Add Notes
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State of South Dakota
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EIGHTIETH
LEGISLATIVE ASSEMBLY,
2005
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376L0297
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CONFERENCE COMMITTEE ENGROSSED
NO.
SB
43
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03/04/2005
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Introduced by:
Senator Schoenbeck and Representatives Cutler, Hennies, O'Brien, Rave, and
Rounds at the request of the Criminal Code Revision Commission
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FOR AN ACT ENTITLED, An Act to
revise the South Dakota criminal code.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section
1.
That
§
22-18-1
be amended to read as follows:
22-18-1.
Any person who:
(1) Attempts to cause bodily injury to another
, other than a law enforcement officer
engaged in the performance of official duties,
and has the actual ability to cause
the injury;
(2) Recklessly causes bodily injury to another;
(3) Negligently causes bodily injury to another with a dangerous weapon;
(4) Attempts by physical menace
or credible threat
to put another in fear of imminent
serious
bodily harm, with or without the actual ability to
seriously
harm the other
person; or
(5) Intentionally causes bodily injury to another which does not result in serious
bodily injury;
is guilty of simple assault.
is guilty of simple assault.
Simple assault is a Class 1 misdemeanor. However, if the defendant
has been convicted of, or entered a plea of guilty to, two or more violations of § 22-18-1, 22-18-
1.1, 22-18-26, or 22-18-29 within five years of committing the current offense, the defendant
is guilty of a Class 6 felony for any third or subsequent offense.
Section
2.
That
§
22-18-1.1
be amended to read as follows:
22-18-1.1.
Any person who:
(1) Attempts to cause serious bodily injury to another, or causes such injury, under
circumstances manifesting extreme indifference to the value of human life;
(2) Attempts to cause, or knowingly causes, bodily injury to another with a dangerous
weapon;
(3)
Attempts to cause or knowingly causes any bodily injury to a law enforcement
officer or other public officer engaged in the performance of the officer's duties;
(4) Assaults another with intent to commit bodily injury which results in serious
bodily injury;
(5) Attempts by physical menace with a deadly weapon to put another in fear of
imminent serious bodily harm;
or
(6)
Is a convicted person under the jurisdiction of the Department of Corrections and
attempts to cause, or knowingly causes bodily injury to a Department of
Corrections employee, or authorized visitor, volunteer, or person under contract
assigned to the Department of Corrections; or
(7) Intentionally or recklessly causes serious bodily injury to an infant, less than three
years old, by causing any intracranial or intraocular bleeding, or swelling of or
damage to the brain, whether caused by blows, shaking, or causing the infant's
head to impact with an object or surface;
is guilty of aggravated assault.
Aggravated assault is a Class 3 felony. However, a violation of subdivision (7) is
a Class 2 felony. A second or subsequent violation of subdivision (7) is a Class 1
felony.
is guilty of aggravated assault. Aggravated assault is a Class 3 felony. However, a violation of
subdivision (7) is a Class 2 felony. A second or subsequent violation of subdivision (7) is a
Class 1 felony.
Section
3.
That chapter
22-18
be amended by adding thereto a NEW SECTION to read as
follows:
Simple assault, as provided in
§
22-18-1, if committed against a law enforcement officer,
Department of Corrections employee or person under contract assigned to the Department of
Corrections, or other public officer, which assault occurred while such officer or employee was
engaged in the performance of the officer's or employee's duties, is a Class 6 felony.
Aggravated assault, as provided in
§
22-18-1.1, if committed against a law enforcement
officer, Department of Corrections employee or person under contract assigned to the
Department of Corrections, or other public officer, which assault occurred while such officer
or employee was engaged in the performance of the officer's or employee's duties, is a Class 2
felony.
Section
4.
That
§
22-18-1.2
be amended to read as follows:
22-18-1.2.
Any person who assaults a pregnant woman and inflicts bodily injury on an
unborn child who is subsequently born alive is guilty of simple assault.
Bodily
For the purposes
of this section, the term, bodily
injury
,
does not include the inducement of the unborn child's
birth
when
if
done for bona fide medical purposes.
Section
5.
That
§
22-18-1.3
be amended to read as follows:
22-18-1.3.
Any person who assaults a pregnant woman and inflicts
great
serious bodily
injury on an unborn child who is subsequently born alive is guilty of aggravated assault.
Section
6.
That
§
22-18-2
be amended to read as follows:
22-18-2.
To use or attempt
to use
or offer to use force or violence upon or toward the person
of another is not unlawful
when
if
necessarily committed by a public officer in the performance
of any legal duty or by any other person assisting
him
the public officer
or acting by
his
the
public officer's
direction.
Section
7.
That
§
22-18-3
be amended to read as follows:
22-18-3.
To use or attempt
to use
or offer to use force or violence upon or toward the person
of another is not unlawful
when
if
necessarily committed by any person in arresting
one
someone
who has committed any felony
, and
or in
delivering
him
that person
to a public officer
competent to receive him
or her
in custody.
Section
8.
That
§
22-18-4
be amended to read as follows:
22-18-4.
To use or attempt
to use
or offer to use force or violence upon or toward the person
of another is not unlawful
when
if
committed either by
the party
any person
about to be injured,
or by any other person in
his
the
aid or defense
of a person about to be injured
, in preventing or
attempting to prevent an offense against his
or her own
person
,
or
in preventing
any trespass or
other unlawful interference with real or personal property in his
or her
lawful possession
;
provided
. However,
the force or violence used
is not
cannot be
more than
that
sufficient to
prevent such offense.
Section
9.
That
§
22-18-5
be amended to read as follows:
22-18-5.
To use or attempt
to use
or offer to use force upon or toward the person of another
is not unlawful if committed by a parent or the authorized agent of any parent, or by any
guardian, teacher, or other school official, in the exercise of a lawful authority to restrain or
correct
his
the
child
, pupil,
or ward and if restraint or correction has been rendered necessary
by the misconduct of
such
the
child
, pupil,
or ward, or by
his
the child's
refusal to obey the
lawful command of such parent, or authorized agent, guardian, teacher, or other school official,
and the force used is reasonable in manner and moderate in degree.
Section
10.
That
§
22-18-6
be amended to read as follows:
22-18-6.
A carrier of passengers or the authorized agent or servant of such carrier or any
person assisting
him
such person
at his
or her
request, may use or attempt
to use
or offer to use
force to expel any passenger who refuses to obey a lawful and reasonable regulation prescribed
for the conduct of passengers if the vehicle carrying the passenger has first been stopped and the
force used is not more than is sufficient to expel the offending passenger with reasonable regard
for
his
the passenger's
personal safety.
Section
11.
That
§
22-18-26
be amended to read as follows:
22-18-26.
Any convicted person
or any incarcerated person
under the jurisdiction of the
Department of Corrections who intentionally throws, smears,
spits,
or otherwise causes blood,
emesis
vomit, saliva
, mucus, semen, excrement,
urine,
or human waste to come in contact with
a Department of Corrections employee, or visitor, or
volunteer
other person
authorized by the
Department of Corrections
, or person under contract assigned to the Department of Corrections
to be on the premises,
is guilty of a Class 6 felony.
Section
12.
That
§
22-18-26.1
be amended to read as follows:
22-18-26.1.
Any person who, with the intent to assault, throws, smears,
spits,
or causes
human blood,
emesis
vomit, saliva
, mucus, semen, excrement,
urine,
or human waste to come
in contact with
a law enforcement officer as defined in subdivision 22-1-2(22), a firefighter, a
court services officer or designee, or an emergency medical technician, while performing
official duties or actions
any other person
, is guilty of a Class 1 misdemeanor.
Section
13.
That
§
22-18-27
be repealed.
22-18-27.
A penitentiary sentence arising from a conviction pursuant to § 22-18-26 may not
commence until the expiration, with no allowance of good time, of the last sentence of
imprisonment.
Section
14.
That
§
22-18-28
be repealed.
22-18-28.
An inmate sentenced pursuant to § 22-18-26 shall serve the entire term of the
sentence and is not eligible for parole release as authorized under chapter 24-15A.
Section
15.
That
§
22-18-29
be amended to read as follows:
22-18-29.
Any adult confined in a county or municipal jail who intentionally throws, smears,
spits,
or otherwise causes blood,
emesis
vomit, saliva
, mucus, semen, excrement,
urine,
or
human waste to come in contact with a county or municipal jail employee, or visitor, or
volunteer
other person
authorized by the county or municipal jail
, or person under contract
assigned to the county or municipal jail
to be on the premises,
is guilty of a
Class 1
misdemeanor
Class 6 felony
.
Section
16.
That
§
22-18-29.1
be amended to read as follows:
22-18-29.1.
Any juvenile confined in a juvenile detention facility
or a juvenile corrections
facility established and maintained in accordance with
§
26-11A-1
who intentionally throws,
smears,
spits,
or otherwise causes blood,
emesis
vomit, saliva
, mucus, semen, excrement,
urine,
or human waste to come in contact with a juvenile detention
or juvenile corrections
facility
employee, or visitor, or
volunteer
other person
authorized by the juvenile detention
or juvenile
corrections
facility
, or person under contract assigned to the juvenile detention facility
to be on
the premises,
is guilty of a
Class 2 misdemeanor
Class 6 felony
.
Section
17.
That
§
22-18-31
be amended to read as follows:
22-18-31.
Any person who, knowing himself or herself to be infected with HIV,
intentionally exposes another person to infection by:
(1) Engaging in sexual intercourse or other intimate physical contact with another
person;
(2) Transferring, donating, or providing blood, tissue, semen, organs, or other
potentially infectious body fluids or parts for transfusion, transplantation,
insemination, or other administration to another in any manner that presents a
significant risk of HIV transmission;
(3) Dispensing, delivering, exchanging, selling, or in any other way transferring to
another person any nonsterile intravenous or intramuscular drug paraphernalia that
has been contaminated by himself or herself; or
(4) Throwing, smearing, or otherwise causing blood or semen, to come in contact with
another person for the purpose of exposing that person to HIV infection; is guilty
of criminal exposure to HIV.
Criminal exposure to HIV is a Class 3 felony.
Criminal exposure to HIV is a Class 3 felony.
Section
18.
That
§
22-18-33
be amended to read as follows:
22-18-33.
It is an affirmative defense to prosecution
under
pursuant to
§ 22-18-31, if
it is
proven by a preponderance of the evidence, that the person exposed to HIV knew that the
infected person was infected with HIV, knew that the action could result in infection with HIV,
and gave advance consent to the action with that knowledge.
Section
19.
That
§
22-22-15
be amended to read as follows:
22-22-15.
Any person who, while married to another presently living person, marries any
other person, is guilty of bigamy.
This section does
The provisions of this section do
not apply
to:
(1) Any person,
whose
if that person's
husband or wife has been absent for five
successive years
without being
and is not
known to be living by such person;
(2) Any person,
whose
if that person's
husband or wife has absented himself or herself
from such spouse by being outside the United States, continuously for
at least
five
years;
(3) Any person,
whose
if that person's
marriage has been pronounced void, annulled,
or dissolved by a competent court; or
(4) Any person, presently married, who believes, in good faith, and has reason to
believe, that the marriage has been pronounced void, annulled, or dissolved by a
competent court.
Bigamy is a Class 6 felony.
Section
20.
Any persons, eighteen years of age or older, who knowingly engage in a
mutually consensual act of sexual penetration with each other:
(1) Who are not legally married; and
(2) Who are within degrees of consanguinity within which marriages are, by the laws of
this state, declared void pursuant to
§
25-1-6;
are guilty of incest. Incest is a Class 5 felony.
Section
21.
Any person who knowingly engages in an act of sexual penetration with a
person who:
(1) Is at least sixteen but less than eighteen years of age; and
(2) Is either:
(a) The child of the perpetrator or the child of a spouse or former spouse of the
perpetrator; or
(b) Related to the perpetrator within degrees of consanguinity within which
marriages are, by the laws of this state, declared void pursuant to
§
25-1-6;
is guilty of aggravated incest. Aggravated incest is a Class 3 felony.
Section
22.
That
§
22-22-19.1
be repealed.
22-22-19.1.
Any person, fourteen years of age or older, who knowingly engages in sexual
contact with another person, other than that person's spouse, if the other person is under the age
of twenty-one and is within the degree of consanguinity or affinity within which marriages are
by the laws of this state declared void pursuant to § 25-1-6, is guilty of a Class 5 felony.
Notwithstanding § 23A-42-2 a charge brought pursuant to this section may be commenced at
any time prior to the time the victim becomes age twenty-five or within seven years of the
commission of the crime, whichever is longer.
Section
23.
The code counsel shall transfer
§
22-22-15 and sections 20 and 21 of this Act
to a newly created chapter in title 22 entitled "Offenses Against the Family" and shall renumber
the sections accordingly and adjust all appropriate cross references.
Section
24.
That
§
22-30-1
be amended to read as follows:
22-30-1.
Robbery is the intentional taking of personal property, regardless of value, in the
possession of another from
his
the other's
person or immediate presence, and against
his
the
other's
will, accomplished by means of force or fear
of force
, unless the property is taken
pursuant to
process or otherwise pursuant to
law
or process of law
.
Section
25.
That
§
22-30-2
be amended to read as follows:
22-30-2.
To constitute robbery,
the
force or fear
of force
must be employed either to obtain
or retain possession of the property or to prevent or overcome resistance to the taking. If
employed merely as a means of escape, it does not constitute robbery.
When force is so
employed as to constitute robbery, the
The
degree of force employed
to constitute robbery
is
immaterial.
Section
26.
That
§
22-30-3
be amended to read as follows:
22-30-3.
The fear
of force
which constitutes an element of the offense of robbery may be
either:
(1) The fear of an injury, immediate or future, to the person or property of the person
robbed, or of any relative
of his or member of his family
or family member of the
person robbed
; or
(2) The fear of an immediate injury to the person or property of anyone in the
company of the person robbed at the time of the robbery.
Section
27.
That
§
22-30-4
be amended to read as follows:
22-30-4.
The taking of property from the person of another or in
his
the
immediate presence
of the person
is not robbery
when
if
it clearly appears that the taking was fully completed
without
his
the person's
knowledge.
Section
28.
That
§
22-30-6
be amended to read as follows:
22-30-6.
Robbery
when
, if
accomplished by the use of
force or by putting the person robbed
in fear of some immediate injury to his person
a dangerous weapon,
is robbery in the first
degree.
When
Robbery, if
accomplished in any other manner,
it
is robbery in the second degree.
Section
29.
That
§
22-30-11
be repealed.
22-30-11.
Any person who obtains physical control of any aircraft registered pursuant to the
provisions of chapter 50-11 by means of inflicting or threatening to inflict serious bodily harm
or death on any person is guilty of air piracy.
A violation of this section that results in the death of any person is a Class B felony. Any
other violation of this section is a Class 1 felony.
Section
30.
That
§
22-29-1
be amended to read as follows:
22-29-1.
Any person who, having taken an oath
that he or she will
to
testify, declare, depose,
or certify truly
,
before any competent tribunal, officer, or person, in any state or federal
proceeding or action in which such an oath may by law be administered,
intentionally and
contrary to the oath,
states
, intentionally and contrary to the oath,
any material matter which the
person knows to be false, is guilty of perjury.
Section
31.
That
§
22-29-2
be amended to read as follows:
22-29-2.
An
Any
unqualified statement of that which
one
a person
does not know or
reasonably believe to be true is equivalent to a statement of that which
one
a person
knows to
be false.
Section
32.
That
§
22-29-3
be amended to read as follows:
22-29-3.
It is no defense to a prosecution for perjury that the accused was not competent to
give the testimony, deposition, or certificate of which falsehood is alleged. It is sufficient that
he
the accused
actually was required to give such testimony or made such deposition or
certificate.
Section
33.
That
§
22-29-4
be amended to read as follows:
22-29-4.
It is no defense to a prosecution for perjury that the accused did not know the
materiality of the false statement
made by him
, or that
it
the false statement
did not in fact affect
the proceeding in or for which
it
the false statement
was made. It is sufficient that
it
the false
statement
was material and might have been used to affect such proceeding.
Section
34.
That
§
22-29-5
be amended to read as follows:
22-29-5.
Perjury:
(1)
When
If
committed
on a
in any
trial for felony, is a Class 3 felony;
(2)
When
If
committed
on
in
any other trial
or
, court
proceeding
in a court of justice,
is a Class 4 felony;
(3) In all other cases is a Class 5 felony
, deposition, or administrative proceeding
conducted under oath, is a Class 5 felony
.
Section
35.
That
§
22-29-6
be amended to read as follows:
22-29-6.
Any person who intentionally procures another person to commit any perjury is
guilty of subornation of perjury.
Subornation of perjury is punishable in the same manner as
perjury, and as if the suborner were personally guilty of the perjury procured.
Section
36.
That
§
22-29-7
be repealed.
22-29-7.
Every person guilty of subornation of perjury is punishable in the same manner as
he would be if personally guilty of the perjury so procured.
Section
37.
That
§
22-29-8
be amended to read as follows:
22-29-8.
The term
,
"
oath
"
,
as used in this chapter
,
includes
an
any
affirmation, and every
other mode of attesting the truth of that which is stated, which is authorized by law. It is no
defense that
an
the
oath was administered or taken in an irregular manner.
Section
38.
That
§
22-29-9
be amended to read as follows:.
22-29-9.
So much of an oath of office as relates to future performance of official duty is not
sufficient to constitute perjury or subornation.
Section
39.
That
§
22-29-9.1
be amended to read as follows:
22-29-9.1.
Any person who submits any petition, application, information, or other
document for the purpose of obtaining benefits or any other privilege from the State of South
Dakota shall verify, under oath, that such petition, application, or information is true and
correct. However, it is sufficient if the claimant, in lieu of verification under oath, signs a
statement printed or written thereon in the form following: "I declare and affirm under the
penalties of perjury that this claim (petition, application, information) has been examined by me,
and to the best of my knowledge and belief, is in all things true and correct." Any person who
signs such statement as provided for in this section, knowing the
same
statement
to be false or
untrue, in whole or in part,
shall be
is
guilty of perjury.
Section
40.
That
§
22-29-10
be amended to read as follows:
22-29-10.
The making of
a
any
deposition or certificate is deemed to be complete, within
the provisions of this chapter, from the time when it is delivered by the accused to any other
person with intent that it be uttered or published as true.
Section
41.
That
§
22-29-11
be amended to read as follows:
22-29-11.
It shall be unlawful for any
No
person
to
may
knowingly make or execute a false
statement, instrument, document, or representation, or to use any other fraudulent device, and
thereby obtain money, property, or other assistance to which
he
that person
is not entitled, from
any program provided for by Title 26, 27A, 27B, or 28, of the South Dakota Codified Laws, or
otherwise administered by the South Dakota Department of Social Services.
Section
42.
That
§
22-29-12
be amended to read as follows:
22-29-12.
It shall be unlawful for any
No
person
to
may
knowingly fail to report any change
in circumstances which would affect
his
that person's
eligibility for money, property, or other
assistance, and thereby obtain money, property, or other assistance to which
he
that person
is
not entitled, from any program provided for by Title 26, 27A, 27B, or 28, of the South Dakota
Codified Laws, or otherwise administered by the South Dakota Department of Social Services.
Section
43.
That
§
22-29-13
be amended to read as follows:
22-29-13.
For
purpose
the purposes
of §§ 22-29-11 to 22-29-17, inclusive, any person who
receives money, property, or services, on behalf of any other person, from any program covered
by such sections, shall be considered to have received such money for himself
or herself
.
Section
44.
That
§
22-29-14
be amended to read as follows:
22-29-14.
Any person who attempts to obtain any money, property, or other assistance, in
violation of § 22-29-11 or 22-29-12, but does not thereby obtain any such money, property, or
services,
shall be
is
guilty of a Class 1 misdemeanor.
Section
45.
That
§
22-29-15
be amended to read as follows:
22-29-15.
Any person who violates § 22-29-11 or 22-29-12 and thereby obtains money,
property, or other assistance to which
he
such person
is not entitled with a value of two hundred
dollars or less
shall be
is
guilty of a Class 1 misdemeanor.
Section
46.
That
§
22-29-16
be amended to read as follows:
22-29-16.
Any person who violates § 22-29-11 or 22-29-12 and thereby obtains money,
property, or other assistance to which
he
such person
is not entitled with a value of more than
two hundred dollars
shall be
is
guilty of a Class 6 felony.
Section
47.
That
§
22-29-17
be amended to read as follows:
22-29-17.
Amounts involved in violations of § 22-29-11
and
or
22-29-12,
or both,
committed pursuant to one scheme or course of conduct, may be aggregated in determining the
degree of the offense.
Section
48.
That
§
22-29-18
be amended to read as follows:
22-29-18.
It is sufficient for a conviction
of any offense
under this chapter that a finding of
guilt is based upon admissible evidence
and no
. No
minimum number of witnesses
may be
is
required. In reviewing the sufficiency of the evidence of a conviction under this chapter, the
court shall only consider whether there is evidence in the record which, if believed by the trier
of fact, is sufficient to sustain a finding of guilty beyond a reasonable doubt.
Section
49.
That
§
22-30A-1
be amended to read as follows:
22-30A-1.
Any person who takes, or exercises
unauthorized
control over, property of
another
,
with intent to deprive
him
that person
of
it
the property
, is guilty of theft.
Section
50.
That
§
22-30A-2
be amended to read as follows:
22-30A-2.
Any person who transfers property of another, or any interest
therein
in the
property of another
, with intent to benefit
himself
the transferor
or another
who is
not entitled
thereto, is guilty of theft.
Section
51.
That
§
22-30A-2.1
be repealed.
22-30A-2.1.
If any person transfers property purchased at a public auction beyond the
borders of this state without first either making full payment for the property or obtaining the
written consent of the auctioneer to transfer the property out of state, a rebuttable presumption
arises that the transfer was made with intent to defraud within the meaning of §§ 22-30A-1 and
22-30A-10 and that the person who is the purchaser and transferrer has committed theft.
Section
52.
That
§
22-30A-3
be amended to read as follows:
22-30A-3.
Any person who obtains property of another by deception is guilty of theft. A
person deceives if
,
with intent to defraud
he
, that person
:
(1) Creates or reinforces a false impression, including false impressions as to law,
value, intention, or other state of mind
; but deception
. However,
as to a person's
intention to perform a promise
shall
, deception may
not be inferred from the fact
alone that
he
that person
did not subsequently perform the promise;
(2) Prevents another from acquiring information which would affect
his
the other
person's
judgment of a transaction;
(3) Fails to correct a false impression which the deceiver previously created or
reinforced, or which the deceiver knows to be influencing another to whom
he
the
deceiver
stands in a fiduciary or confidential relationship; or
(4) Fails to disclose a known lien, adverse claim, or other legal impediment to the
enjoyment of property which
he
the deceiver
transfers or encumbers in
consideration for property
he
the deceiver
obtains, whether such impediment is or
is not valid, or is or is not a matter of official record.
The term
,
"
deceive
"
,
does not, however, include falsity as to matters having no pecuniary
significance
,
or puffing by statements unlikely to deceive reasonable persons.
Section
53.
That
§
22-30A-4
be amended to read as follows:
22-30A-4.
A person is guilty of theft if
he
the person
obtains property of another by
threatening to:
(1) Inflict bodily injury on anyone or commit any criminal offense;
(2) Accuse anyone of a criminal offense;
(3) Expose any secret tending to subject any person to hatred, contempt, or ridicule,
or to impair any person's credit or business repute;
(4) Take or withhold action as an official, or cause an official to take or withhold
action;
(5) Bring about or continue a strike, boycott, or other collective unofficial action, if
the property is not demanded or received for the benefit of the group in whose
interest the actor purports to act;
(6) Testify or provide information or withhold testimony or information with respect
to another's legal claim or defense; or
(7) Inflict any other harm which would not benefit the person making the threat.
Section
54.
That
§
22-30A-6
be amended to read as follows:
22-30A-6.
Any person who comes into control of property of another that
he
the person
knows to have been lost, estrayed, mislaid, or delivered under a mistake as to the nature or
amount of the property or the identity of the recipient, is guilty of theft if, with intent to deprive
the owner thereof,
he
the person
fails to take reasonable measures to restore the property to a
person entitled to have
it
the property
.
Section
55.
That
§
22-30A-7
be amended to read as follows:
22-30A-7.
Any person who receives, retains, or disposes of property of another knowing that
it
the property
has been stolen, or believing that
it
the property
has probably been stolen, unless
the property is received, retained, or disposed of with the intent to restore
it
the property
to the
owner, is guilty of theft.
Section
56.
That
§
22-30A-8
be amended to read as follows:
22-30A-8.
Any person is guilty of theft if
he
that person
intentionally obtains property or
service which
he
that person
knows is available only for compensation, by deception, threat, or
other means to avoid payment for the service or property.
Section
57.
That
§
22-30A-8.1
be amended to read as follows:
22-30A-8.1.
Any person who
,
by use of a credit card issued to another person
,
without the
consent of the person to whom issued, or by use of a credit card which has been revoked or
canceled or has expired, or by use of a falsified, mutilated, altered, or counterfeit credit card
obtains property or services on credit, is guilty of theft.
Section
58.
That
§
22-30A-9
be amended to read as follows:
22-30A-9.
Any person who, having control over the disposition of services of others, to
which
he
that person
is not entitled, diverts such services to his
or her
own benefit or to the
benefit of another not entitled thereto, is guilty of theft.
Section
59.
