(concurring).
Under SDCL 23A-8-2(5), based upon a motion of a defendant, a trial court must dismiss an Information when it does not describe a public offense.
Instanter, the facts are not in dispute: A.B. was the adopted daughter of defendant. State does not take issue with that fact. Therefore, the trial court’s decision focused on this issue: Under the undisputed facts, was a public offense described?
In deciding the above issue under SDCL 23A-8-2(5), the trial court, following State v. Fryer, 496 N.W.2d 54 (S.D.1993), expressed:
The charging statute uses the term “within the degrees of consanguinity”. The legislative use of the word consanguinity is controlling. The statute requires a blood relationship. The legislature could have just as easily used the word affinity, thereby prohibiting the relationship through marriage as in this case. “Words used by the legislature are presumed to convey their ordinary and popular meaning. This court will not enlarge a statute beyond its fact where the statutory terms are clear and unambiguous in meaning”, (citation omitted). Therefore, Defendant’s motion to dismiss is granted. (Emphasis supplied mine.)
Both the State and Fryer advanced administrative and public policy considerations in Fryer. We rejected these arguments:
These considerations were or should have been considered by the legislature when it adopted the statute. Since the statute is not ambiguous, this Court does not need to delve into the public policy considerations.
To a certain extent, State seems to argue that this Court should interpret the statute based on what this Court thinks would be the best public policy. This would clearly be an infringement on the province of the legislature.
Fryer, 496 N.W.2d at 55, fn 2.
It is not for the Supreme Court of South Dakota to define criminal conduct — that is *167within the province of the State Legislature. In this case, the terms “affinity” and “adoption” are not included in the incest statutes of SDCL §§ 22-22-1(6) and 25-1-6. Employing legal analysis, the State has simply failed to show that the State Legislature intended to use these terms, or the specific term “consanguinity” in a manner different than its ordinary and popular meaning. See Fryer, 496 N.W.2d at 56.
Therefore, I fully concur in the majority opinion.