#26346-aff in part, rev & rem in part-DG

2013 S.D. 60

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

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

      v.

GABRIEL DARRYN
MEDICINE EAGLE,                              Defendant and Appellant.


                                      ****

                   APPEAL FROM THE CIRCUIT COURT OF
                       THE SIXTH JUDICIAL CIRCUIT
                      TRIPP COUNTY, SOUTH DAKOTA

                                      ****

                       THE HONORABLE JOHN L. BROWN
                                  Judge

                                      ****

MARTY J. JACKLEY
Attorney General

KIRSTEN E. JASPER
Assistant Attorney General
Pierre, South Dakota                         Attorneys for plaintiff
                                             and appellee.

PAUL E. JENSEN of
Jensen & Massa
Winner, South Dakota
                                             Attorneys for defendant
                                             and appellant.

                                      ****

                                             ARGUED MARCH 19, 2013

                                             OPINION FILED 08/07/13
#26346

GILBERTSON, Chief Justice

[¶1.]        M.E.H. alleges she was kidnapped and raped by Gabriel Darryn

Medicine Eagle, Junior, on September 23, 2000. In 2001, Medicine Eagle was

indicted, but the charges were later dismissed when DNA testing failed to implicate

Medicine Eagle. In 2008, the case was reopened and the evidence obtained in 2000

was retested using a new method of DNA testing. This time, the testing revealed

the presence of Medicine Eagle’s DNA. On December 3, 2009, the grand jury

indicted Medicine Eagle on various charges stemming from the alleged rape.

Further, a Part II Information was filed charging Medicine Eagle as a habitual

offender pursuant to SDCL 22-7-7. At trial, the court admitted evidence of an

incident involving Medicine Eagle and S.M., which allegedly occurred in 2003, as

other acts evidence pursuant to SDCL 19-12-5 (Rule 404(b)). Additionally, the trial

court permitted the State to elicit testimony from a forensic DNA analyst regarding

the results of DNA testing performed in 2008 and 2011, even though some steps of

the testing were performed by nontestifying analysts. The jury found Medicine

Eagle guilty of one count of rape in the second degree, one count of rape in the third

degree, sexual contact with a child under age 16, and kidnapping. In a separate

trial, the jury found that Medicine Eagle was a habitual offender. Medicine Eagle

appeals.

                                       FACTS

[¶2.]        On September 23, 2000, 15-year-old M.E.H. was in Winner, South

Dakota, to attend a funeral. M.E.H. was staying with her grandmother, who lived

in a housing development just outside of Winner. At approximately 6:00 p.m.,


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M.E.H. had sexual intercourse with her 16-year-old boyfriend Patrick Red Bird

while the two were alone at the house. Shortly thereafter, M.E.H., her brother, her

cousin, and her friend left the house and walked to town. At approximately 10:30

p.m., M.E.H. began walking home in order to make her 11:00 p.m. curfew.

[¶3.]        M.E.H. alleges that while she was walking home, 23-year-old Medicine

Eagle and his passenger approached her in Medicine Eagle’s van and offered to give

her a ride home. M.E.H. recognized the passenger, and accepted the ride. M.E.H.

claims Medicine Eagle proceeded to drop the passenger off at his home. After

dropping the passenger off, M.E.H. claims Medicine Eagle drove back into town to

buy beer at a gas station and then drove to the bowling alley so M.E.H. could look

for her cousin. When M.E.H. was unable to locate her cousin, she got back in

Medicine Eagle’s vehicle so that he could take her home. At this point, M.E.H.

alleges Medicine Eagle began driving erratically. Despite her repeated requests to

be taken home, M.E.H. asserts Medicine Eagle drove to a desolate field outside of

Winner. Upon reaching the field, M.E.H. alleges she tried to run away from the van

to get help. However, M.E.H. claims Medicine Eagle caught her and dragged her

back to the van by her hair. M.E.H. alleges Medicine Eagle then forced her into the

van and raped her. According to M.E.H., Medicine Eagle threatened her

throughout the incident. M.E.H. claims Medicine Eagle drove her home after the

rape. Medicine Eagle disputes these allegations.

[¶4.]        When M.E.H. arrived at home, she told her mother she had been

raped. At 2:00 a.m. on September 24, 2000, M.E.H. was taken to the hospital,

where she was examined and a rape kit was collected. The rape kit evidence and


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M.E.H.’s clothing were subsequently sent to the South Dakota State Forensic

Laboratory for testing. After M.E.H. was discharged from the hospital, she was

interviewed by law enforcement. At this point in time, she did not inform law

enforcement that she had sexual intercourse with Red Bird prior to the alleged

rape. In 2001, Medicine Eagle was indicted on charges stemming from the alleged

rape.

[¶5.]        At the South Dakota State Forensic Laboratory, criminalist Stacy

Smith conducted serology testing to check for the presence of bodily fluids on the

evidence. While conducting the testing, Smith established the presence of bodily

fluids on the vaginal swab and the underwear that were collected as part of

M.E.H.’s rape kit. However, prior to 2002, the South Dakota State Forensic

Laboratory did not do DNA testing. As a result, Smith sent M.E.H.’s vaginal swab,

Medicine Eagle’s buccal swab, and M.E.H.’s blood sample to the Orchid Cellmark

(formerly known as GeneScreen) lab in Texas for DNA testing.

[¶6.]        At the time, Amber Moss worked at Orchid Cellmark (Cellmark) as a

forensic scientist. In August 2001, Moss received the evidence sent by Smith. Moss

performed DNA testing on the vaginal swab, and compared it to the DNA profiles

obtained from Medicine Eagle’s buccal swab and M.E.H.’s blood sample. The only

DNA profile Moss was able to obtain during the testing was consistent with

M.E.H.’s DNA profile. Moss sent these results to Smith at the South Dakota State

Forensic Laboratory.

[¶7.]        Shortly thereafter, Smith sent a cutting from M.E.H.’s underwear to

Cellmark for DNA testing. Moss performed DNA testing on the sample and


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compared the DNA profiles obtained from the underwear cutting to the DNA

profiles of M.E.H. and Medicine Eagle. Medicine Eagle was not implicated by the

results of this round of DNA testing. Instead, the only male DNA profile Moss was

able to obtain was from an unknown male individual. Upon completion of the

testing, Cellmark retained the extractions from M.E.H.’s vaginal swab and M.E.H.’s

underwear cutting in a secured area at the lab.

[¶8.]        Because the DNA testing failed to implicate Medicine Eagle and

instead revealed the presence of DNA from an unidentified male, the charges

against Medicine Eagle were dismissed. In 2008, the case was reopened after law

enforcement learned M.E.H. had been sexually involved with Red Bird on the day of

the alleged rape. Using the DNA index system known as CODIS, Smith was able to

match the DNA profile of the unidentified male that was obtained by Cellmark in

2001 to Red Bird. Smith then made inquiries about whether a new DNA-testing

method known as Y-STR testing, which was unavailable when the evidence was

originally tested in 2001, might produce additional results. The South Dakota State

Forensic Laboratory did not do Y-STR testing at this point in time, so Smith

contacted Cellmark to perform the testing.

[¶9.]        In 2008, Cellmark was asked to perform Y-STR testing on the vaginal

swab DNA extract and the underwear cutting DNA extract that Cellmark had

retained from the 2001 DNA testing and to compare those extracts to Red Bird’s

DNA profile and Medicine Eagle’s DNA profile. Barbara Leal, a forensic DNA

analyst, performed the quantitation, dilution, and amplification steps on the




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extracts. 1 As Cellmark used a team approach to DNA testing, the additional steps

associated with the Y-STR testing were performed by other analysts. The results of

the Y-STR testing revealed that Medicine Eagle could not be excluded as a

contributor to the non-sperm cell fraction of the vaginal swab or the non-sperm cell

fraction of the underwear cutting. 2 In May 2011, Cellmark was also asked to

perform Y-STR testing on M.E.H.’s bra, which Cellmark received from Smith. Leal

performed the dilution and amplification steps of the Y-STR testing on the bra

sample. Additionally, Leal completed the analysis of the results and wrote a report

containing her conclusions. The results of the Y-STR testing of the bra sample

established that Medicine Eagle could not be excluded as a contributor to the


1.    At trial, Moss generally described the DNA testing process. She testified that
      the first step in the process is known as extraction, which is the process by
      which DNA present in the sample is purified. She indicated that the second
      step is quantitation, which establishes the amount of DNA present in the
      sample. Moss explained that the third step is amplification, which is the
      process by which millions of copies of the segments of DNA being tested are
      made. Moss testified that after amplification, the amplified product is put
      into a genetic analyzer, and analysis software is used to produce the DNA
      profile associated with the sample. Moss explained that the same process is
      then repeated with the known samples from the suspect and victim to
      produce those DNA profiles. After obtaining DNA profiles from the evidence
      and the known samples, the profiles are then compared to determine if there
      is a match, and if there is a match, statistical analysis is performed. Leal
      testified that the Y-STR testing process is similar to the process Moss
      described. Leal explained that the two main differences associated with Y-
      STR testing are that in Y-STR testing only the male DNA is quantitated, and
      during the copying portion of Y-STR testing, only the Y chromosomes are
      examined. Additionally, with regard to the DNA testing process, Leal
      testified that the dilution step is performed to dilute any DNA with water
      prior to amplification.

2.    Leal did not write the original report in 2008 containing these results.
      However, Leal later independently reviewed the report, analyzed the results,
      and reached her own conclusions regarding whether Medicine Eagle or Red
      Bird could be excluded as contributors to the samples.

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sample. As to each of these samples, Leal’s statistical analyses indicated that

although Medicine Eagle could not be excluded as a contributor, 99.97 percent of

paternally unrelated males would be excluded as contributors to the samples.

[¶10.]       On December 3, 2009, the grand jury indicted Medicine Eagle on four

counts of second-degree rape, three counts of third-degree rape, one count of sexual

contact with a child under age 16, and four counts of kidnapping as a result of the

incident that allegedly occurred between Medicine Eagle and M.E.H. in September

2000. Additionally, on July 14, 2010, the State filed a Part II Information charging

Medicine Eagle as a habitual offender pursuant to SDCL 22-7-7, because Medicine

Eagle had a prior felony conviction. Medicine Eagle was arraigned on the charges

on August 3, 2010, and pleaded not guilty.

[¶11.]       Prior to trial, the parties filed various motions. On July 21, 2011, the

State filed a motion to introduce other acts evidence pursuant to SDCL 19-12-5

(Rule 404(b)), based on an incident that allegedly occurred between Medicine Eagle

and thirteen-year-old S.M. on January 29, 2003. S.M. alleged that on that date

Medicine Eagle called her home at approximately 4:00 a.m. looking for her sister.

According to S.M., Medicine Eagle told her that her mother needed help at work.