That
§
22-30A-10
be amended to read as follows:
22-30A-10.
Any person, who has been entrusted with the property of another
,
and
who, with
intent to defraud, appropriates such property to a use or purpose not in the due and lawful
execution of his
or her
trust, is guilty of theft. A distinct act of taking is not necessary to
constitute theft
under
pursuant to
this section.
Section
60.
That
§
22-30A-10.1
be amended to read as follows:
22-30A-10.1.
If
a
any
person, who has been accused of theft, restores or returns the property
allegedly
appropriated
stolen
before an indictment or information is laid before a magistrate,
such fact may be considered in mitigation of punishment. The restoration or return of the
property is not a defense nor may it be considered by the finder of fact.
Section
61.
That
§
22-30A-11
be amended to read as follows:
22-30A-11.
Any person convicted of theft under § 22-30A-10 for unlawfully obtaining
property of this state, of any of its political subdivisions, or of any agency or fund in which the
state or its people are interested shall, in addition to the punishment prescribed by § 22-30A-17
and chapter 22-6, be disqualified from holding any public office, elective or appointive, under
the laws of this state, so long as
he
that person
remains a defaulter to this state or any of its
political subdivisions, agencies, or funds.
Section
62.
That
§
22-30A-12
be amended to read as follows:
22-30A-12.
Any person who, without the intent to deprive the owner thereof, operates
another's motor vehicle or vessel without
the
consent of the owner, is guilty of a Class 1
misdemeanor.
Section
63.
That
§
22-30A-13
be amended to read as follows:
22-30A-13.
Any person who intentionally converts to his
or her
own use any leased or
rented personal property, after receiving proper notice demanding the return of the property
following expiration of the lease or rental agreement, is guilty of theft.
Proper
For the purposes
of this section, the term, proper
notice
,
means a written demand for the return of the property
addressed and mailed by certified or registered mail to the lessee or renter or personal service
of such written demand in the manner provided for service of a summons.
Section
64.
That
§
22-30A-14
be amended to read as follows:
22-30A-14.
The following factors
,
taken as a whole
shall be
, constitute
an affirmative
defense to a prosecution commenced under § 22-30A-13:
(1) That the lessee accurately stated his
or her
name and address at the time of rental;
(2) That the lessee's failure to return the item at the expiration date of the rental
contract was lawful;
(3) That the lessee failed to receive the lessor's notice personally; and
(4) That the lessee returned the personal property to the owner or lessor within
forty-eight hours
of receiving notice
of the commencement of prosecution,
together with any charges for the overdue period and the value of damages to the
personal property, if any.
Section
65.
That
§
22-30A-15
be amended to read as follows:
22-30A-15.
Conduct
denominated
constituting
theft
in
pursuant to
this chapter constitutes
a single offense including
, but not limited to, the
any
separate offenses committed or charged
before the effective date of this chapter and known as larceny, embezzlement, extortion,
fraudulent conversion, false pretense, and receiving stolen property. An accusation of theft may
be supported by evidence that
it
the theft
was committed in any manner that would be theft
under this chapter, notwithstanding the specification of a different manner in the indictment or
information, subject only to the power of a court to ensure a fair trial by granting a continuance
or other appropriate relief
where
if
the conduct of the defense would be prejudiced by lack of
fair notice or by surprise.
Section
66.
That
§
22-30A-16
be amended to read as follows:
22-30A-16.
It is an affirmative defense to a prosecution for theft that the
actor
defendant
:
(1) Was unaware that the property taken was that of another; or
(2) Acted under an honest and reasonable claim of right to the property involved or
that
he
the defendant
had a right to acquire or dispose of
it
the property
as he
or
she
did.
Section
67.
That
§
22-30A-17
be amended to read as follows:
22-30A-17.
Theft is grand theft, if
the property stolen
:
(1)
The value of the property stolen exceeds five hundred
Exceeds one thousand
dollars
in value
;
(2)
Repealed by SL 1990, ch 165, § 2.
Is a firearm;
(3)
Property of any value is
Is
taken from the person of another;
or
(4)
In the case of theft by receiving stolen property, the receiver is a dealer in stolen
property, the value of the property stolen exceeds five hundred dollars in value;
or
(5)
The property stolen is cattle, horses, mules, buffalo, or captive nondomestic elk.
Theft in all other cases is petty theft. Grand theft is a Class 4 felony. Petty theft is divided
into two degrees. Petty theft of one hundred dollars or more is in the first degree and is a Class
1 misdemeanor. Petty theft is in the first degree and is a Class 1 misdemeanor if the theft is of
money or property of any value less than five hundred dollars belonging to a resident or patient
of a hospital, nursing facility, chemical dependency facility, assisted living center, development
center, human services center, or any residential facility for the mentally ill, mentally retarded,
or developmentally disabled and if the theft is committed by an employee of the facility.
Otherwise petty theft of less than one hundred dollars is in the second degree and is a Class 2
misdemeanor.
Grand theft is a Class 4 felony.
Section
68.
That chapter
22-30A
be amended by adding thereto a NEW SECTION to read
as follows:
Theft is aggravated grand theft, if the value of the property stolen exceeds one hundred
thousand dollars. Aggravated grand theft is a Class 3 felony.
Section
69.
That chapter
22-30A
be amended by adding thereto a NEW SECTION to read
as follows:
Theft is petty theft in the first degree, if the value of the property stolen exceeds four
hundred dollars but does not exceed one thousand dollars. Petty theft in the first degree is a
Class 1 misdemeanor.
Section
70.
That chapter
22-30A
be amended by adding thereto a NEW SECTION to read
as follows:
Theft is petty theft in the second degree, if the value of the property stolen is four hundred
dollars or less. Petty theft in the second degree is a Class 2 misdemeanor.
Section
71.
That
§
22-30A-18
be amended to read as follows:
22-30A-18.
Amounts involved in thefts
, whether from the same person or several persons,
committed pursuant to one scheme or course of conduct,
whether from the same person or
several persons,
may be aggregated in determining the degree of the offense.
Section
72.
That
§
22-30A-19.1
be amended to read as follows:
22-30A-19.1.
Any adult
,
or
any
emancipated minor as defined in § 25-5-24
,
or
the parents
any parent
or guardian of any unemancipated minor
,
who takes possession of any goods, wares,
or merchandise displayed or offered for sale by
the
a
store or other mercantile establishment
without the consent of the owner or seller
,
and with the intention of converting the goods to the
person's own use without having paid the purchase price
,
is liable to the owner or seller for the
retail value of the merchandise, regardless of whether
or not
the merchandise has been recovered
in undamaged condition by the
merchant
owner or seller
. In addition, the
merchant
owner or
seller
is entitled to a penalty of four times the retail value of the merchandise, or one hundred
dollars, whichever is greater.
Section
73.
That
§
22-30A-19.2
be amended to read as follows:
22-30A-19.2.
Any
merchant
owner or seller of merchandise,
who has reasonable grounds
to believe that a person has committed retail theft
pursuant to
§
22-30A-19.1,
may detain such
person, on or off the premises of a retail mercantile establishment, in a reasonable manner and
for a reasonable length of time:
(1) To request identification;
(2) To verify such identification;
(3) To make reasonable inquiry as to whether such person has in his
or her
possession
unpurchased merchandise and, to make reasonable investigation of the ownership
of such merchandise;
(4) To inform a
peace
law enforcement
officer of the detention of the person and
surrender that person to the custody of a
peace
law enforcement
officer;
and
(5) In the case of a minor, to inform a
peace
law enforcement
officer,
the parents
a
parent
, guardian, or other private person interested in the welfare of
that
the
detained
minor
of this detention
and to surrender custody of
such
the
minor to
such person.
A merchant
An owner or seller of merchandise
may make a detention as permitted in this
section off the premises of a retail mercantile establishment only if such detention is pursuant
to
an
the
immediate pursuit of such person.
Section
74.
That
§
22-30A-19.3
be amended to read as follows:
22-30A-19.3.
Any
person
owner or seller of merchandise
who is the victim of retail theft
pursuant to
§
22-30A-19.1
may make a written demand for the amount for which
the person
who committed the act
any person
is liable
under
pursuant to
§ 22-30A-19.1. Except for a sole
proprietorship, a member of management
,
other than the initial detaining person, shall evaluate
the validity of the accusation that
the person committed the
an
act
of retail theft was committed
and shall approve the accusation before a written demand for payment is issued. The demand
for payment shall be mailed by certified mail to the person from whom payment is demanded
or served personally on the person from whom payment is demanded. Personal service shall be
accomplished in the same manner as the service of a summons.
Section
75.
That
§
22-30A-19.4
be amended to read as follows:
22-30A-19.4.
If the person to whom a written demand is made
under
pursuant to
§ 22-30A-
19.3 complies by making full payment of the amount required by the written demand within
thirty days after its receipt, that person incurs no further civil liability to the
merchant
owner or
seller of the merchandise
. However, if the person to whom a written demand is made fails to
make full payment pursuant to that written demand
,
then the penalty allowed in § 22-30A-19.1
may be doubled.
Section
76.
That
§
22-30A-20
be amended to read as follows:
22-30A-20.
A
Any
person who receives, retains, or disposes of United States Department
of Agriculture commodities which have been transferred to the State of South Dakota, who is
not entitled to possess those commodities, either as an eligible recipient of commodities
pursuant to 7 CFR 250.3 as effective on January 1, 1981, or as a purchaser of commodities
which have been released for sale due to condition or damage and have been plainly marked as
available for sale to the public, is guilty of theft.
Section
77.
That
§
22-30A-21
be amended to read as follows:
22-30A-21.
No state, county, or municipal law enforcement officer may retain or dispose
of property that has been seized or confiscated unless
he
the law enforcement officer
retains or
disposes of such property pursuant to law or a court order. A violation of this section constitutes
theft pursuant to § 22-30A-1.
Section
78.
That
§
22-30A-22
be repealed.
22-30A-22.
Any employee of the Department of Corrections or Department of Human
Services who, for personal benefit, takes, borrows, or steals anything with a value of five dollars
or more in property or money, from a patient, juvenile, or inmate who is under the care or
supervision of the Department of Corrections or the Department of Human Services, is guilty
of a Class 1 misdemeanor theft.
For purposes of this section, an employee of the Department of Corrections or the
Department of Human Services means any person employed by the department, full or part time,
including an individual under contract assigned to the department, an employee of another state
agency assigned to the department, or a volunteer working in a department facility or for a
department agency or program.
Section
79.
That
§
22-30A-23
be repealed.
22-30A-23.
Any person who takes or obtains physical control of any aircraft registered
pursuant to the provisions of chapter 50-11 with the intent to deprive another of the aircraft or
without the permission of the owner or the owner's agent is guilty of theft of an aircraft.
A violation of this section is a Class 3 felony.
Section
80.
That
§
22-30A-3.1
be amended to read as follows:
22-30A-3.1.
A person commits the offense of identity theft if the
If any
person
,
without the
authorization or permission of another person and with the intent to deceive or defraud:
(1) Obtains, possesses, transfers, uses, attempts to obtain, or records identifying
information not lawfully issued for that person's use; or
(2) Accesses or attempts to access the financial resources of that person through the
use of identifying information
;
such person commits the crime of identity theft
.
A violation of
Identity theft committed pursuant
to
this section is a
Class 1 misdemeanor
Class 6 felony
.
Section
81.
That
§
22-30A-3.2
be amended to read as follows:
22-30A-3.2.
For the purposes of §§ 22-30A-3.1 to 22-30A-3.3, inclusive, identifying
information includes:
(1) Birth certificate or passport information;
(2) Driver's license numbers;
(3) Social security or other taxpayer identification numbers;
(4) Checking account numbers;
(5) Savings account numbers;
(6) Credit card numbers;
(7) Debit card numbers;
(8) Personal identification numbers, passwords, or challenge questions;
(9) User names or identifications;
(10) Biometric data; or
(11) Any other numbers, documents, or information which can be used to access
a
another
person's financial resources.
Section
82.
That
§
22-30A-3.3
be amended to read as follows:
22-30A-3.3.
In any criminal proceeding brought pursuant to § 22-30A-3.1, the crime
shall
may
be considered to have been committed in any county in which any part of the identity theft
took place, regardless of whether the defendant was ever actually in such county.
Section
83.
The code counsel shall transfer
§
§
22-30A-3.1 to 22-30A-3.3, inclusive, to
chapter 22-40 and shall renumber the sections accordingly and adjust all appropriate cross
references.
Section
84.
That
§
22-30A-8.2
be amended to read as follows:
22-30A-8.2.
Terms used in §§ 22-30A-8.2 to 22-30A-8.5, inclusive, mean:
(1) "Reencoder,"
an
any
electronic device that places encoded information from the
magnetic strip or stripe of a payment card onto the magnetic strip or stripe of a
different payment card;
(2) "Scanning device,"
a
any
scanner, reader, or any other electronic device that is
used to access, read, scan, obtain, memorize, or store, temporarily or permanently,
information encoded on the magnetic strip or stripe of a payment card.
Section
85.
The code counsel shall transfer
§
§
22-30A-8.2 to 22-30A-8.5, inclusive, to
chapter 22-40 and shall renumber the sections accordingly and adjust all appropriate cross
references.
Section
86.
That chapter
22-33
be amended by adding thereto a NEW SECTION to read as
follows:
Any person who starts a fire or causes an explosion with the intent to destroy any occupied
structure of another is guilty of first degree arson. First degree arson is a Class 2 felony.
Section
87.
That chapter
22-33
be amended by adding thereto a NEW SECTION to read as
follows:
Any person who starts a fire or causes an explosion with the intent to:
(1) Destroy any unoccupied structure of another; or
(2) Destroy or damage any property, whether his or her own or another's, to collect
insurance for such loss;
is guilty of second degree arson. Second degree arson is a Class 4 felony.
Section
88.
That chapter
22-33
be amended by adding thereto a NEW SECTION to read as
follows:
Any person who intentionally starts a fire or causes an explosion, whether on his or her own
property or another's, and thereby recklessly:
(1) Places another person in danger of death or serious bodily injury; or
(2) Places a building or occupied structure of another in danger of damage or destruction;
is guilty of reckless burning or exploding. Reckless burning or exploding is a Class 4 felony.
Section
89.
That chapter
22-33
be amended by adding thereto a NEW SECTION to read as
follows:
Any person who knows that a fire is endangering life or a substantial amount of property of
another and fails to take reasonable measures to put out or control the fire, if such person can
do so without substantial risk to himself or herself, or to give a prompt fire alarm, if:
(1) Such person knows that he or she is under an official, contractual, or other legal duty
to prevent or combat the fire; or
(2) The fire was started, albeit lawfully, by or with the assent of himself or herself, or on
property in his or her custody or control;
is guilty of failure to control or report a dangerous fire. Failure to control or report a dangerous
fire is a Class 1 misdemeanor.
Section
90.
That chapter
22-33
be amended by adding thereto a NEW SECTION to read as
follows:
For the purposes of chapter 22-33, the term, occupied structure, means any structure,
vehicle, or place adapted for overnight accommodation of persons, or for carrying on business
therein, whether or not a person is actually present. Property is that of another, for the purposes
of this section, if anyone other than the actor has a possessory or proprietary interest in the
property. If a building or structure is divided into separately occupied units, any unit not
occupied by the actor is an occupied structure of another.
Section
91.
That
§
22-33-1
be repealed.
22-33-1.
Any person who intentionally sets fire to or burns or causes to be burned any
occupied structure, knowing the same to be occupied at the time, is guilty of arson in the first
degree. Arson in the first degree is a Class 1 felony.
Section
92.
That
§
22-33-2
be repealed.
22-33-2.
Any person who intentionally sets fire to or burns or causes to be burned any
occupied structure under circumstances which would not amount to arson in the first degree is
guilty of arson in the second degree. Arson in the second degree is a Class 2 felony.
Section
93.
That
§
22-33-3
be repealed.
22-33-3.
Any person who intentionally and without all of the owners' consent, sets fire to
or burns or causes to be burned any unoccupied structure, or any other real or personal property
not contained in or containing an occupied structure, of a value in excess of twenty-five dollars
is guilty of arson in the third degree. Arson in the third degree is a Class 4 felony.
Section
94.
That
§
22-33-4
be repealed.
22-33-4.
Any person who with intent to injure or defraud an insurer sets fire to or burns or
causes to be burned any real or personal property of any kind, whether the property of himself
or of another, which property is insured against fire, is guilty of a Class 4 felony.
Section
95.
That
§
22-33-9
be repealed.
22-33-9.
The owner of any property includes all persons who have a legal or equitable
interest in the property.
Section
96.
That
§
22-33-10
be amended to read as follows:
22-33-10.
Any person who intentionally and without authorization of the person in charge
of a place of confinement, sets fire to, burns, or causes to be burned any material, object, or
substance within a structure knowing there is lawfully confined therein any person, is guilty of
a
Class 4
Class 6
felony.
Section
97.
That
§
22-34-1
be amended to read as follows:
22-34-1.
Any person who
intentionally
, with specific intent to do so,
injures, damages, or
destroys public
destroys:
(1) Public
property without the lawful consent of the appropriate governing body having
jurisdiction thereof
, or private
; or
(2) Private
property in which
other persons have an interest, other than by arson under
chapter 22-33
any other person has an interest
, without the consent of the other
persons is punishable according to the following schedule
person;
is guilty of intentional damage to property
. If the damage to property is
one
four
hundred dollars
or less, the person is guilty of intentional damage to property in the third degree, which is a
Class 2 misdemeanor. If the damage to property is
five hundred
one thousand
dollars or less
but more than
one
four
hundred dollars, the person is guilty of intentional damage to property
in the second degree, which is a Class 1 misdemeanor. If the damage to property is
one hundred
thousand dollars or less but
more than
five hundred
one thousand
dollars, the person is guilty
of intentional damage to property in the first degree, which is a Class 4 felony.
If the damage
to property is more than one hundred thousand dollars, the person is guilty of aggravated
intentional damage to property, which is a Class 3 felony.
The provisions of this section do not apply if the intentional damage to property was
accomplished by arson or reckless burning or exploding pursuant to chapter 22-33.
Section
98.
That
§
22-34-1.1
be amended to read as follows:
22-34-1.1.
The injuries, damages, or destruction resulting from violations of § 22-34-1
committed pursuant to one scheme or course of conduct may be aggregated
when determining
to determine
the degree of the offense
regardless of
whether such injuries, damage, or
destruction affected the property of one or more persons.
Section
99.
That
§
22-34-2
be repealed.
22-34-2.
Any person who violates § 22-34-1, in addition to the punishment prescribed
therefor, is liable in treble damages for the injury done, to be recovered in a civil action by the
owner of the property or public officer having charge thereof.
Section
100.
That
§
22-34-27
be amended to read as follows:
22-34-27.
Any person who, with intent to cause damage, deposits, throws, or propels any
substance upon any highway, roadway, runway, or railroad tracks, or at any vehicle while such
vehicle is either in motion or stationary, is guilty of a Class 1 misdemeanor.
Section
101.
That
§
22-34-28
be amended to read as follows:
22-34-28.
Any person who
intentionally
,
by any means,
or
knowingly
by damaging or
tampering
damages or tampers
with any property
and, as a direct result
:
(1) Causes a substantial interruption or impairment: in television, radio, telephone,
telegraph, or other mass communications service; in police, fire, or other public
service communications; in radar, radio, or other electronic aids to air or marine
navigation or communications; or in amateur or citizens band radio
communications being used for public service or emergency communications; or
(2) Causes a substantial interruption or impairment in public transportation, water
supply, gas, power, or other utility service
,
;
is guilty of a Class 6 felony.
Section
102.
That
§
22-34-29
be repealed.
22-34-29.
In addition to any other penalty imposed by law, if any person is convicted of
violating, or any person under the age of eighteen is adjudicated to have violated, the provisions
of § 22-34-1 or 22-34-27, and if the crime occurred while driving a motor vehicle or while being
a passenger in a motor vehicle, the court shall order the driving privileges of such person
suspended for:
(1) Thirty days, if the damage is two hundred dollars or less;
(2) Ninety days, if the damage is over two hundred dollars but less than one thousand
dollars; and
(3) One hundred eighty days, if the damage is one thousand dollars or more.
For the purposes of this section, all acts of vandalism that are part of a course of conduct
shall be considered one violation for the purposes of determining damage. For the purposes of
this section, all acts of vandalism that are part of a course of conduct involving driving a motor
vehicle or being a passenger in a motor vehicle shall be deemed to have occurred while driving
a motor vehicle or being a passenger in a motor vehicle.
Section
103.
That
§
22-39-36
be amended to read as follows:
22-39-36.
Any person who, with intent to defraud, falsely makes, completes, or alters a
written instrument of any kind, or passes
such an
any forged
instrument
of any kind
is guilty of
forgery. Forgery is a Class 5 felony.
Section
104.
That
§
22-39-38
be amended to read as follows:
22-39-38.
Any person who
possesses a forged instrument
, with the intent to defraud,
possesses any forged instrument with the knowledge that the instrument has been forged
is
guilty of
a Class 6 felony. No person shall be convicted under this section unless he possesses
the forged instrument with knowledge that it is forged and with intent to defraud
possessing a
forged instrument. Possessing a forged instrument is a Class 6 felony
.
Section
105.
That
§
22-39-37
be amended to read as follows:
22-39-37.
Any person who:
(1) Makes or possesses
,
with knowledge of its character, any plate, die, or other
device, apparatus, equipment, or article specifically designated for use in
counterfeiting, unlawfully simulating,
or simulating,
or otherwise forging, written
instruments;
(2) Makes or possesses any device, apparatus, equipment, or article capable of or
adaptable to a use specified in subdivision (1) of this section, with intent to use it
himself,
or to aid or permit another to use it, for the purpose of forgery; or
(3) Possesses a genuine plate, die, or other device used in the production of written
instruments, with intent to defraud;
is guilty of a Class 6 felony.
Section
106.
The code counsel shall transfer
§
22-39-37 to chapter 22-40 and shall renumber
the section accordingly and adjust all appropriate cross references.
Section
107.
That
§
22-32-1
be amended to read as follows:
22-32-1.
Any person who enters
or remains in
an occupied structure, with intent to commit
any crime
other than the act of shoplifting or retail theft as described in chapter 22-30A
constituting a misdemeanor, or remains in an occupied structure after forming the intent to
commit any crime other than shoplifting or retail theft as described in chapter 22-30A
constituting a misdemeanor
, unless the premises are, at the time, open to the public or the person
is licensed or privileged to enter or remain
, is guilty of first degree burglary
when
if
:
(1) The offender inflicts, or attempts or threatens to inflict
,
physical harm on another;
(2) The offender is armed with a dangerous weapon; or
(3) The offense is committed in the nighttime.
First degree burglary is a Class 2 felony.
Section
108.
That
§
22-32-3
be amended to read as follows:
22-32-3.
Any person who enters
or remains in
an occupied structure with intent to commit
any crime
other than the act of shoplifting or retail theft as described in chapter 22-30A
constituting a misdemeanor, or remains in an occupied structure after forming the intent to
commit any crime other than shoplifting as described in chapter 22-30A constituting a
misdemeanor
, unless the premises are, at the time, open to the public or the person is licensed
or privileged to enter or remain,
under circumstances not amounting to first degree burglary, is
guilty of second degree burglary. Second degree burglary is a Class 3 felony.
Section
109.
That
§
22-32-8
be amended to read as follows:
22-32-8.
Any person who enters
or remains in
an unoccupied structure,
other than a motor
vehicle,
with intent to commit any crime
other than the act of shoplifting or retail theft as
described in chapter 22-30A constituting a misdemeanor, or remains in an unoccupied structure
after forming the intent to commit any crime other than shoplifting as described in chapter 22-
30A constituting a misdemeanor
, unless the premises are, at the time, open to the public or the
person is licensed or privileged to enter or remain
, is guilty of third degree burglary. Third
degree burglary is a Class 4 felony.
Section
110.
That
§
22-32-15
be amended to read as follows:
22-32-15.
The
word
term
, nighttime,
as used
in this chapter
includes
, means
the period
between
thirty minutes past
sunset and
thirty minutes before
sunrise.
Section
111.
That
§
22-32-17
be amended to read as follows:
22-32-17.
Any person who has in his
or her
possession any weapon or instrument
specifically designed or adapted for the commission of a burglary
or
any
explosive useful for
the commission of a burglary, with the intent to commit a burglary, is guilty of a
Class 5
Class
6
felony.
Section
112.
That
§
22-32-19
be amended to read as follows:
22-32-19.
Any person who
forcibly
enters
an automobile or motor truck
a motor vehicle
with intent to commit any crime
therein, or remains in an automobile or motor truck after
forming an intent to commit any crime therein
in that motor vehicle
is guilty of
fourth degree
burglary. Fourth degree burglary
aggravated criminal entry of a motor vehicle. Aggravated
criminal entry of a motor vehicle
is a Class 6 felony.
Section
113.
That chapter
22-32
be amended by adding thereto a NEW SECTION to read
as follows:
Any person who enters a motor vehicle without the use of force or who remains in a motor
vehicle after forming an intent to commit any crime in that motor vehicle is guilty of criminal
entry of a motor vehicle. Criminal entry of a motor vehicle is a class 1 misdemeanor.
Section
114.
That
§
22-1-2
be amended by adding thereto a NEW SUBDIVISION to read
as follows:
"Serious bodily injury," such injury as is grave and not trivial, and gives rise to apprehension
of danger to life, health, or limb.
