State v. Rash, 12876

Citation294 N.W.2d 416
Decision Date01 July 1980
Docket NumberNo. 12876,12876
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. John Leslie RASH, Defendant and Appellant.
CourtSupreme Court of South Dakota

Kevin F. Manson, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

David R. Gienapp of Arneson, Issenhuth & Gienapp, Madison, for defendant and appellant.

MORGAN, Justice.

A jury found appellant guilty of aggravated assault in violation of SDCL 22-18-1.1(1). The trial court sentenced him to serve ten years in the South Dakota State Penitentiary with credit for time served pending the disposition of his case. He appeals from that judgment and sentence. We affirm.

Early in the afternoon of January 20, 1979, appellant was at a bar. He called home and told his wife, Donna, who was about three months pregnant at the time, to keep the children at home so that when he returned he could take them to a movie in Sioux Falls. Nevertheless, Donna allowed two of the children to go to a neighbor's house to play. When appellant arrived home at about 4:00 p. m. and realized that all of the children were not there, he and Donna began arguing in the living room-kitchen area. As appellant and Donna were arguing, they moved into their bedroom. While in the bedroom, the two began to physically fight, ending up on the floor. Appellant knocked Donna's head against the floor and possibly against the dresser. He hit her in the neck with his knee and kicked her in the head with the cowboy boots he was wearing. He also sat on top of her while she was on the floor, swearing at her and saying that he was going to kill her. All together, Donna received about thirty blows.

After being called, an ambulance crew arrived and took Donna to the Madison Hospital emergency room where she was treated and transferred to McKennan Hospital in Sioux Falls, South Dakota. At McKennan, Donna remained in the intensive care unit (ICU) for about five days, after which she was moved to a general medical floor where she was still located at the time of the trial, over four months after the incident occurred.

Donna's injuries were rather extensive. She had a fractured skull, numerous bruises on her face, left flank areas, and back and hip areas. There were also several lacerations of her scalp with some bleeding. Her left eye was badly bruised and had a hemorrhage just under the tissue of the white of the eye (a subconjunctival hemorrhage). At the time, she also had partial paralysis of her left side.

At the trial her doctor testified that she was still weak on the left side, that she had a problem of muscle coordination, and that her speech was thick. He also testified that due to the length of time that it had taken her to recover, there was a good possibility that she would be left with some lasting effects from the injuries. Also, if she were to have gone home at the time of trial, she would have been unable to care for herself. He also testified that the baby she was carrying appeared to be healthy and that she would probably have a normal delivery.

During the course of appellant's trial, several photographs of the victim's injuries were introduced and received into evidence, some of which appellant objected to. In all, there are twelve close-up pictures of Donna's injuries and one full shot of her lying in ICU at McKennan.

Appellant proposed two jury instructions which instructed the jury on specific intent. The trial court refused them both. None of the instructions actually given dealt with intent. Two of the jury instructions explained aggravated assault as charged under SDCL 22-18-1.1(1), and the trial court also instructed the jury on the lesser included offense of simple assault. The jury returned a verdict of guilty of aggravated assault as charged in the information, and the trial court sentenced appellant to serve ten years in the South Dakota State Penitentiary with credit for time served inthe Lake County Jail.

Appellant first argues that one of the essential elements of SDCL 22-18-1.1(1) is specific intent. The trial court disagreed and denied his jury instructions on specific intent. SDCL 22-18-1.1(1) reads:

Any person who:

(1) Attempts to cause serious bodily injury to another, or causes such injury, under circumstances manifesting extreme indifference to the value of human life;

is guilty of aggravated assault. . . .

Before deciding whether or not SDCL 22-18-1.1(1) requires specific intent, it is necessary to determine what specific intent is. "Specific intent has been defined as 'meaning some intent in addition to the intent to do the physical act which the crime requires,' while general intent 'means an intent to do the physical act or, perhaps, recklessly doing the physical act which the crime requires.' " People v. Lerma, 66 Mich.App. 566, 567, 239 N.W.2d 424, 425 (1976) (citation omitted).

