State v. Klein

SABERS, Justice

(concurring in result).

I concur in the result only.

I believe that evidence of Klein’s two prior convictions for theft by deception in situations where he was “financially strapped” was admissible because the defense “opened the door” by asking a witness whether he was aware that Klein was a convicted felon.

The evidence was also admissible under the motive exception of SDCL 19-12-5 because the financial desperation of all three instances were highly relevant to motive, which was a material issue because Klein claimed to have financial resources.

However, the evidence was not admissible under the “intent” exception as claimed by the majority. The intent exception applies in situations where a person admits the act, but denies the intent, e.g., a person charged with sexual contact with a minor, admits the contact while bathing the child but denies the sexual intent. See- also State v. Titus, 426 N.W.2d 578 (S.D.1988), where Titus, who was charged with first-degree burglary, admitted entry, but denied intent as a result of alcohol-induced blackouts. In Titus, intent was a material issue for purpose of SDCL 19-12-5. Here, it was not. The reliance on State v. Champagne, 422 N.W.2d 840 (S.D.1988) is wrong, even if specific intent is an element of the offense. As stated in my dissent in Champagne, supra at 845, “We were wrong to [reject the dispute requirement in State v. Means, 363 N.W.2d 565 (S.D.1985) ] and we should reinstate [it].” Until we do, really fair trials may be “few and far between.” See my writing in State v. Perkins, 444 N.W.2d 34, 40-42 (S.D.1989), and the cases cited therein.