#26388-a-LSW

2013 S.D. 36

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                 ****
STATE OF SOUTH DAKOTA,                    Plaintiff and Appellee,

      v.

DONALD LOREN ANDERSON,                    Defendant and Appellant.


                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                      THE FIRST JUDICIAL CIRCUIT
                    DAVISON COUNTY, SOUTH DAKOTA

                                 ****

                    THE HONORABLE SEAN M. O’BRIEN
                            Retired Judge

                                 ****

MARTY J. JACKLEY
Attorney General

BETHANNA M. FEIST
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.


DOUGLAS N. PAPENDICK of
Stiles & Papendick
Mitchell, South Dakota                    Attorneys for defendant
                                          and appellant.

                                 ****

                                          CONSIDERED ON BRIEFS
                                          ON FEBRUARY 12, 2013

                                          OPINION FILED 05/08/13
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WILBUR, Justice

[¶1.]        Donald Anderson was convicted by a jury of sexual contact with a child

under the age of sixteen, in violation of SDCL 22-22-7. Anderson appeals arguing

that his arraignment was inadequate. Additionally, he appeals the trial court’s

denial of his motion for a new trial. We affirm.

                     FACTS AND PROCEDURAL HISTORY

[¶2.]        On May 12, 2011, Anderson was arrested on the charge of sexual

contact with a child under the age of sixteen, in violation of SDCL 22-22-7. As

indicated by an initial appearance form, Anderson appeared on May 13, 2011,

before a clerk magistrate where he was advised of his rights. The initial

appearance form indicated that Anderson was advised of the charge against him;

the maximum penalty; the right to remain silent; the right to defend himself in

person or through an attorney; the right to counsel; the right to a speedy trial; the

presumption of innocence; and the State’s burden of proof. The form asked, “Do you

understand the rights that have just been explained to you?” and the clerk

magistrate marked “Yes” after Anderson confirmed he understood his rights. The

clerk magistrate signed the form. On June 10, 2011, a grand jury indicted

Anderson on the same offense.

[¶3.]        On July 12, 2011, Anderson filed a “Written Arraignment and Plea of

Not Guilty” form (written arraignment form) with the trial court. The written

arraignment form contained the name, address, and phone number for counsel




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representing Anderson; 1 Anderson’s age, birthdate, educational background, and

personal contact information; an acknowledgement of Anderson’s proficiency in the

English language; an advisement of the right to an arraignment in open court and a

waiver of that right; a statement that Anderson had received a copy of the

indictment; notice of the crime with which he was charged; an acknowledgement of

his name; an acknowledgment of his plea of not guilty; and a demand for a speedy

trial. Anderson and his counsel signed the document.

[¶4.]         A hearing took place on July 12, 2011, concerning Anderson’s written

arraignment form and plea of not guilty. The trial court asked Anderson, who

appeared in person, if he had the opportunity to review the written arraignment

form and whether he had signed the form. Anderson replied affirmatively to both

questions. The trial court then asked Anderson if he wished to plead not guilty.

Anderson again replied affirmatively.

[¶5.]         The grand jury amended the indictment on July 22, 2011. Anderson

filed a second written arraignment form containing the same language and answers

as the first written arraignment form. A second arraignment hearing was held on

August 9, 2011, at which Anderson personally appeared. A similar colloquy

between the court and Anderson took place regarding the second written

arraignment form.

[¶6.]         A jury trial was held on December 6, 2011. At trial, the 13-year-old

victim testified, without objection, as to the sexual contact incident that occurred on

May 11, 2011. The jury convicted Anderson of sexual contact with a child under the


1.      Anderson’s appellate counsel did not represent him at the trial level.

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age of sixteen, in violation of SDCL 22-22-7. The trial court sentenced Anderson to

10 years in the penitentiary and required him to register as a sex offender.

[¶7.]        On February 23, 2012, Anderson filed a motion for a new trial based on

the trial court’s failure to enter a specific finding that the minor victim was a

competent witness. The trial court denied this motion, determining that Anderson

did not object to the competency of the child victim’s testimony at trial.