Section
115.
That
§
22-19-1
be amended to read as follows:
22-19-1.
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
, either unlawfully removes another person from the other's place of residence or
employment, or who unlawfully removes another person a substantial distance from the vicinity
where the other was at the commencement of the removal, or who unlawfully confines another
person for a substantial period of time, with
any of the following
reasons
purposes
:
(1) To hold for ransom or reward, or as a shield or hostage;
or
(2) To facilitate the commission of any felony or flight thereafter;
or
(3) To inflict bodily injury on or to terrorize the victim or another;
or
(4) To interfere with the performance of any governmental or political function; or
(5) To take or entice away a child under the age of fourteen years with intent to detain
and conceal such child;
is guilty of kidnapping
in the first degree
. Kidnapping
in the first degree
is a
Class 1
Class C
felony,
except if
unless
the person has inflicted
a gross permanent physical injury
serious bodily
injury
on the victim, in which case it
is aggravated kidnapping in the first degree and
is a
Class
A
Class B
felony.
Section
116.
That
§
22-19-6
be amended to read as follows:
22-19-6.
Any person who receives, possesses, or disposes of any money or other property
or portion thereof,
which has
,
at any time
,
been delivered as
a
ransom or reward in connection
with a
violation of the statute against
kidnapping
knowing the same to be
and who knows that
the
money or property
which has been at any time delivered as such
is
ransom or reward
in
connection with a kidnapping
, is guilty of a Class 3 felony.
Section
117.
That
§
22-19-7.1
be amended to read as follows:
22-19-7.1.
No person may attempt
,
by any means
,
to take, allure, or entice away a child
under the age of
fourteen
sixteen
for any illegal purpose. A violation of this section is a Class
1 misdemeanor.
A
Any
subsequent violation is a Class 6 felony.
Section
118.
That
§
22-19-9
be amended to read as follows:
22-19-9.
Any parent who takes, entices away, or keeps his
or her
unmarried minor child
from the custody or visitation of the other parent, or any other person having lawful custody or
right of visitation, in violation of a custody or visitation determination entitled to enforcement
by the courts of this state, without prior consent is guilty of a Class 1 misdemeanor.
A
Any
subsequent violation of this section is a Class 6 felony.
Section
119.
That
§
22-19-10
be amended to read as follows:
22-19-10.
Any parent who violates § 22-19-9 and causes the unmarried minor child
,
taken,
enticed, or kept from
his
the child's
lawful custodian
,
to be removed from the state is guilty of
a Class 5 felony.
Section
120.
That
§
22-19-12
be amended to read as follows:
22-19-12.
The state or any other unit of government incurring financial expense for the
return of the child may charge that cost against the person extradited if
he
that person
is found
to be
guilty of a violation of § 22-19-10. Such expense may be charged against the person filing
the charge if the person extradited is found
to be
not guilty of a violation of § 22-19-10.
Section
121.
That
§
22-19-13
be amended to read as follows:
22-19-13.
The Department of Social Services shall enter into an agreement with the
secretary of health and human services as authorized by the Parental Kidnapping Act of 1980,
94 Stat. 3572, 42 U.S.C. 663, as amended, under which the services of the parent locator service
established pursuant to Title IV-D of the Social Security Act, 49 Stat. 620 (1935), 42 U.S.C.
301, as amended, shall be made available to this state for the purpose of determining the
whereabouts of any absent parent or child in order to enforce
a
any
law with respect to the
unlawful taking or restraint of a child, or to make or enforce
a
any
child custody determination.
Section
122.
That
§
22-19-14
be amended to read as follows:
22-19-14.
When a missing child report is made to a law enforcement agency in this state that
has jurisdiction in the matter, the law enforcement agency shall gather readily available
information about the missing child and integrate
it
such information
into the national crime
information center computer within twelve hours following the making of the report. The law
enforcement agency shall make reasonable efforts to acquire additional information about the
missing child following the transmittal of the initially available information and promptly
integrate any additional information acquired into such computer systems.
Section
123.
That
§
22-19-15
be amended to read as follows:
22-19-15.
Whenever a law enforcement agency integrates information about a missing child
into the national crime information center computer, the law enforcement agency shall promptly
notify the missing child's parents, custodial parent, guardian, or legal custodian, or any other
person responsible for the missing child,
that it has done so
of that action
.
Section
124.
That
§
22-19-16
be amended to read as follows:
22-19-16.
The parents
Each parent
, custodial parent, guardian, legal custodian, or other
person responsible for the missing child shall provide available information upon request, and
may provide information voluntarily, to the law enforcement agency during the information
gathering process. The law enforcement agency also may obtain available information about the
missing child from other persons subject to constitutional and statutory limitations.
Section
125.
The code counsel shall transfer
§
§
22-19-13, 22-19-14, 22-19-15, and 22-19-16
to Title 26 and shall renumber the sections accordingly and adjust all appropriate cross
references.
Section
126.
That chapter
22-19
be amended by adding thereto a NEW SECTION to read
as follows:
Any person who knowingly and purposely restrains another person unlawfully so as to
substantially interfere with such person's liberty is guilty of false imprisonment. False
imprisonment is a Class 1 misdemeanor.
Section
127.
That chapter
32-12
be amended by adding thereto a NEW SECTION to read
as follows:
At any proceedings in which the court has jurisdiction, for any traffic or status offense, over
any juvenile, the court may, at its discretion and without motion, revoke or suspend or place any
restriction or condition upon the driving privileges of the juvenile, including requiring that
financial responsibility be proved and maintained, that the court may find appropriate to the
juvenile's reform or rehabilitation.
Section
128.
That
§
26-8C-7
be amended to read as follows:
26-8C-7.
If a child has been adjudicated as a delinquent child, the court shall enter a decree
of disposition according to the least restrictive alternative available in keeping with the best
interests of the child. The decree shall contain one or more of the following alternatives:
(1)
The court may make any one or more of the dispositions in § 26-8B-6, except that a
delinquent child may be incarcerated in a detention facility established pursuant to
provisions of chapter 26-7A for not more than ninety days, which may be in addition
to any period of temporary custody;
(2)
The court may impose a fine not to exceed one thousand dollars;
(3)
The court may place the child on probation under the supervision of a court services
officer or another designated individual. The child may be required as a condition of
probation to report for assignment to a supervised work program, provided the child
is not deprived of the schooling that is appropriate for the child's age, needs, and
specific rehabilitative goals. The supervised work program shall be of a constructive
nature designed to promote rehabilitation, appropriate to the age level and physical
ability of the child, and shall be combined with counseling by the court services
officer or other guidance personnel. The supervised work program assignment shall
be made for a period of time consistent with the child's best interests, but for not
more than ninety days;
(4)
The court may place the child at the Human Services Center for examination and
treatment;
(5)
The court may commit the child to the Department of Corrections;
(6)
The court may place the child in a detention facility for not more than ninety days,
which may be in addition to any period of temporary custody;
(7)
The court may place the child in an alternative educational program;
(8)
The court may order the suspension or revocation of the child's driving privilege or
restrict the privilege in such manner as it sees fit
, including requiring that financial
responsibility be proved and maintained
;
(9)
The court may assess or charge costs and fees permitted by §§ 16-2-41, 23-3-52,
23A-27- 26, and 23A-27-27 against the child, parent, guardian, custodian, or other
party responsible for the child.
Section
129.
That
§
26-8B-6
be amended to read as follows:
26-8B-6.
If a child has been adjudicated as a child in need of supervision, the court shall
enter a decree of disposition according to the least restrictive alternative available in keeping
with the best interests of the child. The decree shall contain one or more of the following
alternatives:
(1)
The court may place the child on probation or under protective supervision in the
custody of one or both parents, guardian, custodian, relative, or another suitable
person under conditions imposed by the court;
(2)
The court may require as a condition of probation that the child report for assignment
to a supervised work program, provided the child is not placed in a detention facility
and is not deprived of the schooling that is appropriate to the child's age, needs, and
specific rehabilitative goals. The supervised work program shall be of a constructive
nature designed to promote rehabilitation, shall be appropriate to the age level and
physical ability of the child, and shall be combined with counseling by a court
services officer or other guidance personnel. The supervised work program
assignment shall be made for a period of time consistent with the child's best
interests, but may not exceed ninety days;
(3)
If the court finds that the child has violated a valid court order, the court may place
the child in a detention facility for not more than ninety days, which may be in
addition to any period of temporary custody, for purposes of disposition if:
(a)
The child is not deprived of the schooling that is appropriate for the child's
age, needs, and specific rehabilitative goals;
(b)
The child had a due process hearing before the order was issued; and
(c)
A plan of disposition from a court services officer is provided to the court;
(4)
The court may require the child to pay for any damage done to property or for
medical expenses under conditions set by the court if payment can be enforced
without serious hardship or injustice to the child;
(5)
The court may commit the child to the Department of Corrections for placement in
a juvenile correctional facility, foster home, group home, group care center, or
residential treatment center pursuant to chapter 26-11A. Prior to placement in a
juvenile correctional facility, an interagency team comprised of representatives from
the Department of Human Services, Department of Social Services, Department of
Education, the Department of Corrections, and the Unified Judicial System shall
make a written finding that placement at a Department of Corrections facility is the
least restrictive placement commensurate with the best interests of the child.
Subsequent placement in any other Department of Corrections facility may be
authorized without an interagency review;
(6)
The court may place a child in an alternative educational program;
(7)
The court may order the child to be examined and treated at the Human Services
Center;
(8)
The court may impose a fine not to exceed five hundred dollars;
(9)
The court may order the suspension or revocation of the child's driving privilege or
restrict the privilege in such manner as the court sees fit or as required by § 32-12-
52.4
, including requiring that financial responsibility be proved and maintained
;
(10)
The court may assess or charge the same costs and fees as permitted by §§ 16-2-41,
23-3-52, 23A-27-26, and 23A-27-27 against the child, parent, guardian, custodian,
or other party responsible for the child.
No adjudicated child in need of supervision may be incarcerated in a detention facility
except as provided in subdivision (3) or (5) of this section.
Section
130.
That
§
22-13-1
be amended to read as follows:
22-13-1.
Any person who intentionally causes serious public inconvenience, annoyance, or
alarm to any other person, or creates a risk thereof by:
(1)
Engaging in fighting or in violent or threatening behavior;
(2)
Making unreasonable noise;
(3)
Disturbing any lawful assembly or meeting of persons without lawful authority; or
(4)
Obstructing vehicular or pedestrian traffic
.
;
is guilty of disorderly conduct. Disorderly conduct is a Class 2 misdemeanor.
Section
131.
The code counsel shall transfer
§
22-13-1 to chapter 22-18 and shall renumber
the section accordingly and adjust all appropriate cross references.
Section
132.
That
§
22-41-1
be amended to read as follows:
22-41-1.
Any person who, for himself
or herself
or as agent or representative of another, for
a present consideration
,
with intent to defraud, passes a check drawn on a financial institution
knowing at the time of such passing that there are not sufficient funds in the account on which
the check was drawn in the financial institution for the payment of such check and all other
checks upon such funds then outstanding, in full upon its presentation, although no express
representation is made with reference thereto, is guilty of
passing a check against
theft by
insufficient funds
check
.
A person who passes a check of one hundred dollars or less against
insufficient funds is guilty of passing a check against insufficient funds in the third degree,
which is a Class 2 misdemeanor. A person who passes a check or a series of checks within any
thirty-day period in the amount of five hundred dollars or less but more than one hundred
dollars, against insufficient funds, is guilty of passing a check against insufficient funds in the
second degree, which is a Class 1 misdemeanor. A person who passes a check of more than five
hundred dollars, or a series of checks within any thirty-day period totaling more than five
hundred dollars, against insufficient funds is guilty of passing a check against insufficient funds
in the first degree, which is a Class 6 felony
Theft by insufficient funds check is punishable as
theft pursuant to chapter 22-30A. In determining the degree of theft, the value of the property
stolen or attempted to be stolen is the same as the face amount of the insufficient funds check.
Any series of insufficient funds checks within any thirty-day period may be aggregated in
amount to determine the degree of theft of such course of conduct
.
Section
133.
That
§
22-41-1.2
be amended to read as follows:
22-41-1.2.
Any person who, for himself
or herself
or as an agent or representative of
another
,
for present consideration
,
with intent to defraud, passes a check drawn on a financial
institution knowing at the time of such passing that
he or his principal does not have
neither the
check passer or the check passer's principal has
an account with such financial institution, is
guilty of
a Class 5 felony
theft by no account check. Theft by no account check is punishable
as theft pursuant to chapter 22-30A. In determining the degree of theft, the value of the property
stolen or attempted to be stolen is the same as the face amount of the no account check. Any
series of no account checks within any thirty-day period may be aggregated in amount to
determine the degree of theft of such course of conduct
.
It is a defense
to prosecution pursuant
to this section that the
actor's or his
check passer's or
the check passer's
principal's account was closed without the
actor's
check passer's
knowledge.
Evidence that the financial institution mailed a notice by certified or registered mail to the
person in whose name the account was listed at the last address contained in the financial
institution's records
shall be
is
prima facie proof that the
actor
check passer
had knowledge that
his or his principal's
such
account was closed.
Section
134.
That
§
22-41-1.3
be amended to read as follows:
22-41-1.3.
If
a
any
person, who has been accused of a violation of § 22-41-1 or 22-41-1.2,
restores or returns the property allegedly obtained as consideration or makes payment of the
check
before an indictment or information is laid before a magistrate, such fact may be
considered in mitigation of punishment. The restoration or return of the property or payment of
the check is not a defense to a violation of § 22-41-1 or 22-41-1.2, nor may it be considered by
the finder of fact
and the costs and expenses provided for in
§
57A-3-421 to the holder within
thirty days of the mailing or delivery of the notice of dishonor, no criminal prosecution may
occur in regard to the check
.
Section
135.
That
§
22-41-2
be amended to read as follows:
22-41-2.
The passing of a check, described in § 22-41-1, is prima facie evidence that the
person who passed
it
the check
had knowledge of insufficient funds in the account on which the
check was drawn in the financial institution.
Section
136.
That
§
22-41-2.1
be amended to read as follows:
22-41-2.1.
Present consideration includes goods which are delivered or constructively
delivered, and services which are completed, seven days, exclusive of the date of such delivery
or completion and exclusive of legal holidays and Sundays, before or after payment therefor.
Present consideration also includes payment made for goods and services
,
if the goods and
services are obtained under an understanding that the goods and services
will
would
be paid for
at a specific time by written agreement or under an established method of payment of accounts.
In addition, payment of taxes and any other obligation due the State of South Dakota or any
of
its
political
subdivision thereof
subdivisions
and payment of alimony or child support
is
constitutes
present consideration for the purposes of this chapter.
Section
137.
That
§
22-41-2.2
be amended to read as follows:
22-41-2.2.
The making of a postdated or hold check, knowingly received as such, or a check
issued under an agreement with the payee that the check would not be presented for payment
for a
specified
time
specified
, does not constitute a violation of § 22-41-1.
Section
138.
That
§
22-41-2.3
be amended to read as follows:
22-41-2.3.
For purposes of
establishing
probable cause that a criminal offense has been
committed in violation of § 22-41-1 or 22-41-1.2, probable cause is established if the
prosecution has presented as evidence at the preliminary hearing, or before the grand jury, a
check bearing reasonable indicia that the check has been presented for payment and
it
that the
check
has not been paid or honored by the financial institution because of insufficient funds in
the account upon which
it
the check
was drawn or
that
the account did not exist. Upon the offer
and acceptance of the check as evidence at the preliminary hearing, or before the grand jury, it
is not necessary for an official or employee of the financial institution to testify at the
preliminary hearing, or before the grand jury, concerning the financial institution's records with
respect to the account upon which the check has been drawn.
Section
139.
The code counsel shall transfer
§
§
22-41-1 to 22-41-3.4, inclusive, to chapter
22-30A and shall renumber the sections accordingly and adjust all appropriate cross references.
Section
140.
That
§
22-41-3.1
be amended to read as follows:
22-41-3.1.
The holder of an insufficient funds check
or no account check
shall, before
presenting
it
the check
to the state's attorney for prosecution, serve a notice of dishonor upon
the writer of the check, by registered or certified mail, return receipt requested, or by first class
mail, supported by an affidavit of mailing sworn and retained by the sender, in the United States
mail and addressed to the recipient's most recent address known to the sender. If the notice is
mailed
,
and not returned as undeliverable by the United States Postal Service, notice
shall be
is
conclusively presumed to have been given on the date of mailing. The holder of the
dishonored check
, whether it be a no account check or insufficient funds check,
shall
,
upon
return of the receipt
,
hold
it
the check
for a period of at least
five days, or eight
thirty
days if
notice is given by first class mail, and upon the expiration of that period shall present the check
with the attached bank return, return receipt or affidavit of mailing, and copy of the dishonor
notice to the state's attorney for prosecution.
Section
141.
That
§
22-41-3.3
be amended to read as follows:
22-41-3.3.
The service of a notice of dishonor in accordance with §§ 22-41-3.1 and 22-41-
3.2 is not a element of the crime of
passing a check against
theft by
insufficient funds
check or
theft by no account check
, nor is it an element of proof thereof or a defense to any prosecution
therefor.
If the notice required by §§ 22-41-3.1 and 22-41-3.2 is returned undelivered, or if it appears
to the state's attorney that there is reasonable cause to believe that the writer of the check intends
to remove himself
or herself
from the jurisdiction of the court, the state's attorney
shall not
require
may elect to prosecute without
such notice.
However, if the insufficient funds check or
no account check is paid by the drawer to the holder, along with the costs and expenses provided
for in
§
57A-3-421, within the thirty days after the notice is mailed or delivered to the drawer,
the check may not be prosecuted.
Section
142.
That
§
22-41-3.4
be amended to read as follows:
22-41-3.4.
A
Any
criminal prosecution under § 22-41-1 or 22-41-1.2
must
shall
be
commenced within six months after the holder of a check receives notice of its dishonor. Failure
to prosecute a complaint within six months
shall be
constitutes
a bar to any criminal action
under those sections.
Section
143.
That
§
22-41-10
be repealed.
22-41-10.
No person shall publish in a newspaper, magazine, or other publication, or in any
other way, an advertisement or announcement of any sort regarding merchandise, securities,
service, employment, real estate, or anything of value offered by him for use, purchase, or sale,
which advertisement or announcement is untrue, or made with intent to defraud. Violation of
this section is a Class 1 misdemeanor.
Section
144.
That
§
22-41-11
be repealed.
22-41-11.
Any person who, in any manner, or by any means of advertisement, or other
means of communication, offers for sale any merchandise, commodity, or service, as part of a
plan or scheme with the intent not to sell the merchandise, commodity, or service so advertised
at the price stated therein, or with the intent not to sell the merchandise, commodity, or service
so advertised is guilty of a Class 1 misdemeanor.
Section
145.
That
§
22-41-12
be repealed.
22-41-12.
Nothing in § 22-41-10 or 22-41-11 shall apply to any broadcasting station or to
any publisher or printer who broadcasts, publishes, or prints an advertisement in good faith
without knowledge of its false, deceptive, or misleading character.
Section
146.
That
§
22-41-14
be repealed.
22-41-14.
Any person engaged in the production, manufacture, selling, or distribution of any
commodity who intentionally and for the purpose of deceiving any customer or purchaser,
misbrands or misrepresents the kind, weight, quantity, or quality of the commodity offered for
sale, or sells or offers an imitation for sale under the distinctive name of another article, is guilty
of a Class 1 misdemeanor.
Section
147.
The provisions of this Act are effective on July 1, 2006. However, the
provisions of section 269 of this Act are effective on July 1, 2005.
Section
148.
That
§
22-6-1
be amended to read as follows:
22-6-1.
Except as otherwise provided by law, felonies are divided into the following
eight
nine
classes which are distinguished from each other by the following maximum penalties
which are authorized upon conviction:
(1)
Class A felony: death or life imprisonment in the state penitentiary. A lesser sentence
than death or life imprisonment may not be given for a Class A felony
. In addition,
a fine of fifty thousand dollars may be imposed
;
(2)
Class B felony: life imprisonment in the state penitentiary. A lesser sentence may not
be given for a Class B felony
. In addition, a fine of fifty thousand dollars may be
imposed
;
(3)
Class C felony: life imprisonment in the state penitentiary. In addition, a fine of fifty
thousand dollars may be imposed;
(4)
Class 1 felony:
life
fifty years
imprisonment in the state penitentiary. In addition, a
fine of
twenty-five
fifty
thousand dollars may be imposed;
(4)
(5)
Class 2 felony: twenty-five years imprisonment in the state penitentiary. In addition,
a fine of
twenty-five
fifty
thousand dollars may be imposed;
(5)
(6)
Class 3 felony: fifteen years imprisonment in the state penitentiary. In addition, a fine
of
fifteen
thirty
thousand dollars may be imposed;
(6)
(7)
Class 4 felony: ten years imprisonment in the state penitentiary. In addition, a fine of
ten
twenty
thousand dollars may be imposed;
(7)
(8)
Class 5 felony: five years imprisonment in the state penitentiary. In addition, a fine
of
five
ten
thousand dollars may be imposed; and
(8)
(9)
Class 6 felony: two years imprisonment in the state penitentiary or a fine of
two
four
thousand dollars, or both.
The court, in imposing sentence on a defendant who has been found guilty of a felony, shall
order in addition to the sentence that is imposed pursuant to the provisions of this section, that
the defendant make restitution to any victim in accordance with the provisions of chapter 23A-
28.
Nothing in this section
shall limit
limits
increased sentences for habitual criminals under
§§ 22-7-7
and 22-7-8
, 22-7-8, and 22-7-8.1
.
Except in cases where punishment is prescribed by law, every offense declared to be a felony
and not otherwise classified is a Class 6 felony.
Section
149.
That
§
23A-42-1
be amended to read as follows:
23A-42-1.
There is no limitation on the time within which a prosecution for Class A, Class
B, or
Class 1
Class C
felony must be commenced.
Section
150.
That
§
22-16-1
be amended to read as follows:
22-16-1.
Homicide is the killing of one human being, including an unborn child, by another.
It
Homicide
is either:
(1)
Murder;
(2)
Manslaughter;
(3)
Excusable homicide;
(4)
Justifiable homicide; or
(5)
Vehicular homicide.
Section
151.
That
§
22-16-1.1
be amended to read as follows:
22-16-1.1.
Homicide is fetal homicide if
a
the
person knew, or reasonably should have
known, that a woman bearing an unborn child was pregnant and caused the death of the unborn
child without lawful justification and if the person:
(1)
Intended to cause the death of or do serious bodily injury to the pregnant woman or
the unborn child; or
(2)
Knew that the acts taken would cause death or serious bodily injury to the pregnant
woman or her unborn child; or
(3)
When
If
perpetrated without any design to effect death by a person engaged in the
commission of any felony.
Fetal homicide is a Class B felony.
This section does not apply to acts which cause the death of an unborn child if those acts
were committed during any abortion, lawful or unlawful, to which the pregnant woman
consented.
Section
152.
That
§
22-16-2
be amended to read as follows:
22-16-2.
No person
can
may
be convicted of murder or manslaughter, or of aiding suicide,
unless the death of the person alleged to have been killed, and the fact of the killing by the
accused are each established as independent facts beyond a reasonable doubt.
Section
153.
That
§
22-16-3
be amended to read as follows:
22-16-3.
Whenever
If
the degree of homicide is made to depend upon its having been
committed under circumstances evidencing a depraved mind or unusual cruelty, or in a cruel
manner, the jury may take into consideration any domestic or confidential relationship which
existed between the accused and the person killed.
Section
154.
That
§
22-16-4
be amended to read as follows:
22-16-4.
Homicide is murder in the first degree
when
:
(1) If
perpetrated without authority of law and with a premeditated design to effect the
death of the person killed or of any other human being
, or when
, including an unborn
child; or
(2) If
committed by a person engaged in the perpetration of, or attempt to perpetrate, any
arson, rape, robbery, burglary, kidnapping, or unlawful throwing, placing, or
discharging of a destructive device or explosive.
Homicide is also murder in the first degree if committed by a person who perpetrated, or
who attempted to perpetrate, any arson, rape, robbery, burglary, kidnapping or unlawful
throwing, placing or discharging of a destructive device or explosive and who subsequently
effects the death of any victim of such crime to prevent detection or prosecution of the crime.
Section
155.
That
§
22-16-5
be amended to read as follows:
22-16-5.
A design to effect death, sufficient to constitute murder, may be formed instantly
before committing the act by which it is carried into execution
The term, premeditated design
to effect the death, means an intention, purpose, or determination to kill or take the life of the
person killed, distinctly formed and existing in the mind of the perpetrator before committing
the act resulting in the death of the person killed. A premeditated design to effect death
sufficient to constitute murder may be formed instantly before committing the act
.
Section
156.
That
§
22-16-7
be amended to read as follows:
22-16-7.
Homicide is murder in the second degree
when
if
perpetrated by any act
imminently dangerous to others and evincing a depraved mind,
regardless of
without regard for
human life, although without any premeditated design to effect the death of any particular
individual
person, including an unborn child
.
Section
157.
That
§
22-16-8
be amended to read as follows:
22-16-8.
Homicide perpetrated by an act imminently dangerous to others and evincing a
depraved mind,
regardless of
without regard for
human life, is not the less murder because there
was no actual intent to injure others.
Section
158.
That
§
22-16-9
be repealed.
22-16-9.
