#26725-rev & rem-SLZ

2014 S.D. 55

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

DONALD LEON NEKOLITE, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FIRST JUDICIAL CIRCUIT

MCCOOK COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE TIMOTHY W. BJORKMAN

Judge

* * * *

MARTY J. JACKLEY

Attorney General

KIRSTEN E. JASPER

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff 

and appellee. 

MICHAEL E. UNKE

Salem, South Dakota Attorney for defendant

and appellant.

* * * *

ARGUED ON MARCH 26, 2014

OPINION FILED 07/30/14
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ZINTER, Justice

[¶1.] Donald Nekolite was convicted in magistrate court of being in “actual 

physical control” of a vehicle while under the influence of alcohol. The circuit court 

affirmed. We reverse.

Facts and Procedural History

[¶2.] Donald Nekolite drove to a dance with his girlfriend. They both 

testified to the same version of the facts. According to their testimony, after 

drinking heavily at the dance, Nekolite went to his truck to get a cigarette. 

Nekolite opened the passenger door and reached to the driver’s side to get a package 

of cigarettes. In doing so, he inadvertently bumped the gear shift, causing it to pop 

into neutral, and the truck rolled into a parked vehicle. There is no dispute that 

Nekolite’s girlfriend had not been drinking: she was the “designated driver” for the 

evening.

[¶3.] Police officers who arrived to investigate the accident observed that 

Nekolite was intoxicated. In contrast to Nekolite’s and his girlfriend’s testimony,

one officer testified that Nekolite told the officer that “[Nekolite] was behind the 

wheel and that he intended to leave and that he had pressed the clutch in and 

rolled back into the [other] vehicle.” Nekolite was arrested and charged with 

“driving” or being in “actual physical control” of a vehicle while under the influence 

of alcohol, in violation of SDCL 32-23-1.1

 

1. SDCL 32-23-1 provides, in relevant part:

No person may drive or be in actual physical control of any 

vehicle while:

(continued . . .)
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[¶4.] In a bench trial in magistrate court, the sole question was whether 

Nekolite was in “actual physical control” of his vehicle. The State argued “that 

[Nekolite] was in a position to manipulate and control [one of the controls of the 

vehicle], that being the stick shift. We therefore have actual physical [control.]” 

Nekolite argued that “reaching in to get his cigarettes from the passenger side” did 

not constitute actual physical control of a vehicle. The magistrate court based its 

decision on language from State v. Kitchens, 498 N.W.2d 649 (S.D. 1993) (per 

curiam). Citing Kitchens, the magistrate court stated that “[a]ll that is necessary to 

establish actual physical control” is a “showing that the vehicle was operable and 

that the defendant was in position to manipulate controls which would cause it to 

move.” The court then entered the following oral findings of fact:

I find in this case that the vehicle was operable, as it was driven 

there. I find that the vehicle was being manipulated by Mr. 

Nekolite in that he admitted he reached in, struck the gear shift 

mechanism which caused the vehicle to move, and that is 

sufficient for purposes of the statute and the case law pursuant 

to [Kitchens] to establish being in physical control of a vehicle . . 

. .

The court concluded by stating, “[b]ased upon [these] facts[,]” Nekolite was guilty 

“of being in [actual] physical control of a vehicle” while under the influence of 

alcohol.

[¶5.] In his appeal in circuit court, Nekolite argued that the magistrate 

court’s findings of fact controlled, and under those facts, his conduct did not 

________________________

(. . . continued)

(1) There is 0.08 percent or more by weight of alcohol in that 

person’s blood as shown by chemical analysis of that person’s 

breath, blood, or other bodily substance;

(2) Under the influence of an alcoholic beverage . . . .
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constitute actual physical control of a vehicle. The State responded that under the

language of Kitchens cited by the magistrate court, Nekolite was in actual physical 

control. The State alternatively argued that the magistrate court’s findings of fact 

were not the controlling facts of the case because the State asserted that the 

magistrate court only made a general finding of guilt. Assuming that the 

magistrate court only entered a general finding of guilt, the State contended that 

the circuit court could also consider the officer’s testimony to support the conviction. 

The State contended that the conviction was supported by the officer’s testimony 

because Nekolite allegedly admitted sitting in the driver’s seat, operating the 

clutch, and intending to leave when his vehicle rolled into the other vehicle. 

[¶6.] The circuit court agreed with the State and affirmed the conviction. 

The court ruled that Nekolite was in actual physical control of the vehicle under the 

magistrate court’s findings of fact. But the court then ruled that the magistrate 

court only made a general finding of guilt. Therefore, the circuit court concluded 

that, sitting as an appellate court, it could consider the officer’s testimony to 

support the conviction. 

