#29961-a-JMK 2023 S.D. 29
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
NASTASSA L. DUTTON, Defendant and Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BROOKINGS COUNTY, SOUTH DAKOTA
THE HONORABLE GREGORY J. STOLTENBURG Judge
MANUEL J. DE CASTRO, JR. Sioux Falls, South Dakota Attorney for defendant and appellant.
MARTY J. JACKLEY Attorney General
JONATHAN K. VAN PATTEN Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
CONSIDERED ON BRIEFS MARCH 21, 2023 OPINION FILED 06/28/23 #29961
KERN, Justice
[¶1.] After a bench trial, Nastassa L. Dutton was convicted as an accessory
to aggravated assault for intentionally harboring or concealing a juvenile in the
commission of a felony. Dutton appeals, arguing that she cannot be convicted as an
accessory to a felony because the principal was a juvenile subject to a delinquency
adjudication, rather than a criminal prosecution, which could result a felony
conviction. Without a criminal prosecution, Dutton contends she cannot be an
accessory to a felony.
Facts and Procedural History
[¶2.] In April 2019, N.I., age 15, along with three other individuals, was
captured on video assaulting another juvenile. Four days later, the Brookings
County state’s attorney filed a petition against N.I., alleging he was a juvenile
delinquent for committing the offense of aggravated assault under SDCL 22-18-
1.1(4). At the State’s request, the circuit court issued a warrant for his arrest.
Dutton was listed on the warrant as N.I.’s guardian because law enforcement
believed N.I. was living with Dutton’s family at the time. Unable to immediately
apprehend N.I., law enforcement personnel, including the Brookings County
Sheriff’s Office and Brookings school resource officers, made several unsuccessful
trips to Dutton’s house in an attempt to locate and arrest N.I. Additionally,
Detective Joel Perry of the Brookings Police Department testified to having several
encounters with David Olsen, Dutton’s partner, throughout the summer of 2019,
during which Detective Perry reminded Olsen about N.I.’s outstanding warrant.
-1- #29961
[¶3.] Sometime after the assault took place, but before police could arrest
N.I. on the warrant, he and Dutton’s seventeen-year-old daughter, N.J., ran away to
Portland, Oregon, where they lived during the summer of 2019. Worried about her
daughter’s wellbeing, Dutton encouraged her to move back to South Dakota.
Dutton promised her daughter that if she agreed to move back, Dutton and Olsen
would provide her with an apartment. N.J. agreed to move home if N.I. could
accompany her. Not wanting to lose her daughter, Dutton agreed but told N.I. that
he would have to turn himself in and take care of his warrant upon his return.
According to testimony later elicited at Dutton’s trial, Dutton and N.I. agreed that
he would turn himself in on Monday, September 30, 2019. Dutton explained that
they chose Monday because juvenile court is held in Brookings on Tuesdays.
[¶4.] On Friday, September 27, 2019, Dutton posted a video to Facebook
depicting herself driving a car full of young people destined for the Brookings
Bobcats’ homecoming football game. The video depicts N.I. among Dutton’s
passengers. The next day, while at Dutton’s house, N.I. and Justin Proctor,
Dutton’s half-brother, got into an argument that led to a physical altercation during
which N.I. stabbed Justin in the stomach, mortally wounding him. 1 0F
[¶5.] Following the altercation, law enforcement officers conducted
investigative interviews with Dutton and N.I. The Brookings County Sheriff’s
Office interviewed Dutton on two occasions, once by Deputy Dane Larson and again
1. N.I. later admitted to a petition alleging he was a juvenile delinquent for having committed the offense of first-degree manslaughter.
-2- #29961
by Deputy Darin Haider. 2 During the course of law enforcement’s investigation, 1F
Detective Perry was informed of Dutton’s Facebook video showing her driving
around Brookings with N.I. the day before the deadly incident. After determining
that the video was evidence of Dutton’s failure to turn N.I. in on the April 2019
arrest warrant, Detective Perry provided a copy to the Brookings County State’s
Attorney’s Office. On October 18, 2019, a Brookings County grand jury indicted
Dutton for accessory to a crime in violation of SDCL 22-3-5, a class 5 felony, for
harboring or concealing N.I. from arrest on the juvenile delinquency warrant.
[¶6.] Dutton waived her right to a jury trial, and the circuit court held a
bench trial on February 17, 2022. At trial, the State called Detective Perry and
former Deputy Sheriff Darin Haider. Detective Perry described his attempts to
locate N.I. on the delinquency warrant. He also described his discovery of Dutton’s
Facebook video, a copy of which was offered and received into evidence. Deputy
Haider testified about his interview with Dutton, which was also admitted into
evidence.
