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STATE OF SOUTH DAKOTA v. DONALD LEON NEKOLITE
Case Number: 2020 S.D. 8
Judge: Mark Salter
Court: IN THE SUPREME COURT
STATE OF SOUTH DAKOTA
Plaintiff's Attorney: JASON R. RAVNSBORG
MATTHEW W. TEMPLAR
Assistant Attorney General
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On April 20, 2018, at approximately 8:30 p.m., Nekolite was driving
his car eastbound on Highway 38 near Montrose when he made a sharp left turn
directly in front of a sport utility vehicle (SUV) driven by Joni Wagner, who was
traveling westbound on Highway 38. The vehicles collided, with the point of lateral
impact occurring on the front passenger side of each vehicle. Nekolite’s car came to
rest partially on the shoulder and into the ditch along the westbound lane, and
Wagner’s SUV stopped askew on the highway. Wagner called 911 and provided the
dispatcher with a description of Nekolite and his car, including its license plate
number, while both parties got out of their vehicles. Wagner asked Nekolite if he
was hurt, but she could not understand his response and thought he was impaired.
Wagner told the dispatcher that she had hurt her left thumb, but she did not tell
Nekolite that she was injured.
[¶3.] Acting on the dispatcher’s instruction to move her SUV off the
highway, Wagner got into her vehicle and observed Nekolite getting into his car and
driving away on the wrong side of the highway. She testified that Nekolite had
remained at the accident scene for approximately seven to ten minutes before
driving away and wondered if he thought she was leaving the scene when she
moved her SUV off the highway.
[¶4.] Deputy Anna Misar of the McCook County Sheriff’s Office responded to
the accident and took Wagner’s statement. Wagner told Deputy Misar she had hurt
her left thumb but refused medical treatment. Wagner experienced swelling and
bruising to her left thumb the next day, and a physician later diagnosed the injury
as a torn radial collateral ligament, requiring Wagner to wear a splint for
approximately six weeks.
[¶5.] Pete Puthoff had been traveling behind Nekolite and stopped after
witnessing the accident. When Nekolite drove away, Puthoff followed him to the
parking lot of a rural business located approximately one-quarter mile east of the
accident scene. Puthoff remained in the parking lot until Trooper Jeremy Gacke of
the South Dakota Highway Patrol arrived.
[¶6.] Trooper Gacke found Nekolite in the back seat of his car partially
covered with a blanket. Nekolite explained he was laying down because he had
hurt his back. Trooper Gacke noted Nekolite’s speech was slurred, and a strong
smell of intoxicants was coming from the interior of his vehicle. He further
observed that Nekolite had trouble balancing and walking to the patrol car. When
he checked Nekolite’s driver’s license, Trooper Gacke found it had been suspended.
After Nekolite failed field sobriety tests, Trooper Gacke placed him under arrest for
driving under the influence. He transported Nekolite to jail and obtained a search
warrant for a blood draw, which yielded a result of .306 percent alcohol by weight
when analyzed. Trooper Gacke also interviewed Puthoff, who corroborated
Wagner’s version of the accident and her observations of Nekolite’s behavior.
[¶7.] The State initially charged Nekolite with driving while under the
influence (second offense), driving with a suspended license, and refusing to
surrender his license. See SDCL 32-23-1(1); SDCL 32-23-1(2); SDCL 32-23-3; SDCL
32-12-65; SDCL 32-12-68. After Deputy Misar obtained supplemental information
from Wagner about her left thumb injury, the State charged Nekolite with the
additional offense of hit and run1 resulting in an injury, which is a class 6 felony.
See SDCL 32-34-5.2
[¶8.] Prior to trial, Nekolite filed what appears to have been a preemptive
motion for judgment of acquittal. He argued, among other things, that he lacked
any knowledge of Wagner’s injury and could not, therefore, be convicted of felony hit
and run under SDCL 32-34-5. The State opposed Nekolite’s motion for acquittal,
arguing that it was not required to prove that Nekolite “was actually aware of the
injury before leaving the scene of the collision.” The circuit court held the motion in
abeyance until after the State completed its case-in-chief at trial.
1. “The term ‘hit-and-run’ is a baseball colloquialism which was used to describe
violations of the motor vehicle code requirement that a driver involved in an
accident must stop, render aid and leave his identification as required by
SDCL 32-34-3 to 32-34-9.” Clark v. Regent Ins. Co., 270 N.W.2d 26, 31 (S.D.
2. As set out in greater detail below, it is a class 6 felony for a driver involved in
a collision resulting in death or injury to fail to stop immediately and provide
basic information, such as the driver’s name, address, and vehicle license
number. SDCL 32-34-5; see also SDCL 32-34-3. The driver is also obligated
to render aid to anyone who may have been injured. SDCL 32-34-5 (listing
minimum obligations to stop, provide information, and render aid).
[¶9.] The parties subsequently reached a partial plea agreement under
which Nekolite pled guilty to the DUI offense. The State dismissed the charges for
driving with a suspended license and refusing to surrender his license.