Homicide is murder in the second degree when perpetrated without any design to
effect death by a person engaged in the commission of any felony other than as provided in § 22-
16-4.
Section
159.
That
§
22-16-12
be amended to read as follows:
22-16-12.
Murder in the first degree is a Class A felony. Murder in the second degree is a
Class B felony.
Section
160.
That
§
22-16-15
be amended to read as follows:
22-16-15.
Homicide is manslaughter in the first degree
when
if
perpetrated:
(1)
Without
a
any
design to effect death
by a person
, including an unborn child,
while
engaged in the commission of
a misdemeanor involving moral turpitude
any felony
other than as provided in
§
22-16-4(2)
;
(2)
Without
a
any
design to effect death,
including an unborn child,
and in a heat of
passion, but in a cruel and unusual manner;
(3)
Without
a
any
design to effect death,
including an unborn child,
but by means of a
dangerous weapon;
(4)
Unnecessarily, either while resisting an attempt by the person killed to commit a
crime or after such attempt
shall have
has
failed
;
(5)
Unnecessarily, either while resisting an attempt by a pregnant woman to either
commit a crime or after such attempt shall have failed
.
Manslaughter in the first degree is a
Class 1
Class C
felony.
Section
161.
That
§
22-16-30
be amended to read as follows:
22-16-30.
Homicide is excusable
when
if
committed by accident and misfortune in doing
any lawful act, with usual and ordinary caution.
Section
162.
That
§
22-16-31
be amended to read as follows:
22-16-31.
Homicide is excusable
when
if
committed by accident and misfortune in the heat
of passion, upon sudden and sufficient provocation, or upon a sudden combat
; provided that
.
However, to be excusable,
no undue advantage
is
may be
taken nor any dangerous weapon used
and
that
the
killing
is
may
not
be
done in a cruel or unusual manner.
Section
163.
That
§
22-16-32
be amended to read as follows:
22-16-32.
Homicide is justifiable
when
if
committed by
a
law enforcement
officers and
those acting by their
officer or by any person acting by
command
of a law enforcement officer
in
their
the
aid and assistance
of that officer
:
(1)
When
If
necessarily committed in overcoming actual resistance to the execution of
some legal process, or to the discharge of any other legal duty; or
(2)
When
If
necessarily committed in retaking felons who have been rescued
,
or who
have escaped
, or when
; or
(3) If
necessarily committed in arresting felons fleeing from justice.
Section
164.
That
§
22-16-33
be amended to read as follows:
22-16-33.
Homicide is justifiable
when
if
necessarily committed in attempting by lawful
ways and means to apprehend any person for any felony committed, or in lawfully suppressing
any riot, or in lawfully keeping and preserving the peace.
Section
165.
That
§
22-16-34
be amended to read as follows:
22-16-34.
Homicide is justifiable
when
if
committed by any person
when
while
resisting any
attempt to murder such person, or to commit any felony upon him or her, or upon or in any
dwelling house in which such person is.
Section
166.
That
§
22-16-35
be amended to read as follows:
22-16-35.
Homicide is justifiable
when
if
committed by any person in the lawful defense of
such person, or of his or her husband, wife, parent, child, master, mistress, or servant
when
if
there is reasonable ground to apprehend a design to commit a felony, or to do some great
personal injury, and imminent danger of such design being accomplished.
Section
167.
That
§
22-16-37
be amended to read as follows:
22-16-37.
Any person who intentionally in any manner advises, encourages, abets, or assists
another
in taking his
person in taking or in attempting to take his or her
own life is guilty of a
Class 6 felony.
Section
168.
That
§
22-16-37.1
be amended to read as follows:
22-16-37.1.
Any licensed health care professional who administers, prescribes, or dispenses
medications or procedures to relieve another person's pain or discomfort, even if the medication
or procedure may hasten
,
or increase the risk of
,
death, does not violate § 22-16-37
,
unless the
medications or procedures are knowingly administered, prescribed, or dispensed with a purpose
to cause death. Any licensed health care professional who withholds or withdraws a life-
sustaining procedure, in compliance with chapter 34-12D or in accordance with reasonable
medical practice, does not violate § 22-16-37.
Section
169.
That
§
22-16-37.2
be amended to read as follows:
22-16-37.2.
A cause of action for injunctive relief may be maintained against any person
who is reasonably believed to be about to violate or who is in the course of violating § 22-16-37
by any person who is:
(1)
The spouse, parent, child, sibling, legally appointed guardian, or conservator of the
person who would commit suicide;
(2)
Entitled to inherit under the laws of intestate succession from the person who would
commit suicide or the beneficiary under a life insurance policy of the person who
would commit suicide;
(3)
A
Any
health care provider of the person who would commit suicide;
(4)
Any public official with appropriate jurisdiction to prosecute or enforce the laws of
this state.
Section
170.
The code counsel shall transfer
§
§
22-16-37.1 to 22-16-37.7, inclusive, to
chapter 34-12D and shall renumber the sections accordingly and adjust all cross references.
Section
171.
That
§
22-16-40
be amended to read as follows:
22-16-40.
It shall be the duty of any
Any
law enforcement officer who has knowledge that
any party has attempted to take his
or her
own life
to
shall
immediately notify the state's
attorney.
Section
172.
The code counsel shall transfer
§
22-16-42 to chapter 22-18 and shall renumber
the section accordingly and adjust all appropriate cross references.
Section
173.
That
§
22-6-2
be amended to read as follows:
22-6-2.
Except as otherwise provided by law, misdemeanors
Misdemeanors
are divided into
two classes which are distinguished from each other by the following maximum penalties which
are authorized upon conviction:
(1)
Class 1 misdemeanor: one year imprisonment in a county jail or
one
two
thousand
dollars fine, or both;
(2)
Class 2 misdemeanor: thirty days imprisonment in a county jail or
two
five
hundred
dollars fine, or both.
The court
,
in imposing sentence on a defendant who has been found guilty of a
misdemeanor
,
shall order, in addition to the sentence that is imposed pursuant to the provisions
of this section, that the defendant make restitution to any victim in accordance with the
provisions of chapter 23A-28.
Except in cases where punishment is prescribed by law, every offense declared to be a
misdemeanor and not otherwise classified, is a Class 2 misdemeanor.
Except in Titles 1 to 20, inclusive, 22, 25 to 28, inclusive, 32 to 36, inclusive, 40 to 42,
inclusive, 47 to 54, inclusive, and 58 to 62, inclusive, if the performance of an act is prohibited
by a statute, and no penalty for the violation of such statute is imposed by a statute, the doing
of such act is a Class 2 misdemeanor.
Section
174.
That
§
16-12C-11
be amended to read as follows:
16-12C-11.
A magistrate court with a clerk magistrate presiding has concurrent jurisdiction
with the circuit courts:
(1)
To accept defaults for petty offenses;
(2)
To try contested cases involving a petty offense;
(3)
To take pleas of guilty, not guilty, nolo contendere for any criminal offense; or
(4)
To take pleas of guilty, not guilty, nolo contendere for violation of any ordinance,
bylaw, or other police regulation of a political subdivision;
if the punishment is a fine not exceeding
two
five
hundred dollars or imprisonment for a period
not exceeding thirty days, or both such fine and imprisonment and to impose sentence upon a
plea of guilty or nolo contendere, which sentence shall be in accordance with § 23-1A-22 or
schedules adopted pursuant to subdivision 16-2-21(8). However, if the offense or violation is
not covered by said schedules, the magistrate court may impose a sentence of a fine as
authorized by statute, ordinance, bylaw, or police regulation or
two
five
hundred dollars,
whichever is less. Acceptance of not guilty or nolo contendere pleas shall be in accordance with
§§ 23A-7-2 and 23A-7-8, as applicable.
Section
175.
That
§
22-23-1
be amended to read as follows:
22-23-1.
Any person who
:
(1)
Is an inmate of a house of prostitution or otherwise
engages in
or offers to engage in
sexual activity for a fee
; or
(2)
Loiters in or within view of any public place for the purpose of being hired to engage
in sexual activity;
is guilty of prostitution. Prostitution is a Class 1 misdemeanor.
Section
176.
That
§
22-23-1.1
be amended to read as follows:
22-23-1.1.
As used in this chapter
:
(1)
The
the
term, sexual activity,
shall have the same meaning as the term,
references
both
sexual penetration, as defined in § 22-22-2
, and sexual contact, as defined in
§
22-22-7.1
;
(2)
A house of prostitution is any place where sexual activity or promotion of sexual
activity is regularly carried on by one or more persons for a fee, under the control,
management, or supervision of another;
(3)
An inmate is a person who engages in sexual activity for a fee in or through the
agency of a house of prostitution;
(4)
Public place, means any place to which the public
or any substantial group thereof
has access
.
Section
177.
That
§
22-23-2
be amended to read as follows:
22-23-2.
Any person who:
(1)
Encourages, induces, procures, or otherwise purposely causes another to become or
remain a prostitute;
(2)
Promotes
the
prostitution of a minor; or
(3)
Promotes
the
prostitution of his
or her
spouse, child, ward, or
any person for whose
care, protection, or support he is responsible
other dependant person
;
is guilty of
promoting prostitution. Promoting prostitution is
a Class 5 felony.
Section
178.
That
§
22-23-4
be repealed.
22-23-4.
On the issue whether a place is a house of prostitution the following shall be
admissible evidence:
(1)
Its general repute;
(2)
The repute of the persons who reside in or frequent the place; and
(3)
The frequency, timing, and duration of visits by nonresidents.
Testimony of a person against his or her spouse shall be admissible to prove offenses under
this chapter.
Section
179.
That
§
22-23-8
be amended to read as follows:
22-23-8.
Any person who:
(1)
Solicits another person to patronize a prostitute;
(2)
Procures a prostitute for a patron;
(3)
Transports a person into or within this state to
promote that person's engaging
engage
in prostitution, or procures or pays for transportation for that purpose;
(4)
Knowingly permits a place owned, managed, supervised, or controlled by himself
or
herself
, alone, or in association with others, to be regularly used for prostitution or
the promotion of prostitution, or fails to make reasonable effort to abate such use by
ejecting the tenant, notifying law enforcement authorities, or using other legally
available means; or
(5)
Solicits, receives, or agrees to receive any benefit for doing or agreeing to do
anything
forbidden
prohibited
by this section;
is guilty of a Class 6 felony.
Section
180.
That
§
22-23-9
be amended to read as follows:
22-23-9.
Any person who hires
or attempts to hire
another person for a fee to engage in
sexual activity
, or enters or remains in a house of prostitution for the purpose of engaging in
sexual activity,
is guilty of a Class 1 misdemeanor.
Section
181.
That
§
22-19B-1
be amended to read as follows:
22-19B-1.
No person may maliciously and with the specific intent to intimidate or harass
another
any
person
or specific group of persons
because of that person's
or group of persons'
race,
color
ethnicity
, religion, ancestry, or national origin:
(1)
Cause physical injury to another person; or
(2)
Deface any real or personal property of another person; or
(3)
Damage or destroy any real or personal property of another person; or
(4)
Threaten, by word or act, to do the acts prohibited if there is reasonable cause to
believe that any of the acts prohibited in subdivision (1), (2), or (3) of this section
will occur.
A violation of
subdivision (1)
this section
is a Class 6 felony.
A violation of subdivision (2)
is a Class 1 misdemeanor. A violation of subdivision (3) is a Class 1 misdemeanor if the damage
is less than two hundred dollars, and is a Class 6 felony if the damage is two hundred dollars but
less than five hundred dollars, and is a Class 4 felony if the damage is five hundred dollars or
greater. A violation of subdivision (4) is a Class 1 misdemeanor.
Section
182.
That
§
22-19B-2
be amended to read as follows:
22-19B-2.
For purposes of this chapter
,
the term, deface, includes cross-burnings or the
placing of any word or symbol commonly associated with racial, religious, or ethnic terrorism
on the property of another person without that person's permission.
Section
183.
That
§
22-19B-3
be amended to read as follows:
22-19B-3.
In addition to the criminal penalty provided in § 22-19B-1, there is a civil cause
of action for malicious harassment. The victim of malicious
intimidation or
harassment may
recover both special and general damages, including damages for emotional distress, reasonable
attorney fees and costs, and punitive damages. The civil cause of action for malicious
intimidation or
harassment is in addition to any other remedies, criminal or civil, otherwise
available under law.
Section
184.
The code counsel shall rename chapter 22-19B, Hate Crimes.
Section
185.
The code counsel shall transfer
§
22-19B-3 to Title 20 and shall renumber the
section accordingly and adjust all appropriate cross references.
Section
186.
That
§
22-8-1
be repealed.
22-8-1.
Any person who levies war against the state, adheres to its enemies, or gives them
aid and comfort is guilty of treason. Treason is a Class 1 felony.
Section
187.
That
§
22-8-2
be repealed.
22-8-2.
No person shall be convicted of treason except on the testimony of two witnesses
to the same overt act, or confession in open court.
Section
188.
That
§
22-8-12
be amended to read as follows:
22-8-12.
Any person who commits a crime of violence
,
as defined by subdivision 22-1-2(9)
,
or an act dangerous to human life
including
involving
any use of chemical, biological, or
radioactive material, or any explosive or destructive device
,
with the intent to do any of the
following:
(1)
Intimidate or coerce a civilian population;
(2)
Influence the policy or conduct of any government or nation;
(3)
Affect the conduct of any government or nation by assassination or kidnaping; or
(4)
Substantially impair or interrupt public communications, public transportation,
common carriers, public utilities, or other public services;
is guilty of an act of terrorism. A violation of this section is a
Class A
Class C
felony.
Section
189.
That chapter
22-8
be amended by adding thereto a NEW SECTION to read as
follows:
Any person who threatens to commit a crime of violence, as defined by subdivision 22-1-
2(9), or an act dangerous to human life involving any use of chemical, biological, or radioactive
material, or any explosive or destructive device, with the intent to:
(1)
Intimidate or coerce a civilian population;
(2)
Influence the policy or conduct of any government or nation;
(3)
Affect the conduct of any government or nation; or
(4)
Substantially impair or interrupt public communications, public transportation,
common carriers, public utilities, or other public services;
is guilty of making a terrorist threat. A violation of this section is a Class 5 felony.
Section
190.
The code counsel shall rename chapter 22-8, Terrorism.
Section
191.
That
§
22-11-2
be amended to read as follows:
22-11-2.
Any person who intentionally injures or destroys, takes or attempts to take, or
assists any other person in taking or attempting to take
,
from the custody of any law enforcement
officer or other person, any personal property, which such officer or person has in charge under
any process of law, is guilty of a Class 1 misdemeanor.
Section
192.
That
§
22-11-3
be amended to read as follows:
22-11-3.
Any person who intentionally obstructs or attempts to obstruct a public officer or
employee, not a law enforcement officer,
jailer, or
firefighter
, or emergency medical technician
in the performance of any official duty, or who resists a public officer in performance of
his
that
duty, is guilty of a Class 2 misdemeanor.
Section
193.
That
§
22-11-3.1
be repealed.
22-11-3.1.
Any person who, after being lawfully commanded to aid any law enforcement
officer in arresting any person or in retaking any person who has escaped from legal custody,
or in executing any legal process, intentionally refuses, without lawful cause, to aid such officer,
is guilty of a Class 2 misdemeanor.
Section
194.
That
§
22-11-4
be amended to read as follows:
22-11-4.
Any person who intentionally prevents or attempts to prevent a law enforcement
officer
or jailer
, acting under color of
his
authority, from effecting an arrest of the actor or
another, by:
(1)
Threatening
Using or threatening
to use physical force or violence against the law
enforcement officer
or jailer
or any other person; or
(2)
Using any other means which creates a substantial risk of causing physical injury to
the law enforcement officer
, jailer
or any other person;
is guilty of resisting arrest. Resisting arrest is a Class 1 misdemeanor.
Section
195.
That
§
22-11-5
be amended to read as follows:
22-11-5.
It is no defense to a prosecution under § 22-11-4 that the law enforcement officer
or jailer
was attempting to make an arrest which in fact was unlawful, if
he
the law enforcement
officer
was acting under color of
his official
authority and, in attempting to make the arrest
he
, the law enforcement officer
was not resorting to unreasonable or excessive force giving rise
to the right of self-defense. A law enforcement officer
or jailer
, firefighter, or emergency
medical technician
acts under color of
his official
authority
when
if
, in the regular course of
assigned duties, he
or she
is called upon to make, and does make, a judgment in good faith
based upon surrounding facts and circumstances
that an arrest should be made by him
.
Section
196.
That
§
22-11-6
be amended to read as follows:
22-11-6.
Except as provided in §§ 22-11-4 and 22-11-5, any person who, by
using or
threatening to use violence, force, or physical interference or obstacle, intentionally obstructs,
impairs, or hinders the enforcement of the criminal laws or the preservation of the peace by a
law enforcement officer or jailer acting under color of
his official
authority, or intentionally
obstructs, impairs, or hinders the prevention, control, or abatement of fire by a firefighter acting
under color of
his official
authority,
or intentionally obstructs emergency management personnel
acting under color of authority,
is guilty of obstructing a law enforcement officer
or jailer or
,
firefighter
, or emergency medical technician
. Obstructing a law enforcement officer, jailer,
or
firefighter
, or emergency medical technician
is a Class 1 misdemeanor.
Section
197.
That
§
22-11-6.1
be repealed.
22-11-6.1.
A person who intentionally obstructs or attempts to obstruct ambulance personnel
in the performance of their duty is guilty of a Class 2 misdemeanor.
Section
198.
That
§
22-11-7
be amended to read as follows:
22-11-7.
It is no defense to a prosecution under § 22-11-6 that the law enforcement officer
or jailer
, firefighter, or emergency medical technician
was acting in an illegal manner, if
he
the
law enforcement officer, firefighter, or emergency medical technician
was acting under the color
of
his official
authority as defined in § 22-11-5.
Section
199.
That
§
22-11-8
be amended to read as follows:
22-11-8.
Any person who intentionally impersonates any public officer or employee, civil
or military, or any firefighter or any person having special authority by law to perform any act
affecting the rights or interests of another, or assumes, without authority, any uniform or badge
by which such officer, employee, firefighter, or person is usually distinguished, and in such
assumed character does any act
where
whereby
another person is injured or defrauded, is guilty
of a
Class 2
Class 1
misdemeanor.
Section
200.
The code counsel shall transfer
§
22-11-8 to chapter 22-40 and shall renumber
the section accordingly and adjust all appropriate cross references.
Section
201.
That
§
22-11-9
be amended to read as follows:
22-11-9.
Any person who:
(1)
Except as provided in § 22-14A-22, knowingly causes a false fire or other emergency
alarm to be transmitted to, or within, any fire department, ambulance service, or other
government agency which deals with emergencies involving danger to life or
property;
(2)
Makes a report or intentionally causes the transmission of a report to law
enforcement authorities of a crime or other incident within their official concern,
when he knows
knowing
that it did not occur; or
(3)
Makes a report or intentionally causes the transmission of a report to law
enforcement authorities which furnishes information relating to an offense or other
incident within their official concern,
when he knows
knowing
that such information
is false;
is guilty of false reporting to authorities. False reporting to authorities is a Class 1 misdemeanor.
Section
202.
That
§
22-11-9.1
be amended to read as follows:
22-11-9.1.
Any person who intentionally gives any false alarm of fire, by any means,
and
bodily injury or death is sustained by any person as a result thereof
is guilty of a Class 5 felony
,
if, as a result, any other person dies or sustains serious bodily injury
.
Section
203.
That
§
22-11-10
be amended to read as follows:
22-11-10.
Any person who accepts, or offers or agrees to accept
,
any pecuniary benefit as
consideration for:
(1)
Refraining from seeking prosecution of an offender; or
(2)
Refraining from reporting to law enforcement authorities the commission or
suspected commission of any crime or
any
information relating to a crime;
is guilty of compounding. Compounding a felony is a Class 6 felony. Compounding a
misdemeanor is a Class 1 misdemeanor.
Section
204.
That
§
22-11-11
be amended to read as follows:
22-11-11.
It is an affirmative defense to prosecution
under
pursuant to
§ 22-11-10 that the
benefit received by the defendant did not exceed an amount which the defendant reasonably
believed to be due as
a
restitution or indemnification for harm caused by the crime.
Section
205.
That
§
22-11-12
be amended to read as follows:
22-11-12.
Any person who, having knowledge, which is not privileged, of the commission
of a felony, conceals the
same
felony
, or does not immediately disclose
such
the
felony,
with
including
the name of the perpetrator
thereof
,
if known,
and all
of
the
other relevant known
facts
in relation thereto
, to the proper authorities,
shall be
is
guilty of misprision of a felony.
Misprision of a felony is a Class 1 misdemeanor. There is no misprision of misdemeanors or
petty offenses.
Section
206.
That
§
22-11-14
be amended to read as follows:
22-11-14.
As used in this chapter, the term, judicial officer, includes any referee, arbitrator,
judge, hearing officer, or any other person authorized by law to hear or determine a controversy.
Section
207.
That
§
22-11-15.1
be amended to read as follows:
22-11-15.1.
Any person who
,
knowingly and intentionally
,
deposits for conveyance in the
mail or for a delivery from any post office or by any messenger, any letter, paper, writing, print,
or document containing any threat to take the life of or to inflict serious bodily harm upon a law
enforcement officer of the state or a member of the officer's immediate family is guilty of a
Class 5 felony. However, if any such threat is made which otherwise would constitute a
violation of § 22-11-4 or 22-18-1.1, the provisions of such sections
are controlling
supersede
the provisions of this section,
and the penalties provided in § 22-11-4 or 22-18-1.1 apply.
Section
208.
The code counsel shall transfer
§
22-11-15.1 and
§
22-11-15.4 within chapter
22-11 to an appropriate location where the two sections will be sequential and shall renumber
the sections accordingly and adjust all appropriate cross references.
Section
209.
That
§
22-11-15.2
be amended to read as follows:
22-11-15.2.
Any person who
,
knowingly and intentionally
,
deposits for conveyance in the
mail or for a delivery from any post office or by any messenger any letter, paper, writing, print,
or document containing any threat to take the life of or to inflict bodily harm upon a
constitutional officer or former constitutional officer of the state, or a member of
his
the
constitutional officer's
immediate family, or who
,
knowingly and intentionally
,
otherwise makes
any threat to take the life of or to inflict bodily harm upon a constitutional officer or former
constitutional officer or a member of
his
the constitutional officer's
immediate family is guilty
of a Class 5 felony.
Section
210.
That
§
22-11-15.4
be amended to read as follows:
22-11-15.4.
Any person who
,
knowingly and intentionally
,
communicates any threat not
subject to § 22-11-15.1 to take the life of or to inflict serious bodily harm upon a law
enforcement officer of the state or a member of the officer's immediate family, is guilty of a
Class 1 misdemeanor. However, if any such threat is made which otherwise would constitute
a violation of § 22-11-4 or 22-18-1.1, the provisions of such sections
are controlling
supersede
the provisions of this section,
and the penalties provided in § 22-11-4 or 22-18-1.1 apply.
Section
211.
That
§
22-11-16
be amended to read as follows:
22-11-16.
Any person who attempts to influence a juror, or any person summoned or drawn
as a juror, or chosen an arbitrator or appointed a referee, in respect to
his
any
verdict or decision
in any cause or matter pending, or about to be brought before
him
such person
:
(1)
By means of any communication, oral or written, had with
him
such person
, except
in the regular course of proceedings upon the trial of the cause;
(2)
By means of any book, paper, or instrument exhibited otherwise than in the regular
course of proceedings upon the trial of the cause; or
(3)
By publishing any statement, argument, or observation relating to the cause;
is guilty of a Class 6 felony.
Section
212.
That
§
22-11-17
be repealed.
22-11-17.
Any juror, or person drawn or summoned as a juror, or judicial officer, who
knowingly permits any communication to be made to him or receives any book, paper,
instrument, or information relative to any cause pending before him, except according to the
regular course of proceeding upon the trial of such cause, is guilty of a Class 1 misdemeanor.
Section
213.
That
§
22-11-19
be amended to read as follows:
22-11-19.
A
Any
person who injures
,
or threatens to injure
,
any person or property, or
,
with
intent to influence a witness, offers, confers, or agrees to confer any benefit on a witness or
prospective witness in an official proceeding to induce the witness to:
(1)
Testify falsely;
(2) Withhold any testimony, information, document, or thing;
(3)
Elude legal process summoning the witness to testify or supply evidence; or
(4)
Absent himself or herself from an official proceeding to which the witness has been
legally summoned;
is guilty of tampering with a witness.
Any person who injures, or threatens to injure, any person
or property in retaliation for that person testifying in an official proceeding, or for cooperating
with law enforcement, government officials, investigators, or prosecutors, is guilty of tampering
with a witness.
Tampering with a witness is a Class 4 felony.
Section
214.
That
§
22-11-19.1
be repealed.
22-11-19.1.
A person who injures or threatens to injure any person or property in retaliation
for that person testifying in an official proceeding, or for cooperating with law enforcement,
government officials, investigators or prosecutors, is guilty of tampering with a witness.
Tampering with a witness is a Class 4 felony.
Section
215.
That
§
22-11-20
be amended to read as follows:
22-11-20.
A
Any person who, as a
witness or prospective witness in an official proceeding
who
,
knowingly solicits, accepts
,
or agrees to accept any benefit upon the representation or
understanding that
he
such person
will do any thing
specified
described
in subdivisions
§
22-11-
19(1) to (4), inclusive, is guilty of a Class 6 felony.
