State v. DeNoyer , 1995 S.D. LEXIS 144 ( 1995 )

MILLER, Chief Justice

(concurring in part and concurring in result in part).

Although I generally concur, I write specially to join and enlarge upon the special writing of Justice Konenkamp. Specifically, I depart from the untimely and unnecessary overruling of State v. Oster, 495 N.W.2d 305 (S.D.1993). As is reiterated below, because DeNoyer’s appeal focuses on the formation of intent, the unlawfulness requirement of Oster is entirely irrelevant to the disposition of this appeal.

First, it is crucial to remember that the facts here and in Oster have absolutely no similarity whatsoever. Oster dealt with the crime of second-degree burglary and involved a defendant who was invited into a home and, while there, stole cash out of the homeowner’s wallet that he observed laying on the kitchen cupboard. Clearly that factual scenario bears absolutely no resemblance to the circumstances involved in the first-degree burglary committed in the present case.

In accordance with the Oster decision, the instruction in this case required that the defendant “unlawfully entered or unlawfully remained ... in an occupied structure^]” Importantly, neither DeNoyer nor the State challenge the “unlawfulness” condition in the instruction. Indeed, the facts of this case amply demonstrate that the unlawfulness requirement was satisfied. DeNoyer entered the victim’s home without her permission when she and her child were sleeping. He remained in her home even after she awoke and began pushing and hitting him.

Rather than disputing the unlawfulness requirement or the jury’s finding in this regard, on appeal DeNoyer focuses his argument on criminal intent. DeNoyer contends that the intent to rape must be present at the time he entered the structure, rather than formed after the entry, in order to satisfy the elements of first-degree burglary. This is incorrect. SDCL 22-32-1 states that “any person who enters or remains in an occupied structure, with intent to commit any crime therein,” is guilty of first-degree burglary if the other elements of the crime are met. The plain language of the statute does not mandate criminal intent be formed only at the time of entry.

I am authorized to state that Justice AMUNDSON joins in this special writing.