[¶10.] The felony hit-and-run charge was then tried to the court. Wagner
testified consistent with her previous statements—that she had not told Nekolite
she was injured, that she could not understand Nekolite, who she thought was “very
impaired,” and that she believed Nekolite left the accident scene because he thought
she was leaving when she moved her car.3
[¶11.] At the close of the State’s evidence, Nekolite renewed his motion for a
judgment of acquittal. The circuit court denied the motion and found Nekolite
guilty. In its written findings of fact, conclusions of law, and verdict, the circuit
court found that Nekolite “left the scene without complying with the provisions of
SDCL 32-34-3 . . . [and] before he could learn of any injury to Wagner.” The circuit
court also concluded that Nekolite’s “knowledge of an injury, resulting from an
accident, is not an element which must be proven by the State.”
[¶12.] The court sentenced Nekolite to two years in the penitentiary for the
felony hit-and-run conviction, suspended on the conditions that he serve 120 days in
jail, pay all fines and restitution, complete two years of supervised probation, and
not drive for five years. The circuit court imposed a consecutive sentence for the
DUI (second offense), which is not at issue in this appeal.
3. Nekolite has not argued that he cannot be convicted because he did not
intend to leave the scene of the accident and believed that Wagner, herself,
was leaving and abandoning any interest in obtaining the information
required under SDCL 32-34-3.
[¶13.] Nekolite’s challenge to his felony hit-and-run conviction raises one
issue for our review: Whether the circuit court erred when it found that SDCL 32-
34-5 does not require knowledge of the injury as an essential element.
[¶14.] The circuit court found that there was no evidence that Nekolite could
be charged with knowledge of Wagner’s injury—a determination the State has not
challenged. Therefore, the issue presented here relates solely to whether knowledge
of an injury is an essential element in a prosecution under SDCL 32-34-5.
Determining whether an offense requires a particular mental state “raises an issue
of statutory interpretation that this Court reviews under the de novo standard.”
State v. Jucht, 2012 S.D. 66, ¶ 22, 821 N.W.2d 629, 634.
[¶15.] Three statutes form the nucleus of what may be termed South
Dakota’s hit-and-run statutory scheme. Initially, SDCL 32-34-3 establishes the
duty of a driver involved in an accident that causes death, injury, or property
immediately stop and give his name and address, and the name
and address of the owner and the license number of the vehicle
he is driving to the person struck or the driver or occupants of
any vehicle collided with and shall render to any person injured
in such accident reasonable assistance . . . .
[¶16.] The Legislature prescribes different punishments for failure to comply
with SDCL 32-34-3 depending upon whether the accident results in injury or death,
or whether it results only in damage to property. Under SDCL 32-34-5, “[a]ny
driver of any vehicle involved in an accident resulting in injury or death to any
person, who fails immediately to stop such vehicle at the scene of such accident and
comply with the provisions of § 32-34-3 is guilty of a Class 6 felony . . . .” (Emphasis
added.) However, SDCL 32-34-6 makes it a class 1 misdemeanor for a driver
“involved in an accident resulting in damage to property” who fails to “stop his
vehicle at the scene of the accident and immediately give his name and address, and
the name and address of the owner of the vehicle.” (Emphasis added.)
[¶17.] Here, the evidence establishes that Nekolite did not comply with the
requirements of SDCL 32-34-3, and he does not argue otherwise. Although he
stopped after the accident, the circuit court found that Nekolite “failed to provide
his own name and address, or the name and address of the owner of the vehicle he
was driving, to Wagner; likewise, [he] did not provide Wagner his license number”
as required under SDCL 32-34-3. Nekolite’s decision to leave the accident scene
abruptly, therefore, left him criminally liable—the question is to what extent.
[¶18.] Nekolite argues that the evidence would support only a misdemeanor
violation because he lacked knowledge of Wagner’s injury that he claims is required
for a felony conviction under SDCL 32-34-5. He relies upon our holding in State v.
Minkel, which does state that “criminal liability attaches to a driver who knowingly
leaves the scene of an accident if he actually knew of the injury or if he knew that
the accident was of such a nature that one would reasonably anticipate that it
resulted in injury to a person.” 89 S.D. 144, 148, 230 N.W.2d 233, 235-36 (1975)
(quoting People v. Holford, 403 P.2d 423, 427 (Cal. 1965)). A careful reading of the
opinion, however, reveals this statement to be dicta that we are not obligated to
follow under principles of stare decisis. See Wiersma v. Maple Leaf Farms, 1996
S.D. 16, ¶ 5 n.1, 543 N.W.2d 787, 790 n.1 (Our statement concerning the impact of
statutory amendments not before the Court was dicta and not binding.).
[¶19.] At issue in Minkel was whether a defendant convicted of violating
SDCL 32-34-5 must possess knowledge of the accident—not a resulting injury to a
victim. 89 S.D. at 145, 230 N.W.2d at 234. We recognized that knowledge of the
accident is required and that it can be established, like other facts in criminal
prosecutions, with circumstantial evidence. Id. at 235. We specifically held that
the severity of the victim’s injuries can be used as circumstantial evidence of a
defendant’s knowledge under the view that grave consequential injuries, such as
those that result in a fatality, could suggest virtually inescapable knowledge that an
accident had occurred. Id. at 236. Here, though, there is no question that Nekolite
was aware of the accident, and the Minkel decision is not otherwise implicated.
