(concurring in result).
In State v. Randen, 497 N.W.2d 107, 109 (S.D.1993), this court held that a prior conviction carries a presumption of regularity. We also discussed the procedures to be followed in enhancement proceedings:
Recently, in Stuck v. Leapley, 473 N.W.2d 476, 478-79 (S.D.1991), we carefully outlined the various burdens of proof in habitual offender proceedings.
[W]here the defendant places the constitutional validity of the prior convictions in issue by a motion to strike or other appropriate means, the state has an initial burden of proving the existence of prior valid convictions by a preponderance of the evidence....
[W]hen state meets its initial burden of proof, the burden shifts to the defendant to show that the prior convictions are invalid. This appears to require a plea transcript indicating that the prior plea was not valid, or testimony to that effect by a participant in the plea proceeding (i.e., defendant, defendant’s attorney, the prosecutor, the judge, etc.), (emphasis in original) (footnote and citations omitted).
In Stuck, we held that state met its initial burden of proving the constitutional validity of prior convictions challenged by a habeas corpus petitioner by submitting records of the convictions showing that, at the time the petitioner entered his guilty-pleas, he was fully advised of his constitutional rights and was represented by counsel. Because the petitioner failed to offer plea transcripts indicating that the prior pleas were not valid and failed to offer any other evidence or testimony to that effect, we held that he failed to meet his burden of showing some invalidity in the prior convictions and upheld his habitual offender conviction.
Id. (emphasis in original). Further, the court held in Footnote 2, when discussing Parke v. Raley, 506 U.S. -, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992), there was no reason to deviate from the precedent established in Stuck, supra, at that time. I continue to agree that there is no need to depart even at this time.* By adhering to our prior precedent, the decision of the trial court in this case should be affirmed.
The parties and the trial court agreed that the victim’s state of mind was not an element which the State was required to prove in its case against Moeller. Notwithstanding this agreement, the trial court held that the victim’s state of mind was relevant to determine what Moeller was attempting to do at the time of the incident. Was the victim’s state of mind relevant to prove any fact at issue in this prosecution? On the record, obviously not. State v. Brings Plenty, 459 N.W.2d 390 (S.D.1990). The established precedent of this state clearly shows that the victim’s state of mind is not relevant in prosecuting an aggravated assault case. State v. Stapleton, 387 N.W.2d 28 (S.D.1986). I would not set a precedent by allowing the victim’s state of mind to creep into settled law as an appropriate element of aggravated assault. The majority opinion seems to make the victim’s state of mind an additional element of aggravated assault.
The next question is to consider the probability of this evidence having an impact on the jury verdict. State v. Mitchell, 491 N.W.2d 438 (S.D.1992). Considering Moel-ler’s conduct during the incident, I do not find admission of this evidence prejudicial error mandating a reversal of the jury verdict.
In Parke, the United States Supreme Court ruled on the constitutional validity of Kentucky’s statutory procedure for determining the validity of a prior conviction. Our state legislature has not adopted any statutory procedure for such a determination. South Dakota’s procedure has been established by precedent in our prior opinions.