State v. Nekolite
| Decision Date | 19 February 2020 |
| Docket Number | #28794 |
| Citation | 939 N.W.2d 850 |
| Court | South Dakota Supreme Court |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Donald Leon NEKOLITE, Defendant and Appellant. |
JASON R. RAVNSBORG, Attorney General, MATTHEW W. TEMPLAR, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
MICHAEL E. UNKE, Salem, South Dakota, Attorney for defendant and appellant.
[¶1.] Following a court trial, Donald Nekolite was convicted of driving under the influence (second offense) and hit and run involving an injury. He appeals his hit-and-run conviction, arguing that the State was required to prove he had knowledge of an accident-related injury. We affirm.
[¶2.] On April 20, 2018, at approximately 8:30 p.m., Nekolite was driving his car eastbound on Highway 38 near Montrose when he made a sharp left turn directly in front of a sport utility vehicle (SUV) driven by Joni Wagner, who was traveling westbound on Highway 38. The vehicles collided, with the point of lateral impact occurring on the front passenger side of each vehicle. Nekolite’s car came to rest partially on the shoulder and into the ditch along the westbound lane, and Wagner’s SUV stopped askew on the highway. Wagner called 911 and provided the dispatcher with a description of Nekolite and his car, including its license plate number, while both parties got out of their vehicles. Wagner asked Nekolite if he was hurt, but she could not understand his response and thought he was impaired. Wagner told the dispatcher that she had hurt her left thumb, but she did not tell Nekolite that she was injured.
[¶3.] Acting on the dispatcher’s instruction to move her SUV off the highway, Wagner got into her vehicle and observed Nekolite getting into his car and driving away on the wrong side of the highway. She testified that Nekolite had remained at the accident scene for approximately seven to ten minutes before driving away and wondered if he thought she was leaving the scene when she moved her SUV off the highway.
[¶4.] Deputy Anna Misar of the McCook County Sheriff’s Office responded to the accident and took Wagner’s statement. Wagner told Deputy Misar she had hurt her left thumb but refused medical treatment. Wagner experienced swelling and bruising to her left thumb the next day, and a physician later diagnosed the injury as a torn radial collateral ligament, requiring Wagner to wear a splint for approximately six weeks.
[¶5.] Pete Puthoff had been traveling behind Nekolite and stopped after witnessing the accident. When Nekolite drove away, Puthoff followed him to the parking lot of a rural business located approximately one-quarter mile east of the accident scene. Puthoff remained in the parking lot until Trooper Jeremy Gacke of the South Dakota Highway Patrol arrived.
[¶6.] Trooper Gacke found Nekolite in the back seat of his car partially covered with a blanket. Nekolite explained he was laying down because he had hurt his back. Trooper Gacke noted Nekolite’s speech was slurred, and a strong smell of intoxicants was coming from the interior of his vehicle. He further observed that Nekolite had trouble balancing and walking to the patrol car. When he checked Nekolite’s driver’s license, Trooper Gacke found it had been suspended. After Nekolite failed field sobriety tests, Trooper Gacke placed him under arrest for driving under the influence. He transported Nekolite to jail and obtained a search warrant for a blood draw, which yielded a result of .306 percent alcohol by weight when analyzed. Trooper Gacke also interviewed Puthoff, who corroborated Wagner’s version of the accident and her observations of Nekolite’s behavior.
[¶7.] The State initially charged Nekolite with driving while under the influence (second offense), driving with a suspended license, and refusing to surrender his license. See SDCL 32-23-1(1) ; SDCL 32-23-1(2) ; SDCL 32-23-3 ; SDCL 32-12-65 ; SDCL 32-12-68. After Deputy Misar obtained supplemental information from Wagner about her left thumb injury, the State charged Nekolite with the additional offense of hit and run1 resulting in an injury, which is a class 6 felony. See SDCL 32-34-5.2
[¶8.] Prior to trial, Nekolite filed what appears to have been a preemptive motion for judgment of acquittal. He argued, among other things, that he lacked any knowledge of Wagner’s injury and could not, therefore, be convicted of felony hit and run under SDCL 32-34-5. The State opposed Nekolite’s motion for acquittal, arguing that it was not required to prove that Nekolite "was actually aware of the injury before leaving the scene of the collision." The circuit court held the motion in abeyance until after the State completed its case-in-chief at trial.
[¶9.] The parties subsequently reached a partial plea agreement under which Nekolite pled guilty to the DUI offense. The State dismissed the charges for driving with a suspended license and refusing to surrender his license.