S.M. claimed Medicine Eagle said he was at the house next door and offered to give

her a ride. S.M. did not personally know Medicine Eagle, but she accepted the ride

because Medicine Eagle knew her sister. S.M. claimed Medicine Eagle’s driving

was erratic, and that he forced her to drink vodka while they were driving.

Additionally, instead of taking S.M. to her mother, S.M. alleged Medicine Eagle

drove to a field outside of town. Once the vehicle stopped and S.M. tried to run


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away, S.M. claimed Medicine Eagle grabbed her, dragged her back to his vehicle by

her hair, and engaged in sexual contact with her. S.M. asserted the attack ended

when she told Medicine Eagle she was going to tell her mom about what happened,

and she became physically ill. S.M. claimed Medicine Eagle then drove her home.

However, S.M. asserted Medicine Eagle threatened to kill her if she told anyone

about the incident. The trial court granted the State’s motion and allowed the State

to present this evidence to the jury pursuant to SDCL 19-12-5 (Rule 404(b))’s plan

exception.

[¶12.]       On September 29, 2011, the State filed a notice of its intent to offer

witness testimony regarding the DNA evidence. In addition to testimony from

Smith, Moss, and other witnesses, the State sought to introduce testimony from

Leal regarding the Y-STR testing performed in 2008 and 2011. Medicine Eagle

objected to this testimony, arguing it violated his Sixth Amendment right to

confront the witnesses against him because other analysts that performed some

steps of the DNA testing in 2008 and 2011 were not being called as witnesses. The

trial court rejected Medicine Eagle’s objections to this testimony.

[¶13.]       Medicine Eagle’s jury trial commenced on October 11, 2011. On

October 18, 2011, the jury returned a verdict finding Medicine Eagle guilty of one

count of rape in the second degree, one count of rape in the third degree, sexual

contact with a child under age 16, and kidnapping. On October 24, 2011, the State

filed an Amended Part II Information for Habitual Offender alleging that Medicine

Eagle had a second prior felony conviction. Medicine Eagle was then rearraigned on

the Amended Part II Information. However, the State later dismissed the Amended


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Part II Information after discovering that the second “prior” felony conviction

actually occurred after the principal offense. 3 The State then proceeded to trial on

the original Part II Information, to which Medicine Eagle made no objection. The

jury returned a verdict on January 27, 2012, finding that Medicine Eagle was a

habitual offender.

[¶14.]         On February 13, 2012, Medicine Eagle filed a motion to vacate the part

II proceedings, arguing that the trial court had no jurisdiction over the part II

proceedings. Medicine Eagle claimed the State’s filing of the Amended Part II

Information dismissed the original Part II Information. Thus, he asserted that

because the State failed to file a second Amended Part II Information or refile the

original Part II Information, no part II information even existed at the time of the

habitual offender jury trial. The trial court denied the motion. Medicine Eagle

received sentences of 25 years in the South Dakota State Penitentiary for rape in

the second degree, 15 years for sexual contact with a child under age 16, and life

imprisonment for kidnapping. Medicine Eagle appeals the trial court’s admission of

the other acts evidence, admission of Leal’s testimony regarding the results of the

Y-STR testing conducted in 2008 and 2011, and its denial of his motion to vacate

the part II proceedings.

                             ANALYSIS AND DECISION

[¶15.]         1.     Whether the trial court abused its discretion in admitting
                      evidence of the incident involving S.M. as other acts
                      evidence pursuant to SDCL 19-12-5 (Rule 404(b)).


3.       The State’s dismissal of the Amended Part II Information explicitly stated
         that “[t]he State does not dismiss the original Part II and intends to proceed
         with that original Part II at the trial on such matter.”

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[¶16.]         “A trial court’s determination to admit other acts evidence will not be

overruled absent an abuse of discretion.” State v. Mattson, 2005 S.D. 71, ¶ 21, 698

N.W.2d 538, 546 (quoting State v. Anderson, 2000 S.D. 45, ¶ 93, 608 N.W.2d 644,

670). “An abuse of discretion is ‘discretion exercised to an end or purpose not

justified by and clearly against, reason and evidence.’” State v. Big Crow, 2009 S.D.

87, ¶ 7, 773 N.W.2d 810, 812 (quoting State v. Machmuller, 2001 S.D. 82, ¶ 9, 630

N.W.2d 495, 498). The admission of other acts evidence is governed by SDCL 19-12-

5 (Rule 404(b)), which provides:

               Evidence of other crimes, wrongs, or acts is not admissible to
               prove the character of a person in order to show that he acted in
               conformity therewith. It may, however, be admissible for other
               purposes, such as proof of motive, opportunity, intent,
               preparation, plan, knowledge, identity, or absence of mistake or
               accident.

[¶17.]         “To determine the admissibility of other acts evidence, the court must .

. . determine: (1) whether the intended purpose is relevant to some material issue in

the case, and (2) whether the probative value of the evidence is substantially

outweighed by its prejudicial effect.” State v. Huber, 2010 S.D. 63, ¶ 56, 789 N.W.2d

283, 301 (quoting State v. Janklow, 2005 S.D. 25, ¶ 34, 693 N.W.2d 685, 697). This

Court has previously determined that SDCL 19-12-5 (Rule 404(b)) is a rule of

inclusion, as opposed to exclusion. 4 State v. Wright, 1999 S.D. 50, ¶ 13, 593 N.W.2d



4.       Specifically, in State v. Wright, this Court acknowledged SDCL 19-12-5 (Rule
         404(b)) was previously viewed as a rule of exclusion, as opposed to inclusion.
         1999 S.D. 50, ¶ 13, 593 N.W.2d at 797-98 (explaining that “[i]n the past, we
         stressed that ‘generally, evidence of crimes or acts other than the ones with
         which the defendant is charged are inadmissible, unless an exception
         applies’”). However, in Wright, this Court clarified that SDCL 19-12-5 (Rule
         404(b)) is a rule of inclusion, stating that “no preliminary showing is
                                                                (continued . . .)
                                               -9-
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792, 798. “[O]nce a circuit court finds other acts evidence relevant, ‘the balance tips

emphatically in favor of admission.’” Huber, 2010 S.D. 63, ¶ 59, 789 N.W.2d at 302

(quoting Janklow, 2005 S.D. 25, ¶ 38, 693 N.W.2d at 698). Further, “[m]ere damage

to a defendant’s position is not a basis for exclusion[.]” Id. Essentially, “[a]ll that is

prohibited under § 404(b) is that similar act evidence not be admitted ‘solely to

prove character.’” Wright, 1999 S.D. 50, ¶ 17, 593 N.W.2d at 800 (quoting

Huddleston v. United States, 485 U.S. 681, 687, 108 S. Ct. 1496, 1500, 99 L. Ed. 2d

771 (1988)).

[¶18.]         This Court has previously recognized that evidence of other acts can be

admitted under the plan exception “not only where the charged and uncharged acts

are part of a single continuing conception or plot, but also where the uncharged

misconduct is sufficiently similar to support the inference that they are

manifestations of a common plan, design, or scheme . . . .” Big Crow, 2009 S.D. 87,

¶ 8, 773 N.W.2d at 812 (citing State v. Champagne, 422 N.W.2d 840, 842 (S.D.

1988)). “[W]here the defendant denies doing the charged act, evidence of a common

plan or scheme to achieve the act is directly relevant to refute this general denial.”

State v. Ondricek, 535 N.W.2d 872, 875 (S.D. 1995) (citing United States v.

Weidman, 572 F.2d 1199, 1202 (7th Cir. 1978)).

________________________
(. . . continued)
         necessary before such evidence may be introduced for a proper purpose.” Id.
         ¶ 13, 593 N.W.2d at 798. Thus, Wright rejects the view previously taken in
         State v. Chamley (and subsequently utilized in State v. Reyes, 2005 S.D. 46, ¶
         14, 695 N.W.2d 245, 251), which required a showing that “the probative value
         of the proffered evidence substantially outweighs the danger of unfair
         prejudice” prior to the admission of other acts evidence (and in essence
         treated SDCL 19-12-5 (Rule 404(b)) as a rule of exclusion). 1997 S.D. 107, ¶¶
         9-10, 568 N.W.2d 607, 611-12.

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[¶19.]       The existence of a plan need not be proven with direct evidence, but

instead “can be shown circumstantially[,] with evidence that the defendant

committed a series of similar but ‘unconnected’ acts.” Wright, 1999 S.D. 50, ¶ 19,

593 N.W.2d at 801 (citing People v. Ewoldt, 867 P.2d 757, 768-69 (Cal. 1994)).

Essentially, “[a]ll that is required to show a common plan is that the charged and

uncharged events ‘have sufficient points in common.’” Id. ¶ 19, 593 N.W.2d at 800

(citing United States v. Elizondo, 920 F.2d 1308, 1320 (7th Cir. 1990)). However,

the other acts evidence “must demonstrate ‘not merely a similarity in results, but

such a concurrence of common features that the various acts are naturally to be

explained as caused by a general plan of which they are the individual

manifestations.’” Id. ¶ 19, 593 N.W.2d at 801 (quoting Ewoldt, 867 P.2d at 770).

[¶20.]       In this case, the trial court concluded that evidence of the incident

involving S.M. was admissible under SDCL 19-12-5 (Rule 404(b)) to show Medicine

Eagle’s plan, common scheme, and modus operandi. In admitting the evidence, the

trial court concluded that the incidents involving M.E.H. and S.M. were “strikingly

similar,” and that the incident involving S.M. was relevant to prove that Medicine

Eagle “had a common plan or scheme to kidnap, rape, and assault young girl

victims he could take advantage of after isolating them by use of his deception,

physical threats, and intimidation.” Furthermore, the trial court concluded that the

incident involving S.M., which occurred approximately two and one-half years after

M.E.H. was allegedly kidnapped and raped, was not too remote so as to exclude its

admission from trial. Finally, the trial court determined that admission of evidence

regarding the incident involving S.M. was not unfairly prejudicial.


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[¶21.]         On appeal, Medicine Eagle argues that evidence of the incident

involving S.M. was inadmissible for two reasons. First, Medicine Eagle argues that

evidence of the incident involving S.M., which allegedly occurred two and one-half

years after Medicine Eagle’s commission of the crimes against M.E.H., cannot be

used to prove that Medicine Eagle had a plan in 2000. However, this Court has

previously recognized that “[o]ther act evidence does not have to be a prior act to be

admissible under SDCL 19-12-5 (Rule 404(b)).” State v. Toohey, 2012 S.D. 51, ¶ 20,

816 N.W.2d 120, 129. Further, in State v. White, this Court acknowledged that

other jurisdictions have admitted evidence of acts occurring subsequent to the

charged offense to prove common plan or scheme. 538 N.W.2d 237, 244 (S.D. 1995)

(discussing State v. Downing, 511 P.2d 638 (Ariz. 1973) and State v. Morgan, 485

P.2d 1371 (Kan. 1971), in which the Supreme Courts of Arizona and Kansas held

that evidence of rapes committed after the rapes the defendants were on trial for

was admissible to show plan or scheme). 5 Thus, subsequent acts can be admitted

under the plan exception to SDCL 19-12-5 (Rule 404(b)).