[¶20.] Unconstrained as we are from any obligation to treat Minkel as
controlling, we approach as an open question the issue of whether a defendant must
possess knowledge of a resulting injury in a prosecution under SDCL 32-34-5. We
begin with SDCL 32-34-3’s requirement that a driver involved in a motor vehicle
accident4 resulting in either property damage, or injury or death must “immediately
stop and give his . . . [information] to the person struck or the driver or occupants of
any vehicle collided with and . . . render to any person injured in such accident
reasonable assistance.” This text expresses two perceptible purposes: (1) to ensure
people who are injured in motor vehicle accidents receive prompt medical care; and
4. A single-vehicle accident is sufficient to trigger the requirements of SDCL 32-
34-3. State v. Cameron, 1999 S.D. 70, ¶ 18, 596 N.W.2d 49, 53.
(2) to ensure accountability for damages that may have been caused by negligent
conduct. See State v. Clark, 67 S.D. 133, 290 N.W. 237, 239 (1940) (stating that
under our prior hit-and-run statute, “[t]he manifest purpose of the statute is to
prevent drivers from seeking to evade prosecution by escaping before their identity
can be determined”).
[¶21.] The provisions of SDCL 32-34-5 and SDCL 32-34-6 animate these
purposes by imposing varying degrees of criminal liability depending on the
consequences of the accident. However, a defendant is not punished directly for
inflicting damage or injury, but rather for the failure to stop and comply with the
requirements of SDCL 32-34-3. Neither SDCL 32-34-5 nor SDCL 32-34-6 expressly
require knowledge of the injury or damage.5 Most states with similar hit-and-run
statutes require knowledge of the collision, but there is a split among jurisdictions
on the issue of knowledge of the resulting injury. See Marjorie A. Caner,
Annotation, Necessity and Sufficiency of Showing, in Criminal Prosecution under
“Hit-And-Run” Statute, Accused’s Knowledge of Accident, Injury, or Damage, 26
A.L.R .5th 1, §§ 4[a]–[b] (1995). We believe the better view is to hold that our
statutes do not require knowledge of the injury as an essential element of an offense
under SDCL 32-34-5 for two principal reasons.
5. We recognize that a statute’s silence, alone, does not necessarily mean that
the Legislature intended to dispense with a mens rea requirement. State v.
Jones, 2011 S.D. 60, ¶ 10, 804 N.W.2d 409, 412-13 (citing Staples v. United
States, 511 U.S. 600, 606, 114 S. Ct. 1793, 1797, 128 L. Ed. 2d 608 (1994)).
Indeed, our holding in Minkel illustrates our inclination to impose a
knowledge requirement for the existence of an accident in a prosecution
under SDCL 32-34-5.
[¶22.] First, we agree with the sensible observation of the Supreme Court of
Delaware that “[r]equiring the State to prove the defendant’s knowledge of the
consequences of a collision would defeat the purpose of the statute by encouraging
drivers to avoid knowledge by fleeing, rather than stopping to investigate whether
anyone was seriously injured or killed.” Pardo v. State, 160 A.3d 1136, 1146 (Del.
2017). In this regard, our statutes merely seek compliance with minimum
standards for sharing information and rendering aid, if necessary. These
obligations are not onerous. Indeed, Nekolite could have avoided criminal liability
by simply complying with SDCL 32-34-3 regardless of whether he had knowledge of
[¶23.] Second, splicing a knowledge-of-the-injury element into the text of
SDCL 32-34-5 would lead to anomalous results in its application. This is
particularly true for the constructive knowledge rule adopted by some states, as
illustrated in Holford. See Caner, supra ¶ 21, at §§ 4[a]–[b] . These constructive
knowledge formulations typically allow for a finding of knowledge if the
circumstances of the accident were severe enough to create a reasonable inference
that a person was likely injured. See Holford, 403 P.2d at 427. However, this view
incorrectly presumes that the injury or damage will necessarily correspond to the
magnitude of the collision and, further, that the extent of injury will be immediately
[¶24.] In truth, a seemingly serious accident could result in no injuries, while
a relatively minor collision could, in some instances, result in significant injuries
that may not be instantly detectible. Under the latter scenario, a defendant leaving
the scene of a minor accident could conceivably be justified in believing the accident
would not result in an injury, even if it actually did. If we were to accept the
requirement of actual or constructive knowledge of the injury as an element of
SDCL 32-34-5, the fleeing motorist could avoid a felony-grade punishment in
contravention the statute’s intent
Outcome: Under the circumstances, the circuit court did not err when it
determined knowledge of the injury was not an essential element of a felony hitand-run offense and denied Nekolite’s motion for judgment of acquittal. We affirm