[¶7.] Nekolite appeals. He contends that he was not in actual physical 

control of his vehicle under the magistrate court’s findings of fact. He also contends 

that the circuit court erred in considering the officer’s testimony to support the 

conviction. 

Decision

[¶8.] We must initially determine when, under SDCL 23A-18-3, an appellate 

court may consider a theory of facts that were not found to be the facts by the trial 
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court. The answer depends on whether the trial court entered findings of fact or 

whether it only entered a general finding of guilt. 

[¶9.] Nekolite argues that the magistrate court made specific factual 

findings that were consistent with his and his girlfriend’s testimony. Nekolite 

points out that those findings implicitly rejected the officer’s conflicting testimony. 

Therefore, Nekolite contends that appellate review is limited to whether he was 

guilty under the magistrate court’s findings. Nekolite asserts that the circuit court

erred in considering the officer’s conflicting testimony to affirm the conviction. 

[¶10.] The State argues that the magistrate court made no credibility finding 

or other findings of fact; rather, the court only made a general finding of guilt. The 

State notes that neither party requested specific factual findings under SDCL 23A18-3. Therefore, the State contends that the circuit court properly relied on the 

officer’s testimony to affirm the conviction. 

[¶11.] In a nonjury criminal trial, the “court shall make a general finding and 

shall in addition, on request made before submission of the case to the court for 

decision, find facts specially.” SDCL 23A-18-3 (Rule 23(c)). The court’s “findings 

may be oral.” Id. SDCL 23A-18-3 is similar to Rule 23(c) of the Federal Rules of 

Criminal Procedure. We have looked to federal case law applying Rule 23(c) when 

applying SDCL 23A-18-3.2 See State v. Catch the Bear, 352 N.W.2d 640, 646 (S.D. 

1984).

 

2. Rule 23(c) of the Federal Rules of Criminal Procedure provides: “In a case 

tried without a jury, the court must find the defendant guilty or not guilty. If 

a party requests before the finding of guilty or not guilty, the court must 

(continued . . .)
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[¶12.] A general finding within the meaning of Rule 23(c) finds only guilt or 

innocence. “A general finding of guilt by a judge may be analogized to a verdict of 

‘guilty’ returned by a jury.” United States v. Jenkins, 420 U.S. 358, 366, 95 S. Ct. 

1006, 1011, 43 L. Ed. 2d 250 (1975) (citation omitted), overruled on other grounds by 

United States v. Scott, 437 U.S. 82, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978); see also

United States v. Alameh, 341 F.3d 167, 176 (2d Cir. 2003) (“general verdict of 

guilty”); United States v. Lynch, 162 F.3d 732, 739 (2d Cir. 1998) (Sack, Cir. J., 

concurring) (“general finding of not guilty”); United States v. Farrell, 126 F.3d 484, 

491 (3d Cir. 1997) (“general finding of guilt in a non-jury trial”).

[¶13.] When a general finding of guilt has been entered under Rule 23(c), an 

appellate court may “imply findings to support the judgment if evidence, viewed in a 

light most favorable to the government, so warrants.” United States v. Gant, 691 

F.2d 1159, 1163 (5th Cir. 1982) (citation omitted); see also Farrell, 126 F.3d at 491 

(“[I]t is proper for an appellate court to imply findings of fact that support a general 

finding of guilt in a non-jury trial where the evidence so warrants and the 

defendant has not requested special findings under [Rule 23(c).]”). In contrast, 

when factual findings have been made, and those findings are not clearly erroneous, 

an appellate court may not set aside those findings and imply contradictory 

findings. See Catch the Bear, 352 N.W.2d at 646 (“Findings made under Rule 23(c) 

shall not be set aside unless clearly erroneous.”); cf. State v. Fifteen Impounded 

Cats, 2010 S.D. 50, ¶ 26, 785 N.W.2d 272, 282 (“All conflicts in the evidence must be 

________________________

(. . . continued)

state its specific findings of fact in open court or in a written decision or 

opinion.”
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resolved in favor of the [trial] court’s determinations.”); Pellegrin v. Pellegrin, 1998 

S.D. 19, ¶ 13, 574 N.W.2d 644, 647 (“Where findings of the trial court are based on 

conflicting testimony . . . we will not disturb them on appeal.”). To do so would 

usurp the factfinder’s “function in resolving conflicts in the evidence, weighing 

credibility, and sorting out the truth.” Cf. State v. Dowty, 2013 S.D. 72, ¶ 15, 838 

N.W.2d 820, 825 (noting that when reviewing the sufficiency of the evidence when a 

jury is the factfinder, “this Court will not usurp the jury’s function in resolving 

conflicts in the evidence, weighing credibility, and sorting out the truth”); Hubbard 

v. City of Pierre, 2010 S.D. 55, ¶ 26, 784 N.W.2d 499, 511 (“On review, this Court 

defers to the [trial] court, as fact finder, to determine the credibility of witnesses 

and the weight to be given to their testimony.”).