5.       In addition to the Arizona and Kansas cases specifically recognized in White,
         other jurisdictions have also allowed evidence of acts occurring subsequent to
         the charged conduct to be admitted as proof of a common scheme or plan. See
         People v. Catlin, 26 P.3d 357 (Cal. 2001) (evidence regarding defendant’s
         murder of his fifth wife was admissible, in prosecution for first-degree
         murders of his mother and fourth wife, to show identity and to establish
         common scheme or plan); People v. Balcom, 867 P.2d 777 (Cal. 1994) (holding
         that evidence that defendant committed uncharged rape and robbery weeks
         after charged offenses was admissible to prove that charged offenses were
         manifestations of common design or plan); State v. Ramsey, 692 N.W.2d 498
         (N.D. 2005) (evidence of subsequent sexual contact was admissible under the
         plan or absence of mistake or accident exceptions to Rule 404(b)); State v.
         Cowley, 672 S.E.2d 319 (W. Va. 2008) (evidence of burglary and sexual
                                                              (continued . . .)
                                            -12-
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[¶22.]         Second, Medicine Eagle argues evidence of the incident involving S.M.

was not admissible under SDCL 19-12-5 (Rule 404(b))’s plan exception because the

State did not present evidence to establish that a common plan or scheme actually

existed at the time of M.E.H.’s alleged rape in 2000. However, as discussed above,

direct proof of the existence of a plan is not necessary. Instead, the existence of a

common plan or scheme can be proven circumstantially by establishing that the

acts are sufficiently similar. In this case, Medicine Eagle does not argue the

incidents involving M.E.H. and S.M. were not similar. 6 Therefore, we need not

further address this argument. 7

[¶23.]         Overall, we conclude that the trial court did not abuse its discretion in

admitting evidence of the incident involving S.M. under SDCL 19-12-5 (Rule

404(b)). The record reflects that the trial court made the proper inquiries before

admitting the evidence. Additionally, the trial court gave a limiting instruction to


________________________
(. . . continued)
         assault that occurred six months after burglary and sexual assault defendant
         was on trial for was admissible to show common plan).

6.       Additionally, Medicine Eagle has not directly challenged the length of time
         between the kidnapping and rape of M.E.H. in 2000 and the incident
         involving S.M. in 2003. Regardless, this Court has previously stated that “we
         have chosen not to set a rigid time limitation when determining whether bad
         acts are too remote.” Ondricek, 535 N.W.2d at 877 (concluding that sexual
         abuse occurring ten years prior to the prosecution was not too remote).

7.       At oral argument, counsel for Medicine Eagle requested that this Court
         impose a requirement that the jury/judge make a specific finding in cases
         involving SDCL 19-12-5 (Rule (404(b)), when subsequent acts are used to
         prove the existence of a common plan or scheme, that the common plan or
         scheme actually existed at the time of the charged conduct and did not arise
         later. However, counsel for Medicine Eagle cites no authority for imposing
         such a requirement.

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prevent the jury from misusing the evidence. Specifically, the trial court advised

the jury that evidence of the incident involving S.M. could be used “only to show:

motive, intent, plan or common scheme. You may not consider it as tending to show

in any other respect the defendant’s guilt of the offense with which the defendant is

charged.” Further, the jury was instructed that it was “not required to consider this

evidence and whether you do is a matter within your exclusive province.” 8 As a

result, under the circumstances of this case, the trial court did not err in admitting

evidence of the incident involving S.M.

[¶24.]         2.     Whether Medicine Eagle’s rights under the Sixth
                      Amendment’s Confrontation Clause were violated when
                      the trial court allowed Barbara Leal to testify about the
                      2008 and 2011 Y-STR testing even though some steps of
                      the testing were performed by nontestifying analysts.

[¶25.]         At trial, the State called Leal to testify regarding the 2008 and 2011 Y-

STR testing. Leal testified about the different steps she performed during the 2008

and 2011 Y-STR testing. Leal explained that she did not perform every step of the

Y-STR testing conducted in 2008 and 2011, as Cellmark utilized a team approach to

DNA testing. However, Leal testified that she was familiar with the other steps of

the testing and had performed them on other occasions. Additionally, Leal

explained that the analysts at Cellmark were trained to follow standard operating


8.       In addition, prior to admitting S.M.’s testimony regarding the alleged rape,
         the trial court instructed the jury:
                You may only consider [evidence of the incident involving S.M.]
                to determine, motive, plan and common scheme. Before
                determining whether to consider this evidence, you must first
                determine if a preponderance of the evidence established that
                [Medicine Eagle] committed the other acts. You are not required
                to consider this evidence and whether you do so or not is a
                matter within your exclusive province.

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protocols in conducting DNA testing, and that they were trained to note any

discrepancies. Leal testified that because no discrepancies were noted by the

analysts that performed the other steps of the Y-STR testing, the standard

operating protocols were followed.

[¶26.]         Leal also testified about the results of the 2008 and 2011 Y-STR

testing, which implicated Medicine Eagle. Leal explained that although she did not

create the original 2008 report containing the results of the 2008 testing, she

independently reviewed the report, analyzed the results, and reached her own

conclusions regarding whether Medicine Eagle or Red Bird could be excluded as

contributors to the samples. Leal’s conclusions were generally consistent with the

conclusions contained in the 2008 report. 9 Additionally, Leal testified about the

conclusions she reached regarding the 2011 Y-STR testing, which were consistent

with her 2011 report. At trial, neither the 2008 report nor the 2011 report were

introduced into evidence through Leal. Instead, the State introduced Exhibit 19,

which was a chart containing a summary of Leal’s conclusions and statistical

calculations for each of the samples tested in 2008 and 2011. 10 On appeal, Medicine

Eagle argues his Sixth Amendment right to confront the witnesses against him was

violated when the trial court allowed Leal to testify about the results of the 2008



9.       However, Leal made one slight modification. The 2008 report indicated that
         the profile obtained from the non-sperm cell fraction of the underwear cutting
         was a mixture of at least two males. Leal reviewed the profile and
         determined that the mixture appeared to be more consistent with originating
         from two males.

10.      Thus, Medicine Eagle’s assertions that the 2008 and 2011 reports were
         introduced at trial through Leal are not supported by the record.

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and 2011 Y-STR testing (and admitted Exhibit 19 containing Leal’s conclusions and

statistical calculations) because some steps of the testing were performed by

nontestifying analysts.

[¶27.]       Alleged violations of constitutional rights are reviewed by this Court

under the de novo standard of review. State v. Johnson, 2009 S.D. 67, ¶ 10, 771

N.W.2d 360, 365 (citing State v. Selalla, 2008 S.D. 3, ¶ 18, 744 N.W.2d 802, 807).

“The Sixth Amendment to the United States Constitution, made applicable to the

States via the Fourteenth Amendment, provides that ‘in all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted with the witnesses against

him.’” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309, 129 S. Ct. 2527, 2531,

174 L. Ed. 2d 314 (2009) (internal citation omitted). In Crawford v. Washington,

the United States Supreme Court held that under the Sixth Amendment’s

Confrontation Clause, “[t]estimonial statements of witnesses absent from trial [are

admissible] only where the declarant is unavailable, and only where the defendant

has had a prior opportunity to cross-examine.” 541 U.S. 36, 59, 124 S. Ct. 1354,

1369, 158 L. Ed. 2d 177 (2004). As we recognized in State v. Johnson:

             Crawford did not precisely articulate what is considered
             ‘testimonial,’ but it provided some guidance. At a minimum, the
             Court announced, ‘testimonial’ includes statements made during
             police interrogations and prior testimony at a preliminary
             hearing, before a grand jury, or at a former trial. In describing
             testimonial statements, the Court also noted that testimony is
             typically ‘[a] solemn declaration or affirmation made for the
             purpose of establishing or proving some fact.’ Further, the
             Court offered a non-exclusive list of ‘formulations’ of the term
             ‘testimonial’: (1) ‘ex parte in-court testimony or its functional
             equivalent-that is, material such as affidavits, custodial
             examinations, prior testimony that the defendant was unable to
             cross-examine . . . ;’ (2) ‘extrajudicial statements contained in
             formalized testimonial materials, such as affidavits, depositions,

                                         -16-
#26346

               prior testimony, or confessions;’ and (3) statements made under
               circumstances that would lead an objective witness reasonably
               to believe that the statement would be available for use at a
               later trial.

2009 S.D. 67, ¶ 19, 771 N.W.2d at 368 (internal citations omitted).

[¶28.]         Following Crawford, the United States Supreme Court issued two

decisions that are relevant to Medicine Eagle’s appeal: Bullcoming v. New Mexico,

___ U.S. ___, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011) and Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009). 11 Melendez-

Diaz was decided by the Court in 2009. 557 U.S. 305, 129 S. Ct. 2527. In Melendez-

Diaz, the defendant was charged with distributing and trafficking cocaine. Id. at

308, 129 S. Ct. at 2530. At trial, the prosecution submitted three notarized

“certificates of analysis” containing the results of the forensic analysis performed on

the substances seized from the defendant, which established the substances were

cocaine. Id. at 308, 129 S. Ct. at 2531. The defendant objected to the admission of

the certificates, arguing that admission of the certificates without testimony from

the analysts who tested the seized substances violated his rights under the

Confrontation Clause. Id. at 309, 129 S. Ct. at 2531. The trial court overruled the


11.      Williams v. Illinois, ___ U.S. ___, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012)
         (plurality opinion), is the United States Supreme Court’s most recent decision
         relevant to Medicine Eagle’s Sixth Amendment claim. In Williams, the
         United States Supreme Court specifically considered an alleged violation of a
         defendant’s Confrontation Clause rights based on the introduction of
         testimony regarding DNA testing. ___ U.S. ___, 132 S. Ct. 2221. However,
         given the fractured nature of the Williams opinion and that no rationale was
         agreed upon by a majority, Williams does not provide this Court with a sound
         basis for its decision in this case. See CTS Corp. v. Dynamics Corp. of Am.
         481 U.S. 69, 81, 107 S. Ct. 1637, 95 L. Ed. 2d 67 (1987) (indicating that
         plurality opinions, which do not represent the views of a majority of the
         Court, are not binding precedent).

                                          -17-
#26346

defendant’s objection, and admitted the certificates. Id. On appeal, the United

States Supreme Court held the certificates were testimonial statements, and the

analysts were “witnesses” for purposes of the Sixth Amendment. Id. at 312, 129 S.

Ct. at 2532. As a result, the Court concluded that the trial court’s admission of the

certificates without requiring the analysts to be called as witnesses violated the

defendant’s rights under the Confrontation Clause. Id. at 329, 129 S. Ct. at 2542.