[¶10.] The felony hit-and-run charge was then tried to the court. Wagner testified consistent with her previous statements—that she had not told Nekolite she was injured, that she could not understand Nekolite, who she thought was "very impaired," and that she believed Nekolite left the accident scene because he thought she was leaving when she moved her car.3
[¶11.] At the close of the State’s evidence, Nekolite renewed his motion for a judgment of acquittal. The circuit court denied the motion and found Nekolite guilty. In its written findings of fact, conclusions of law, and verdict, the circuit court found that Nekolite "left the scene without complying with the provisions of SDCL 32-34-3 ... [and] before he could learn of any injury to Wagner." The circuit court also concluded that Nekolite’s "knowledge of an injury, resulting from an accident, is not an element which must be proven by the State."
[¶12.] The court sentenced Nekolite to two years in the penitentiary for the felony hit-and-run conviction, suspended on the conditions that he serve 120 days in jail, pay all fines and restitution, complete two years of supervised probation, and not drive for five years. The circuit court imposed a consecutive sentence for the DUI (second offense), which is not at issue in this appeal.
[¶13.] Nekolite’s challenge to his felony hit-and-run conviction raises one issue for our review: Whether the circuit court erred when it found that SDCL 32-34-5 does not require knowledge of the injury as an essential element.
[¶14.] The circuit court found that there was no evidence that Nekolite could be charged with knowledge of Wagner’s injury—a determination the State has not challenged. Therefore, the issue presented here relates solely to whether knowledge of an injury is an essential element in a prosecution under SDCL 32-34-5. Determining whether an offense requires a particular mental state "raises an issue of statutory interpretation that this Court reviews under the de novo standard." State v. Jucht , 2012 S.D. 66, ¶ 22, 821 N.W.2d 629, 634.
[¶15.] Three statutes form the nucleus of what may be termed South Dakota’s hit-and-run statutory scheme. Initially, SDCL 32-34-3 establishes the duty of a driver involved in an accident that causes death, injury, or property damage to:
immediately stop and give his name and address, and the name and address of the owner and the license number of the vehicle he is driving to the person struck or the driver or occupants of any vehicle collided with and shall render to any person injured in such accident reasonable assistance ....
[¶16.] The Legislature prescribes different punishments for failure to comply with SDCL 32-34-3 depending upon whether the accident results in injury or death, or whether it results only in damage to property. Under SDCL 32-34-5, "[a]ny driver of any vehicle involved in an accident resulting in injury or death to any person, who fails immediately to stop such vehicle at the scene of such accident and comply with the provisions of § 32-34-3 is guilty of a Class 6 felony ...." (Emphasis added.) However, SDCL 32-34-6 makes it a class 1 misdemeanor for a driver "involved in an accident resulting in damage to property " who fails to "stop his vehicle at the scene of the accident and immediately give his name and address, and the name and address of the owner of the vehicle." (Emphasis added.)
[¶17.] Here, the evidence establishes that Nekolite did not comply with the requirements of SDCL 32-34-3, and he does not argue otherwise. Although he stopped after the accident, the circuit court found that Nekolite "failed to provide his own name and address, or the name and address of the owner of the vehicle he was driving, to Wagner; likewise, [he] did not provide Wagner his license number" as required under SDCL 32-34-3. Nekolite’s decision to leave the accident scene abruptly, therefore, left him criminally liable—the question is to what extent.
[¶18.] Nekolite argues that the evidence would support only a misdemeanor violation because he lacked knowledge of Wagner’s injury that he claims is required for a felony conviction under SDCL 32-34-5. He relies upon our holding in State v. Minkel , which does state that "criminal liability attaches to a driver who knowingly leaves the scene of an accident if he actually knew of the injury or if he knew that the accident was of such a nature that one would reasonably anticipate that it resulted in injury to a person." 89 S.D. 144, 148, 230 N.W.2d 233, 235-36 (1975) (quoting People v. Holford , 63 Cal.2d 74, 45 Cal.Rptr. 167, 403 P.2d 423, 427 (1965) ). A careful reading of the opinion, however, reveals this statement to be dicta that we are not obligated to follow under principles of stare decisis. See Wiersma v. Maple Leaf Farms , 1996 S.D. 16, ¶ 5 n.1, 543 N.W.2d 787, 790 n.1 ().
[¶19.] At issue in Minkel...
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