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United States v. Hawk

United States District Court, Eighth Circuit

October 31, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
NORMAN YELLOW HAWK, Defendant.

ORDER

JEFFREY L. VIKEN, Chief District Judge.

Pending before the court is defendant Norman Yellow Hawk's motion to dismiss count III of the superseding indictment, charging felony child abuse and neglect. (Docket 158). Defendant contends count III is legally and factually deficient and fails to state a charge. Id . The government opposes the motion. (Docket 173).

Mr. Yellow Hawk was initially indicted in April of 2012. (Docket 1). On May 21, 2013, thirteen months following the initial indictment, the government added felony child abuse and neglect to the indictment. (Docket 140). Count III of the indictment reads as follows:

On or about between January 1, 2007, and December 31, 2008, at Allen, in Indian country, in the District of South Dakota, the defendant, Norman Yellow Hawk, an Indian person, who was the parent, guardian or custodian, did intentionally and knowingly abuse [T.Y.], by subjecting him to an environment which constituted mistreatment, was injurious to his welfare and resulting in serious bodily injury, all in violation of 18 U.S.C. § 1153 and SDCL §§ 26-10-1 and 26-8A-2(1) and (3) and 18 U.S.C. § 3559(f)(3).

(Docket 141).

SDCL § 26-10-1 sets forth the elements of felony child abuse and states:

Any person who abuses, exposes, tortures, torments, or cruelly punishes a minor in a manner which does not constitute aggravated assault, is guilty of a Class 4 felony. If the victim is less than seven years of age, the person is guilty of a Class 3 felony.

SDCL § 26-10-1. "Abuse" is not defined in the statute.

South Dakota civil statutes define abused or neglected child as follows:

In this chapter..., the term, abused or neglected child, means a child:
(1) Whose parent, guardian, or custodian has abandoned the child or has subjected the child to mistreatment or abuse;
...
(3) Whose environment is injurious to the ...

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