SDCL 22-18-1.1(1) refers to "attempts" but not to "intent." Appellant argues that the use of the word "attempts" shows that the legislature meant to require the state to prove that a defendant had a specific desire. Yet this court has said that the word "attempt" means that an accused's acts "unequivocally demonstrate that a crime is about to be committed." State v. Martinez, 88 S.D. 369, 372, 220 N.W.2d 530, 531 (1974).

Appellant also argues that a subjective desire resulting in specific intent is necessary to show that appellant's actions "manifest(ed) an extreme indifference to the value of human life." His contention is that the legislature left out the word "recklessly," thereby intentionally changing the offense from a general intent crime to a specific intent crime. We disagree.

(S)pecific intent crimes would be limited only to those crimes which are required to be committed either "purposefully" or "knowingly", while general intent crimes would encompass those crimes which can be committed either "recklessly" or "negligently". Thus, in order to commit a specific intent crime, an offender would have to subjectively desire or know that the prohibited result will occur, whereas in a general intent crime, the prohibited result need only be reasonably expected to follow from the offender's voluntary act, irrespective of any subjective desire to have accomplished such result.

People v. Lerma, 66 Mich.App. at 569-70, 239 N.W.2d at 425-426.

Appellant argues that the Model Penal Code, Section 211.1(2) sets forth a definition of aggravated assault which is quite similar to our statute except that the Model Penal Code includes the words "purposely, knowingly or recklessly." Arguably, the first two would require a specific intent while the third would not. He states that by omitting the word "recklessly," the legislature obviously meant to make the crime one of specific intent. We believe that the opposite would also then be true; that by leaving out "purposely and knowingly," they meant to make the statute one of general intent.

In reading the statute as written, we conclude...

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29 cases
  • State v. Steele
    • United States
    • South Dakota Supreme Court
    • September 2, 1993
    ...of defendant spotted with red substance not abuse of discretion when witness so described him); Huth, 334 N.W.2d at 489; State v. Rash, 294 N.W.2d 416, 418 (S.D.1980). "Even though photographs are somewhat gruesome, cumulative, or capable of arousing passion or prejudice in the jury, the ad......
  • State v. Owens
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    • South Dakota Supreme Court
    • April 10, 2002
    ...merely because they incidentally tend to arouse passion or prejudice. Id; State v. Huth, 334 N.W.2d 485, 489 (S.D.1983); State v. Rash, 294 N.W.2d 416, 418 (S.D.1980); Disbrow, 266 N.W.2d at 254. Autopsy photographs fall within these rules. Although disturbing and cumulative, autopsy photog......
  • State v. Springer-Ertl
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    • South Dakota Supreme Court
    • April 26, 2000
    ...N.W.2d 908, 912 (S.D.1988) (citing State v. Primeaux, 328 N.W.2d 256 (S.D.1982); State v. Poss, 298 N.W.2d 80 (S.D.1980); State v. Rash, 294 N.W.2d 416 (S.D.1980); State v. Martinez, 88 S.D. 369, 220 N.W.2d 530 (1974); State v. Judge, 81 S.D. 128, 131 N.W.2d 573 [¶ 31.] A reasonable interpr......
  • United States v. Green
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    • U.S. District Court — Western District of Pennsylvania
    • July 8, 2022
    ...his conduct so as to avoid the act or omission which caused the harm.’ ").42 S.D. Codified Laws § 22-18-1.1 (2022) ; State v. Rash , 294 N.W.2d 416, 418 (S.D. 1980) ("Appellant argues that the Model Penal Code, Section 211.1(2) sets forth a definition of aggravated assault which is quite si......
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1 books & journal articles
  • Just say no excuse: the rise and fall of the intoxication defense.
    • United States
    • Journal of Criminal Law and Criminology Vol. 87 No. 2, January 1997
    • January 1, 1997
    ...of any subjective desire to have accomplished such result. State v. Primeaux, 328 N.W.2d 256, 259 (S.D. 1982) (quoting State v. Rush, 294 N.W.2d 416, 417 (S.D. 1980)). Accord State v. D'Amico, 385 A.2d 1082, 1084, (Vt. 1978). But see People v. Zekany, 833 P.2d 774, 778 (Colo. Ct. App. 1992)......

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