Section
216.
That
§
22-11-21
be amended to read as follows:
22-11-21.
Any person who, in any trial, proceeding, inquiry, or investigation authorized by
law, offers in evidence as genuine, any book, paper, document, record, or other instrument in
writing, knowing
the same to have
that it has
been forged or fraudulently altered, is guilty of a
Class 5 felony.
Section
217.
The code counsel shall transfer
§
§
22-11-16, 22-11-18, 22-11-20, 22-11-21,
and 22-11-22 to chapter 22-12A and shall renumber the sections accordingly and adjust all
appropriate cross references.
Section
218.
That
§
22-11-23
be amended to read as follows:
22-11-23.
Any person who knowingly makes a false entry in
any public record
, or falsely
alters any public record is guilty of a Class 2 misdemeanor
, except that when done
. However,
if the false entry or alteration is committed
by a public officer or employee having custody of
the record,
it
the offense
is a Class 1 misdemeanor.
Section
219.
That
§
22-11-23.1
be amended to read as follows:
22-11-23.1.
A
Any
person who
knowingly
offers
a
any
false or forged instrument
, knowing
that the instrument is false or forged,
for filing, registering, or recording in a public office,
which instrument, if genuine, could be filed, registered, or recorded under any law of this state
or of the United States, is guilty of a Class 6 felony.
Section
220.
That
§
22-11-24
be amended to read as follows:
22-11-24.
Any person who,
knowing he lacks
without
the authority to do so,
knowingly and
intentionally destroys, mutilates, conceals, removes, or impairs the availability of any public
record is guilty of a Class 6 felony
, except that when done
. However, if the provisions of this
section are violated
by a public officer or employee having custody of the record,
it
the offense
is a Class 5 felony.
Section
221.
That
§
22-11-25
be amended to read as follows:
22-11-25.
Any person who,
knowing he lacks
lacking
the authority to retain a public record
in his
or her
possession,
knowingly
refuses to deliver it up upon proper request of any person
lawfully entitled to receive such record, is guilty of a Class 2 misdemeanor
, except that when
done
. However, if the knowing refusal to deliver is committed
by a public officer or employee
having custody of the record,
it
the offense
is a Class 1 misdemeanor.
Section
222.
That
§
22-11-26
be amended to read as follows:
22-11-26.
Any public officer
not liable to impeachment
found guilty of violating §§ 22-11-
23 to 22-11-25, inclusive, shall forfeit
his
the
office
unless the office is subject to impeachment
.
Any public employee found guilty of violating
any provision of
§§ 22-11-23 to 22-11-25,
inclusive, shall be discharged. Any public officer having authority to discharge a public
employee, who refuses to comply with this section
,
is guilty of a Class 2 misdemeanor.
Section
223.
That
§
22-11-27
be amended to read as follows:
22-11-27.
Any person who, without consent of the owner, intentionally alters, obliterates,
or removes a serial number or other identifying mark on personal property, or
knowingly
possesses any personal property
having
knowing that the property has
a serial number or
identifying mark which has been intentionally obliterated, altered, or removed, which number
or marking may be used to determine ownership
thereof
of the property
, is guilty of a Class 6
felony.
Section
224.
The code counsel shall transfer
§
22-11-27 to chapter 22-30A and shall
renumber the sections accordingly and adjust all appropriate cross references.
Section
225.
That
§
22-11-28
be amended to read as follows:
22-11-28.
Any person who offers a counterfeit lien for filing, registering, or recording in a
public office knowing or having reason to know that the lien is counterfeit is guilty of a Class
1 misdemeanor. A second or subsequent conviction for a violation of this section is a Class 6
felony.
The person's lack
Lack
of belief in the jurisdiction or authority of the state or of the
United States is no defense to a prosecution under this section.
Section
226.
The code counsel shall renumber
§
22-11-23.1 as
§
22-11-28.1 and adjust all
appropriate cross references.
Section
227.
That
§
22-11-29
be amended to read as follows:
22-11-29.
For purposes of § 22-11-28, the term, offers, includes the mailing of the
instrument to a public office with the knowledge or belief that
it
the instrument
will be filed
with, registered, or recorded in, or otherwise become a part of, the records of the public office.
For purposes of § 22-11-28, the term, counterfeit lien, means a lien that:
(1)
Is not provided for by a specific state or federal statute;
(2)
Does not depend upon the consent of the owner of the property affected for its
existence; and
(3)
Is not an equitable or constructive lien imposed by a court recognized under the U.S.
Constitution, federal laws, or the constitution or laws of this state.
Section
228.
That
§
22-11-31
be amended to read as follows:
22-11-31.
Any person who harasses
an individual
any other person
by sending or delivering,
or causing to be sent or delivered, any letter, paper, document, notice of intent to bring suit, or
other notice or demand that simulates
a
any
form of court or legal process and that threatens the
individual
other person
, directly or indirectly, with incarceration, monetary fines, or penalties,
or with the imposition of a counterfeit lien on the real or personal property of the
individual
other person
is guilty of a Class 1 misdemeanor. A second or subsequent conviction for a
violation of this section is a Class 6 felony.
The person's lack
Lack
of belief in the jurisdiction
or authority of the state or of the United States is no defense to a prosecution under this section.
Section
229.
That
§
22-11-32
be amended to read as follows:
22-11-32.
For purposes of § 22-11-31, the term, harasses, means a knowing and willful
course of conduct directed at
the individual
any person
which seriously alarms or annoys the
individual
person
and which serves no legitimate legal purpose.
For purposes of § 22-11-31, the term, course of conduct, means a pattern of conduct
composed of a series of acts over a period of time, however short, evidencing a continuity of
purpose.
Section
230.
That
§
22-11-34
be amended to read as follows:
22-11-34.
Any person who, without authority under the U.S. Constitution, federal law, or
the constitution or laws of this state, acts as a supreme court justice, a circuit court judge, a
magistrate judge, a lay magistrate, a clerk of court or deputy, a juror
,
or other official holding
authority to determine a controversy or adjudicate the rights or interests of
others
any other
person
, or signs a document in such capacity, is guilty of a Class 1 misdemeanor. It is no
defense to a prosecution under this section that the judicial office
that
the person pretended to
hold
does
did
not exist.
Section
231.
The code counsel shall transfer
§
22-11-34 to chapter 22-40 and shall renumber
the section accordingly and adjust all appropriate cross references.
Section
232.
The code counsel shall transfer
§
§
22-11-30, 22-11-33, and 22-11-35 to an
appropriate chapter in title 20 and shall renumber the section accordingly and adjust all
appropriate cross references.
Section
233.
That
§
22-12-1
be amended to read as follows:
22-12-1.
Barratry is the
practice
offense
of maliciously bringing or causing to be brought any
groundless judicial
proceedings
proceeding
.
It
Barratry
is a Class 2 misdemeanor. The fact that
an accused was
himself
personally
a party in interest or upon the record to any proceedings at
law complained of is not a defense.
Section
234.
That
§
22-12-5
be amended to read as follows:
22-12-5.
Any person who, for the purpose of obtaining anything of value,
shall circulate
circulates
or
offer
offers
for sale,
print
prints
for the purpose of sale or distribution,
send
sends
or
deliver
delivers
, or
cause
causes
to be sent or delivered, any letter, paper, document, notice
of intent to bring suit, or other notice or demand which simulates
a
any
form of court or legal
process or any official demand, notice or other paper of a federal, state, or municipal agency,
the intention of which document is to lead the recipient or addressee to believe
the same to be
that it is
a genuine court or legal process or official demand, notice
,
or other paper of a federal,
state, or municipal agency
,
is guilty of uttering simulated process. Uttering simulated process
is a Class 1 misdemeanor.
Section
235.
That
§
22-12-6
be amended to read as follows:
22-12-6.
It
shall be
is
no defense to a charge of uttering simulated process, that the document
bears any statement that the thing of value sought to be obtained was to apply as payment on a
valid obligation.
Section
236.
That
§
22-12-7
be amended to read as follows:
22-12-7.
In prosecutions for
any
violation of § 22-12-5, the prosecution may show that the
simulating document was deposited in the post office for mailing or was delivered to any person
with intent to be forwarded, and such showing
shall be
is
sufficient proof of the sending or
delivery.
Section
237.
That
§
22-12-8
be amended to read as follows:
22-12-8.
Nothing in §§ 22-12-5 to 22-12-7, inclusive,
shall prevent
prevents
the printing,
publication, sale, or distribution of genuine legal forms.
Section
238.
That
§
22-12-10
be amended to read as follows:
22-12-10.
Any public officer or person pretending to be a public officer, who under the
pretense or color of any process or other legal authority, arrests any person, or detains
him
any
person
against
his
that person's
will, or seizes or levies upon any property, or dispossesses
anyone
any person
of any lands or tenements without due and legal process, is guilty of a Class
1 misdemeanor.
Section
239.
That
§
22-12-11
be repealed.
22-12-11.
Any person who attaches the dead body of a human being for any debt or demand,
or detains or claims to detain it for any debt or demand, or upon any pretended lien or charge,
is guilty of a Class 2 misdemeanor.
Section
240.
That
§
22-12-13
be amended to read as follows:
22-12-13.
Any person who
,
maliciously
,
and without probable cause, procures a search
warrant to be issued and executed is guilty of a Class 1 misdemeanor.
Section
241.
That
§
22-12-14
be amended to read as follows:
22-12-14.
Any law enforcement officer who, in executing a search warrant, intentionally
exceeds his
or her
authority, or exercises
it
such authority
maliciously, is guilty of a Class 1
misdemeanor.
Section
242.
That
§
22-12-15
be amended to read as follows:
22-12-15.
Any law enforcement officer or other person, who
,
having arrested a person on
a criminal charge
and
,
intentionally
delayed
delays
taking that person before a committing
magistrate for further proceedings, is guilty of a Class 1 misdemeanor.
Section
243.
That
§
22-14-5
be amended to read as follows:
22-14-5.
Any person who possesses any firearm on which the manufacturer's serial number
has been changed, altered, removed, or obliterated is guilty of a Class 6 felony.
This
The provisions of this
section
does
do
not apply to persons who have applied for a new
serial number pursuant to § 23-7-43.
Section
244.
That
§
22-14-6
be amended to read as follows:
22-14-6.
Any person who knowingly possesses a controlled weapon is guilty of a Class 6
felony.
Provided that,
However, the provisions of
this section
shall
do
not apply to
a
any
person
who:
(1)
Is a law enforcement officer or member of the armed forces of the United States or
South Dakota National Guard acting in the lawful discharge of
his
duties;
(2)
Has a valid state or federal license issued pursuant to law for such weapon or has
registered such weapon with the proper state or federal authority pursuant to law;
(3)
Possesses a controlled weapon briefly after having found it or taken it from an
aggressor
offender
; or
(4)
Possesses a controlled weapon, except a machine gun or short shotgun, under
circumstances which negate any purpose or likelihood that the weapon would be used
unlawfully.
Section
245.
That
§
22-14-7
be amended to read as follows:
22-14-7.
Any person who:
(1)
Recklessly discharges a firearm or recklessly shoots a bow and arrow;
(2)
Sets a device designed to activate a weapon upon being tripped or approached, and
leaves
it
the device
unmarked or unattended by a competent person; or
(3)
Has in
his
personal
possession a loaded firearm while
he is
intoxicated;
is guilty of a Class 1 misdemeanor.
Section
246.
That
§
22-14-8
be amended to read as follows:
22-14-8.
Any person who conceals on or about his
or her
person a controlled or dangerous
weapon with intent to commit a felony is guilty of a Class 5 felony.
Section
247.
That
§
22-14-9
be amended to read as follows:
22-14-9.
Any person, other than a law enforcement officer
when
acting
as such, is guilty of
a Class 1 misdemeanor if he
under color of authority, who
:
(1)
Carries a pistol or revolver, loaded or unloaded, concealed on or about his
or her
person without a permit as provided in chapter 23-7; or
(2)
Carries a pistol or revolver, loaded or unloaded, concealed in any vehicle
operated
by him
while operating the vehicle
, without a permit as provided in chapter 23-7
;
is guilty of a Class 1 misdemeanor
.
Section
248.
That
§
22-14-9.1
be amended to read as follows:
22-14-9.1.
No person may possess a concealed pistol in accordance with chapter 23-7 or this
chapter unless that person also has in his or her physical possession a valid South Dakota permit
to carry a concealed pistol or a permit effective pursuant to § 23-7-7.3.
A
Any
violation of this
section is a petty offense. However, if within twenty-four hours of being charged with a
violation of this section, the person produces a permit to carry a concealed pistol which was
valid at the time of the alleged offense in the office of the officer making the demand, the charge
shall be dismissed.
Section
249.
That
§
22-14-9.2
be amended to read as follows:
22-14-9.2.
Any person who is permitted to carry a concealed pistol in a state with which the
secretary of state has entered into a reciprocity agreement pursuant to §§ 23-7-7.3, 22-14-9.1,
22-14-9.2, 23-7-7, 23-7-7.1, and 23-7-8 may carry a concealed pistol in this state if the permit
holder carries the pistol in compliance with the laws of this state.
A
Any
violation of this section
is a Class 1 misdemeanor.
Section
250.
That
§
22-14-10
be amended to read as follows:
22-14-10.
Section 22-14-9 does
The provisions of
§
22-14-9 do
not apply to
persons who
carry one or more
any person carrying any
unloaded
pistols
pistol
or
revolvers
revolver
for the
purpose of, or in connection with, any lawful use, if the unloaded
weapon or weapons are
pistol
or revolver is
carried:
(1)
In the trunk or other closed compartment of a vehicle; or
(2)
In a closed container which is too large to be effectively concealed on the person or
within
his
the person's
clothing. The container may be carried in a vehicle or in any
other manner.
Any
No
person who complies with this section may
not
be required to obtain a permit for
the lawful uses
herein
described
in this section
.
Section
251.
That
§
22-14-11
be amended to read as follows:
22-14-11.
Section 22-14-9 shall
The provisions of
§
22-14-9 do
not apply to any person who
possesses a pistol or revolver in his
or her
own dwelling house or place of business or on land
owned or rented by
him
himself or herself
or by a member of his
or her
household.
Section
252.
That
§
22-14-12
be amended to read as follows:
22-14-12.
Any person who commits or attempts to commit any felony
when
while
armed
with a firearm, including a machine gun or short shotgun, is guilty of a Class 2 felony for the
first conviction. A second or subsequent conviction is a Class 1 felony. The sentence imposed
for a first conviction under this section shall carry a minimum sentence of imprisonment in the
state penitentiary of five years. In case of a second or subsequent conviction under this section
such person shall be sentenced to a minimum imprisonment of ten years in the penitentiary.
Any sentence imposed under this section shall be consecutive to any other sentences
imposed for a violation of the principal felony.
Notwithstanding any other provision of law, the
The
court
shall
may
not place on probation, suspend the execution of the sentence, or suspend
the imposition of the sentence of any person convicted of a violation of this section.
Section
253.
That
§
22-14-13.1
be repealed.
22-14-13.1.
Any person who commits or attempts to commit any felony when armed with
a stun gun is guilty of a Class 5 felony for the first conviction. A second or subsequent
conviction is a Class 3 felony. Any sentence imposed under this section shall be consecutive to
any other sentences imposed for a violation of the principal felony.
Section
254.
That
§
22-14-14
be amended to read as follows:
22-14-14.
A violation of § 22-14-12 shall be charged in the indictment or information as a
separate count in addition to the principal felony or attempted felony alleged to have been
committed. No offense may be charged under those sections
when
if
the use of a dangerous
weapon is a necessary element of the principal felony alleged to have been committed or
attempted.
Section
255.
That
§
22-14-15
be amended to read as follows:
22-14-15.
No person who has been convicted in this state or elsewhere of a crime of
violence or a felony
under chapter 22-42, other than pursuant to § 22-42-5 or 22-42-6
pursuant
to
§
22-42-2, 22-42-3, 22-42-4, 22-42-7, 22-42-8, 22-42-9, 22-42-10 or 22-42-19
, may possess
or have control of a firearm. A violation of this section is a Class 6 felony.
This
The provisions
of this
section
does
do
not apply to any person who was last discharged from prison, jail,
probation, or parole
, for a crime of violence or a felony under chapter 22-42, other than pursuant
to § 22-42-5 or 22-42-6,
more than fifteen years prior to the commission of the principal
offense.
Section
256.
That
§
22-14-16
be amended to read as follows:
22-14-16.
Any person who knows that another person is prohibited by § 22-14-15
or 22-14-
15.1
from possessing a firearm, and who knowingly gives, loans, or sells a firearm to that person
is guilty of a Class 6 felony.
Section
257.
That
§
22-14-17
be amended to read as follows:
22-14-17.
This
The provisions of this
chapter
does
do
not apply to any firearm which has
been permanently altered so it is incapable of being discharged.
Section
258.
That
§
22-14-19
be repealed.
22-14-19.
No person may own, possess, or sell a ballistic knife. A ballistic knife is a knife
encased in a tubular metal sheath which when removed, uncovers a detachable blade that can
be propelled by a spring mechanism operated at the push of a button. A violation of this section
is a Class 1 misdemeanor.
Section
259.
That
§
22-14-20
be amended to read as follows:
22-14-20.
Any person who willfully, knowingly, and illegally discharges a firearm at an
occupied structure
, structure capable of being occupied,
or motor vehicle is guilty of a
Class 5
Class 3
felony.
However, if a violation of this section results in bodily injury which is directly
caused by such discharge, such person is guilty of a Class 4 felony.
Section
260.
That
§
22-14-21
be amended to read as follows:
22-14-21.
Any person who willfully, knowingly, and illegally discharges a firearm from a
moving motor vehicle within the incorporated limits of a municipality under circumstances not
constituting a violation of § 22-14-20 is guilty of a Class 6 felony.
However, if a violation of
this section results in bodily injury which is directly caused by such discharge, such person is
guilty of a Class 5 felony.
Section
261.
That
§
22-14-22
be amended to read as follows:
22-14-22.
For the purposes of §§ 22-14-23 to 22-14-28, inclusive, the term, county
courthouse, means the state capitol
and
or
any building occupied for the public sessions of a
circuit court, with its various offices. The term includes any building appended to or used as a
supplementary structure to
the
a county
courthouse.
Section
262.
That
§
22-14-23
be amended to read as follows:
22-14-23.
Except as provided in § 22-14-24, any person who knowingly possesses or causes
to be present
a
any
firearm or other dangerous weapon, in any county courthouse, or attempts
to do so, is guilty of a Class 1 misdemeanor.
Section
263.
That
§
22-14-25
be amended to read as follows:
22-14-25.
Nothing in this chapter limits the power of a court to punish for contempt or to
promulgate rules or orders regulating, restricting
,
or prohibiting the possession of weapons,
within any building housing such court or any of its proceedings, or upon any grounds pertinent
to such building.
Section
264.
That
§
22-14-26
be amended to read as follows:
22-14-26.
Notice of the provisions of
this chapter
§
22-14-23
shall be posted conspicuously
at each public entrance to each county courthouse.
Section
265.
That
§
22-14-28
be amended to read as follows:
22-14-28.
By a majority of the members-elect, the county commission in any county may
elect to waive the provisions of
§§ 22-14-22 to 22-14-27, inclusive
§
22-14-23
.
Section
266.
That
§
22-14-29
be repealed.
22-14-29.
No person under the age of eighteen may own, possess, or carry a
butterfly/balisong knife. A butterfly/balisong knife is a knife which is encased in a metal,
wooden, or plastic sheath which when removed, uncovers a detachable blade that can be opened
automatically by operation of inertia, gravity, or both. A violation of this section is a Class 1
misdemeanor.
Section
267.
That
§
22-14-30
be amended to read as follows:
22-14-30.
No person who has been convicted of a felony
pursuant to § 22-42-5 or 22-42-6
under chapter 22-42
or of a felony for a crime with the same elements in another state may
possess or have control of a firearm. A violation of this section is a Class 6 felony.
This
The
provisions of this
section
does
do
not apply to any person who was last discharged from prison,
jail, probation, or parole, for a felony
pursuant to§ 22-42-5 or 22-42-6
under chapter 22-42
more
than five years prior to the commission of the principal offense
and is not subject to the
restrictions in
§
22-14-15
.
Section
268.
The code counsel shall renumber
§
22-14-30 as
§
22-14-15.1 and adjust all
appropriate cross references.
Section
269.
That chapter
22-14
be amended by adding thereto a NEW SECTION to read
as follows:
No person who has been convicted of any misdemeanor crime involving an act of domestic
violence may possess or have control of a firearm for a period of one year from the date of
conviction. Any violation of this section is a Class 1 misdemeanor. At the end of the one year
period, any civil rights lost as a result of this provision shall be restored. Any person who has
lost their right to possess or have control of a firearm as a result of a misdemeanor conviction
involving an act of domestic violence, prior to the date of the effectiveness of this Act, shall be
restored to those civil rights one year after the effective date of this Act. This section shall be
repealed on the date when any federal law restricting the right to possess firearms for
misdemeanor domestic violence convictions is repealed.
Once eligible under the statute, a person convicted under this section may petition the
convicting court for an order reflecting the restoration of any firearm rights lost, if the person
has not been convicted within the prior year of a crime for which firearm rights have been lost.
A petition filed under this section shall be verified by the petitioner and served upon the states
attorney in the county where the conviction occurred. Thirty days after service upon the states
attorney, the court shall enter the order, if the court finds that the petitioner is eligible for relief
under this section.
Section
270.
That
§
22-14A-4
be amended to read as follows:
22-14A-4.
Any person who knowingly sells, offers for sale, transports, or possesses any
destructive device is guilty of a Class 4 felony. If such person has been previously convicted of
a crime of violence in this state or elsewhere,
he is guilty of
the offense is
a Class 3 felony.
Section
271.
That
§
22-14A-5
be amended to read as follows:
22-14A-5.
Any person who, with intent to injure or to threaten to injure any person or
property:
(1)
Carries any explosive or destructive device on any vessel, aircraft, motor vehicle, or
other vehicle that transports passengers for hire;
(2)
Places or carries any explosive or destructive device, while on board any such vessel,
aircraft, motor vehicle, or other vehicle, in any hand baggage, roll, or other container
with intent to conceal the
same
explosive or destructive device
;
(3)
Places any explosive or destructive device in any baggage which is later checked with
any common carrier;
is guilty of a Class 2 felony.
Section
272.
That
§
22-14A-6
be amended to read as follows:
22-14A-6.
Any person who has in his
or her
possession any explosive or destructive device
under circumstances not
enumerated
described
in § 22-14A-5, with intent to injure, intimidate,
or terrify any person, or with intent to wrongfully injure or destroy any property
,
is guilty of a
Class 3 felony.
Section
273.
That
§
22-14A-11
be amended to read as follows:
22-14A-11.
Any person who explodes or ignites any destructive device or explosive with
intent to cause
serious
bodily
harm
injury
and which results in
serious
bodily
harm
injury
is
guilty of a Class 2 felony.
Section
274.
That
§
22-14A-16
be amended to read as follows:
22-14A-16.
This
the provisions of this
chapter
shall
do
not apply to the armed forces of the
United States, the national guard, any law enforcement agency or any officer, agent, employee,
or member thereof
,
acting in a lawful capacity
,
and any person possessing a valid seller's permit
or user's permit from the United States federal government for explosive and destructive
devices.
Section
275.
That
§
22-14A-18
be amended to read as follows:
22-14A-18.
Any person who intentionally destroys or attempts to destroy by the use of any
explosive or destructive device, any property real or personal, not the property of such person,
although
the same is
done under such circumstances as not to endanger the life or safety of any
human being, is guilty of a Class 4 felony. This section
shall
does
not apply to any property
destroyed under the direction of any firefighter or any law enforcement officer of any
municipality to prevent the spread of a fire.
Section
276.
That
§
22-14A-19
be amended to read as follows:
22-14A-19.
Any person who intentionally, by the use of an explosive or destructive device,
destroys or injures
the whole or any part of
any occupied or unoccupied structure, motor vehicle,
street, highway, railway, bridge, dam,
dyke
dike
, or other structure, by means of which the life
or safety of any human being is endangered, is guilty of a Class 3 felony.
Section
277.
That
§
22-14A-20
be amended to read as follows:
22-14A-20.
Any person who takes into, upon, under, against, or near to any occupied or
unoccupied structure, motor vehicle, street, highway, railway, bridge, dam,
dyke
dike
, or other
structure, any explosive or destructive device, with intent to destroy or injure
the whole or any
part thereof
such structure,
under circumstances that if such intent were accomplished, human
life or safety would be endangered thereby,
although no damage is done,
is guilty of a Class 4
felony.
It is no defense to a prosecution under this section that no damage is done.
Section
278.
That
§
22-14A-22
be amended to read as follows:
22-14A-22.
Any person who makes a false report, with intent to deceive, mislead, or
otherwise misinform any person, concerning the placing or planting of any bomb, dynamite,
explosive, destructive device, dangerous chemical, biological agent, poison or harmful
radioactive substance, is guilty of falsely reporting a threat. Falsely reporting a threat is a Class
6 felony. Any person found guilty of falsely reporting a threat shall pay restitution for any
expense incurred as a result of the crime.
The person is also civilly liable for any injury to
person or property from the false report and any costs related to responding to the false report.
If the person making the false report prohibited by this section is a minor, the court, in addition
to such other disposition as the court may impose, shall require the minor to perform at least
fifty hours of public service unless tried as an adult.
