(dissenting).
[¶ 16.] I would reverse because the trial court concluded that Calin failed to prove his affirmative defense of insanity by clear and convincing evidence under SDCL 22-5-10. This is plain error as the statute is unconstitutional. SDCL 23A-44-15 provides: “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of a court.” State v. Perovich, 2001 SD 96, ¶ 34, 632 N.W.2d 12, 19.
[¶ 17.] The fatal constitutional defect of SDCL 22-5-10 is that it places upon the defendant “the burden of proving the defense of insanity by clear and convincing evidence.” The State cannot constitutionally require a defendant to do more than raise a reasonable doubt as to his sanity, i.e., the defendant’s burden of persuasion cannot exceed raising “a reasonable doubt.” It is an unconstitutional invasion of the presumption of innocence to exceed this point. S.D. Const., art. VI § 2; Robinson v. Solem, 432 N.W.2d 246, 252 (S.D. 1988) (Sabers, J., concurring in result in part and dissenting in part).
[¶ 18.] The State must prove each and every element of the crime charged beyond a reasonable doubt. Most serious crimes contain an element which overlaps *544sanity.3 Therefore, if the defendant raises a reasonable doubt as to his sanity, it becomes constitutionally inconsistent and impossible for the State to prove the overlapping element of the crime beyond a reasonable doubt.
[¶ 19.] Therefore, the statute poses a very great danger for jury confusion and for conviction by less than beyond a reasonable doubt and is unconstitutional. S.D. Const., art. VI § 2; State v. Rough Surface, 440 N.W.2d 746, 760 (S.D.1989) (Sabers, J., dissenting); State v. Baker, 440 N.W.2d 284, 294 (S.D.1989) (Sabers, J., dissenting); Robinson, 482 N.W.2d at 252 (Sabers, J., concurring in result in part and dissenting in part).
[¶ 20.] Even if a majority of the members of this Court do not agree that SDCL 22-5-10 is unconstitutional, for all the reasons set forth in the majority opinion, I am satisfied that Calin proved by clear and convincing evidence that he was insane, that he did not know right from wrong.
[¶ 21.] In addition to the bizarre behavior set forth in paragraphs 2, 3 and 4 of the majority opinion, the only diagnosis in the settled record is that “Calin was psychotic at the time of the alleged crime and did not know right from wrong.” (emphasis added). In the absence of countering information or opinions, this is more than sufficient to establish by clear and convincing evidence that he was not sane and did not know right from wrong at the time of the alleged crime.
. I submit that the state may rest its case after it has made a prima facie showing of defendant’s sanity, and that the burden then shifts to the defendant to go forward with evidence to challenge that showing, but in the final analysis, the burden of proof to prove every element of a charged crime (including the sanity of the defendant) beyond a reasonable doubt is upon the State. Robinson, 432 N.W.2d at 252 (Sabers, J., concurring in result in part and dissenting in part).