[¶29.]       Bullcoming was decided by the Court in 2011. ___ U.S. ___, 131 S. Ct.

2705. In Bullcoming, the defendant was arrested and charged with driving while

intoxicated (DWI). Id. at ___, 131 S. Ct. 2709. At trial, the prosecution introduced a

forensic laboratory report which certified that the defendant’s blood alcohol

concentration was above the limit for aggravated DWI. Id. However, the analyst

that signed the report did not testify. Id. Instead, the prosecution called an analyst

who was familiar with the lab’s testing procedures, but had neither participated in

nor observed the testing of the defendant’s blood sample. Id. On appeal, the United

States Supreme Court held that the report was testimonial and that admission of

the report through an analyst who did not sign the report or perform or observe the

testing violated the defendant’s rights under the Confrontation Clause. Id. at __,

131 S. Ct. 2710. The Court concluded that the “surrogate testimony” did not satisfy

constitutional requirements and that the defendant had the right to confront the

analyst who certified the report. Id.

[¶30.]       In support of his claims that the admission of Leal’s testimony

regarding the 2008 and 2011 Y-STR testing violated his Confrontation Clause

rights, Medicine Eagle argues this case is equivalent to Bullcoming. Medicine


                                         -18-
#26346

Eagle asserts Leal essentially offered “surrogate testimony” because she did not

perform each step of the Y-STR testing conducted in 2008 and 2011, yet she still

testified about the results of the testing. However, the facts of this case are

distinguishable from the facts of Bullcoming in three key respects. First, unlike in

Bullcoming, where the nontestifying analyst’s report was admitted into evidence, in

this case neither the 2008 report nor the 2011 report were even admitted into

evidence. Instead, the only exhibits admitted through Leal were her curriculum

vitae and the chart she created containing a summary of her independent

conclusions and statistical calculations for each sample tested in 2008 and 2011. 12

Second, unlike the analyst in Bullcoming, who did not participate in or observe the

testing, in this case Leal participated in various steps of both the 2008 and 2011 Y-

STR testing. Third, unlike the analyst in Bullcoming, who testified about the

testing results reached by a nontestifying analyst, in this case Leal did not testify

about another analyst’s conclusions or the specific contents of the original 2008

report. Instead, Leal only testified about her own conclusions from the 2008 and

2011 Y-STR testing and the statistical calculations she performed. Therefore, this

case is factually distinguishable from Bullcoming. For these same reasons, this

case is also distinguishable from Melendez-Diaz.

[¶31.]         Although Bullcoming and Melendez-Diaz are factually distinguishable

from this case, both Bullcoming and Melendez-Diaz provide guidance on issues

pertinent to Medicine Eagle’s claim that his Confrontation Clause rights were


12.      Furthermore, Leal created and signed the report regarding the 2011 Y-STR
         testing. Therefore, even if the 2011 report had been admitted through Leal,
         its admission would likely have been appropriate under Bullcoming.

                                          -19-
#26346

violated when Leal was permitted to testify about the 2008 and 2011 Y-STR testing

even though she did not perform each step of the testing. Therefore, both

Bullcoming and Melendez-Diaz remain relevant to this Court’s resolution of

Medicine Eagle’s Sixth Amendment claim.

[¶32.]         Specifically, Melendez-Diaz provides some guidance as to who must be

called as a witness in order to satisfy a defendant’s rights under the Confrontation

Clause in cases where testing is performed by multiple individuals. In Melendez-

Diaz, after holding that the certificates were “testimonial” and that the defendant

was entitled to be confronted at trial with the analysts who created the certificates,

the Court clarified its holding, stating: “we do not hold, and it is not the case, that

anyone whose testimony may be relevant in establishing the chain of custody,

authenticity of the sample, or accuracy of the testing device, must appear in person

as part of the prosecution’s case.” 557 U.S. at 311 n.1, 129 S. Ct. at 2532 n.1.

Further, the Court indicated that its holding “does not mean that everyone who laid

hands on the evidence must be called.” 13 Id.

[¶33.]         Additionally, Justice Sotomayor’s concurrence in Bullcoming provides

guidance on the issue of whether a testifying analyst’s level of involvement in the

forensic testing impacts a court’s evaluation of a defendant’s claim that his or her

right to confrontation was violated. In Bullcoming, Justice Sotomayor suggested

the Court’s decision was affected by whether the testifying analyst participated in



13.      The Court provided this clarification in response to concerns the dissent
         raised regarding which analyst would be required to testify in situations
         where multiple individuals participated in the forensic testing process.
         Melendez-Diaz, 557 U.S. 305, 129 S. Ct. 2527.

                                           -20-
#26346

the forensic testing. ___ U.S. at ___, 131 S. Ct. at 2722 (Sotomayor, J., concurring).

Justice Sotomayor recognized that Bullcoming “is not a case in which the person

testifying is a supervisor, reviewer, or someone else with a personal, albeit limited,

connection to the scientific test at issue.” Id. Justice Sotomayor went on to point

out that instead, the testifying analyst in Bullcoming had no involvement in

conducting the forensic testing or producing the report introduced at trial. Id.

[¶34.]         With this guidance in mind, we conclude that Medicine Eagle’s

Confrontation Clause rights were not violated by the State’s introduction of

testimony from Leal regarding the 2008 and 2011 Y-STR testing. Leal participated

in various steps of both the 2008 and 2011 testing and even wrote the original

report regarding the results of the 2011 Y-STR testing. Also, Leal independently

reviewed, analyzed, and compared the data obtained during the 2008 Y-STR

testing. She then came to her own independent conclusions about whether

Medicine Eagle could be excluded as a contributor to the samples. In addition, the

2008 and 2011 Y-STR testing reports were not introduced at trial through Leal.

Instead, only the chart Leal created, which contained a summary of her conclusions

and statistical calculations for each sample, was admitted into evidence. Further,

Leal only testified about her own conclusions and statistical calculations. Finally,

Medicine Eagle had an adequate opportunity to cross-examine Leal at trial

regarding her conclusions and statistical calculations. 14 Therefore, under the



14.      Notably, in similar situations, other jurisdictions have concluded that a
         defendant’s Sixth Amendment rights were not violated even though some of
         the analysts who participated in the forensic testing process did not testify at
         trial. See United States v. Boyd, 686 F. Supp. 2d 382 (S.D.N.Y. 2010), aff’d,
                                                               (continued . . .)
                                            -21-
#26346

circumstances of this case, we conclude that Medicine Eagle’s Sixth Amendment

right to confrontation was not violated by the trial court’s admission of Leal’s

testimony regarding the 2008 and 2011 Y-STR testing, even though analysts who

performed some steps of the 2008 and 2011 Y-STR testing did not testify at trial.

[¶35.]       3.     Whether the trial court erred in denying Medicine
                    Eagle’s motion to vacate the part II proceedings.

[¶36.]       On appeal, Medicine Eagle argues that the State’s filing of the

Amended Part II Information dismissed the original Part II Information. As a

result, Medicine Eagle asserts that when the State dismissed the Amended Part II

Information without refiling the original Part II Information or filing a second

Amended Part II Information, no part II information even existed upon which the

trial court could proceed. Thus, because no part II information existed, Medicine

________________________
(. . . continued)
         401 F. App’x 565 (2d Cir. 2010) (holding that defendant’s Sixth Amendment
         right to confrontation was not violated when DNA expert was permitted to
         testify about the results of preliminary steps of the testing performed by
         other analysts, which formed part of the basis for the DNA expert’s analysis
         and conclusion); Disharoon v. State, 727 S.E.2d 465 (Ga. 2012), cert. denied,
         133 S. Ct. 767, 184 L. Ed. 2d 507 (2012) (concluding that Confrontation
         Clause was not violated when expert was allowed to testify about the results
         of DNA testing, even though expert did not perform every step of the testing);
         Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009) (concluding that defendant’s
         Sixth Amendment rights were not violated when lab supervisor testified to
         DNA testing results, but analyst who performed the tests did not testify at
         trial); State v. Lopez, 45 A.3d 1 (R.I. 2012) (concluding that defendant’s
         confrontation rights were not violated by lab supervisor’s testimony
         regarding DNA testing results, even though lab supervisor did not perform
         the preliminary stages of the DNA testing and the analysts that performed
         those steps were not called to testify at trial); State v. Manion, 295 P.3d 270
         (Wash. Ct. App. 2013) (holding that testimony of DNA expert regarding
         results of DNA testing performed by nontestifying analyst did not violate the
         defendant’s Confrontation Clause rights because the DNA expert conducted
         an independent review of the results and formed her own opinion about the
         DNA evidence).

                                          -22-
#26346

Eagle claims the trial court did not have subject-matter jurisdiction over his

habitual offender jury trial.

[¶37.]       In contrast, the State argues that subject-matter jurisdiction is not an

issue because the trial court already obtained personal and subject-matter

jurisdiction with regard to the principal offense. Additionally, although the State

recognizes that the filing of an amended complaint supersedes an original

complaint in civil matters, the State argues that the same rule is not applicable to

habitual offender proceedings because a part II information is not the same as a

criminal or civil complaint. Further, the State claims that its filing of the dismissal

of the Amended Part II Information should actually be treated as an amendment or

modification of the Amended Part II Information to revert back to the original Part

II Information. Finally, the State argues Medicine Eagle waived his challenge to

the part II proceedings because he did not object to the use of the original Part II

Information until after the jury found him to be a habitual offender.

[¶38.]       We first address the State’s argument that Medicine Eagle waived his

challenge to the part II proceedings. “Whether this Court has jurisdiction is a legal

issue which is reviewed de novo.” State v. Anders, 2009 S.D. 15, ¶ 5, 763 N.W.2d

547, 549 (citing State v. Owen, 2007 S.D. 21, ¶ 10, 729 N.W.2d 356, 362).

“Jurisdictional issues can be raised at any time and determination of jurisdiction is

appropriate.” Id. ¶ 5, 763 N.W.2d at 549-50 (citing Sazama v. State ex rel.

Muilenberg, 2007 S.D. 17, ¶ 9, 729 N.W.2d 335, 340). Further, subject-matter

jurisdiction cannot be acquired by agreement, consent, waiver, or estoppel.

Honomichl v. State, 333 N.W.2d 797, 799 (S.D. 1983).


                                         -23-
#26346

[¶39.]         Consideration of whether jurisdiction exists generally entails a

determination of whether the court possesses personal jurisdiction over the

defendant and subject-matter jurisdiction over the subject matter before it. See

Calhoun v. Bryant, 28 S.D. 266, 133 N.W. 266, 269 (1911). The State is correct that

the trial court did have subject-matter jurisdiction over the criminal charges the

State brought against the defendant. However, as one court observed,

“‘[j]urisdiction’ is a word of many, too many, meanings.” United States v. Vanness,

85 F.3d 661, 663 n.2 (D.C. Cir. 1996). In reviewing similar cases involving statutory

schemes requiring the filing of an information in order for a defendant to be subject

to an enhanced sentence, courts are split over whether the failure to file an

information, or defects in its filing, are issues of jurisdiction, or whether instead,

such flaws simply prevent, preclude, bar, or deprive the trial court of the authority

to impose an enhanced sentence. 15 See Prou v. United States, 199 F.3d 37, 44 (1st

Cir. 1999).

