Considered on Briefs November 17, 2014
APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT MEADE COUNTY, SOUTH DAKOTA. THE HONORABLE JEROME A. ECKRICH, III, Judge.
MARTY J. JACKLEY, Attorney General, ANN C. MEYER, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
ROBERT A. HAIVALA, Sturgis, South Dakota, Attorney for defendant and appellant.
SEVERSON, Justice. GILBERTSON, Chief Justice, and, KONENKAMP, ZINTER, and, WILBUR, Justices, concur.
[¶1] A South Dakota Highway Patrol trooper stopped Douglas James Myers after radar registered his car traveling at 112 miles per hour. He was traveling with three small children in the vehicle and was under the influence of alcohol. No actual physical injuries to the children occurred as a result of the incident. After a trial to the court on stipulated facts, the Fourth Judicial Circuit Court found him guilty of abuse of a minor in violation of SDCL 26-10-1 because he had " exposed" the children as stated by that statute. The circuit court held that the statute was not unconstitutionally vague for failing to define what " expose" means. Myers now appeals the issue of whether the statute is unconstitutionally vague and therefore void. We affirm.
[¶2] On June 8, 2013, the South Dakota Highway Patrol received a report of a small red car travelling eastbound on Interstate 90, weaving all over the road and going into the ditch or median with all four tires. A trooper used radar and registered the car traveling 112 miles per hour. The trooper attempted to catch the vehicle for approximately four miles, and was finally able to do so when the vehicle slowed because of traffic. The trooper activated his lights, and the driver of the car pulled over and identified himself as Douglas James Myers. There were two small children in the back seat and one in the front seat. Upon approaching the vehicle, the trooper smelled the strong odor of alcohol, noticed Myers's eyes were bloodshot, and saw Myers stagger as he walked. A urinalysis showed positive for marijuana, and a blood sample revealed that his blood contained .131% alcohol by weight. Myers subsequently stipulated to these facts for his court trial.
[¶3] On July 12, 2013, a Meade County Grand Jury indicted Myers with (1) three counts of abuse of or cruelty to a minor, in violation of SDCL 26-10-1; (2) driving under the influence of alcohol, marijuana, or controlled substance in violation of SDCL 32-23-1(2) or in the alternative driving while having .08 percent or more alcohol in blood; (3) possession of marijuana, less than two ounces, in violation of SDCL 22-42-6; (4) reckless driving, in violation of SDCL 32-24-1; and (5) driving while license revoked, in violation of SDCL 32-12-65(1). Myers entered a not guilty plea to the crimes.
[¶4] On November 6, 2013, Myers moved to dismiss the three counts related to his alleged violation of SDCL 26-10-1, abuse of a minor, on the ground that the statute is unconstitutionally vague and, therefore, void. The judge denied the request after a pretrial hearing on November 14, 2013. The court conducted a change of plea hearing on November 20, 2013, at which time, as part of a plea agreement, Myers pleaded guilty to driving while having .08 percent or more alcohol in his blood, in violation of SDCL 32-23-1(1), constituting a third offense DUI. Pursuant to the plea agreement, the parties agreed to try one count of the abuse of a minor upon stipulated facts to the circuit court, and all other charges were dismissed. The State agreed in the stipulated facts " that no abuse, torture, torments or cruel punishments was committed by [Myers]." Myers waived his right to a jury trial on the child abuse charge.
[¶5] The court conducted a hearing on January 13, 2014, at which time it allowed Myers to reopen the issue as to whether SDCL 26-10-1 is unconstitutionally vague. The court rejected Myers's argument ...