Section
279.
The code counsel shall renumber
§
22-14A-22 as
§
22-11-9.2 and adjust all
appropriate cross references.
Section
280.
That
§
22-14A-23
be amended to read as follows:
22-14A-23.
No person may, with the intent to cause bodily injury to another person, use or
place a hazardous or injurious device on any land owned or leased by the State of South Dakota,
including any highway, road, or right-of-way. A violation of this section is a Class 1
misdemeanor.
For the purposes of this section,
the term,
a hazardous or injurious device
is
, means
any
device, which when assembled or placed, is capable of causing bodily injury, or damage to
property, by the action of any person making contact with such device subsequent to the
assembly or placement. The term includes guns attached to trip wires or other triggering
mechanisms, ammunition attached to trip wires or other triggering mechanisms, or explosive
devices attached to trip wires or other triggering mechanisms, sharpened stakes, lines or wires,
lines or wires with hooks attached, nails, or other such devices placed so that the sharpened ends
are positioned in an upright manner, or tree spiking devices including spikes, nails, or other
objects hammered, driven, fastened, or otherwise placed into or on any timber, whether or not
severed from the stump. However, the term does not include puncture strips placed by law
enforcement officers in an immediate attempt to stop a fleeing vehicle.
Section
281.
That
§
22-14A-24
be amended to read as follows:
22-14A-24.
Any person who intentionally communicates a threat by leaving a substance or
device, thereby causing either serious public inconvenience, or the evacuation or serious
disruption of a building, place of assembly, facility of public or school transport, or a school
related event, is guilty of communicating a
terroristic
felonious
threat. For the purposes of this
section, a substance or device includes
, but is not limited to, an
any
actual or
apparent
apparently
dangerous weapon, destructive device, dangerous chemical, biological agent, poison,
or harmful radioactive substance. A violation of this section is a Class 4 felony.
Section
282.
That
§
22-14A-25
be amended to read as follows:
22-14A-25.
Any person who intentionally possesses, transports, uses, or places any hoax
substance or hoax destructive device with the intent of causing anxiety, unrest, fear, or personal
discomfort is guilty of a
Class 5
Class 6
felony. A hoax substance is any substance that would
cause a person to reasonably believe that it is a dangerous chemical or biological agent, a
poison, a harmful radioactive substance, or a similar substance. A hoax destructive device is any
device that would cause a person to reasonably believe that it is a dangerous explosive or
incendiary device or a similar destructive device.
Section
283.
That
§
22-14A-26
be amended to read as follows:
22-14A-26.
The court may, after conviction or adjudication of any violation of
§§ 22-14A-
22 and 22-14A-24 to 22-14A-27, inclusive
§
22-11-9.2, 22-14A-24, or 22-14A-25
, conduct a
hearing to ascertain the extent of costs incurred, damages
,
and financial loss suffered by local,
county, or state public safety agencies, and the amount of property damage caused as a result
of the crime. A person found guilty of violating
§§ 22-14A-22 and 22-14A-24 to 22-14A-27,
inclusive
§
22-11-9.2, 22-14A-24, or 22-14A-25
, may upon conviction, be ordered to make
restitution to the local, county, or state public service agency for any cost incurred, damages
,
and
financial loss or property damage sustained as a result of the commission of the crime.
Section
284.
That
§
22-14A-27
be amended to read as follows:
22-14A-27.
The provisions of
§§ 22-14A-22 and 22-14A-24 to 22-14A-27, inclusive,
§
22-
11-9.2, 22-14A-24, or 22-14A-25
may not be construed to create any cause of action against any
person based upon or arising out of any act or omission relating to any good faith response to
a
terrorist act
felonious threat
or an attempted
terrorist act
felonious threat
.
Section
285.
That
§
22-25-3
be repealed.
22-25-3.
Any person who persuades another to visit any place used or occupied for the
purpose of gambling in consequence whereof such other person gambles therein commits a petty
offense, and in addition to any amount awarded therefor is liable to such other person in an
amount equal to any money or property lost by him at play at such place, to be recovered in a
civil action.
Section
286.
That
§
22-27-1
be amended to read as follows:
22-27-1.
Any person who, by threats or violence, intentionally prevents another person from
performing any lawful act enjoined upon or recommended
to such person
by the religion which
he
such person
professes is guilty of a Class 1 misdemeanor.
Section
287.
That
§
22-27-2
be amended to read as follows:
22-27-2.
Any person who intentionally attempts, by
means of
threats or violence, to compel
another person to adopt, practice, or profess any particular form of religious belief is guilty of
a Class 1 misdemeanor.
Section
288.
The code counsel shall transfer
§
§
22-27-1 and 22-27-2 to chapter 22-19B and
shall renumber the sections accordingly and adjust all appropriate cross references.
Section
289.
That
§
22-35-5
be amended to read as follows:
22-35-5.
Any person who, knowing that he
or she
is not privileged to do so, enters or
surreptitiously
remains in any building or structure
surreptitiously
, is guilty of
criminal trespass.
Criminal trespass is
a Class 1 misdemeanor.
Section
290.
That
§
22-35-6
be amended to read as follows:
22-35-6.
Any person who, knowing that he
or she
is not privileged to do so, enters or
remains in any place where notice against trespass is given by:
(1)
Actual communication to the
actor
person who subsequently commits the trespass
;
(2)
Posting in a manner reasonably likely to come to the attention of
intruders
trespassers
; or
(3)
Fencing or other enclosure which a reasonable person would recognize as being
designed to exclude
intruders
trespassers
;
is guilty of a Class 2 misdemeanor
, but if he
. However, if such trespasser
defies an order to
leave
,
personally communicated to him
or her
by the owner of the premises or by any other
authorized person,
he
the trespasser
is guilty of
criminal trespass, which is
a Class 1
misdemeanor.
Section
291.
That
§
22-35-7
be amended to read as follows:
22-35-7.
It
shall be
is
an affirmative defense
to prosecution
under §§ 22-35-5
and
or
22-35-6
that:
(1)
The premises were at the time open to members of the public and the
actor
person
complied with all lawful conditions imposed
on
concerning
access to or
the privilege
of
remaining on the premises; or
(2)
The
actor
person
reasonably believed that the owner of the premises, or other person
permitted to license access
thereto
to the premises
, would have permitted him
or her
to enter or remain.
Section
292.
The code counsel shall rename chapter 22-35 as Criminal Trespass.
Section
293.
That
§
22-40-1
be amended to read as follows:
22-40-1.
Notwithstanding § 22-11-8, a
No
person
who impersonates another
may
impersonate any other person
, with intent to deceive a law enforcement officer
,
. Any person
who violates the provisions of this section
is guilty of a Class 1 misdemeanor.
Section
294.
The code counsel shall rename chapter 22-40 as Identity Crimes.
Section
295.
The code counsel shall transfer
§
§
22-47-1, 22-47-2, and 22-47-3 to Title 37
and shall renumber the sections accordingly and adjust all appropriate cross references.
Section
296.
That
§
22-43-1
be amended to read as follows:
22-43-1.
Any person who confers, or agrees to confer, directly or indirectly, any benefit
upon any employee, agent
,
or fiduciary without the consent of the latter's employer or principal,
with intent to influence the employee's, agent's, or fiduciary's conduct in relation to
his
that
person's
employer's or principal's affairs, is guilty of commercial bribery. Commercial bribery
is a Class 1 misdemeanor.
Section
297.
That
§
22-43-2
be amended to read as follows:
22-43-2.
An
Any
employee, agent, or fiduciary who, without consent of
his
that person's
employer or principal, solicits, accepts, or agrees to accept any benefit, directly or indirectly,
from another person upon an agreement or understanding that such benefit will influence his
or
her
conduct in relation to
his
that person's
employer's or principal's affairs, is guilty of receiving
a commercial bribe. Receiving a commercial bribe is a Class 1 misdemeanor.
Section
298.
That
§
22-24-1.1
be amended to read as follows:
22-24-1.1.
A person commits the crime of public indecency if the person,
with an immoral
purpose
under circumstances in which that person knows that his or her conduct is likely to
annoy, offend, or alarm some other person
, exposes his or her anus or genitals in a public place
where another may be present who will be
annoyed,
offended
,
or alarmed by the person's act.
A violation of this section is a Class 2 misdemeanor.
Section
299.
That
§
22-24-1.2
be amended to read as follows:
22-24-1.2.
A person commits the crime of indecent exposure if, with the intent to arouse or
gratify the sexual desire of any person, the person exposes his or her genitals in a public place
under circumstances in which that person knows that person's conduct is likely to annoy, offend,
or alarm another person. A violation of this section is a Class 1 misdemeanor. However, if such
person has been previously convicted of a felony violation of § 22-22-1, 22-22-7, 22-22-19.1,
or
22-22-23
22-22-24.2
, that person is guilty of a Class 6 felony. Any person convicted of a third
or subsequent violation of
either
this section
or of former § 22-24-1
is guilty of a Class 6 felony.
Section
300.
That
§
22-24-1.3
be amended to read as follows:
22-24-1.3.
If any person, eighteen years of age or older,
with the intent to arouse or gratify
the sexual desire of any person,
exposes his or her genitals
in a public place
under circumstances
in which that person knows that his or her conduct is likely to annoy, offend, or alarm some
other person, and that conduct is viewed by and does, in fact, annoy, offend, or alarm any
child,
thirteen years of age or younger, that person is guilty of the crime of
aggravated
indecent
exposure
involving a child
.
Aggravated indecent
Indecent
exposure
involving a child
is a
Class
1 misdemeanor
Class 6 felony
. A second or subsequent conviction for
aggravated
indecent
exposure
involving a child
is a
Class 6
Class 5
felony.
Section
301.
That
§
22-24-8
be repealed.
22-24-8.
No person shall have in his possession or under his control any vending machine
or means so designed and constructed as to contain and hold any prophylactic and to release the
same upon the deposit therein of a coin or other thing of value in a place to which minors have
lawful access. As used in this section prophylactic means any article or device intended or
having special utility for preventing pregnancy or venereal disease. A violation of this section
is a Class 2 misdemeanor.
Section
302.
That
§
22-24-25.1
be amended to read as follows:
22-24-25.1.
A
Any
county or municipality may provide, by ordinance, for a contemporary
community standards test to regulate the sale, distribution, and use of obscene material and to
regulate obscene live conduct in any commercial establishment or public place within its
jurisdiction.
Section
303.
That
§
22-24-27
be amended to read as follows:
22-24-27.
Terms used in §§ 22-24-25 to 22-24-37, inclusive, mean:
(1)
"Contemporary community standard," the contemporary community standard of the
state in which the question of obscenity is to be tested, by the average person, of the
state;
(2)
"Distributed," to transfer possession of, whether with or without consideration;
(3)
"Exhibit," to show or display;
(4)
"Harmful to minors," includes in its meaning the quality of any material or of any
performance or of any description or representation, in whatever form, of nudity,
sexual conduct, sexual excitement, or sado-masochistic abuse,
when
if
it:
(a)
Predominantly appeals to the prurient, shameful, or morbid interest of minors;
and
(b)
Is patently offensive to prevailing standards in the adult community as a whole
with respect to what is suitable material for minors; and
(c)
Is without serious literary, artistic, political, or scientific value;
(5)
"Magistrate,"
a judge of the
any
circuit court or magistrate
judge
;
(6)
"Material," anything tangible which is harmful to minors, whether derived through
the medium of reading, observation, or sound;
(7)
"Matter" or "material," any book, magazine, newspaper, or other printed or written
material; or any picture, drawing, photograph, motion picture, or other pictorial
representation; or any statue or other figure; or recording, transcription or
mechanical, chemical, or electrical reproduction; or any other articles, equipment,
machines, or materials;
(8)
"Minor," any person less than eighteen years of age;
(9)
"Nudity," within the meaning of subdivision (4) of this section, the showing of the
human male or female genitals, pubic area, or buttocks with less than a full opaque
covering, or the showing of the female breast with less than a full opaque covering
or any portion thereof below the top of the nipple, or the depiction of covered male
genitals in a discernibly turgid state;
(10)
"Obscene live conduct," any physical human body activity, whether performed or
engaged in alone or with other persons, including singing, speaking, dancing, acting,
simulation, or pantomiming, where:
(a)
The dominant theme of such conduct, taken as a whole, appeals to a prurient
interest;
(b)
The conduct is patently offensive because it affronts contemporary community
standards relating to the description or representation of sexual matters; and
(c)
The conduct is without serious literary, artistic, political, or scientific value.
In prosecutions under §§ 22-24-27 to 22-24-37, inclusive, if circumstances of
production, presentation, advertising, or exhibition indicate that live conduct is being
commercially exploited by the defendant for the sake of its prurient appeal, such
evidence is probative with respect to the nature of the conduct;
(11)
"Obscene material," material:
(a)
The dominant theme of which, taken as a whole, appeals to the prurient
interest;
(b)
Which is patently offensive because it affronts contemporary community
standards relating to the description or representation of sado-masochistic
abuse or sexual conduct; and
(c)
Lacks serious literary, artistic, political, or scientific value.
In prosecutions under §§ 22-24-27 to 22-24-37, inclusive, if circumstances of
production, presentation, sale, dissemination, or publicity indicate that the matter is
being commercially exploited by the defendant for the sake of its prurient appeal,
such evidence is probative with respect to the nature of the matter;
(12)
"Prurient interest," a shameful or morbid interest in nudity, sex, or excretion, which
goes substantially beyond customary limits of candor in description or representation
of such matters. If it appears from the character of the material or the circumstances
of its dissemination that the subject matter is designed for a specially susceptible
audience or clearly defined deviant sexual group, the appeal of the subject matter
shall be judged with reference to such audience or group;
(13)
"Sado-masochistic abuse," flagellation or torture by or upon a person who is nude or
clad in undergarments, a mask or bizarre costume, or the condition of being fettered,
bound, or otherwise physically restrained on the part of one who is nude or so
clothed;
(14)
"Sexual conduct," within the meaning of subdivision (4) of this section, any act of
masturbation, homosexuality, sexual intercourse, or physical contact with a person's
clothed or unclothed genitals, pubic area, buttocks, or if such person be a female, the
breast;
(15)
"Sexual excitement," the condition of human male or female genitals when in a state
of sexual stimulation or arousal.
Section
304.
That
§
22-24-29
be amended to read as follows:
22-24-29.
A person is guilty of disseminating material harmful to minors
when he
if that
person
knowingly gives or makes available to a minor or promotes or possesses with intent to
promote to minors, or
he
if that person
knowingly sells or loans to a minor for monetary
consideration any material described in subdivision § 22-24-27(4).
Section
305.
That
§
22-24-29.1
be amended to read as follows:
22-24-29.1.
It is unlawful for any
No
person
may
knowingly
to
distribute, display, sell, or
exhibit for sale in any public place any magazine, book, or newsprint displaying or containing
obscene material on
the
its
cover
thereof
or material unless
said
the
magazine, book, or
newsprint is wrapped and sealed so that no more than
the
its
title, name, price, or date
thereof
is exposed to the public and
said
the
magazine, book, or newsprint cannot be viewed or
examined without breaking the seal, wrapping, or covering.
A
Any
person who violates this
section is guilty of a Class 1 misdemeanor.
Section
306.
That
§
22-24-30
be amended to read as follows:
22-24-30.
A person is guilty of disseminating material harmful to minors
when
if
, with
reference to a motion picture, show, or other presentation which depicts nudity, sexual conduct,
or sado-masochistic abuse, and which is harmful to minors,
he
that person
knowingly:
(1)
Exhibits such motion picture, show, or other presentation to a minor;
(2)
Sells or gives to a minor an admission ticket or pass to premises whereon there is
exhibited such motion picture, show, or other presentation; or
(3)
Admits a minor for a monetary consideration to premises whereon there is exhibited
or to be exhibited such motion picture, show, or other presentation.
Section
307.
That
§
22-24-31
be amended to read as follows:
22-24-31.
In any prosecution for disseminating material harmful to minors, it is an
affirmative defense that:
(1)
The defendant had reasonable cause to believe that the minor involved was eighteen
years old or more. A draft card, driver's license, birth certificate, or other official or
apparently official document is evidence establishing that the minor was eighteen
years of age or older;
(2)
The minor involved was accompanied by
his
a
parent or guardian, or by an adult and
the adult represented that he
or she
was the minor's parent or guardian or an adult and
the adult
signed a written statement to that effect;
(3)
The defendant was the parent or guardian of the minor involved; or
(4)
The defendant was a bona fide school, college, university, museum, or public library,
or was acting in
his
the
capacity
as
of
an employee of such an organization or a retail
outlet affiliated with and serving the educational purposes of such an organization.
Section
308.
That
§
22-24-32
be amended to read as follows:
22-24-32.
A person is guilty of a Class 1 misdemeanor
when he
if that person
knowingly
misrepresents that he
or she
is a parent or guardian of a minor for the purpose of obtaining
admission of any minor to any motion picture, show, or other presentation which is harmful to
minors.
Section
309.
That
§
22-24-33
be amended to read as follows:
22-24-33.
A minor is guilty of a Class 2 misdemeanor if
he
that minor
misrepresents his
or
her
age for the purpose of obtaining admission to any motion picture, show, or other
presentation which is harmful to minors.
Section
310.
That
§
22-24-34
be amended to read as follows:
22-24-34.
If more than one article or item of material prohibited under §§ 22-24-27 to 22-
24-37, inclusive, is sold, given, advertised for sale, distributed commercially, or promoted,
in
violation of the provisions of said sections
by the same person, after a hearing and determination
that probable cause exists to believe such article or material is harmful to minors
,
each such
sale, gift, advertisement, distribution, or promotion
shall constitute
constitutes
a separate
offense.
Section
311.
That
§
22-24-37
be amended to read as follows:
22-24-37.
Sections 22-24-27
The provisions of
§
§
22-24-27
to 22-24-37, inclusive,
shall
do
not apply to any persons who may possess or distribute obscene matter or participate in conduct,
otherwise proscribed by
said
those
sections,
when
if
such possession, distribution, or conduct
occurs:
(1)
In the course of law enforcement and judicial activities;
(2)
In the course of bona fide school, college, university, museum, or public library
activities or in the course of employment of such an organization or retail outlet
affiliated with and serving the educational purposes of such an organization; or
(3)
In the course of employment as a moving picture machine operator, or assistant
operator, in a motion picture theater in connection with a motion picture film or show
exhibited in such theater if such operator or assistant operator has no financial
interest in the motion picture theater wherein
he
that operator or assistant operator
is so employed other than
his
wages received or owed;
or like circumstances of justification
where
if
the possession, distribution, or conduct is not
limited to the subject matter's appeal to prurient interests.
Section
312.
That
§
22-24-55
be amended to read as follows:
22-24-55.
Any public school that provides a public access computer shall do one or both of
the following:
(1)
Equip the computer with software that will limit minors' ability to gain access to
obscene materials or purchase internet connectivity from an internet service provider
that provides filter services to limit access to obscene materials;
or
(2)
Develop and implement
,
by January 1, 2001, a local policy that establishes measures
to restrict minors from computer access to obscene materials.
Section
313.
That
§
22-24-57
be amended to read as follows:
22-24-57.
Any
No
public school that complies with § 22-24-55 or any public library that
complies with § 22-24-56 may
not
be held liable for any damages that may arise from a minor
gaining access to obscene materials through the use of a public access computer that is owned
or controlled by the public school or public library.
Section
314.
That
§
22-24-58
be amended to read as follows:
22-24-58.
For the purposes of §§ 22-24-55 to 22-24-59,
inclusive,
obscene material is
defined pursuant to subdivision 22-24-27(11).
Section
315.
That
§
22-24-64
be amended to read as follows:
22-24-64.
Any of the following persons may bring an action for damages caused by another
person's conduct as proscribed by §§ 22-24-60 to 22-24-68, inclusive:
(1)
The victimized minor;
(2)
A
Any
parent, legal guardian, or sibling of a victimized minor; or
(3)
Any person injured as a result of the willful, reckless, or negligent actions of a person
who knowingly participated in conduct proscribed by §§ 22-24-60 to 22-24-68,
inclusive.
If the parent or guardian is named as a defendant in the action, the court shall appoint a
special guardian to bring the action on behalf of the minor.
Section
316.
That
§
22-24-66
be amended to read as follows:
22-24-66.
Any person entitled to bring an action under § 22-24-64 may recover
all of
the
following damages:
(1)
Economic damages, including the cost of treatment and rehabilitation, medical
expenses, loss of economic or educational potential, loss of productivity,
absenteeism, support expenses, accidents or injury, and any other pecuniary loss
proximately caused by the proscribed conduct;
(2)
Noneconomic damages, including physical and emotional pain, suffering, physical
impairment, emotional distress, mental anguish, disfigurement, loss of enjoyment,
loss of companionship, services, and consortium, and other nonpecuniary losses
proximately caused by the proscribed conduct;
(3)
Exemplary damages;
(4)
Attorneys' fees; and
(5)
Disbursements.
Section
317.
That
§
22-11A-1
be amended to read as follows:
22-11A-1.
The term, prisoner,
when
as
used in this chapter, includes every person who is
in custody by being under arrest or by being under process of law issued from a court of
competent jurisdiction, whether civil or criminal. A prisoner at the time of
his
escape need not
be in a place designated for the keeping of prisoners.
The term, escape,
when
as
used in this chapter
,
includes
means the
departure without lawful
authority or
the
failure to return to custody following
a
an assignment or
temporary leave
granted for a specific purpose or limited period.
Section
318.
That
§
22-11A-2
be amended to read as follows:
22-11A-2.
Any
prisoner who escapes is guilty of
escape by a prisoner constitutes first degree
escape if the prisoner effects the escape:
(1) By means of the use or threat of violence; or
(2) From physical confinement in a correctional facility; or
(3) From the immediate custody of a law enforcement officer or Department of
Corrections employee.
First degree escape is
a Class 4 felony.
Section
319.
That chapter
22-11A
be amended by adding thereto a NEW SECTION to read
as follows:
Any escape by a prisoner constitutes second degree escape if the prisoner effects the escape
by means of failure to return to custody following an assignment or temporary leave granted for
a specific purpose or limited period. Second degree escape is a Class 5 felony.
Section
320.
That
§
22-11A-3
be repealed.
22-11A-3.
Any law enforcement officer or person having custody of a prisoner who
negligently allows a prisoner to escape or go at large, except as permitted by law, is guilty of a
Class 1 misdemeanor.
Section
321.
That
§
22-11A-4
be amended to read as follows:
22-11A-4.
If a prisoner escapes, the person from whose custody
he
that prisoner
escaped
may immediately pursue and retake
him
that prisoner
at any time and in any place in the state.
To retake a prisoner, the person pursuing may, after notice of
his
intention and refusal of
admittance, break open an outer or inner door or window of a dwelling house or other structure.
Section
322.
That
§
22-11A-5
be amended to read as follows:
22-11A-5.
Any person who
knowingly
conceals any prisoner
who
knowing that the prisoner
has escaped is guilty of a Class 5 felony.
Section
323.
The code counsel shall transfer
§
§
22-11A-6 and 22-11A-7 to an appropriate
chapter in Title 24 and shall renumber the sections accordingly and adjust all appropriate cross
references.
Section
324.
That
§
22-11A-7
be amended to read as follows:
22-11A-7.
In order to obtain reimbursement pursuant to § 22-11A-6, the
chairman
chair
of
the board of county commissioners of the county shall present a claim on a voucher to be
approved by the secretary of corrections for all of the actual expenses paid by the county. When
the voucher is presented to the state auditor,
he
the state auditor
shall examine it and
,
if the
claim is just and valid,
he
the state auditor
shall issue a warrant for payment to be made from
funds appropriated for that purpose, and the state treasurer shall then pay the sum to the
treasurer of the county.
Section
325.
That
§
22-11A-8
be repealed.
22-11A-8.
A conviction under § 22-11A-2 as a result of an escape from Department of
Corrections custody shall be punished by a mandatory sentence in the state penitentiary of not
less than seven years, which may not be suspended. Probation or suspended execution of
sentence may not form the basis for reducing the mandatory time of incarceration required by
this section.
Section
326.
That
§
22-11A-9
be repealed.
22-11A-9.
A penitentiary sentence arising from a conviction under § 22-11A-8 may not
commence until the expiration, with no allowance of good time, of the last sentence of
imprisonment.
Section
327.
That
§
22-11A-10
be repealed.
22-11A-10.
Any inmate sentenced under § 22-11A-8 shall serve the entire term of the
inmate's sentence and is not eligible for parole release as authorized under chapter 24-15A.
Section
328.
The code counsel shall rename chapter 22-11A, Escape.
Section
329.
That
§
22-12A-1
be amended to read as follows:
22-12A-1.
Any person who gives, or agrees or offers to give, any gratuity or reward in
consideration that
he
that person
or any other person
shall
be appointed to any public office, or
shall
be permitted to exercise, perform
,
or discharge the prerogatives or duties of any public
office
,
is guilty of a Class 1 misdemeanor.
Section
330.
That
§
22-12A-2
be amended to read as follows:
22-12A-2.
Any person who, directly or indirectly, asks or receives any consideration for
appointing another person or procuring the employment of another person in any public office,
or for permitting or agreeing to permit any other person to exercise any of the prerogatives or
duties of a public office
which the actor holds
, is guilty of a Class 1 misdemeanor.
Section
331.
