State v. McVay

2000 SD 72, 612 N.W.2d 572, 2000 S.D. LEXIS 75
CourtSouth Dakota Supreme Court
DecidedJune 7, 2000
DocketNone
StatusPublished
Cited by8 cases

This text of 2000 SD 72 (State v. McVay) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McVay, 2000 SD 72, 612 N.W.2d 572, 2000 S.D. LEXIS 75 (S.D. 2000).

Opinions

KONENKAMP, Justice

[¶ 1.] A jury convicted Cindy McVay of furnishing an alcoholic beverage to a minor and contributing to the delinquency of a minor. The minor was her son D.S. She was acquitted of the same charges involving J.L., her son’s sixteen-year-old friend. We affirm.

PACTS

[¶ 2.] During the early evening of October 16, 1998, J.L.’s mother picked him up at his grandparents’ home and took him to the Country Bar in Alpena, South Dakota, where he met his friends D.S., A.V.O., and A.O. The four, all under the age of eighteen, played pool and then decided to drive around.

[¶ 3.] J.L. and A.0. were in one car; D.S. and A.V.Ó. were in another. They communicated by cell phone and decided to find someone to buy alcohol for them. When their efforts proved unsuccessful they returned to the bar where D.S.’s mother, McVay, was celebrating her birthday.

[¶ 4.] D.S. entered the bar and asked his mother to buy some alcohol for the foursome. She bought him a liter of Lord Calvert. McVay and D.S. left the bar with the bottle and spoke to A.V.O. McVay then returned to the bar and the four minors left in their separate cars and drove through the rain.

[¶ 5.] As they were driving A.O., J.L., and D.S. were drinking. When they arrived at the Alpena water tower and eventually at the darkened football field, the three continued to drink. The testimony conflicted on whether the minors drank only beer, drank the whiskey McVay provided, and passed the liquor bottle between cars.

[¶ 6.] As a result of the evenings’ events, J.L. became intoxicated and afraid to go home. His companions left him in a parked car. Later, a home owner found J.L. curled up in his front yard. His clothes were soaked and he had no shoes or coat. He was rushed to the Huron Regional Medical Center suffering from hypothermia.

ISSUE ONE

[¶ 7.] Were jury instructions 7 and 9 prejudicial to McVay?

A. Instruction No. 7

[¶ 8.] McVay was charged with violating SDCL 35-9-11 which, at the time, provided:

[574]*574It is a Class 1 misdemeanor to sell or give for use as a beverage any alcoholic beverage to any person under the age of eighteen years unless it is done in the immediate presence of a parent or guardian or spouse over twenty-one years of age or by prescription or direction of a duly licensed practitioner or nurse of the healing arts for medicinal purposes.

[¶ 9.] Pursuant to this statute, the jury was given Instruction No. 7:

The “immediate presence of a parent” means that the parent must be present both at the time of the selling or giving of the alcoholic beverage to the minor and at the time of the possession or consumption of the alcoholic beverage by the minor. If a parent gives to her minor child an alcoholic beverage for use as an alcoholic beverage and then leaves the presence of the child, the parent has committed the crime of furnishing an alcoholic beverage to a person under the age of eighteen years.

[¶ 10.] McVay believes that the legislature intended to place the responsibility on parents to decide whether their child can have alcohol and when and where that alcohol is consumed. She contends that SDCL 35-9-1 only requires a parent’s presence when alcohol is sold or given. The consumption of alcohol by a minor, she claims, can take place outside of the immediate presence of a parent.

[¶ 11.] In construing statutes:

Each statute must be construed according to its manifest intent as derived from the statute as a whole, as well as other enactments relating to the same subject. Words used by the legislature are presumed to convey their ordinary, popular meaning, unless the context or the legislature’s apparent intention justifies departure. When conflicting statutes appear, it is the responsibility of the court to give reasonable construction to both, and to give effect, if possible, to all provisions under consideration, construing them together to make them harmonious and workable. However, terms of a statute relating to a particular subject will prevail over general terms of another statute. Finally, we must assume that the legislature, in enacting a provision, had in mind previously enacted statues [sic] relating to the same subject, (citations omitted).

Weger v. Pennington County, 534 N.W.2d 854, 856 (S.D.1995).

[¶ 12.] Applying these rules clearly shows that the trial court correctly interpreted SDCL 35-9-1 and properly gave Instruction No. 7. The legislature has emphasized the importance of enforcing all laws relating to alcoholic beverages and the illegality of underage drinking. See, Gleason v. Peters, 1997 SD 102, 568 N.W.2d 482 (Sabers, J., dissenting.)

[¶ 13.] SDCL 35-9-1 generally prohibits the selling or giving for use (i.e. consumption) as a beverage, alcohol to persons under age eighteen. SDCL 35-9-1 provides two limited exceptions to this general rule. The relevant exception here is that the selling and giving for use of the alcohol as well as its consumption must be done in the immediate presence of a parent. The statute does not authorize parents to permit children to consume alcohol outside their presence. It only allows consumption by a minor where there is immediate parental supervision of that consumption.

B. Instruction No. 9

[¶ 14.] McVay was charged with two counts of contributing to the delinquency of a minor. SDCL 26-9-1 provides:

Any person who, by any act, causes, encourages or contributes to the abuse, [575]*575the neglect or the delinquency of a child, or any person, other than a parent who, by any act, causes a child to become a child in need of supervision,, as such phrases with reference to children are defined by chapters 26-7A, 26-8A, 26-8B and 26-8C, or who is, in. any; manner, responsible therefor, is guilty of a Class 1 misdemeanor.

To find a person guilty of SDCL 26-9-1 it is not necessary to prove the child is actually delinquent if the evidence shows “that through any act of abuse, neglect or omission of duty or by any improper act or conduct on the part of any such person the abuse, neglect or delinquency of any child may have been caused or merely encouraged.” SDCL 26-9-6. These statutes are liberally construed in favor of the state to protect children from the improper conduct, acts, or bad example of persons which may be calculated to cause, encourage, or contribute to the delinquency of children.

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State v. McVay
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Cite This Page — Counsel Stack

Bluebook (online)
2000 SD 72, 612 N.W.2d 572, 2000 S.D. LEXIS 75, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcvay-sd-2000.