[¶40.]         In South Dakota, beyond the concepts of personal and subject-matter

jurisdiction, we have defined the term “jurisdiction” more broadly to include “the

legal power, right, or authority to hear and determine a cause or causes, considered

either in general or with reference to the particular matter, . . . [the] power to


15.      We note that none of the cases cited by Justice Zinter or Judge Salter involve
         a situation in which the part II information had been dismissed. We also
         note that Justice Zinter heavily relies on State v. Mee (Mee I), 67 S.D. 335,
         292 N.W. 875 (1940), rev’d on rehearing, 67 S.D. 589, 297 N.W. 40 (1941)
         (Mee II) and Justice Wollman’s writing in Honomichl v. State, 333 N.W.2d
         797, 800 (S.D. 1983) (Wollman, J., dissenting). See infra Justice Zinter’s
         dissent ¶¶ 71, 75 n.25, 76. We emphasize that neither is controlling, as
         Justice Wollman did not write for the majority in Honomichl, and Mee I was
         reversed by Mee II.

                                           -24-
#26346

inquire into the facts and apply the law, and . . . the right to adjudicate concerning

the subject-matter in the given case[.]” State ex rel. Byrne v. Ewert, 36 S.D. 622,

156 N.W. 90, 95 (1916) (citation omitted). We have also declared it to mean

“whether there was power to enter upon the inquiry and not whether the

determination by the court of a question of law or fact involved is correct.” Jannsen

v. Tusha, 68 S.D. 639, 643, 5 N.W.2d 684, 685 (1942). Applying those definitions,

we conclude that the question of whether there was statutory authority for the trial

court to impose the enhanced sentence (given the disputed legal status of the

original/Amended Part II Information) is a jurisdictional question. As a result, this

Court can review Medicine Eagle’s challenge to the part II proceedings regardless of

when he made this challenge.

[¶41.]       Next, SDCL 22-7-11 requires that:

             Any allegation that a defendant is an habitual criminal shall be
             filed as a separate information at the time of, or before,
             arraignment. However, the court may, upon motion, permit the
             separate information to be filed after the arraignment, but no
             less than thirty days before the commencement of trial or entry
             of a plea of guilty or nolo contendre. The information shall state
             the times, places, and specific crimes alleged to be prior
             convictions and shall be signed by the prosecutor. An official
             court record under seal or a criminal history together with
             fingerprints certified by the public official having custody
             thereof is sufficient to be admitted in evidence, without further
             foundation, to prove the allegation that the defendant is an
             habitual criminal.

(Emphasis added.) This Court has not previously addressed the issue of whether

the filing of an Amended Part II Information in a habitual offender proceeding

serves to dismiss the original Part II Information. When considering how the filing

of an amended information affects the original information, several courts have held


                                         -25-
#26346

that the filing of an amended information essentially acts as a dismissal of the

original information. See Armstrong v. United States, 16 F.2d 62, 64 (9th Cir. 1926)

(indicating that the amendment of an information causes the original information to

be abandoned, and that the filing of a new information “destroyed all functions of

the old information as fully as though it had been dismissed by formal motion”);

Wilcox v. State, 248 So. 2d 692, 694 (Fla. Dist. Ct. App. 1971) (stating that the filing

of an amended information “has the effect of vitiating the original information as

fully as though it had been formally dismissed by order of court”); State v. Devine,

164 P.3d 1009 (N.M. 2007) (reiterating that an amended criminal information has

the effect of dismissing a prior criminal information); State v. Navone, 39 P.2d 384,

385 (Wash. 1934) (indicating that the original information was superseded by the

filing of the amended information).

[¶42.]       Additionally, the Supreme Court of New Mexico has applied this same

rule in the context of informations filed for purposes of habitual offender

proceedings. See State v. Chacon, 706 P.2d 152 (N.M. 1985). Specifically, in State v.

Chacon, the New Mexico Supreme Court recognized that “[a]n ‘amended’

information vitiates the original information as fully as though it had been formally

dismissed by order of the court. It constitutes the filing of a new instrument which

supersedes its predecessor.” 706 P.2d at 153 (quoting State v. Benally, 658 P.2d

1142, 1144 (N.M. Ct. App. 1983)).

[¶43.]       For purposes of this case, the State has not offered a valid reason for

creating a special rule for a part II information for habitual offender with regard to

the effect an amendment has on the original filing. We conclude that when the


                                          -26-
#26346

State filed the Amended Part II Information, the original Part II Information was

effectively dismissed. Thus, following the State’s dismissal of the Amended Part II

Information, no part II information even existed upon which the trial court could

proceed with Medicine’s Eagle habitual offender jury trial. 16 The fact that the State

included language in its dismissal of the Amended Part II Information indicating

that it was not dismissing the original Part II Information and that it intended to

proceed upon the original Part II Information makes no difference, because by that

point the original Part II Information had already been effectively dismissed. See

Wilcox, 248 So. 2d at 694 (holding that the State’s filing of the amended information

dismissed the original information, the State’s subsequent withdrawal of the

amended information left the State without a charge against the defendant, and the

original information could not be “revived”). Furthermore, we reject the State’s

argument that its filing of the dismissal of the Amended Part II Information should

be treated as an amendment to the Amended Part II Information. 17

[¶44.]         SDCL 22-7-11 requires the filing of a part II information. Because the

State’s filing of the Amended Part II Information and subsequent dismissal of the



16.      In his discussion of waiver and plain error, Justice Zinter treats the lack of a
         part II information as a “defective” part II information. We disagree with
         this treatment. In this case, no part II information even existed at the time
         of the part II proceedings due to the State’s dismissal of the Amended Part II
         Information. As no part II information existed, it cannot be considered
         “defective” or otherwise.

17.      The filing of the dismissal of the Amended Part II Information served to
         terminate the part II proceedings under the Amended Part II Information.
         See SDCL 23A-44-2 (providing that “[a] prosecuting attorney may file a
         dismissal of an indictment, information, or complaint and the prosecution
         shall thereupon terminate”).

                                            -27-
#26346

Amended Part II Information left the State without a part II information on file, the

trial court did not have jurisdiction to continue with the part II proceedings and

impose an enhanced sentence. 18 Therefore, the trial court erred in denying

Medicine Eagle’s motion to vacate the part II proceedings. As a result, on this issue

we reverse and remand for resentencing.

                                     CONCLUSION

[¶45.]         In this case, the trial court did not abuse its discretion in admitting

evidence of the incident involving S.M. as other acts evidence pursuant to SDCL 19-

12-5 (Rule 404(b)). Subsequent acts are admissible to prove common plan or

scheme, and the existence of a common plan or scheme can be proven

circumstantially by establishing that the acts are sufficiently similar. Therefore,

we affirm on this issue. Next, Medicine Eagle’s Sixth Amendment right to

confrontation was not violated by the trial court’s admission of Leal’s testimony

regarding the 2008 and 2011 Y-STR testing despite the fact that analysts that

performed some steps of the testing did not testify at trial. Leal performed various

steps of the 2008 and 2011 testing, independently reviewed, analyzed, and

compared the data obtained from the testing, reached her own conclusions

regarding the results of the testing, and conducted statistical calculations based on

her results. Further, neither the 2008 report nor the 2011 report were introduced



18.      In Honomichl v. State, this Court held that the State’s failure to file an
         information left the court without subject-matter jurisdiction to convict and
         sentence defendant. 333 N.W.2d at 798-99. Although Honomichl was not
         decided in the context of a part II information for habitual offender, the same
         principle applies in this case. Further, despite Justice Zinter’s analysis, we
         note that neither party advocated for overruling Honomichl.

                                           -28-
#26346

through Leal at trial, as Leal only testified about her own conclusions. Thus,

Medicine Eagle’s opportunity to cross-examine Leal was sufficient for purposes of

the Sixth Amendment. Consequently, we affirm on this issue. Finally, because the

State’s filing of the Amended Part II Information effectively dismissed the original

Part II Information, no part II information existed upon which the trial court could

proceed following the State’s dismissal of the Amended Part II Information. As a

result, the trial court did not have jurisdiction over the habitual offender

proceedings. Therefore, on this issue we reverse and remand for resentencing.

[¶46.]          SEVERSON, Justice, concurs.

[¶47.]          KONENKAMP, Justice, and SALTER, Circuit Court Judge, concur in

part and concur in result in part.

[¶48.]          ZINTER, Justice, concurs in part and dissents in part.

[¶49.]          SALTER, Circuit Court Judge, sitting for WILBUR, Justice,

disqualified.



KONENKAMP, Justice (concurring in part and concurring in result in part).

[¶50.]          I concur on Issues 1 and 2. I join Judge Salter’s concurrence in result

on Issue 3.



SALTER, Circuit Court Judge (concurring in part and concurring in result in part).

[¶51.]          I join the Chief Justice’s opinion on Issues 1 and 2, and I agree that the

error presented in Issue 3 requires this Court to vacate Medicine Eagle’s sentences

and remand for resentencing. However, I do not agree that the trial court’s


                                            -29-
#26346

imposition of the sentences here implicates its jurisdiction, and I write separately to

respectfully add my views.

[¶52.]       Since the indictment in this case alleged offenses cognizable under

South Dakota law, the trial court obtained the limit of its subject matter jurisdiction

when the case commenced. See State v. Escalante, 458 N.W.2d 787, 789 (S.D. 1990)

(“A trial court in a criminal case does not acquire subject matter jurisdiction unless

state files a formal and sufficient indictment or information.”) (citing In re

Brockmueller, 374 N.W.2d 135 (S.D. 1985); Honomichl v. State, 333 N.W.2d 797

(S.D. 1983)). There simply is no additional layer or tier of jurisdiction that exists in

a criminal case. I would hold that the trial court exceeded the statutory limits of its

sentencing authority but did so without yielding its jurisdiction.