That
§
22-12A-3
be amended to read as follows:
22-12A-3.
Any appointment or employment to a public office made contrary to § 22-12A-1
or 22-12A-2 is void
, but official acts
. However, no official act
performed prior to conviction of
any offense prohibited by such sections
are not
is
invalid.
Section
332.
That
§
22-12A-4
be amended to read as follows:
22-12A-4.
Any person who gives
,
or offers to give
,
a bribe to any member of the Legislature,
or attempts
,
directly or indirectly
,
by menace, deceit, suppression of truth, or any other corrupt
means, to influence a member
in giving
to give
or
withholding his
to withhold the member's
vote, or
in not attending
to not attend
the
branch of which he is a member
legislative session
,
or any committee thereof, is guilty of a Class 4 felony.
Section
333.
That
§
22-12A-5
be amended to read as follows:
22-12A-5.
Any member of the Legislature who asks, receives, or agrees to receive any bribe
upon any understanding that
his
the member's
official vote, opinion, judgment, or action
shall
be influenced thereby, or
shall be
who is
given
any bribe
in any manner upon any particular side
of any question or matter upon which
he
the member
may be required to act in
his
an
official
capacity, is guilty of a Class 4 felony.
Section
334.
That
§
22-12A-6
be amended to read as follows:
22-12A-6.
Any person who gives or offers a bribe to a public officer or employee with intent
to influence
him
the officer or employee
in respect to any act, decision, vote, opinion, or other
proceeding
for
which the officer or employee is responsible
for
, is guilty of a Class 4 felony.
Section
335.
That
§
22-12A-7
be amended to read as follows:
22-12A-7.
Any public officer or employee, who asks, receives, or agrees to receive a bribe
upon an agreement or understanding that his
or her
vote, opinion, or action upon any matter then
pending, or which may by law be brought before him
or her
in
his
a
public capacity,
may
be
influenced thereby, is guilty of a Class 4 felony.
Section
336.
That
§
22-12A-8
be amended to read as follows:
22-12A-8.
Any public officer or employee who asks or receives any fee or consideration for
any official service which has not been rendered, except charges for prospective costs or fees
demandable in advance
when
, if
allowed by law, or who asks or receives any emolument,
gratuity, reward, or other consideration excepting as authorized by law, for doing any official
act, is guilty of a Class 1 misdemeanor.
Section
337.
That
§
22-12A-10
be amended to read as follows:
22-12A-10.
Any
The public office of any
public officer or employee who is convicted of
violating any provision contained in this chapter
shall
is
forfeit
his public office and
. Moreover,
such public officer or employee
is forever disqualified from holding any public office in this
state.
Section
338.
That
§
22-12A-11
be amended to read as follows:
22-12A-11.
Any person who:
(1)
Gives or offers to give a bribe to any judicial officer or juror or to any person who
may be authorized by law to hear or determine any question or controversy, with
intent to influence
his
that person's
vote, opinion
,
or decision upon any matter or
question which is or may be brought before
him
that person
for decision; or
(2)
While acting as a judicial officer or juror
,
asks, receives or agrees to receive a bribe
upon any agreement or understanding that
his
that person's
vote, opinion
,
or decision
upon any matter or question which is or may be brought before
him
that person
for
decision shall be influenced thereby,
is guilty of a Class 4 felony.
In addition
to the prescribed punishment, a
, the office of any
judicial officer convicted under
subdivision (2) of this section
forfeits his office and is permanently
is forfeit. Moreover, such
judicial officer is forever
disqualified from holding any public office under this state.
Section
339.
That
§
22-46-1
be amended to read as follows:
22-46-1.
Terms used in this chapter mean:
(1)
"Abuse," physical harm, bodily injury, or attempt to cause physical harm or injury,
or the infliction of fear of imminent physical harm or bodily injury on a disabled
adult;
(2)
"Disabled adult," a person eighteen years of age or older who suffers from a
condition of mental retardation, infirmities of aging as manifested by organic brain
damage, advanced age
,
or other physical dysfunctioning to the extent that the person
is unable to protect himself
or herself
or provide for his
or her
own care;
(3)
"Exploitation," the wrongful taking or exercising of control over property of a
disabled adult with intent to defraud
him of it
that disabled adult
; and
(4)
"Neglect," harm to a disabled adult's health or welfare, without reasonable medical
justification, caused by the conduct of a person responsible for the adult's health or
welfare, within the means available for the disabled adult, including the failure to
provide adequate food, clothing, shelter, or medical care.
If a disabled adult is under
treatment solely by spiritual means, the court may, upon good cause shown, order
that medical treatment be provided for that disabled adult.
Section
340.
That chapter
34-12
be amended by adding thereto a NEW SECTION to read
as follows:
If a disabled adult is under treatment solely by spiritual means, the court may, upon good
cause shown, order that medical treatment be provided for that disabled adult.
Section
341.
That
§
22-46-2
be amended to read as follows:
22-46-2.
Any person who abuses or neglects a disabled adult in a manner which does not
constitute aggravated assault
, but excluding subdivisions 22-18-1(2) and (4),
is guilty of a Class
6 felony.
Section
342.
That
§
22-46-3
be amended to read as follows:
22-46-3.
Any person who, having assumed the duty by written contract, by receipt of
payment for care, or by order of a court to provide for the support of a disabled adult
,
and having
been entrusted with the property of that disabled adult, with intent to defraud, appropriates such
property to a use or purpose not in the due and lawful execution of
his
that person's
trust, is
guilty of theft by exploitation. Theft by exploitation is punishable
pursuant to the provisions of
§ 22-30A-17
as theft pursuant to chapter 22-30A
.
Section
343.
That
§
22-46-6
be amended to read as follows:
22-46-6.
Any institution regulated pursuant to chapter 34-12 and any employee, agent, or
member of a medical or dental staff thereof who, in good faith, makes a report of abuse,
exploitation, or neglect of a disabled adult, is immune from any liability, civil or criminal, that
might otherwise be incurred or imposed, and has the same immunity with respect to
participation in any judicial proceeding resulting from such report.
Immunity
This immunity
also extends in a like manner to
any
public
officials
official
involved in the investigation of
abuse, exploitation, or neglect of
any
disabled
adults
adult
, or to any person or institution
provided herein who in good faith cooperates with such public officials in an investigation. The
provisions of this section
may
do
not
be extended
extend
to any person alleged to have
committed any act of abuse or neglect of a disabled adult.
Section
344.
The code counsel shall transfer
§
22-46-6 to chapter 34-12 and shall renumber
the section accordingly and adjust all appropriate cross references.
Section
345.
That
§
22-10-1
be amended to read as follows:
22-10-1.
Any use of force or violence or any threat to use force or violence
,
if accompanied
by immediate power of execution, by three or more persons
,
acting together and without
authority of law, is riot. Riot is a Class 4 felony.
Section
346.
That chapter
22-10
be amended by adding thereto a NEW SECTION to read
as follows:
There is no offense of attempted riot or attempted aggravated riot.
Section
347.
That
§
22-10-6
be amended to read as follows:
22-10-6.
Any person who
participated
participates
in any riot
,
and who
directed, advised,
encouraged, or solicited
directs, advises, encourages, or solicits
other persons
who participated
participating
in the riot to acts of force or violence
,
is guilty of a Class 2 felony.
Section
348.
That
§
22-10-6.1
be amended to read as follows:
22-10-6.1.
Any person who
directed, advised, encouraged, or solicited
does not personally
participate in any riot but who directs, advises, encourages, or solicits
other persons
who
participated
participating
in
a
the
riot to acts of force or violence
, but who himself did not
participate in such riot
is guilty of a Class 5 felony.
Section
349.
That
§
22-10-9
be amended to read as follows:
22-10-9.
Any person who assembles with two or more persons for the purpose of engaging
in conduct constituting riot or aggravated riot or who,
if
being present at an assembly that either
has or develops such a purpose, remains there
,
with intent to advance that purpose
,
is guilty of
unlawful assembly. Unlawful assembly is a Class 1 misdemeanor.
There is no offense of attempted riot or attempted aggravated riot.
Section
350.
That
§
22-10-11
be amended to read as follows:
22-10-11.
Any person who, during a riot or unlawful assembly, intentionally disobeys a
reasonable public safety order to move, disperse, or refrain from specified activities in the
immediate vicinity of the riot, is guilty of a Class 1 misdemeanor. A public safety order is
an
any
order
designed
, the purpose of which is
to prevent or control disorder
,
or promote the safety
of persons or property, issued by a law enforcement officer or a member of the fire or military
forces concerned with the riot or unlawful assembly.
Section
351.
The code counsel shall transfer
§
22-10-13 to chapter 1-7 and shall renumber
the section accordingly and adjust all appropriate cross references.
Section
352.
That
§
22-10-14
be amended to read as follows:
22-10-14.
Terms used in §§ 22-10-14 to 22-10-16, inclusive, mean:
(1)
"Street gang,"
a
any
formal or informal ongoing organization, association, or group
of three or more persons who have a common name or common identifying signs,
colors, or symbols and have members or associates who, individually or collectively,
engage in or have engaged in a pattern of street gang activity;
(2)
"Street gang member,"
a
any
person who engages in a pattern of street gang activity
and who meets two or more of the following criteria:
(a)
Admits to gang membership;
(b)
Is identified as a gang member by a documented reliable informant;
(c)
Resides in or frequents a particular gang's area and adopts its style of dress, its
use of hand signs or its tattoos and associates with known gang members;
(d)
Is identified as a gang member by an informant of previously untested
reliability if such identification is corroborated by independent information;
(e)
Has been arrested more than once in the company of identified gang members
for offenses which are consistent with usual gang activity;
(f)
Is identified as a gang member by physical evidence, such as photographs or
other documentation; or
(g)
Has been stopped in the company of known gang members four or more times;
and
(3)
"Pattern of street gang activity," the commission, attempted commission, or
solicitation by any member or members of a street gang of two or more felony or
violent misdemeanor offenses on separate occasions within a three-year period for
the purpose of furthering gang activity.
Section
353.
That
§
22-10-15
be amended to read as follows:
22-10-15.
The penalty for conviction of any
felony or violent misdemeanor charge
offense
shall be reclassified
as follows
to the next highest classification in the penalty schedule
if the
commission of such
felony or misdemeanor
offense
is part of a pattern of street gang activity
:
(1)
A Class 2 misdemeanor shall be punishable as if it were a Class 1 misdemeanor;
(2)
A Class 1 misdemeanor shall be punishable as if it were a Class 6 felony; and
(3)
The penalty for any felony shall be enhanced by changing the class of the felony to
the next class which is more severe
.
Section
354.
That
§
22-10-16
be amended to read as follows:
22-10-16.
An allegation that a defendant is a street gang member
must
shall
be filed as a
separate information at the time of, or before,
his
arraignment. The separate information
must
shall
state those criteria, as
outlined
set forth
in subdivision 22-10-14(2), which allegedly
identify the defendant
as a street gang member
,
and
must
shall
be signed by the prosecutor.
Section
355.
The code counsel shall transfer
§
§
22-10-14, 22-10-15, and 22-10-16, to a new
chapter entitled, Street Gang Activity, and shall renumber the sections accordingly and adjust
all appropriate cross references.
Section
356.
That
§
22-1-1
be amended to read as follows:
22-1-1.
The rule of the common law that penal statutes are to be strictly construed has no
application to this title. All its criminal and penal provisions and all penal statutes
are to
shall
be construed according to the fair import of their terms, with a view to effect their objects and
promote justice.
Section
357.
That
§
22-1-2
be amended to read as follows:
22-1-2.
Terms used in this title mean:
(1)
If applied to the intent with which an act is done or omitted:
(a)
The words
,
"malice, maliciously
,
" and all derivatives thereof import a wish to
intentionally vex, annoy, or injure another person, established either by proof
or presumption of law;
(b)
The words
,
"intent, intentionally
,
" and all derivatives thereof, import a specific
design to cause a certain result or,
when
if
the material part of a charge is the
violation of a prohibition against conduct of a certain nature, regardless of
what the offender intends to accomplish thereby, a specific design to engage
in conduct of that nature;
(c)
The words
,
"knowledge, knowingly
,
" and all derivatives thereof, import only
a knowledge that the facts exist which bring the act or omission within the
provisions of any statute. A person has knowledge
when he
if that person
is
aware that the facts exist which bring the act or omission within the provisions
of any statute.
It does not require knowledge
Knowledge
of the unlawfulness
of such act or omission
is not required
;
(d)
The words
,
"reckless, recklessly
,
" and all derivatives thereof, import a
conscious and unjustifiable disregard of a substantial risk that the offender's
conduct may cause a certain result or may be of a certain nature. A person is
reckless with respect to circumstances
when he
if that person
consciously and
unjustifiably disregards a substantial risk that such circumstances may exist;
(e)
The words
,
"neglect, negligently
,
" and all words derived thereof, import a
want of attention to the nature or probable consequences of an act or omission
which a prudent
man
person
ordinarily bestows in acting in his
or her
own
concerns;
(f)
If the section defining an offense provides that negligence suffices to establish
an element thereof, then recklessness, knowledge, intent
,
or malice also
constitutes sufficient culpability for such element. If recklessness suffices to
establish an element of the offense, then knowledge, intent or malice also
constitutes sufficient culpability for such element. If knowledge suffices to
establish an element of an offense, then intent or malice also constitutes
sufficient culpability for such element. If intent suffices to establish an
element of an offense, then malice also constitutes sufficient culpability for
such element;
(2)
"Actor," the person who takes the active part in a transaction;
(3)
"Affirmative defense," an issue involving an alleged defense to which, unless the
state's evidence raises the issue, the defendant, to raise the issue, must present some
credible evidence. If the issue involved in an affirmative defense is raised, then the
guilt of the defendant must be established beyond a reasonable doubt as to that issue
as well as all other elements of the offense;
(4)
"Antique firearm," any firearm, including any firearm with a matchlock, flintlock,
percussion cap or similar type of ignition system, manufactured before 1899, and any
replica of any firearm described in this section if such replica is not designed or
redesigned for using rimfire or conventional centerfire fixed ammunition or if it uses
rimfire or conventional centerfire fixed ammunition which is no longer manufactured
in the United States and which is not readily available in the ordinary channels of
commercial trade;
(5)
"Check,"
a
any
check, draft, order or other commercial device which orders a
financial institution to pay a sum certain of money on its presentment;
(6)
"Concealed," any firearm that is totally hidden from view. If any part of the firearm
is capable of being seen, it is not concealed;
(7)
"Consideration," any type of property or thing of legal value, whether delivered in the
past, present or to be delivered in the future. The term includes an unfulfilled promise
to deliver. The term may include an advantage or benefit to the promisor or a loss or
detriment to the promisee. Any amount, advantage or inconvenience, no matter how
trifling, is sufficient to constitute consideration;
(8)
"Controlled weapon" includes
a
any
firearm silencer, machine gun, or short shotgun,
as those terms are defined in subdivisions (17), (23), and (46) of this section;
(9)
"Crime of violence," any of the following crimes or an attempt to commit, or a
conspiracy to commit, any of the
same
following crimes
: murder, manslaughter, rape,
criminal pedophilia,
aggravated assault, riot, robbery, burglary in the first
or second
degree, arson, kidnapping, felony sexual contact as defined in §§ 22-22-7 and 22-22-
19.1, felony child abuse as defined in § 26-10-1, or any other felony in the
commission of which the perpetrator used force, or was armed with a dangerous
weapon, or used any explosive or destructive device;
(10)
"Dangerous weapon" or "deadly weapon," any firearm,
stun gun,
knife
,
or device,
instrument, material
,
or substance, whether animate or inanimate, which is calculated
or designed to inflict death or serious bodily harm, or by the manner in which it is
used is likely to inflict death or serious bodily harm;
(11)
"Dealer in stolen property,"
a
any
person who:
(a)
Is found in possession or control of property stolen from two or more persons
on separate occasions; or
(b)
Has received stolen property in another transaction within the year preceding
the commencement of the prosecution; or
(c)
Trades in property similar to the type of stolen property received and acquires
such property for a consideration which
he
that person
knows is substantially
below its reasonable value;
(12)
"Deprive," to take or to withhold property of another or to dispose of property of
another so as to make it unlikely that the owner will receive it;
(13)
"Destructive device,"
(a)
Any bomb, grenade, explosive missile, or similar device or any launching
device therefor; or
(b)
Any breakable container which contains a flammable liquid with a flashpoint
of one hundred and fifty degrees Fahrenheit or less and has a wick or similar
device capable of being ignited;
(c)
The term does not include "permissible fireworks
,
" defined by § 34-37-5; any
device which is neither designed nor redesigned for use as a weapon; any
device, although originally designed for use as a weapon, which is redesigned
for use as a signaling, pyrotechnic, line throwing, safety or similar device;
surplus ordnance sold, loaned or given by the secretary of the army pursuant
to the provisions of 10 U.S.C. §§ 4684(2), 4685, or 4686; or any other device
which is an antique or is a rifle which the owner intends to use solely for
sporting purposes;
(14)
"Explosive," any substance, or combination of substances, that is used for the
purpose of detonation and which, upon exposure to any external or internal force or
condition, is capable of a relatively instantaneous release of gas and heat. The term
does not include "permissible fireworks
,
" as defined by § 34-37-5;
(15)
"Financial institution," a bank, insurance company, credit union, savings and loan
association, investment trust, or other organization held out to the public as a place
of deposit of funds or medium of savings or collective investment;
(16)
"Firearm," any weapon from which a projectile or projectiles may be discharged by
gunpowder. As used in this subdivision, the
word
term,
"
gunpowder
"
,
includes any
propellant that upon oxidization emits heat and light and is commonly used in
firearms cartridges;
(17)
"Firearm silencer," any instrument, attachment, weapon or appliance for causing the
firing of any gun, revolver, pistol, or other firearm to be silent, or intended to lessen
or muffle the noise of the firing of any such weapon;
(18)
"Government," the United States, any state, county, municipality, school district, or
other political unit, or any department, agency, or subdivision of any of the foregoing,
or any corporation or other association carrying out the functions of any of the
foregoing;
(19)
"Immediate family,"
any
spouse,
children, parents
child, parent
, or guardian of the
victim;
(20)
"Insanity," the condition of a person temporarily or partially deprived of reason, upon
proof that at the time of committing the act
charged against him, he
, the person
was
incapable of knowing its wrongfulness, but not including an abnormality manifested
only by repeated unlawful or antisocial behavior;
(21)
"Intoxication," a disturbance of mental or physical capacities resulting from the
introduction of substances into the body. Intoxication is not, in itself, a mental
disease or defect;
(22)
"Law enforcement officer,"
an
any
officer
, prosecutor,
or employee of the state or any
of its political subdivisions or of the United States, or, while on duty, an agent or
employee of a railroad or express company or security personnel of an airline or
airport, who is responsible for the prevention
or
,
detection
, or prosecution
of crimes,
for the enforcement of the criminal or highway traffic laws of the state, or for the
supervision of confined persons
convicted of a crime
;
(23)
"Machine gun," any firearm, whatever its size and usual designation, that
automatically discharges two or more cartridges by a single function of the firing
device;
(24)
"Mental illness,"
a
any
substantial psychiatric disorder of thought, mood or behavior
which affects a person at the time of the commission of the offense and which
impairs a person's judgment, but not to the extent that
he
the person
is incapable of
knowing the wrongfulness of
his
such
act. Mental illness does not include
abnormalities manifested only by repeated criminal or otherwise antisocial conduct;
(25)
"Moral turpitude," an act done contrary to justice, honesty, principle, or good morals,
as well as an act of baseness, vileness, or depravity in the private and social duties
which a person owes to his fellow man or to society in general;
(26)
"Motor vehicle,"
an
any
automobile, motor truck, motorcycle, house trailer, trailer
coach, cabin trailer, or any vehicle propelled by power other than muscular power;
(27)
"Obtain,"
(a)
In relation to property, to bring about a transfer or purported transfer of a legal
interest in the property, whether to the actor or another; or
(b)
In relation to labor or service, to secure performance thereof;
(28)
"Occupied structure," any structure:
(a)
Which is the permanent or temporary habitation of any person, whether or not
any person is actually present;
(b)
Which at the time is specially adapted for the overnight accommodation of any
person, whether or not any person is actually present; or
(c)
In which at the time any person is present;
(29)
"Offense" or "public offense,"
a
any
crime, petty offense, violation of a city or county
ordinance, or act prohibited by state or federal law;
(30)
"Pass," to utter, publish or sell or to put or send forth into circulation. The term
includes any delivery of a check to another for value with intent that it shall be put
into circulation as money;
(31)
"Person,"
a
any
natural person,
an
unborn child, association, limited liability
company, corporation, firm, organization, partnership
,
or society. If the term is used
to designate a party whose property may be the subject of a crime or petty offense,
it also includes the United States, any other country, this state, and any other state or
territory of the United States, and any of their political subdivisions, agencies, or
corporations;
(32)
"Pistol," any firearm with a barrel less than sixteen inches in length, designed to
expel a projectile or projectiles by the action of an explosive;
(33)
"Private place," a place where one may reasonably expect to be safe from casual or
hostile intrusion or surveillance, but does not include a place to which the public or
a substantial group thereof has access;
(34)
"Process,"
a
any
writ, warrant, summons, or order issued in the course of judicial
proceedings;
(35)
"Property," anything of value, including
,
but not limited to, motor vehicles, real
estate, tangible and intangible personal property, contract rights, choses-in-action
,
and other interests in or claims to wealth, admission or transportation tickets,
captured or domestic animals, food and drink, electric or other power, services, and
signatures which purport to create, maintain
,
or extinguish any legal obligation;
(36)
"Property of another," property in which any person other than the actor has an
interest upon which the actor is not privileged to infringe, regardless of the fact that
the actor also has an interest in the property and regardless of the fact that the other
person might be precluded from civil recovery because the property was used in an
unlawful transaction or was subject to forfeiture as contraband. Property in
possession of an actor
shall
may
not be deemed property of another who has only a
security interest therein, even if legal title is in the creditor pursuant to a conditional
sales contract or other security agreement;
(37)
"Public employee,"
anyone
any person
employed by the state or any of its political
subdivisions, who is not a public officer;
(38)
"Public office," the position held by a public officer or employee;
(39)
"Public officer,"
an individual
any person
who holds a position in the state
government or in any of its political subdivisions, by election or appointment, for a
definite period, whose duties are fixed by law, and who is invested with some portion
of the sovereign functions of government;
(40)
"Public record," any official book, paper, or record created, received, or used by or
in any office or agency of the state or of any of its political subdivisions;
(41)
"Publish," to disseminate, circulate or place before the public in any way, other than
by speech which is not mechanically or electronically amplified;
(42)
"Receive," to acquire possession, control or title, or to lend or borrow on the security
of the property;
(43)
"Service," labor that does not include a tangible commodity. The term includes, but
is not limited to: labor; professional advice; telephone, cable television and other
utility service; accommodations in hotels, restaurants or elsewhere; admissions to
exhibits and entertainments; the use of machines designed to be operated by coin or
other thing of value; and the use of rental property;
(44)
"Seller," any person or employee engaged in the business of selling pistols at retail;
(45)
"Short rifle,"
a
any
rifle having a barrel less than sixteen inches long, or an overall
length of less than twenty-six inches;
(46)
"Short shotgun,"
a
any
shotgun having a barrel less than eighteen inches long or an
overall length of less than twenty-six inches;
(47)
"Signature," any name, mark or sign written with intent to authenticate any
instrument or writing;
(48)
"Steal," to commit any act of theft;
(49)
"Structure," any house, building, outbuilding, motor vehicle, watercraft, aircraft,
railroad car,
truck,
trailer, tent, or other edifice, vehicle or shelter, or any portion
thereof;
(50)
"Stun gun," any battery-powered, pulsed electrical device of high voltage and low or
no amperage that can disrupt the central nervous system and cause temporary loss of
voluntary muscle control of a person;
(50A)
"Unborn child," an individual organism of the species homo sapiens from
fertilization until live birth.
(51)
"Unoccupied structure," any structure which is not an occupied structure;
(52)
"Vessel,"
when
if
used with reference to shipping,
a
any
ship of any kind and every
structure adapted to be navigated from place to place;
(53)
"Victim," any natural person against whom the defendant in a criminal prosecution
has committed or attempted to commit a crime;
(54)
"Voluntary intoxication," intoxication caused by substances that an actor knowingly
introduces into his
or her
body, the tendency of which is to cause intoxication;
(55)
"Written instrument," any paper, document, or other instrument containing written
or printed matter or the equivalent thereof, used for purposes of reciting, embodying,
conveying, or recording information, and any money, credit card, token, stamp, seal,
badge, trade mark, service mark or any evidence or symbol of value, right, privilege
or identification, which is capable of being used to the advantage or disadvantage of
some person.
Section
358.
That
§
22-1-3
be repealed.
22-1-3.
A crime is an act or omission, other than a petty offense, which is forbidden by law,
and to which is annexed, upon conviction, one or more of the following punishments:
(1)
Imprisonment;
(2)
Fine;
(3)
Removal from office;
(4)
Removal of a candidate's name from a ballot; or
(5)
Disqualification to hold and enjoy any public office of honor, trust, or profit in this
state.
Section
359.
That
§
22-1-4
be amended to read as follows:
22-1-4.
Crimes are
Any crime is
either
felonies
a felony
or
misdemeanors
a misdemeanor
.
A felony is a crime which is or may be punishable by imprisonment in the state penitentiary.
