richardson, 574 F.3d 906, 911 (8th Cir. 2009)). [¶46.] From our review of the record, even though a unanimity instruction would have alleviated

2020See State v. Brende, 2013 S.D. 56, ¶ 13 , 835 N.W.2d 131, 138 . -10- #29116 the sexual abuse.

2019Rather, we remanded the case for jury sentencing in Piper II to address an obvious deficiency in the plea-taking court’s explanation of the unanimity requirement. -21- #28153 waived the constitutional right against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers.” Monette v. Weber, 2009 S.D. 77, ¶ 10 , 771 N.W.2d 920, 925 (citation and emphasis omitted).

2019Rather, we remanded the case for jury sentencing in Piper II to address an obvious deficiency in the plea-taking court’s explanation of the unanimity requirement. -21- #28153 waived the constitutional right against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers.” Monette v. Weber, 2009 S.D. 77, ¶ 10 , 771 N.W.2d 920, 925 (citation and emphasis omitted).

2014See State v. Crane, 116 Wash.2d 315 , 804 P.2d 10, 16 (1991) (issue can be raised for the first time on appeal); see also People v. Dieguez, 89 Cal.App.4th 266, 275 , 107 Cal.Rptr.2d 160 (2001); Cody v. State, 361 P.2d 307, 320 (Okla.Crim.App. 1961); Ngo v. State, 175 S.W.3d 738, 748 (Tex.Crim.App.2005); State v. Lomagro, 113 Wis.2d 582 , 335 N.W.2d 583 , 590 n. 3 (1983). [¶ 20.] When evidence of several acts is presented at trial, any one of which could constitute the basis for the single offense charged, trial courts can take one of two actions: (1) require the prosecution to elect the trans

2014See State v. Crane, 116 Wash.2d 315 , 804 P.2d 10, 16 (1991) (issue can be raised for the first time on appeal); see also People v. Dieguez, 89 Cal.App.4th 266, 275 , 107 Cal.Rptr.2d 160 (2001); Cody v. State, 361 P.2d 307, 320 (Okla.Crim.App. 1961); Ngo v. State, 175 S.W.3d 738, 748 (Tex.Crim.App.2005); State v. Lomagro, 113 Wis.2d 582 , 335 N.W.2d 583 , 590 n. 3 (1983). [¶ 20.] When evidence of several acts is presented at trial, any one of which could constitute the basis for the single offense charged, trial courts can take one of two actions: (1) require the prosecution to elect the trans

2014See State v. Crane, 116 Wash.2d 315 , 804 P.2d 10, 16 (1991) (issue can be raised for the first time on appeal); see also People v. Dieguez, 89 Cal.App.4th 266, 275 , 107 Cal.Rptr.2d 160 (2001); Cody v. State, 361 P.2d 307, 320 (Okla.Crim.App. 1961); Ngo v. State, 175 S.W.3d 738, 748 (Tex.Crim.App.2005); State v. Lomagro, 113 Wis.2d 582 , 335 N.W.2d 583 , 590 n. 3 (1983). [¶ 20.] When evidence of several acts is presented at trial, any one of which could constitute the basis for the single offense charged, trial courts can take one of two actions: (1) require the prosecution to elect the trans

2014See State v. Crane, 116 Wash.2d 315 , 804 P.2d 10, 16 (1991) (issue can be raised for the first time on appeal); see also People v. Dieguez, 89 Cal.App.4th 266, 275 , 107 Cal.Rptr.2d 160 (2001); Cody v. State, 361 P.2d 307, 320 (Okla.Crim.App. 1961); Ngo v. State, 175 S.W.3d 738, 748 (Tex.Crim.App.2005); State v. Lomagro, 113 Wis.2d 582 , 335 N.W.2d 583 , 590 n. 3 (1983). [¶ 20.] When evidence of several acts is presented at trial, any one of which could constitute the basis for the single offense charged, trial courts can take one of two actions: (1) require the prosecution to elect the trans

2014See State v. Crane, 116 Wash.2d 315 , 804 P.2d 10, 16 (1991) (issue can be raised for the first time on appeal); see also People v. Dieguez, 89 Cal.App.4th 266, 275 , 107 Cal.Rptr.2d 160 (2001); Cody v. State, 361 P.2d 307, 320 (Okla.Crim.App. 1961); Ngo v. State, 175 S.W.3d 738, 748 (Tex.Crim.App.2005); State v. Lomagro, 113 Wis.2d 582 , 335 N.W.2d 583 , 590 n. 3 (1983). [¶ 20.] When evidence of several acts is presented at trial, any one of which could constitute the basis for the single offense charged, trial courts can take one of two actions: (1) require the prosecution to elect the trans

2014See State v. Crane, 116 Wash.2d 315 , 804 P.2d 10, 16 (1991) (issue can be raised for the first time on appeal); see also People v. Dieguez, 89 Cal.App.4th 266, 275 , 107 Cal.Rptr.2d 160 (2001); Cody v. State, 361 P.2d 307, 320 (Okla.Crim.App. 1961); Ngo v. State, 175 S.W.3d 738, 748 (Tex.Crim.App.2005); State v. Lomagro, 113 Wis.2d 582 , 335 N.W.2d 583 , 590 n. 3 (1983). [¶ 20.] When evidence of several acts is presented at trial, any one of which could constitute the basis for the single offense charged, trial courts can take one of two actions: (1) require the prosecution to elect the trans

2009As Jones recognized, harmless error applies in cases when the trial court fails “either to select specific offenses or give a unanimity instruction” if “the record indicate^] the jury resolved the basic credibility dispute against defendant and would have convicted the defendant of any of the various offenses shown by the evidence to have been committed.” See Jones, 51 Cal.3d at 307 , 270 Cal.Rptr. 611 , 792 P.2d at 650 (citing People v. Moore, 211 Cal.App.3d 1400, 1415-16 , 260 Cal.Rptr. 134 (1989); People v. Winkle, 206 Cal.App.3d 822, 828-830 , 253 Cal.Rptr. 726 (1988); People v. Schultz, 1

2009As Jones recognized, harmless error applies in cases when the trial court fails “either to select specific offenses or give a unanimity instruction” if “the record indicate^] the jury resolved the basic credibility dispute against defendant and would have convicted the defendant of any of the various offenses shown by the evidence to have been committed.” See Jones, 51 Cal.3d at 307 , 270 Cal.Rptr. 611 , 792 P.2d at 650 (citing People v. Moore, 211 Cal.App.3d 1400, 1415-16 , 260 Cal.Rptr. 134 (1989); People v. Winkle, 206 Cal.App.3d 822, 828-830 , 253 Cal.Rptr. 726 (1988); People v. Schultz, 1