[¶14.] In this case, the magistrate court did not make a general finding of 

guilt similar to a jury’s guilty verdict. The court clearly stated that its ultimate

finding of guilt was “based upon” its oral findings of fact made on the record.3

 

3. Although neither party requested findings of fact, a court may make findings 

of fact under Rule 23(c) even if not requested. See United States v. Hogue, 

132 F.3d 1087, 1090 n.3 (5th Cir. 1998) (citing 2 Charles A. Wright, Federal 

Practice and Procedure § 374, at 311-12, n.5 (2d ed. 1982)) (“Some judges 

make findings in all criminal cases in which the jury is waived, even though 

there has been no request from a party.”); Lynch, 162 F.3d at 739 (Sack, Cir. 

J., concurring) (noting that in a nonjury trial, a court may “prepare[] special 

findings of fact, either because the Government or the defendant requested 

them or because the judge has elected to make them sua sponte”); United 

States v. Figueroa, 337 F. Supp. 645, 652 (S.D.N.Y 1971) (“[T]he language of 

Rule 23(c) does not preclude a sua sponte request for proposed findings of fact 

and conclusions of law.”). As a federal court explained, “factual findings by 

the trial court, even though not required,” are “helpful . . . to proper appellate 

review of a conviction resulting from a non-jury trial[.]” Jones v. United 

States, 16 A.3d 966, 971 (D.C. Cir. 2011) (quoting United States v. Brown, 716 

F.2d 457, 462 (7th Cir. 1983)); see also Hogue, 132 F.3d at 1090 (“The purpose 

(continued . . .)
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Those findings were specific, and they resolved conflicting testimony on the nature 

of “control” that Nekolite exerted over the vehicle. The magistrate court only found 

that Nekolite “reached in [to his vehicle], [and] struck the gear shift mechanism 

which caused the vehicle to move[.]” These findings implicitly rejected the officer’s 

conflicting testimony. Further, the magistrate court’s findings were supported by 

Nekolite’s and his girlfriend’s testimony. Because the magistrate court made 

specific factual findings on conflicting evidence, and because those findings were not 

clearly erroneous, they were the applicable facts for appellate review.

[¶15.] The circuit court erred in relying on the officer’s testimony to affirm 

the magistrate court’s ultimate finding of guilt. The magistrate court’s findings of 

fact were in direct conflict with the officer’s testimony. Yet the circuit court adopted 

the officer’s testimony without ruling the magistrate court’s findings clearly 

erroneous. By adopting the officer’s testimony, the circuit court improperly usurped 

the magistrate court’s role as the factfinder. 

[¶16.] Having decided that appellate review of the facts is limited in this 

case, we next decide whether Nekolite’s acts, as found by the magistrate court, 

constituted “actual physical control” of a vehicle under SDCL 32-23-1. A court’s

“application of a legal standard to the facts, once determined, is fully reviewable by 

________________________

(. . . continued)

of special findings of facts is to afford the reviewing court a clear 

understanding of the basis of the trial court’s decision.”); Fed. R. Crim. P. 

23(c) advisory committee’s note to the 1977 amend. (“The oral findings, of 

course, become a part of the record, as findings of fact are essential to proper 

appellate review on a conviction resulting from a nonjury trial.”). Therefore, 

though not required to make findings of fact absent a request, a trial court 

may make sua sponte findings under SDCL 23A-18-3. 
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this Court.” State v. Runge, 2006 S.D. 111, ¶ 9, 725 N.W.2d 589, 592 (citation 

omitted).

[¶17.] Both parties cite South Dakota Criminal Pattern Jury Instruction 3-

10-10, which defines “actual physical control.”

A person is in “actual physical control” of a vehicle within the 

meaning of these instructions when the vehicle is operable and 

the person is in position to manipulate one or more of the 

controls of the vehicle that cause it to move or affect its 

movement in some manner or direction. (It means existing or 

present bodily restraint, directing influence, domination or 

regulation of the vehicle.) It means such control as would enable 

the defendant to actually operate the vehicle in the usual and 

ordinary manner. “Actual physical control” of a vehicle results, 

even though the vehicle merely stands motionless, so long as a 

person keeps the vehicle in restraint or is in a position to 

regulate its movements.