[¶8.]        Anderson appeals the following issues:

             1.     Whether Anderson’s arraignment was inadequate.

             2.     Whether the trial court abused its discretion in denying
                    Anderson’s motion for new trial.

                            ANALYSIS AND DECISION

[¶9.]        1.     Whether Anderson’s arraignment was inadequate.

[¶10.]       In citing to SDCL 23A-7-1 (Rule 10) and SDCL 23A-7-4 (Rule 11(c)),

Anderson argues that his arraignment was inadequate. He contends that he was

not arraigned in open court or read the indictment. See SDCL 23A-7-1 (Rule 10).

Anderson further asserts that he was not advised of his Boykin rights. See Boykin

v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712, 23 L. Ed. 2d 274 (1969);

Nachtigall v. Erickson, 85 S.D. 122, 126-28, 178 N.W.2d 198, 200-01 (1970)

(applying Boykin to South Dakota). Specifically, he asserts that he should have

been advised of the nature of the charge against him; the maximum possible

penalty provided by law as well as the consequences of being convicted as a sex

offender; the presumption of innocence; the State’s burden of proof; and the

privilege against compulsory self-incrimination.



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[¶11.]       “Appeals asserting an infringement of a constitutional right are

reviewed under the de novo standard of review.” State v. Miller, 2006 S.D. 54, ¶ 11,

717 N.W.2d 614, 618. “A direct appeal from a conviction must be afforded greater

scrutiny than a collateral challenge by habeas corpus action.” Id. “Thus, on a direct

appeal from a conviction the defendant is entitled to all presumptions and

protections possible under our constitution.” Id.

[¶12.]       SDCL 23A-7-1 (Rule 10) governs the procedure for arraignments in

South Dakota:

             An arraignment shall be conducted in open court, except that an
             arraignment for a Class 2 misdemeanor may be conducted in
             chambers, and shall consist of reading the indictment,
             information, or complaint, as is applicable, to the defendant or
             stating to him the substance of the charge and calling on him to
             plead thereto.

             A defendant must be informed that if the name in the
             indictment, information, or complaint is not his true name, he
             must then declare his true name or be proceeded against by the
             name given in the indictment, information, or complaint. If he
             gives no other name, the court may proceed accordingly. If he
             alleges that another name is his true name, he shall be
             proceeded against pursuant to § 23A-6-20. He shall be given a
             copy of the indictment, information, or complaint, as is
             applicable, before he is called upon to plead.

“Due process of law . . . does not require the state to adopt any particular form of

procedure [for an arraignment], so long as it appears that the accused has had

sufficient notice of the accusation and an adequate opportunity to defend himself in

the prosecution.” State v. Mitchell, 491 N.W.2d 438, 444 (S.D. 1992) (emphasis

omitted) (quoting State v. Winters, 414 N.W.2d 1, 2 (S.D. 1987)).

[¶13.]       “[T]he Due Process Clause safeguards against an involuntary and

unknowing waiver of three important federal rights via a plea of guilty or plea of

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nolo contendere, 1) the privilege against compulsory self-incrimination, 2) the right

to a speedy trial, and 3) the right to confront one’s accusers.” Miller, 2006 S.D. 54, ¶

14, 717 N.W.2d at 618 (citing Boykin, 395 U.S. at 243, 89 S. Ct. at 1712) (emphasis

added). “To ensure that guilty pleas and pleas of nolo contendere are voluntary and

knowing and to safeguard against violations of a defendant’s right to due process,

Rule 11 of the Federal Rules of Criminal Procedure was enacted.” Id. ¶ 17

(emphasis added). “However, the procedure embodied in Rule 11 is not mandated

by the United States Constitution.” Id. South Dakota’s version of Rule 11 of the

Federal Rules of Criminal Procedure is SDCL 23A-7-4 (Rule 11(c)). See SDCL 23A-

7-4 (Rule 11(c)) (stating “[b]efore accepting a plea of guilty or nolo contendere a

court must . . . ”) (emphasis added). “[T]he advisement of the[ ] rights and penalties

under Rule 11 is applicable only when a defendant intends to enter a plea of guilty

or nolo contendere.” Miller, 2006 S.D. 54, ¶ 17, 717 N.W.2d at 620 (emphasis

added). “A defendant who elects to plead not guilty and proceed to trial is not

provided the same procedural safeguards under Rule 11 as a defendant who pleads

guilty or nolo contendere.” Id.