[¶53.]       Nearly all of the federal courts of appeals confronting a similar issue

have held that errors in the recidivist enhancement sentencing procedure for

federal drug offenders impact only a trial court’s sentencing authority—not its

jurisdiction. Federal prosecutors may seek enhanced mandatory minimum

sentences for violations of the Controlled Substances Act for repeat drug offenders

after filing an “information . . . stating in writing the previous convictions to be

relied upon.” 21 U.S.C. § 851(a)(1); see also 21 U.S.C. § 841(b)(viii) (authorizing

enhanced sentences). However, in instances where compliance with section 851’s

information-filing requirements has been suboptimal, the overwhelming majority of

federal courts of appeals have refused to treat noncompliance as a jurisdictional

infirmity. As the First Circuit Court of Appeals explained:

             Whether or not the prosecution files a timely section 851(a)(1)
             information, a federal district court plainly possesses subject-

                                          -30-
#26346

             matter jurisdiction over drug cases. See 18 U.S.C. § 3231
             (conferring original jurisdiction “of all offenses against the laws
             of the United States”). This jurisdiction necessarily includes the
             imposition of criminal penalties. Once subject-matter
             jurisdiction has properly attached, courts may exceed their
             authority or otherwise err without loss of jurisdiction. . . . Thus,
             the only question that legitimately arises from the prosecution’s
             [failure to comply with section 851(a)(1)] concerns the court’s
             authority to impose an enhanced sentence. This is simply not a
             question of subject-matter jurisdiction. . . .

Prou v. United States, 199 F.3d 37, 45 (1st Cir. 1999) (citations omitted); see also

United States v. Pritchett, 496 F.3d 537, 543-46 (6th Cir. 2007) (reviewing cases and

noting only the Eleventh Circuit Court of Appeals has held noncompliance with

section 851 implicates a jurisdictional error); United States v. Mooring, 287 F.3d

725, 727-28 (8th Cir. 2002) (rejecting claim that irregularity in the section 851

information procedure resulted in a jurisdictional error).

[¶54.]       Here, the same analysis applies. The trial court had jurisdiction over

this criminal case and, following the guilty verdicts, was obligated to proceed to

sentencing. See SDCL 23A-27-1 (sentences “shall” be imposed without

unreasonable delay). As explained below, the fact it undertook a habitual criminal

proceeding without an effective Part II habitual criminal information constituted

error which ultimately led to a sentence in excess of its authority. The error did

not, however, deprive the trial court of jurisdiction.

[¶55.]       The issue—sentencing authority versus jurisdiction—involves more

than mere semantics. Jurisdictional errors, as the Chief Justice’s opinion states,

are not subject to waiver. United States v. Cotton, 535 U.S. 625, 122 S. Ct. 1781,

1782, 152 L. Ed. 2d 860 (2002). They are also not subject to appellate review for

harmlessness, and they may not be the subject of procedural default in post-

                                          -31-
#26346

conviction proceedings. McCoy v. United States, 266 F.3d 1245, 1248-49 (11th Cir.

2001). Non-jurisdictional errors are treated differently. They can be waived or

forfeited, State v. Ganrude, 499 N.W.2d 608, 612 (S.D. 1993), and they can be

reviewed for harmlessness. State v. Garritsen, 421 N.W.2d 499, 501 (S.D. 1988).

[¶56.]       Though the question is one of first impression in South Dakota, this

Court’s previous decisions point decidedly, if implicitly, toward treating

irregularities in the habitual offender procedures as non-jurisdictional errors. For

instance, in State v. Pasek, this Court held that despite the trial court’s erroneous

determination of the number of previous convictions, the defendant was not

prejudiced because there was, in any event, a sufficient number of prior convictions

to support his enhanced sentence. 2004 S.D. 132, ¶ 31, 691 N.W.2d 301, 310-11

n.12. Further, in State v. Anderson, this Court rejected a prisoner’s repeated post-

conviction efforts to challenge his enhanced sentence, noting his “failure to raise the

issue on [direct] appeal barred any further appeal on the issue, and left only habeas

corpus” and other post-conviction remedies as “possible avenues for . . . relief.” 2005

S.D. 22, ¶ 24, 693 N.W.2d 675, 682. This Court has also affirmed a trial court’s

decision to sentence a defendant as a habitual criminal despite the State’s failure to

refile a “new” Part II habitual criminal information when the defendant was

arraigned on an additional principal felony charge. State v. Graycek, 368 N.W.2d

815, 818 (S.D. 1985). In Graycek, the defendant pleaded guilty to the additional

felony charge as well as reduced misdemeanor drug charges pursuant to a plea

agreement. The defendant objected to the state’s failure to file another habitual

criminal information before sentencing, but declined the trial court’s offer to allow


                                         -32-
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him to withdraw his guilty pleas and “be reinstated to the position he was in prior

to entering his pleas. . . .” Id. at 817-18. These cases strongly suggest that failure

to comply with the habitual criminal statutes may be reviewed for harmlessness

and also that it may be waived 19 or the subject of procedural default—none of which

is consistent with a jurisdictional error. 20 See State v. Knoche, 515 N.W.2d 834, 840

(S.D. 1994); State v. Moves Camp, 376 N.W.2d 567, 569 (S.D. 1985).

[¶57.]         The divergent views on this subject may well be attributable to the

imprecision with which the term “jurisdiction” has historically been used. However,

in its contemporary concept of subject matter jurisdiction, the Supreme Court has

held that jurisdiction means simply “‘the courts’ statutory or constitutional power to

adjudicate the case.’” Cotton, 535 U.S. at 630, 122 S. Ct. at 1784, (quoting Steel Co.

v. Citizens for Better Env’t, 523 U.S. 83, 89, 118 S. Ct. 1003, 140 L. Ed. 2d 210

(1998)). The facts in Cotton quickly illustrate the distinction between sentencing

authority and the power to sentence.

[¶58.]         In Cotton, a federal indictment alleging drug conspiracy offenses did

not include threshold quantities necessary to trigger enhanced sentences. The trial

court’s decision to impose an enhanced sentence was, therefore, erroneous, but it did




19.      For example, in Graycek, this Court noted the defendant “in effect
         acquiesced” to the additional principal felony charge. 368 N.W.2d at 818.

20.      Though this Court has from time to time made reference to “jurisdiction” in
         the context of a habitual offender enhancement, it is clear the question has
         not been squarely presented and addressed on the merits. See, e.g., Graycek,
         368 N.W.2d at 818; In re Abelt, 82 S.D. 308, 145 N.W.2d 435 (1966). Nor does
         the Chief Justice’s opinion rely upon these cases as controlling authority for
         its conclusion that the error here is jurisdictional.

                                          -33-
#26346

not implicate subject matter jurisdiction and could be reviewed for harmlessness

under the plain error doctrine. Id. at 631, 122 S. Ct. at 1785.

[¶59.]         Applying these principles, the trial court’s procedural error here should

also be reviewed for harmlessness. In my view, Medicine Eagle has preserved his

objection to his sentence by objecting to it before it was imposed, and I would review

the error for harmless error, rather than the more demanding strictures of the plain

error doctrine. See United States v. Smith, 573 F.3d 639, 659 (8th Cir. 2009) (errors

which are preserved are reviewed for harmless error); State v. Gard, 2007 S.D. 117,

¶ 15, 742 N.W.2d 257, 261 (in order to preserve an issue for appellate review, “[t]he

trial court must be given an opportunity to correct any claimed error before we will

review it on appeal”) (citation omitted); see also State v. Holter, 340 N.W.2d 691, 692

(S.D. 1983) (holding defendant’s sentencing argument was not properly before the

Court because he “did not at any time prior to this appeal raise a claim that his

sentence was improper or illegal”). 21

[¶60.]         Under harmless error review, error is harmless and may be

disregarded where it does not affect a defendant’s substantial rights. SDCL 23A-44-

14. The State must prove the error was not prejudicial. State v. Nelson, 1998 S.D.

124, ¶ 8, 587 N.W.2d 439, 443. Here, the State cannot sustain this burden.




21.      Here, the record establishes the trial court had the opportunity to address
         Medicine Eagle’s objection to the habitual offender sentencing enhancement.
         After Medicine Eagle filed an objection in advance of his sentencing hearing,
         the trial court considered the argument and rejected it, ultimately entering
         written findings of fact and conclusions of law. Under the circumstances, the
         trial record is sufficiently developed to enable appellate review.

                                          -34-
#26346

[¶61.]       The inquiry in this regard begins not with a judicial assessment of the

purpose behind the habitual offender statutes or whether Medicine Eagle had notice

that the State was seeking an enhanced sentence based upon the original Part II

information. Rather, the analysis begins with the text of the principal statute at

issue here which allows for an enhanced sentence only after a separate information

has been filed. See SDCL 22-7-11. In addition, faithful application of this Court’s

decisions requires that the habitual offender statutes be strictly construed because

of their “highly penal nature.” See State v. Loop, 422 N.W.2d 420 (S.D. 1988)

(habitual offender statutes should be strictly construed given their “highly penal

nature”); Graycek, 368 N.W.2d at 818; State v. Grooms, 339 N.W.2d 318 (S.D. 1983);

State v. Layton, 337 N.W.2d 809 (S.D. 1983).

[¶62.]       The text of SDCL 22-7-11 provides in relevant part:

             Any allegation that a defendant is an habitual criminal shall be
             filed as a separate information at the time of, or before,
             arraignment. However, the court may, upon motion, permit the
             separate information to be filed after the arraignment, but no
             less than thirty days before the commencement of trial or entry
             of a plea of guilty or nolo contendre. The information shall state
             the times, places, and specific crimes alleged to be prior
             convictions and shall be signed by the prosecutor.

[¶63.]       The statute includes four principal requirements: (1) the filing of an

information (2) signed by the prosecutor (3) at least thirty days before the trial or

change of plea and (4) stating the times, places and specific crimes alleged. These

requirements must be satisfied as a predicate to a sentencing judge’s authority to




                                          -35-
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impose an enhanced sentence. 22 If these requirements are not satisfied, the

imposition of an enhanced sentence could well lead to sentencing error which is not

harmless.

[¶64.]         That aptly describes what happened in this case. The original Part II

Information was replaced by a superseding, amended Part II Information which

was then, itself, dismissed, leaving no effective habitual offender information.

Under these circumstances, the imposition of an enhanced mandatory life sentence

presents a clear case of prejudice. Though a sentence of up to life was authorized at

the time Medicine Eagle committed the offense of kidnapping, the habitual offender

enhancement required a mandatory life sentence by elevating the authorized

punishment from that of a Class 1 felony to a Class B felony. 23 Indeed, the trial

court stated during the sentencing hearing that “[t]his is a mandatory life sentence”



22.      Though these requirements are necessary to a trial court’s authority to
         impose an enhanced sentence, they should not be regarded as de facto
         “jurisdictional” requirements. Unlike true components of subject matter
         jurisdiction, the statutory requirements of SDCL 22-7-11 could be waived or
         reviewed for harmlessness. Indeed, this distinction appears to figure
         prominently in the Eighth Circuit Court of Appeals’ holding in Mooring, that
         the defendant had waived 21 U.S.C. § 851’s information requirement at the
         time of his change of plea hearing by stipulating that he had received
         sufficient notice under section 851. 287 F.3d at 727-728. In this case, by
         contrast, there is no indication Medicine Eagle actually undertook a knowing,
         voluntary and intelligent waiver of his rights under SDCL 22-7-11.

