CONSIDERED ON BRIEFS ON MARCH 18, 2013
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN COUNTY, SOUTH DAKOTA THE HONORABLE SCOTT P. MYREN Judge
MARTY J. JACKLEY Attorney General FRANK GEAGHAN Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellant.
MARSHALL C. LOVRIEN of Bantz, Gosch, & Cremer, LLC Aberdeen, South Dakota Attorneys for defendant and appellee.
[¶1.] The State charged Michael Clements with bigamy. The trial court dismissed the information against Clements, concluding that bigamy is legally impossible to commit in South Dakota. The State appeals the dismissal. We reverse and remand.
[¶2.] The facts in this case are undisputed. Michael Clements married Kristi Anderson in Ashley, North Dakota on December 6, 2009. Anderson filed for divorce from Clements on April 15, 2011. Before the divorce was finalized, on June 14, 2011, Clements and Alicia Bjerke applied for and were granted a marriage license in Brown County, South Dakota. On the same day, Clements and Bjerke participated in a marriage ceremony at the Brown County Clerk of Courts office. Both Clements and Bjerke consented to participate in the ceremony, and a solemnization of the ceremony occurred. The marriage license was filed with the Brown County Register of Deeds on June 15, 2011.
[¶3.] On August 4, 2011, the State charged Clements with bigamy in violation of SDCL 22-22A-1. On November 10, 2011, Clements moved to dismiss the complaint, arguing that the State failed to state a public offense. The trial court held a hearing on November 29, 2011. The trial court then granted the motion to dismiss via a memorandum decision, which was withdrawn on February 1, 2012, because of the trial court's mistaken understanding that the parties had stipulated to the facts stated in the memorandum decision.
[¶4.] The State filed an information on January 30, 2012, again charging Clements with bigamy in violation of SDCL 22-22A-1. Clements was arraigned on March 6, 2012, and pleaded not guilty to the charge of bigamy. Clements again moved to dismiss on March 6, 2012. A statement of stipulated facts was entered by both parties on March 14, 2012. The trial court again granted the motion to dismiss by memorandum decision on June 1, 2012 and filed findings of fact and conclusions of law in the case on August 20, 2012. The trial court filed an order granting the motion to dismiss on August 29, 2012, and an amended order granting the motion to dismiss on September 4, 2012, based on the failure to state a public offense in violation of SDCL 23A-8-2(5).
[¶5.] The State appeals, arguing that the trial court erred in granting the motion to dismiss the information under SDCL 23A-8-2(5).
STANDARD OF REVIEW
[¶6.] The sufficiency of an indictment or information is a question of law, which we review de novo. State v. Fisher, 2013 S.D. 23, ¶ 28, 828 N.W.2d 795, 803 (citing State v. Goodroad, 521 N.W.2d 433, 434-36 (S.D. 1994)). We review a trial court's interpretation of a statute de novo because the interpretation of a statute is a question of law. Martinmaas v. Engelmann, 2000 S.D. 85, ...