[¶14.]       Initially, we note that SDCL 23A-7-1 (Rule 10) does not explicitly

provide for a written form of arraignment in lieu of arraigning a defendant in open

court. SDCL 23A-7-1 (Rule 10) makes it clear that “[a]n arraignment shall be

conducted in open court[.]” Thus, trial courts are well-advised to conduct formal

arraignments in open court.

[¶15.]       Here, however, Anderson had sufficient notice of the charge against

him and an adequate opportunity to defend himself in the prosecution. Anderson,


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who was represented by counsel, voluntarily waived his right to an open court

arraignment by signing the written arraignment form. 2 And when he submitted his

written arraignment form, Anderson appeared in open court. Additionally, the

written arraignment form stated that Anderson received a copy of the indictment

that charged him with sexual contact with a child under the age of sixteen, in

violation of SDCL 22-22-7. Anderson also acknowledged his name on the

indictment. The written arraignment form stated that Anderson had been advised

of and understood that he may plead guilty, not guilty, or nolo contendere.

Anderson acknowledged he had sufficient time to discuss his case with his attorney

and waived further time to enter a plea. He pleaded not guilty to the charge stated

in the written arraignment form and demanded a speedy trial. Furthermore,

Anderson was not entitled to an advisement of rights under Boykin or under SDCL

23A-7-4 (Rule 11(c)) because he pleaded not guilty and exercised his rights

accordingly. Therefore, because Anderson had sufficient notice of the charge

against him, pleaded not guilty, exercised his rights, and had an adequate

opportunity to defend himself at trial, there was no error.

[¶16.]         2.    Whether the trial court abused its discretion in denying
                     Anderson’s motion for new trial.

[¶17.]         Anderson argues that the trial court abused its discretion in denying

Anderson’s motion for a new trial because it failed to enter a specific finding that



2.       The written arraignment form, which Anderson completed twice, provided, “I
         have been advised by the above-named attorney and understand that I have
         a right to arraignment in open court, and I hereby voluntarily waive that
         right, choosing instead to sign this Written Arraignment and Plea of Not
         Guilty.”

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the minor victim was a competent witness. We review the denial of a motion for a

new trial under an abuse of discretion standard. State v. Hannemann, 2012 S.D.

79, ¶ 10 n.*, 823 N.W.2d 357, 360 n.*.

[¶18.]       Generally, “[e]very person is competent to be a witness except as

otherwise provided in chapters 19-9 to 19-18, inclusive.” SDCL 19-14-1 (Rule 601).

And, “[t]here is no general rule regarding a child’s inherent reliability nor is there

any arbitrary age at which a child is deemed competent to testify.” State v.

Carothers, 2006 S.D. 100, ¶ 12, 724 N.W.2d 610, 616. Further, “[an] objection to a

child’s competency is waived if not raised at the trial.” 2 Wharton’s Criminal

Evidence § 7:16 (15th ed. 2012).

[¶19.]       Here, the record demonstrates that the minor victim testified without

objection by Anderson before or during trial. Anderson waited over two months

after trial to make his motion for a new trial on the basis that the trial court failed

to enter a specific finding as to the competency of the minor victim. Further,

neither our statutes nor case law require the trial court to make specific competency

findings unless the competency of the witness is challenged. Because there was no

objection as to the minor victim’s competency as a witness before or during trial, the

trial court was left with the general rule that every person is competent to be a

witness unless otherwise provided by statute. Thus, this issue is waived.

                                CONCLUSION

[¶20.]       The trial court adequately arraigned Anderson. Additionally, because

Anderson did not object to the minor victim’s competency before or during trial, this

issue is waived. We affirm.


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[¶21.]     GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

SEVERSON, Justices, concur.




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