[¶7.] After the State rested its case, Dutton moved for a judgment of
acquittal, arguing that the State failed to prove she had the specific intent to act as
an accessory. Further, Dutton argued she could not have committed the crime
because N.I. was charged as a juvenile under the rules of civil procedure and
therefore did not commit the principal felony necessary to sustain the charge. The
2. At trial, portions of both interviews were played for the circuit court, and the recordings were introduced into evidence. Deputy Larson was not called to testify, and former-Deputy Haider acknowledged that he could not speak accurately as to the substance of Dutton’s first interview. -3- #29961
circuit court denied Dutton’s motion, finding, based on Dutton’s own admissions,
that there was sufficient evidence to conclude she knew of N.I.’s warrant when he
returned to Brookings. The court noted it was apparent that she knew of his
warrant when she appeared in and posted the Facebook video showing herself
driving him around town on September 27. The circuit court also rejected, as
meritless, Dutton’s argument that a party could not serve as an accessory to the
commission of a felony if the felonious conduct was committed by a juvenile charged
as such in juvenile court. The court concluded that the statute requires rendering
assistance to another to prevent the detection or apprehension of one engaged in the
commission of a felony, not one who has been convicted of a felony. To decide
otherwise, the court stated, “would frustrate the policy and intent of the statute.”
[¶8.] Dutton testified on her own behalf at trial. She admitted that N.I. was
in the car with her on September 27 and explained that she did not contact law
enforcement because she intended to make N.I. turn himself in the following
Monday. Dutton also testified that she did not conceal N.I.’s presence in Brookings
from law enforcement. She stated that N.I. was not hidden away—he moved
throughout the community freely. Dutton pointed to the September 27 video, which
she posted publicly, as evidence of her lack of intent to obstruct law enforcement’s
apprehension of N.I.
[¶9.] However, on cross-examination, Dutton admitted to providing N.I.
with assistance and agreeing to a plan that delayed law enforcement’s apprehension
of him. When asked whether she agreed to N.I. waiting until Monday, September
30 to turn himself in, Dutton answered, “Correct.” And when asked whether that
-4- #29961
plan delayed N.I.’s apprehension, Dutton answered that it did. Dutton also
admitted to knowing that N.I. was living in the apartment provided by her and
Olsen.
[¶10.] At the conclusion of the trial, the circuit court found Dutton guilty as
an accessory under SDCL 22-3-5 for “delay[ing] the apprehension of another person
for the commission of a felony by harboring or concealing that person.” The court
ordered a presentence investigation and scheduled a sentencing hearing. After
considering the parties’ arguments, the court sentenced Dutton to serve four years
in the penitentiary, all suspended on the condition that she comply with a three-
year probationary term, which included a requirement that Dutton serve 20 days in
the Brookings County jail. Dutton appeals from the circuit court’s verdict raising a
single issue—whether she could be convicted as an accessory to the commission of a
felony when the principal offender is a juvenile charged as a delinquent rather than
as a felon in adult court. 3 2F
Analysis and Decision
[¶11.] The crime of accessory originated under the common law. At common
law, an individual or group of individuals who played a part in the commission of a
crime were classified into one of four categories: “(1) principals in the first degree;
(2) principals in the second degree; (3) accessory before the fact; (4) and accessory
after the fact.” 2 Subst. Crim. L. § 13.1 (3d ed.) Westlaw (database updated Oct.
3. Initially, Dutton raised the sufficiency of the evidence as the primary issue in her appeal. However, in her reply brief, Dutton acknowledges that the only issue before this Court is “whether she can be convicted as an accessory to a felony act by a principal who is a juvenile,” which is a question of law. -5- #29961
2022); see generally SDCL 22-3-3.1. Each classification depended on the party’s
relationship to the crime. For example, an individual who aided or encouraged the
commission of a criminal act, but was absent when it was committed, fell within the
“accessory before the fact” category. 2 Subst. Crim. L. § 13.1(c). Conversely, an
accessory after the fact is a party who, knowing a felony has been committed,
helped the principal, the individual who committed the crime, in a way that
obstructs justice. See SDCL 22-3-5.
[¶12.] Like most other states, South Dakota has abrogated the common-law
distinction between principals in the first degree, principals in the second degree,
and accessories before the fact. SDCL 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.”); see Gonzales v. Duenas-Alvarez,
549 U.S. 183, 189, 127 S. Ct. 815, 820, 166 L. Ed. 2d 683, 691 (2007) (noting that all
jurisdictions in the country have abrogated the distinction between second-degree
principals and accessories before the fact). However, South Dakota continues to
recognize the offense of accessory to a crime if one renders assistance to an
individual involved in the commission of a felony. SDCL 22-3-5.