Every other crime is a misdemeanor.
Section
360.
That
§
22-1-6
be amended to read as follows:
22-1-6.
No person may be convicted for the failure to perform an act if the act has been
performed by another person, acting on
his
the other person's
behalf, who is competent by law
to perform it.
Section
361.
That
§
22-1-7
be amended to read as follows:
22-1-7.
In the various cases in which the sending of a letter is made criminal by the statutes
of this state, the offense is deemed complete from the time when such letter is deposited in any
post office or any other place or delivered to any person with intent that it
shall
be forwarded.
Section
362.
That
§
22-1-8
be amended to read as follows:
22-1-8.
No act or omission
shall
may
be deemed criminal or punishable except as prescribed
or authorized by this title or by some other statute of this state.
Section
363.
That
§
22-1-9
be amended to read as follows:
22-1-9.
When
If
the possession of an object is made an offense,
a
no
law enforcement officer
may
not
be convicted of that offense if
he
that law enforcement officer
came into and retained
possession of that object
as part of his
in the course of performing
official duties.
Section
364.
That
§
22-1-11
be amended to read as follows:
22-1-11.
The victim or witness assistant shall:
(1)
Advise the victim about the legal proceedings in which the victim will be involved;
(2)
Advise the victim
when he will be required to appear
concerning any required
appearance
at any proceeding and if the proceeding is continued or postponed;
(3)
Assist the state's attorney, court services officer, and the victim to determine the
amount of monetary damages suffered by the victim and advise the victim about
restitution;
(4)
Advise, if the victim is less than sixteen years of age and the victim of certain crimes,
the victim and one of the victim's immediate family that the preliminary hearing or
deposition testimony of the victim may be videotaped pursuant to § 23A-12-9;
(5)
Advise the victim or one of the victim's immediate family if the defendant is released
from custody and the defendant's bail conditions.
The victim or witness assistant may accompany the victim in any criminal proceeding.
Section
365.
That
§
22-1-12
be amended to read as follows:
22-1-12.
No person, other than in the performance of
his
official duties, may disclose the
identity and biographical information concerning a victim of a crime of violence or of a
violation of § 22-22-7 until reasonable efforts have been made to notify one of the immediate
family.
Section
366.
The code counsel shall transfer
§
§
22-1-10, 22-1-11, and 22-1-12 to chapter
23A-28C and shall renumber the sections accordingly and adjust all appropriate cross
references.
Section
367.
That
§
22-2-1
be amended to read as follows:
22-2-1.
The omission to specify or affirm in this title any liability to any damages, penalty,
forfeiture, or other remedy imposed by law and allowed to be recovered or enforced in any civil
action or proceeding for any act or omission declared punishable
herein
in this title
does not
affect any right to recover or enforce the same.
Section
368.
That
§
22-2-3
be amended to read as follows:
22-2-3.
An
No
act or omission declared punishable by any statute of this state is
not
less so
because it is also punishable under the laws of another state, government, or country, unless the
contrary is expressly declared
in such
by
statute.
Section
369.
That
§
22-2-6
be amended to read as follows:
22-2-6.
A
No
criminal act is
not the
less punishable as a crime because it is also declared
to be punishable as
a
contempt.
Section
370.
That
§
22-3-1
be amended to read as follows:
22-3-1.
Any person is capable of committing a crime, except those
belonging to
included
in
the following classes:
(1)
Children
Any child
under the age of ten years;
(2)
Children
Any child
of the age of ten years
,
but under the age of fourteen years, in the
absence of proof that at the time of the committing the act or neglect charged
against
them they
, the child
knew its wrongfulness;
(3)
Persons
Any person
who committed the act or made the omission charged under
an
ignorance or mistake of fact which disproves any criminal intent
, but
. However,
ignorance of the law does not excuse a person from punishment for its violation;
(4)
Persons
Any person
who committed the act charged without being conscious thereof;
or
(5)
Persons
Any person
who committed the act or made the omission charged while
under involuntary subjection to the power of superiors.
Section
371.
That
§
22-3-1.1
be amended to read as follows:
22-3-1.1.
A
No
person who is under the influence of voluntarily consumed or injected
alcohol or controlled substances at the time of committing the act charged
against him
is
not
thereby
for that reason
insane.
Section
372.
That
§
22-3-3
be amended to read as follows:
22-3-3.
Any person who, with the intent to promote or facilitate the commission of a crime,
aids, abets
,
or advises another person in planning or committing the crime, is legally
accountable, as a principal to the crime.
Section
373.
That
§
22-3-3.1
be amended to read as follows:
22-3-3.1.
The distinction between an accessory before the fact and a principal, and between
principals in the first and second degree, in cases of felony, is abrogated. Any person connected
with the commission of a felony, whether
he
that person
directly commits the act constituting
the offense or aids and abets in its commission, though not present,
must
shall
be prosecuted,
tried, and punished as a principal.
Section
374.
That
§
22-3-5
be amended to read as follows:
22-3-5.
A person is an accessory to a crime, if, with intent to hinder, delay, or prevent the
discovery, detection, apprehension, prosecution, conviction, or punishment of another for the
commission of a felony,
he
that person
renders assistance to the other person. There are no
accessories to misdemeanors.
"Render assistance"
The term, render assistance,
means to:
(1)
Harbor or conceal the other person;
(2)
Warn the other person of impending discovery or apprehension,
except that this does
not apply to
other than
a warning given in an effort to bring the other person into
compliance with the law;
(3)
Provide the other person with money, transportation, a weapon, a disguise, or any
other thing to be used in avoiding discovery or apprehension;
(4)
Obstruct anyone by force, intimidation, or deception in the performance of any act
which might aid in the discovery, detection, apprehension, prosecution, conviction,
or punishment of the other person; or
(5)
Conceal, destroy, or alter any physical evidence that might aid in the discovery,
detection, apprehension, prosecution, conviction, or punishment of the other person.
A violation of this section is a Class 5 felony.
Section
375.
That
§
22-3-5.1
be amended to read as follows:
22-3-5.1.
An accessory to the commission of a felony may be prosecuted, tried, and
punished, even if the principal is not prosecuted or tried,
and
or
even if the principal was
acquitted.
Section
376.
That
§
22-3-8
be amended to read as follows:
22-3-8.
If two or more persons conspire, either to commit any offense against the State of
South Dakota, or to defraud the State of South Dakota, or any county, township, school district,
or municipal corporation in any manner or for any purpose, and one or more of the parties do
any act to effect the object of the conspiracy, each of the parties to such conspiracy
shall be
is
guilty
as follows:
(1)
If the conspiracy was to commit a felony, each party is guilty of a classified felony
which is one classification less severe than the felony to be committed, but in no case
shall the punishment for conspiracy to commit a felony be less than a Class 6 felony.
If the conspiracy was to commit a felony which has not been classified, the principal
felony shall be presumed to be classified in the class set forth in § 22-6-1 which
matches the maximum imprisonment authorized for that felony; provided, that when
the maximum imprisonment authorized for an unclassified felony falls between two
classifications, the principal felony shall be presumed to be classified in the less
severe class;
(2)
If the conspiracy was to commit a Class 1 misdemeanor, each person is guilty of a
Class 1 misdemeanor.
It
of conspiracy and may be punished up to the maximum penalty which may be imposed
for a crime which is one level below the penalty prescribed for the crime underlying the
conspiracy. However, it
is not a crime to conspire to commit a Class 2 misdemeanor or a petty
offense.
Section
377.
That
§
22-4-1
be amended to read as follows:
22-4-1.
Any
Unless specific provision is made by law, any
person who attempts to commit
a crime and
,
in the attempt
,
does any act toward the commission of the crime, but fails or is
prevented or intercepted in the perpetration
thereof
of that crime
, is punishable
where no
provision is made by law
for
the punishment of
such attempt
, as follows:
(1)
If the attempted crime is punishable by imprisonment in the state penitentiary for five
years or more, or by imprisonment in a county jail, the person guilty of such attempt
is punishable by imprisonment in the state penitentiary or in a county jail, as the case
may be, for a term not exceeding one-half the longest term of imprisonment
prescribed upon a conviction for the attempted crime;
(2)
If the attempted crime is punishable by imprisonment in the state penitentiary for any
time less than five years, the person guilty of such attempt is punishable by
imprisonment in a county jail for not more than one year;
(3)
If the attempted crime is punishable by a fine, the offender convicted of such attempt
is punishable by a fine not exceeding one-half the largest fine which may be imposed
upon a conviction of the attempted crime;
(4)
If the attempted crime is punishable by imprisonment and by a fine, the offender
convicted of such attempt may be punished by both imprisonment and fine, not
exceeding one-half of the longest term of imprisonment and one-half of the largest
fine which may be imposed upon a conviction for the attempted crime; or
(5)
If the attempted crime is punishable by a sentence of life imprisonment or if the
attempted crime is punishable by imprisonment in the state penitentiary for a
minimum number of years and no maximum punishment is provided, the offender
convicted of any such attempt may be punished as if he were guilty of a Class 2
felony
at maximum sentence of one-half of the penalty prescribed for the underlying
crime. However, any person who attempts to commit a Class A, Class B, or Class C
felony is guilty of a Class 2 felony
.
Section
378.
That
§
22-4-2
be amended to read as follows:
22-4-2.
Section 22-4-1 does
The provisions of
§
22-4-1 do
not protect a person who, in
attempting unsuccessfully to commit a crime,
accomplishes the commission of
commits
another
and different crime, whether greater or less in guilt, from suffering the punishment prescribed
by law for the crime committed.
Section
379.
That
§
22-5-1
be amended to read as follows:
22-5-1.
A
No
person may
not
be convicted of a crime based upon conduct in which
he
that
person
engaged because of the use or threatened use of unlawful force upon
him
himself,
herself,
or
upon
another person, which force or threatened use
thereof
of force
a reasonable
person in
his
that
situation would have been lawfully unable to resist.
Section
380.
That
§
22-5-5
be amended to read as follows:
22-5-5.
No act committed by a person while in a state of voluntary intoxication
shall
may
be deemed less criminal by reason of
his having been in
such condition. But
whenever
if
the
actual existence of any particular purpose, motive, or intent is a necessary element to constitute
any particular species or degree of crime, the jury may take into consideration the fact that the
accused was intoxicated at the time in determining the purpose, motive, or intent with which
he
the accused
committed the act.
Section
381.
That
§
22-5-7
be amended to read as follows:
22-5-7.
A morbid propensity to commit prohibited acts existing in the mind of a person who
is not shown to have been incapable of knowing the wrongfulness of such acts forms no defense
to a prosecution therefor.
Section
382.
That
§
22-5-9
be amended to read as follows:
22-5-9.
Any person may lawfully resist the commission of any public offense as follows:
(1)
A
Any
person
,
about to be injured
,
may make sufficient resistance to prevent an
offense against his
or her
person or
his family or
any
family
member thereof, or to
prevent an illegal attempt by force to take or injure property in his
or her
lawful
possession; and
(2)
A
Any
person may make sufficient resistance in aid or defense of a person
,
about to
be injured
,
to prevent such offense.
Section
383.
That
§
22-7-7
be amended to read as follows:
22-7-7.
When
If
a defendant has been convicted of one or two prior felonies under the laws
of this state or any other state or the United States, in addition to the principal felony, the
sentence for the principal felony shall be enhanced by changing the class of the principal felony
to the next class which is more severe
, but in no circumstance may the enhancement exceed the
sentence for a Class C felony
. The determination of whether a prior offense is a felony for
purposes of this chapter shall be determined by whether
it is
the prior offense was
a felony under
the laws of this state or under the laws of the United States at the time of conviction of such
prior offense. For the purpose of this section, if the principal felony is not classified it shall be
enhanced to the class which has an equal maximum imprisonment. For the purposes of this
section, if the maximum imprisonment for the principal felony falls between two classifications,
the principal felony shall be enhanced to the class which has the less severe maximum
authorized imprisonment.
Section
384.
That
§
22-7-8
be amended to read as follows:
22-7-8.
If a defendant has been convicted of three or more felonies in addition to the
principal felony and one or more of the prior felony convictions was for a crime of violence as
defined in subdivision 22-1-2(9), the sentence for the principal felony shall be enhanced to the
sentence for a
Class 1
Class C
felony.
Section
385.
That
§
22-7-8.1
be amended to read as follows:
22-7-8.1.
If a defendant has been convicted of three or more felonies in addition to the
principal felony and none of the prior felony convictions was for a crime of violence as defined
in subdivision § 22-1-2(9), the sentence for the principal felony shall be enhanced by two levels
but in no circumstance may the enhancement exceed the sentence for a Class C felony
. A
defendant sentenced
under
pursuant to
this section is eligible for consideration for parole
pursuant to § 24-15-5.
Section
386.
That
§
22-7-9
be amended to read as follows:
22-7-9.
A
No
prior conviction may
not
be considered under either § 22-7-7 or 22-7-8 unless
the defendant was, on such prior conviction, discharged from prison, jail, probation, or parole
within fifteen years of the date of the commission of the principal offense.
In addition
Moreover
,
only one prior conviction arising from the same transaction may be considered.
Section
387.
That
§
22-7-10
be amended to read as follows:
22-7-10.
Whenever any jailer, warden, or prison, probation, parole, or law enforcement
officer has knowledge that any person charged with a felony has been previously convicted
within the meaning of this chapter,
it shall become his duty forthwith to report the facts
that
person shall provide that information
to the state's attorney.
Section
388.
That
§
22-7-11
be amended to read as follows:
22-7-11.
Any allegation that a defendant is an habitual criminal shall be filed as a separate
information at the time of, or before, arraignment. However, the court may, upon motion, permit
the separate information to be filed after the arraignment, but no less than thirty days before the
commencement of trial or entry of a plea of guilty or nolo contendre. The information shall state
the times, places, and specific crimes alleged to be prior convictions and shall be signed by the
prosecutor. An official court record under seal or a criminal history together with fingerprints
certified by the public official having custody thereof is sufficient to be admitted in evidence
,
without further foundation
,
to prove the allegation that the defendant is an habitual criminal.
Section
389.
That
§
22-7-12
be amended to read as follows:
22-7-12.
The defendant shall be apprised of the contents of the habitual offender information
and shall receive a copy of it. The habitual offender information
shall
may
not be divulged to
the jury in any manner unless and until the defendant has been convicted of the principal
offense.
The defendant shall also be informed of
his
the
right to a trial by jury on the issue of whether
he
the defendant
is the same person as alleged in the habitual criminal information.
Section
390.
That
§
22-22-1
be amended to read as follows:
22-22-1.
Rape is an act of sexual penetration accomplished with any person under any of
the following circumstances:
(1)
If the victim is less than
ten
thirteen
years of age; or
(2)
Through the use of force, coercion, or threats of immediate and great bodily harm
against the victim or other persons within the victim's presence, accompanied by
apparent power of execution; or
(3)
If the victim is incapable, because of physical or mental incapacity, of giving consent
to such act; or
(4)
If the victim is incapable of giving consent because of any intoxicating, narcotic, or
anesthetic agent or hypnosis; or
(5)
If the victim is
ten
thirteen
years of age, but less than sixteen years of age, and the
perpetrator is at least three years older than the victim
; or
(6)
If persons who are not legally married and who are within degrees of consanguinity
within which marriages are by the laws of this state declared void pursuant to § 25-1-
6, which is also defined as incest; or
(7)
If the victim is ten years of age but less than eighteen years of age and is the child of
a spouse or former spouse of the perpetrator
.
A violation of subdivision (1) of this section is rape in the first degree, which is a
Class 1
Class C
felony. A violation of subdivision (2)
,
of this section is rape in the second degree which
is a Class 1 felony. A violation of subdivision
(3)
,
or (4) of this section is rape in the
second
third
degree, which is a Class 2 felony. A violation of subdivision (5)
, (6), or (7)
of this section
is rape in the
third
fourth
degree, which is a Class 3 felony. Notwithstanding § 23A-42-2 a
charge brought pursuant to this section may be commenced at any time prior to the time the
victim becomes age twenty-five or within seven years of the commission of the crime,
whichever is longer.
Section
391.
That
§
22-22-30.1
be repealed.
22-22-30.1.
Criminal pedophilia is any act of sexual penetration accomplished with a victim
less than thirteen years of age by any person twenty-six years of age or older. Criminal
pedophilia is a Class 1 felony. If any person is convicted of criminal pedophilia, the court shall
impose a minimum sentence of twenty-five years for a first offense. If any person is convicted
for a second offense, the factual basis for which occurred after the date of the first conviction,
the court shall impose a sentence of life without parole.
Section
392.
That
§
22-22-1.2
be amended to read as follows:
22-22-1.2.
If any adult is convicted of any of the following violations, the court shall impose
the following minimum sentences:
(1)
For a violation of subdivision 22-22-1(1), ten years for a first offense and twenty
years for a subsequent offense; and
(2)
For a violation of § 22-22-7 if the victim is less than
ten
thirteen
years of age, five
years for a first offense and ten years for a subsequent offense.
Section
393.
That
§
22-22-1.3
be amended to read as follows:
22-22-1.3.
Any person convicted of a violation
listed
as provided
in § 22-22-1.2 shall have
included in
his
the offender's
presentence investigation report an assessment
which shall include
including
the following information: the offender's sexual history; intellectual, adaptive and
academic functioning; social and emotional functioning; previous legal history; previous
treatment history; victim selection; risk to the community; and treatment options recommended.
Section
394.
That
§
22-22-1.4
be amended to read as follows:
22-22-1.4.
The sentencing court may impose a sentence other than that which is required by
§ 22-22-1.2 if the court finds that mitigating circumstances exist which require a departure from
the mandatory sentence imposed by § 22-22-1.2. The court's finding of mitigating circumstances
allowed by this section
and the factual basis relied upon by the court shall be in writing.
Section
395.
That
§
22-22-5
be repealed.
22-22-5.
Any person convicted of rape or of a violation of § 22-22-7 shall be given an initial
screening evaluation to determine whether psychiatric or psychological counseling would be
beneficial. Psychiatric or psychological counseling shall be made available if the convicted
person can reasonably be expected to benefit therefrom. The warden of the state penitentiary
may utilize the services of the South Dakota Human Services Center for such screening,
evaluation, and counseling. Counseling may be imposed as a condition of parole.
Section
396.
That
§
22-22-7.2
be amended to read as follows:
22-22-7.2.
Any person, fifteen years of age or older, who knowingly engages in sexual
contact with another person, other than his
or her
spouse if the other person is sixteen years of
age or older and the other person is incapable, because of physical or mental incapacity, of
consenting to sexual contact, is guilty of a Class 4 felony.
Section
397.
That
§
22-22-7.3
be amended to read as follows:
22-22-7.3.
Any person, younger than sixteen years of age, who knowingly engages in sexual
contact with another person, other than his
or her
spouse,
when
if
such other person is younger
than sixteen years of age, is guilty of a Class 1 misdemeanor.
Section
398.
That
§
22-22-7.4
be amended to read as follows:
22-22-7.4.
No person fifteen years of age or older may knowingly engage in sexual contact
with another person other than his
or her
spouse who, although capable of consenting, has not
consented to such contact. A violation of this section is a Class 1 misdemeanor.
Section
399.
That
§
22-22-7.5
be amended to read as follows:
22-22-7.5.
The court, upon the conviction of any person of a violation of the provisions of
chapter 22-22 in which the victim was a child or upon an adjudication of a juvenile as a
delinquent child for a violation of the provisions of chapter 22-22 in which the victim was a
child, may, as a part of the sentence or adjudication, order that the defendant or delinquent child
not:
(1)
Reside within one mile of the victim's residence unless the person is residing in a
juvenile detention facility, jail, or state corrections facility;
(2)
Knowingly or willfully come within one thousand feet of the victim;
(3)
Attend the same school as the victim; or
(4)
Have any contact with the victim, whether direct or indirect or through a third party.
This section does not apply
No condition imposed pursuant to this section applies
once the
victim attains the age of majority. A violation of
any condition imposed pursuant to
this section
is a Class 6 felony.
Section
400.
That
§
22-22-11
be repealed.
22-22-11.
Any person who by force, menace, or duress compels another to marry, is guilty
of a Class 4 felony.
Section
401.
That
§
22-22-24.3
be amended to read as follows:
22-22-24.3.
A person is guilty of sexual exploitation of a minor if the person causes or
knowingly permits a minor to engage in an activity
or the simulation of an activity
that:
(1)
Is harmful to minors
, or in the simulation of such an activity
;
(2)
Involves nudity
, or in the simulation of such an activity
; or
(3)
Is obscene
, or in the simulation of such an activity
.
Consent to performing these proscribed acts by a minor or a minor's parent, guardian, or
custodian, or mistake as to the minor's age is not a defense to a charge of violating this section.
A violation of this section is a Class 6 felony. If a person is convicted of a second or
subsequent violation of this section within fifteen years of the prior conviction, the violation a
Class 5 felony.
Further, the
The
court shall order a mental examination of
the
any
person
convicted of
violating this section
. The examiner shall report to the court whether treatment of the person is
indicated.
Section
402.
That
§
22-22-26
be amended to read as follows:
22-22-26.
If a physician, hospital, or clinic examines the victim of an alleged rape or sexual
offense to gather information or evidence about the alleged crime, the examination shall be
provided without cost to the victim if the alleged offense is reported to the state. The physician,
hospital, or clinic shall be paid for the cost of the examination by the county where the alleged
rape or sexual offense occurred, which shall be reimbursed by any defendant if
he is
convicted.
Section
403.
That
§
22-22-27
be amended to read as follows:
22-22-27.
Terms used in §§ 22-22-28 and 22-22-29 mean:
(1)
"Emotionally dependent,"
"Emotional dependency,"
a condition of the patient
brought about by the nature of the patient's own emotional condition or the nature of
the treatment provided by the psychotherapist which is characterized by significant
impairment of the patient's ability to withhold consent to sexual acts or contact with
the psychotherapist and which the psychotherapist knows or has reason to know
exists;
(2)
"Patient,"
a
any
person who seeks or obtains psychotherapeutic services from a
psychotherapist on a regular and ongoing basis;
(3)
"Psychotherapist,"
a
any
physician, psychologist, nurse, chemical dependency
counselor, social worker, member of the clergy, marriage and family therapist, mental
health service provider, or other person, whether or not licensed or certified by the
state, who performs or purports to perform psychotherapy; and
(4)
"Psychotherapy," the professional treatment, assessment, or counseling of a mental
or emotional illness, symptom, or condition.
Section
404.
That
§
22-22-28
be amended to read as follows:
22-22-28.
A
Any
psychotherapist who knowingly engages in sexual contact, as defined in
§ 22-22-7.1, with a person who is not his
or her
spouse and who is
his
a patient who is
emotionally dependent
patient
on the psychotherapist
at the time of contact, commits a Class
5 felony. Consent by the patient is not a defense.
Section
405.
That
§
22-22-29
be amended to read as follows:
22-22-29.
A
Any
psychotherapist who knowingly engages in an act of sexual penetration,
as defined in § 22-22-2, with a person who is not his
or her
spouse and who is
his
a patient who
is
emotionally dependent
patient
on the psychotherapist
at the time that the act of sexual
penetration is committed, commits a Class 4 felony. Consent by the patient is not a defense.
Section
406.
That
§
22-22-42
be amended to read as follows:
22-22-42.
No person, for the purpose of that person's sexual gratification, may:
(1)
Engage in a sexual act with an animal; or
(2)
Coerce any other person to engage in a sexual act with an animal; or
(3)
Use any part of the person's body or an object to sexually stimulate an animal; or
(4)
Videotape a person engaging in a sexual act with an animal; or
(5)
Kill or physically abuse an animal.
Any person who violates any provision of this section is guilty of the crime of bestiality.
Bestiality is a Class 6 felony. However, if
any
the
person has been previously convicted of a sex
crime pursuant to § 22-22-30, any subsequent violation of this section is a Class 5 felony.
Section
407.
The code counsel shall transfer
§
§
22-22-24, to 22-22-24.2, inclusive, and
§
§
22-22-24.4 to 22-22-25, inclusive, to a new chapter entitled, Child Pornography, and shall
renumber the sections accordingly and adjust all appropriate cross references.
Section
408.
That
§
22-22-24.1
be amended to read as follows:
22-22-24.1.
Terms used in §§ 22-19A-1, 22-22-24 to 22-22-24.19, inclusive, 22-22-25, 22-
22-30, 23A-27-14.1, and 43-43B-1 to 43-43B-3, inclusive, mean:
(1)
"Adult,"
a
any
person eighteen years of age or older;
(2)
"Child pornography," any image or visual depiction of a minor engaged in prohibited
sexual acts;
(3)
"Child" or "minor," any person under the age of eighteen years;
(4)
"Computer,"
an
any
electronic, magnetic, optical, electrochemical, or other
high-speed data processing device performing logical, arithmetic, or storage
functions and includes any data storage facility or communications facility directly
related to or operating in conjunction with such device, including wireless
communication devices such as cellular phones. The term also includes any on-line
service, internet service, or internet bulletin board;
(5)
"Deviant sexual intercourse," sexual conduct between persons not married to each
other consisting of contact between the penis and the anus, the mouth and the penis,
or the mouth and the vulva;
(6)
"Digital media," any electronic storage device, including a floppy disk or other
magnetic storage device or any compact disc that has memory and the capacity to
store audio, video, or written materials;
(7)
"Harmful to minors," any reproduction, imitation, characterization, description,
visual depiction, exhibition, presentation, or repre