23.      In 2005, the Legislature amended the statute prescribing felony classes and
         penalties by adding a category of Class C felony, punishable by up to life in
         prison. SDCL 22-6-1(3). The maximum prison sentence for a Class 1 felony
         was reduced to fifty years. SDCL 22-6-1(4). The kidnapping statute, SDCL
         22-19-1, was also amended in 2005, but at the time of Medicine Eagle’s
         offense, kidnapping was a Class 1 felony in the absence of the victim’s
         “permanent physical injury[.]” State v. Frazier, 2002 S.D. 66, ¶ 12, 646
         N.W.2d 744, 749.

                                           -36-
#26346

and that it “was not exercising any discretion in terms of that sentence.”

Sentencing Hearing Transcript at 31. Therefore, the trial court’s error was not

harmless, and the case must be remanded for resentencing on the kidnapping

charge.

[¶65.]       The question of whether resentencing is required for the sexual contact

and rape convictions presents a closer question, in my view. Both sentences were

within the unenhanced sentencing ranges, and a credible argument could be made

that the sentences were unaffected by the missing Part II Information. See

Sentencing Hearing Transcript at 29 (trial court stating “those are the maximum

penalties under the unenhanced charges pursuant to the Part II Information.”).

However, the trial court also ordered that the sentences be served concurrent to the

life sentence after observing, “I don’t see any purpose being served by consecutive

sentences in that regard.” Id. Given the fact that the trial court will resentence on

the kidnapping charge and the fact the individual sentences could be potentially

interrelated, the trial court may well feel differently on remand and should have the

ability to undertake sentencing on all the counts of conviction.



ZINTER, Justice (concurring in part and dissenting in part).

[¶66.]       I join the Court’s opinion on Issues 1 and 2, but I dissent on Issue 3

(vacating Medicine Eagle’s sentences). On Issue 3, I agree with Judge Salter and

Justice Konenkamp that the error alleged in the part II information proceedings

involved the question of statutory authority rather than the circuit court’s subject

matter jurisdiction. Judge Salter’s federal authorities highlight that distinction. I


                                         -37-
#26346

write to explain why South Dakota’s constitution, statutes, and precedent also

require recognition of the distinction. My only disagreement with Judge Salter’s

analysis is his additional conclusion that Medicine Eagle made the objection

necessary to preserve this issue for harmless error review. Medicine Eagle is

limited to plain error review because he did not raise his current part II information

objection before the part II information trial. And under plain error review, his

sentences must be affirmed under Supreme Court precedent.

[¶67.]       There is no dispute that the circuit court had jurisdiction over this

subject matter. This Court has long-defined “jurisdiction” as: “the power to hear and

determine the subject-matter in controversy between parties to a suit, [and] to

adjudicate or exercise any judicial power over them[.]” Calhoun v. Bryant, 28 S.D.

266, 271, 133 N.W. 266, 269 (1911) (quoting Herman on Estoppel & Res Judicata,

vol. 1, par. 66). We have adhered to similar definitions to this day. See, e.g., supra

Chief Justice’s opinion ¶ 40; Wipf v. Hutterville Hutterian Brethren, Inc., 2013 S.D.

49, ¶ 21, ___ N.W.2d ___, ___ (alteration in original) (quoting Restatement (Second)

of Judgments § 11 (1982)) (defining “[s]ubject matter jurisdiction” as “the ‘authority

[of courts] to adjudicate the type of controversy involved in the action’”).

[¶68.]       The circuit court’s power to hear and determine all aspects of criminal

cases is derived from the South Dakota Constitution and Legislature. Article V, § 5

of the South Dakota Constitution provides in pertinent part: “The circuit courts

have original jurisdiction in all cases except as to any limited original jurisdiction

granted to other courts by the Legislature.” And the Legislature has not limited

any aspect of the circuit court’s criminal jurisdiction. SDCL 16-6-12 provides:


                                          -38-
#26346

               The circuit court has exclusive original jurisdiction to try and
               determine all cases of felony, and original jurisdiction
               concurrent with courts of limited jurisdiction as provided by law
               to try and determine all cases of misdemeanor and actions or
               proceedings for violation of any ordinance, bylaw, or other police
               regulation of political subdivisions.

Based upon these provisions, the circuit court had “the power to hear and

determine” all aspects of Medicine Eagle’s criminal case and to “exercise any

judicial power” over the parties. See Calhoun, 28 S.D. at 271, 133 N.W. at 269. Its

jurisdiction over the subject matter is clear.

[¶69.]         The disagreement on appeal arises from the reliance the Chief

Justice’s opinion places on Honomichl v. State, 333 N.W.2d 797 (S.D. 1983). In

Honomichl, no part II informations had been filed with respect to the convictions at

issue. Three members of this Court did state that “[w]ithout a formal and sufficient

indictment or information, a court does not acquire subject matter jurisdiction and

thus an accused may not be punished for a crime.” Id. at 798. But under the

modern understanding of subject matter jurisdiction, this view is no longer

followed. 24

[¶70.]         Honomichl was decided by a divided Court. Two justices would have

held that a defendant can waive the failure to file an information by pleading guilty

because the failure to file an information is not jurisdictional. Three justices held

that the lack of an information was a jurisdictional defect, which was not subject to


24.      The Chief Justice’s opinion agrees with the definition of subject matter
         jurisdiction. See supra Chief Justice’s opinion ¶ 40. The flaw in the opinion’s
         reasoning is that it equates “statutory authority” with “subject matter
         jurisdiction.” See id. If this reasoning were correct (it is not), all trial errors
         involving statutory authorization would constitute jurisdictional errors not
         subject to waiver.

                                             -39-
#26346

waiver. The majority relied on two authorities. It first relied on State v. Mee (Mee

I), 67 S.D. 335, 292 N.W. 875 (1940), rev’d on rehearing, 67 S.D. 589, 297 N.W. 40

(1941). The Mee cases, however, were unusual because this Court initially held that

entry of a plea without the filing of an information waived the information. Mee I,

67 S.D. at 340-41, 292 N.W. at 877. Only on reconsideration did the Court rule that

the result of not filing an information was that “from [that] point on the county

court was without jurisdiction to proceed further in the case until the state’s

attorney had filed an information.” State v. Mee (Mee II), 67 S.D 589, 591, 297 N.W.

40, 41 (1941). But the Mee II Court failed to cite any authority or even one sentence

of reasoning for its change in position. As then Justice Wollman later observed, had

the Mee II Court recognized the distinction between subject matter jurisdiction in

terms of a court’s ability to adjudicate certain classes of cases and a court’s

jurisdiction over a particular offense and the particular defendant, “it may well

have adhered to its original opinion, which held that defendant had waived the

filing of an information by his plea of guilty.” Honomichl, 333 N.W.2d at 800

(Wollman, J., dissenting).

[¶71.]       The Honomichl majority’s only other authority was Albrecht v. United

States, 273 U.S. 1, 47 S. Ct. 250, 71 L. Ed. 505 (1927). 333 N.W.2d at 798. Albrecht,

in turn, relied upon Ex parte Bain, 121 U.S. 1, 7 S. Ct. 781, 30 L. Ed. 849 (1887). In

Bain, the Supreme Court utilized language analytically identical to that in Mee II.

The Supreme Court held that after an insufficient superseding indictment—which

is the same as an information for purposes of today’s discussion—“the jurisdiction of

the offense [was] gone, and the court [had] no right to proceed any further in the


                                          -40-
#26346

progress of the case for want of an indictment.” Bain, 121 U.S. at 13, 7 S. Ct. at

788. After Honomichl, however, Bain was overruled by a unanimous Supreme

Court in United States v. Cotton, 535 U.S. 625, 122 S. Ct. 1781, 152 L. Ed. 2d 860

(2002).

[¶72.]       Cotton rejected the 1887 Bain-Mee II concept of jurisdiction as

outdated. Id. at 629-30, 122 S. Ct. at 1784-85. The Court observed that it was a

“somewhat expansive notion of jurisdiction, which was more a fiction than anything

else[.]” Id. at 630, 122 S. Ct. at 1784-85 (internal citations and quotation marks

omitted). The Court ruled that the Bain-Mee II concept of jurisdiction was not in

keeping with its modern meaning: “i.e., ‘the courts’ statutory or constitutional power

to adjudicate the case.’” Id. (quoting Steel Co. v. Citizens for Better Env’t, 523 U.S.

83, 89, 118 S. Ct. 1003, 1010, 140 L. Ed. 2d 210 (1998)).

[¶73.]       The Supreme Court went on to rule that, even though jurisdiction can

never be forfeited or waived, the right to indictment can be waived. Id. at 630, 122

S. Ct. at 1785. Waiver can occur because, as the Court had noted in a number of its

post-Bain cases, “defects in an indictment do not deprive a court of its power to

adjudicate a case.” Id. at 630-31, 122 S. Ct. at 1785 (discussing Lamar v. United

States, 240 U.S. 60, 36 S. Ct. 255, 60 L. Ed. 526 (1916) and United States v.

Williams, 341 U.S. 58, 66, 71 S. Ct. 595, 95 L. Ed. 747 (1951)). Ultimately, the

Court expressly overruled Bain, holding that “indictment defects” and “indictment

omissions” do not deprive a trial court of jurisdiction. See id. at 631, 122 S. Ct. at

1785 (stating that “Bain is overruled”).




                                           -41-
#26346

[¶74.]         This Court issued similar post-Honomichl decisions in the habitual

offender context indicating that the failure to properly file a part II information

does not compromise a circuit court’s jurisdiction. In State v. Grooms, 339 N.W.2d

318, 320-21 (S.D. 1983), this Court held that failure to re-serve a copy of the part II

information on the defendant before his retrial did not alone justify reversal of his

habitual offender conviction. In State v. Graycek, 368 N.W.2d 815, 818 (S.D. 1985),

this Court held that the failure to refile a part II information after the original

charges against the defendant were dismissed and new charges were filed did not

deprive the trial court of jurisdiction to sentence the defendant as a habitual

offender. And in State v. Alexander, 313 N.W.2d 33 (S.D. 1981), following a

mistrial, the defendant was charged under a new amended indictment with

different language. Notwithstanding this new proceeding and the State’s failure to

“file a new supplemental information for habitual offender,” this Court found no

error. Id. at 34. We did so because—somewhat like our case today—an habitual

criminal information had been filed in the original (but dismissed) proceeding and

the State had advised that it intended to proceed on the allegations that were

contained in the information from that dismissed proceeding. 25



25.      The Chief Justice’s opinion overlooks these cases when it states that none of
         the cases in this writing deal with “a situation in which the part II
         information had been dismissed.” See supra Chief Justice’s opinion ¶ 39 n.15.
         In each of the foregoing cases there was no part II information that had been
         filed or served in the criminal proceeding in which the defendant was being
         prosecuted. And there is no distinction between proceeding in a criminal
         action in which there is no information and proceeding in a criminal action in
         which the information is dismissed. For this reason, the Chief Justice’s
         opinion also overlooks several additional cases. For example, former Justice
         Wollman’s writing came in a case in which this Court was reviewing
                                                               (continued . . .)
                                            -42-
#26346

[¶75.]       These decisions and the Cotton ruling support Justice Wollman’s

opinion in Honomichl, concluding that the failure to file an information is not a

subject matter jurisdiction defect and the lack of an information may be waived.