[¶13.] Originally, successful prosecution of the accessory depended on
successfully prosecuting and convicting the principal. Rollin M. Perkins, Parties to
Crime, 89 U. Pa. L. Rev. 581, 611 (1941). And the accessory was given the same
sentence as the principal. Id. at 613. The severity of punishment for the crime of
accessory was later lessened to account for the reality that an accessory did not
participate in the actual commission of the principal felony offense. 2 Subst. Crim.
-6- #29961
L. § 13.1. Instead, the accessory engaged in a separate act that obstructed the
principal’s apprehension, conviction, or punishment, thereby endangering the public
by subjecting them to the possibility of further harm from the principal.
[¶14.] Like most jurisdictions, South Dakota supplanted the common-law
rule by statute. See SDCL 22-3-5. In doing so, the Legislature defined the crime of
accessory as a distinct offense carrying a separate, often less severe punishment
than the principal felony. Id. As SDCL 22-3-5 provides, a person commits the
crime of accessory if they harbor and conceal an individual who committed a felony,
and they did so intending to delay that person’s apprehension:
[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, that person renders assistance to the other person. There are no accessories to misdemeanors. The term, render assistance, means to: (1) Harbor or conceal the other person; (2) Warn the other person of impending discovery or apprehension, 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.
(Emphasis added.)
[¶15.] On appeal, Dutton argues that she could not have committed the crime
of accessory because no felony had been committed. She contends a juvenile does
not commit a felony unless and until they are charged and prosecuted in adult
court. As support, she asserts that an act charged under the juvenile code cannot be
-7- #29961
a felony because juvenile proceedings are civil in nature, result in delinquency
adjudications and dispositions, and do not affix criminal responsibility, guilt, or
punishment. 4 3F
[¶16.] In response, the State argues that SDCL 22-3-5’s text necessitates only
that an individual render aid to a person who committed some act that South
Dakota law defines as a felony. The State further asserts that the accessory may be
prosecuted and convicted regardless of the status or legal outcome of the principal
offender. For support, the State points to SDCL 22-3-5.1’s plain language, which
provides, “An accessory to the commission of a felony may be prosecuted, tried, and
punished, even if the principal is not prosecuted or tried, or even if the principal
was acquitted.”
[¶17.] Therefore, the question before this Court is whether SDCL 22-3-5’s
“commission of a felony” element can be satisfied by criminal acts committed by a
juvenile. This question is one of statutory interpretation and application, which we
review de novo. State v. Goulding, 2011 S.D. 25, ¶ 5, 799 N.W.2d 412, 414. “The
purpose of statutory interpretation is to discover the Legislat[ure’s] intent.” State v.
4. Dutton also argues that N.I. did not commit a crime because a juvenile charged with aggravated assault, a class 3 felony, cannot be directly charged in or transferred to adult court. However, her argument rests on an erroneous reading of SDCL 26-11-4. Despite counsel’s argument, N.I.’s aggravated assault charge was eligible for transfer to adult court, and, had a petition to transfer been filed, the court would have considered whether to exercise its discretion in accordance with SDCL 26-11-4 and allow the transfer. Indeed, any child 10 years old or older who commits an act defined as a felony is eligible to be transferred to adult court. SDCL 26-11-4; see SDCL 22-8C-2; SDCL 22-3-1; Wendy N. Hess, Kids can Change: Reforming South Dakota’s Juvenile Transfer Law to Rehabilitate Children and Protect Public Safety, 59 S.D. L. Rev. 312, 318 (2014). -8- #29961
Bryant, 2020 S.D. 49, ¶ 20, 948 N.W.2d 333, 338 (citation omitted). When
interpreting a statute, we must always start with the language itself. Id. (citation
omitted). “[W]e give words their plain meaning and effect, and read statutes as a
whole, as well as enactments relating to the same subject.” State v. Hatchett, 2014
S.D. 13, ¶ 11, 844 N.W.2d 610, 614 (citation omitted). “When the language in a
statute is clear, certain and unambiguous, there is no reason for construction, and
this Court’s only function is to declare the meaning of the statute as clearly
expressed.” Id. (citation omitted).
[¶18.] While we have not previously considered this question, the plain
meaning of SDCL 22-3-5’s text is evident. An individual commits the crime of
accessory if, while having the requisite specific intent, the individual renders
assistance to a person who has engaged in acts that constitute a felony. Further, as
provided in SDCL 22-3-5.1, the accessory’s liability does not hinge on the legal
status or adjudicatory outcome of the principal: “An accessory to the commission of
a felony may be prosecuted, tried, and punished, even if the principal is not
prosecuted or tried, or even if the principal was acquitted.” Therefore, it is not the
principal’s legal status or the existence of a prosecution that satisfies the
“commission of a felony” element. Rather, it is the factual nature of the principal’s
act or omission that gives rise to the accessory’s criminal liability. Here, Dutton
does not dispute that the alleged acts underlying N.I.’s juvenile arrest warrant
constituted an aggravated assault, a felony as defined under SDCL 22-18-1.1(4).
