State v. Pickering, 13510

• Decision Date: 25 February 1982
• Docket Number: No. 13510,13510
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Michael D. PICKERING, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 926

317 N.W.2d 926

STATE of South Dakota, Plaintiff and Appellee, v. Michael D. PICKERING, Defendant and Appellant.

No. 13510.

Supreme Court of South Dakota.

Considered on Briefs Feb. 25, 1982.

Decided April 7, 1982.

Douglas E. Kludt, Asst. Atty. Gen., Pierre, for plaintiff and appellee, Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

John P. Abbott, Brandon, for defendant and appellant.

FOSHEIM, Justice.

Appellant, Michael D. Pickering, was charged and convicted of kidnapping under SDCL 22-19-1(3). We affirm on his appeal.

Appellant raises two issues, both claiming the trial court erred in refusing his proffered instructions on lesser included offenses. We recently reviewed the South Dakota law governing lesser included offense instructions in State v. Oien, 302 N.W.2d 807, 808-809 (S.D.1981):

Under the law as established in this state, it is incumbent upon the trial court to instruct the jury, if requested, upon a lesser offense included in the offense charged if the evidence warrants a conviction upon the included offense. State v. Crofutt, 76 S.D. 77, 72 N.W.2d 435 (1955). There are two tests that must be satisfied in determining whether the trial court should submit a lesser included offense instruction to the jury. The first is a legal test, the second is factual.

In order to meet the legal test of a necessarily included offense, (1) the elements of the included offense must be fewer in number than the elements of the greater offense, (2) the penalty for the included offense must be less than the greater charged offense, and (3) the two offenses must contain common elements so that the included offense must be such that the greater offense cannot be committed without also committing the lesser. State v. Kafka, 264 N.W.2d 702, 705 (S.D.1978) (Zastrow, J., concurring specially.)

. . . .

[T]he factual test ...:

'Where a request has been made to charge the jury on a lesser-included offense, the duty of the trial judge is determined by the evidence. If evidence has been presented which would support a conviction of a lesser charge, refusal to give the requested instruction would be reversible error. (citations omitted) There must be sufficient evidence, however, when read in the light most favorable to the defendant, which would justify a jury in concluding that the greater offense was not committed and that a lesser offense was, in fact, committed.' People v. Karasek, 1975, 63 Mich.App. 706, 234 N.W.2d 761.

Appellant was charged with kidnapping, in violation of SDCL 22-19-1(3). That statute reads:

Any person who shall seize, confine, inveigle, decoy, abduct or carry away any person and hold or detain such person, except in the case of an unmarried minor by a parent thereof, for any of the following reasons:

. . . .

(3) To inflict bodily injury on or to terrorize the victim or another ... is guilty of kidnapping.

Appellant contends that the trial court should have instructed on simple assault as a lesser included offense of kidnapping. The instruction appellant proposed to the trial court is a combination of SDCL 22-18-1(1) and (4).

Any person who:

(1) Attempts to cause bodily injury to another, other than a law enforcement officer engaged in the performance of his duties, and has the actual ability to cause the injury;

. . . .

(4) Attempts by physical menace to put another in fear of imminent serious bodily harm, with or without the...