See Honomichl, 333 N.W.2d at 800 (Wollman, J., dissenting). As Justice Wollman

stated rhetorically, “If the Fifth Amendment’s guarantee of the right to a grand jury

presentment or indictment . . . in the federal courts is a personal privilege that may

be waived . . . , why may it not be held that the alternative charging document [i.e.,

an information] provided by Art. VI, § 10 of the South Dakota Constitution is a

personal privilege that may also be waived?” Id. (citing Barkman v. Sanford, 162

F.2d 592 (5th Cir. 1947)). Justice Wollman was joined in his dissent by then Justice

Dunn. Because their view of subject matter jurisdiction was adopted by the

Supreme Court in Cotton, as well as the numerous courts cited in Judge Salter’s

writing, we should not cling to an 1887 view of jurisdiction that is no longer

followed. The Chief Justice’s opinion does not cite one post-Cotton case supporting

________________________
(. . . continued)
         jurisdiction following guilty pleas where “informations were not filed by the
         State on either offense.” Honomichl, 333 N.W.2d at 798. In Mee I, “no
         information had been filed . . . , but this [Court concluded that it] did not
         affect the jurisdiction of the court over the act charged in [that] case.” 67 S.D.
         at 339, 292 N.W. at 877. And like the case we consider today, the opinion
         reversed in Bain came in a case where amendments to an indictment were
         determined to render the indictment “no indictment of a grand jury” at all.
         Bain, 121 U.S. at 13, 7 S. Ct. at 787, overruled by Cotton, 535 U.S. 625, 122 S.
         Ct. 1781, 152 L. Ed. 2d 860. Ultimately, the United States Supreme Court
         has concluded that a defendant may waive the right to any indictment, not
         just “dismissed” indictments. Cotton, 535 U.S. at 630, 122 S. Ct. at 1785. As
         an aside, it should finally be noted that the original part II information in
         today’s case was never dismissed by the circuit court or the State. As is more
         fully explained hereafter, infra ¶¶ 77 and 82, both the circuit court and the
         State acceded to Medicine Eagle’s request to dismiss the amended part II
         information and proceed on the original part II information.

                                           -43-
#26346

its subject matter jurisdiction theory. We should overrule Honomichl and now hold

that the lack of a part II information is waivable because it does not divest circuit

courts of their subject matter jurisdiction over criminal cases. Under article V, § 5

of the South Dakota Constitution and SDCL 16-6-12, the circuit court’s subject

matter jurisdiction—its power to adjudicate such proceedings—cannot be called into

question. 26

[¶76.]         We should also not lose track of what occurred in this case. In the

course of a single criminal proceeding, the State timely filed a part II information,

and it timely filed an amended part II information that added to but did not

eliminate the originally alleged prior conviction. The State subsequently dismissed

the amended part II information, expressly stating in the dismissal that it was

proceeding on the originally filed part II information. Even if the Chief Justice’s

opinion were correct that no part II information remained following this procedural

course of events, the issue on appeal concerns the habitual criminal penalty, not the

State’s power to initiate the case in a circuit court. Therefore, these procedural




26.      Moreover, even if we were to continue to follow the now discredited view of
         subject matter jurisdiction as expressed in Honomichl and Mee II, jurisdiction
         over the habitual criminal proceedings clearly attached in this case because
         the State filed the original part II habitual criminal information and gave
         notice of its intent to proceed on the allegations in that information. As this
         Court ruled in Alexander, even though the original case has been dismissed,
         the State may properly proceed with habitual criminal proceedings in a
         second case without filing a new habitual criminal information as long as the
         State gives notice that it intends to proceed on the allegations contained in
         the part II information from the dismissed case. Alexander, 313 N.W.2d at
         34, 37. Analytically, this is no different than what occurred in the case we
         consider today.

                                           -44-
#26346

events did not divest the circuit court of its subject matter jurisdiction under the

constitution and SDCL 16-6-12.

[¶77.]          Although the purported absence of a part II information was not a

jurisdictional defect, it was a defect in the institution of the part II prosecution or a

defect in the part II information itself. Such defects must be raised by motion prior

to trial or are deemed waived. SDCL 23A-8-3 (Rule 12(b)); SDCL 23A-8-9 (Rule

12(f)).

[¶78.]          Required motions under Rule 12(b) range from “[d]efenses and

objections based on defects in the institution of the prosecution;” SDCL 23A-8-3(1),

to “[d]efenses and objections based on defects in the indictment or information[;]”

SDCL 23A-8-3(3). Within that range lies a defense or objection based upon the

dismissal of an amended part II information and the continuation of the habitual

offender proceedings under a previously filed part II information. Concluding

otherwise controverts the intent of Rule 12(b) to restrict “the defense tactic of

‘sandbagging’” where defense counsel, recognizing a defense “would forego raising

the defect before trial, when a successful objection would merely result in an

amendment of the pleading (or a new pleading).” 5 Wayne R. LaFave et al.,

Criminal Procedure § 19.1(d) (3d ed. 2007). 27 Here, the dismissal of the amended



27.       Judge Salter’s concurrence in result correctly notes that defenses and
          objections may be preserved for appellate review if the trial court has been
          given an opportunity to correct claimed errors. See supra Judge Salter’s
          opinion ¶ 60. Although Medicine Eagle raised an objection before sentencing,
          SDCL 23A-8-3 (Rule 12(b)) further required that the objection be raised
          before trial to provide the opportunity for corrective measures such as the
          “amendment of a pleading (or a new pleading).” See 5 Wayne R. LaFave
          et al., Criminal Procedure § 19.1(d) (3d. ed. 2007). Medicine Eagle’s
                                                                (continued . . .)
                                             -45-
#26346

part II information and continuation of proceedings under the original part II was

not only clear to Medicine Eagle, he requested proceeding on the original part II

information in his motion to dismiss the amended part II. Yet the majority today

would reward Medicine Eagle for his sandbagging in the assertion of this claimed

defense or objection. This should not occur under rules specifically designed to

prevent such practices.

[¶79.]       Medicine Eagle did not make the required motion before trial. Because

the claimed error was not raised before trial as required by SDCL 23A-8-3(1) (Rule

12(b)), the objection was waived under SDCL 23A-8-9 (Rule 12(f)). Therefore, at

best, the claimed defect in the habitual criminal proceedings is subject to review for

plain error. “Where an issue has not been preserved by objection at trial, our review

is limited to whether the trial court committed plain error.” State v. Bowker, 2008

S.D. 61, ¶ 45, 754 N.W.2d 56, 69. See also United States v. Washington, 653 F.3d

1251, 1258 (10th Cir. 2011) (stating that a “late-blooming claim [challenging] an

indictment for failure to charge an offense” is reviewable for plain error); United

States v. Blade, 336 F.3d 754, 756-57 (8th Cir. 2003) (citing Cotton, 535 U.S. at 627,

122 S. Ct. at 1783; United States v. McBride, 862 F.2d 1316, 1319 (8th Cir. 1988))

(applying plain error review to the denial of a motion for new trial based upon a

defect in an indictment).




________________________
(. . . continued)
         sandbagging here deprived the State of that opportunity to file a new or
         amended pleading. Therefore, under the rules, the objection was waived,
         relegating the objection to plain error review.

                                         -46-
#26346

[¶80.]       To demonstrate plain error, a defendant must establish that there was:

             (1) error, (2) that is plain, (3) affecting substantial rights; and
             only then may we exercise our discretion to notice the error if (4)
             it seriously affects the fairness, integrity, or public reputation of
             the judicial proceedings.

State v. Olvera, 2012 S.D. 84, ¶ 9, 824 N.W.2d 112, 115 (quoting State v. Jones, 2012

S.D. 7, ¶ 14, 810 N.W.2d 202, 206). This is the same plain error standard utilized

by the Supreme Court. See Cotton, 535 U.S. at 631-32, 122 S. Ct. at 1785. In

analyzing an analogous defective indictment proceeding, the Cotton Court skipped

immediately to the last element of the test. The Supreme Court concluded that the

indictment error in that case did not “seriously affect the fairness, integrity, or

public reputation of judicial proceedings[,]” because the evidence was

“‘overwhelming’” and “‘essentially uncontroverted.’” Id. at 632-33, 122 S. Ct. at

1786) (quoting Johnson v. United States, 520 U.S. 461, 470, 117 S. Ct. 1544, 1550,

137 L. Ed. 2d 718 (1997)).

[¶81.]       Like the case in Cotton, Medicine Eagle can claim no lack of fairness,

integrity, or public reputation in the part II habitual criminal proceedings because

his criminal history is not disputed on appeal. Additionally, the original part II

information was timely filed and he was duly arraigned on it before trial on the

principal and habitual criminal charges. Thus, he had notice of the specific

habitual offender allegation that was ultimately tried. Further, the amended part

II information was dismissed on Medicine Eagle’s motion before trial, and Medicine

Eagle specifically requested as part of his motion that “the case proceed on the

original [p]art II information that was filed at the initiation of [the] case.” The

State and the circuit court proceeded exactly as Medicine Eagle requested. The

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State dismissed the amended part II information and explicitly stated in its written

dismissal that “[t]he State does not dismiss the original part II and intends to

proceed with that original part II at the trial on such matter.” The State then

proceeded to trial on the original part II information with no objection whatsoever

from Medicine Eagle.

[¶82.]       “‘A criminal trial is not a game where defendant’s counsel may lie in

the weeds and hold back motions or objections that go to the very heart of the

prosecution. There exist ample means of attacking the sufficiency of the charge

prior to trial. SDCL 23A-8-2.’” State v. Lachowitzer, 314 N.W.2d 307, 309 (S.D.

1982) (quoting State v. Williams, 297 N.W.2d 491, 493 (S.D. 1980)). Even on appeal,

Medicine Eagle does not challenge the existence or validity of the prior conviction he

was found guilty of. Thus, to paraphrase Cotton, “[t]he real threat . . . to the

‘fairness integrity, and public reputation of judicial proceedings’ would be if

[Medicine Eagle], despite the overwhelming and uncontroverted evidence . . . [of his

prior conviction was] to receive a sentence prescribed for those committing less

substantial . . . offenses because of an error that was never objected to at trial.” See

535 U.S. at 634, 122 S. Ct. at 1787.

[¶83.]       For these reasons, I respectfully dissent as to Issue 3. I would affirm

Medicine Eagle’s convictions and sentences as a habitual offender.




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