[¶19.] Furthermore, the fact that a juvenile’s felonious conduct is being
addressed under the juvenile code does not, nor was it intended to, shield adults
-9- #29961
from liability for an independent criminal offense that involves a minor’s illegal
conduct. To construe the juvenile code and SDCL 22-3-5 as Dutton suggests, would
undermine the statute’s purpose of promoting public safety. As well illustrated by
the facts before us, one who harbors or conceals a person after they commit a
felonious act, regardless of said person’s age, embarks on a dangerous course that
may endanger the community.
[¶20.] Other jurisdictions have come to the same conclusion when faced with
a similar question. New Mexico criminalizes harboring and aiding a felon “who
knowingly conceals any offender or gives such offender any other aid, knowing that
he has committed a felony[.]” N.M. Stat. Ann. § 30-22-4. In State v. Contreras, 41
P.3d 919, 921 (N.M. App. 2002), the defendant argued that she could not be guilty of
harboring and aiding a felon because the alleged offender was a juvenile who could
be adjudicated only as a delinquent offender rather than a felon. The New Mexico
Court of Appeals held that § 30-22-4 includes “principals who are juvenile offenders
who have committed an offense punishable as a felony notwithstanding the fact
that such offense is referred to as a delinquent act under the [juvenile] code.”
Contreras, 41 P.3d at 923. The court declined to construe the statute to exclude
juveniles because it would undermine the statute’s purpose of protecting society
from the danger associated with harboring, protecting, and aiding individuals who
have committed felonious acts. Id. at 922. As a result, the court construed ‘“any
offender’ to include a juvenile offender and ‘felony’ to mean a crime defined in law
as a felony.” Id. at 922.
-10- #29961
[¶21.] Courts from other jurisdictions, including Oregon, Mississippi, Kansas,
California, and Oklahoma, have reached the same conclusion when interpreting
similar statutes. See State v. McCullough, 220 P.3d 1182, 1187 (Or. 2009) (“[I]f a
person engages in conduct that is classified, by statute, as a felony, that person
commits ‘a crime punishable as a felony,’ whether or not that person is actually
punished for committing a felony.”); Dobbs v. State, 726 So. 2d 1267, 1275 (Miss. Ct.
App. 1998) (holding that a juvenile’s adjudication as a delinquent does not prevent
an adult from being convicted as an accessory because the juvenile still committed
the act of burglary); State v. Buss, 847 P.2d 1304, 1306 (Kan. 1993) (interpreting
“person ‘who committed a felony’” to include “juveniles who commit felonious acts”);
Shockley v. State, 724 P.2d 256, 258 (Okla. Crim. App. 1986) (“The fact that our
Juvenile Code (Title 10) classifies a particular principal as a delinquent instead of a
felon will not allow the accessory to avoid the illegality of his own act.”); Shortridge
v. Municipal Court, 198 Cal. Rptr. 749, 750–51 (Cal. Ct. App. 1984) (holding that
“all minors 14 years of age and older are capable of committing felonies[,]” and
“anyone who, with the requisite intent and knowledge, harbors, conceals or aids
these youthful principals after the commission of a felony is guilty of being an
accessory.”); State v. Truesdell, 620 P.2d 427, 429 (Okla. Crim. App. 1980) (“The fact
that the principal is a minor goes to his legal status, not his factual status, and it is
immaterial as to the guilt or innocence of the defendant on the charge of accessory
after the fact.”); but cf. Frost v. State, 527 N.E.2d 228, 229 (Ind. Ct. App. 1988)
(holding that a juvenile’s actions did not constitute a crime in the wake of a
legislative revision that struck “whoever harbors or conceals a boy or girl, under
-11- #29961
eighteen (18) years of age fleeing from . . . a charge of delinquency” from the
accessory statute).
[¶22.] Accordingly, we hold that an individual may be prosecuted, tried, and
punished as an accessory to a crime under SDCL 22-3-5 when the principal felony is
based on the act of a juvenile, regardless of the existence or status of any
prosecution against the juvenile. The circuit court did not err in concluding
Dutton’s conduct violated the provisions of SDCL 22-3-5. We affirm.
[¶23.] JENSEN, Chief Justice, and SALTER, DEVANEY, and MYREN,
Justices, concur.
-12-