Although pattern jury instructions are not law, are not authoritative, and are not 

binding on this Court, they are often grounded in long-standing practice. They have 

also “been carefully drafted to reflect the law.” State v. Eagle Star, 1996 S.D. 143, ¶ 

15 n.2, 558 N.W.2d 70, 73 n.2. In previous cases, we have specifically approved this 

pattern instruction defining actual physical control. See State v. Bordeaux, 2006 

S.D. 12, ¶ 11, 710 N.W.2d 169, 173 (per curiam); Kitchens, 498 N.W.2d at 651; State 

v. Hall, 353 N.W.2d 37, 41 n.2 (S.D. 1984). Because neither party takes issue with 

our prior case law, we continue to apply that definition in this case.4

 

4. The dissent disagrees with the definition because “the Legislature has not

adopted the language of the instruction” in SDCL 32-23-1. See infra Dissent 

¶ 30. But we have adopted and applied the pattern instruction definition 

since 1984, without legislative change. See Hall, 353 N.W.2d at 41 n.2. The 

more logical inference is that the Legislature has not acted because it has not 

disagreed with the case law definition. And the dissent does not contend that 

our definition summarized in the pattern instruction is an incorrect 

(continued . . .)
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[¶18.] The State and the dissent contend that Nekolite was guilty under the 

first sentence of the definition. They point out that Nekolite’s vehicle was operable

and that Nekolite manipulated the vehicle’s controls when he bumped the gear shift

into neutral, which caused the vehicle to move. Nekolite does not dispute that his 

vehicle was operable and that he was in a position to manipulate a control that 

caused the vehicle to move. However, relying on the second sentence of the pattern 

instruction, Nekolite contends that he was not in such control of his vehicle as 

would have enabled him to operate it in its usual and ordinary manner.

[¶19.] This difference in focus arises from language in Kitchens. That case

involved the first sentence. We stated: “Under our settled law, all that is necessary

to establish actual physical control of a vehicle is a showing that the vehicle was 

operable and that the defendant was in a position to manipulate the controls which 

would cause it to move.” 498 N.W.2d at 653 (emphasis added). But the State, and 

the courts below, took the “all that is necessary” phrase out of context and failed to 

consider the entire definition.5 Despite the “all that is necessary” phrase, we 

________________________

(. . . continued)

statement of the law or that our cases adopting and applying that language

should be overruled. The dissent also fails to acknowledge that, as a part of 

our judicial function, we are required to interpret criminal statutes and adopt 

explanatory definitions. Indeed, the dissent itself favorably quotes 

nonstatutory definitional language from City of Fargo v. Theusch, 462 

N.W.2d 162, 163-64 (N.D. 1990)—“any exercise of dominion or control over a 

vehicle”—even though the Legislature has not added that language to the 

statute. See infra Dissent ¶ 31. 

5. The dissent is premised entirely on the contention that “Nekolite’s control of 

the gear shift constitutes actual physical control of the vehicle.” See infra

Dissent ¶ 31 (emphasis added). Even setting the pattern instruction aside, 

exclusive focus on the gear shift fails to consider the statutory question: was

(continued . . .)
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approvingly quoted the entire pattern instruction in Kitchens, which required proof 

of the defendant’s ability to “actually operate the vehicle in the usual and ordinary

manner.” See id. at 651; see also Bordeaux, 2006 S.D. 12, ¶ 11, 710 N.W.2d at 173

(approving, after Kitchens, the entire pattern instruction definition). 

[¶20.] Therefore, for purposes of determining actual physical control of a 

vehicle, all words and phrases of the definition must be considered. The State must 

prove that: (1) the defendant’s vehicle was operable; (2) the defendant was in a

position to manipulate one or more of the controls of the vehicle that cause it to 

move or affect its movement in some manner or direction; and (3) the defendant’s 

control was such as would enable the defendant to actually operate the vehicle in

the usual and ordinary manner.6 Bordeaux, 2006 S.D. 12, ¶ 11, 710 N.W.2d at 173; 

Kitchens, 498 N.W.2d at 651; Hall, 353 N.W.2d at 41 n.2. Because Nekolite does

________________________

(. . . continued)

Nekolite exercising actual physical control of the vehicle? The trial court 

found actual physical control only because Nekolite “struck the gear shift” 

while reaching into the vehicle to get a cigarette. (Emphasis added.) There 

is no dispute that the strike was inadvertent. Inadvertently striking a gear 

shift may be some evidence of actual physical control. But, by itself, an 

inadvertent strike of a gear shift does not demonstrate actual physical control 

of the vehicle. 

The dissent declines to consider evidence of the defendant’s intent, position

and relationship with the vehicle, and the presence of another person who 

was designated to control the vehicle. By finding guilt based only on an 

inadvertent bump of the gear shift and movement of the vehicle, the dissent 

adopts strict liability under SDCL 32-23-1 for anyone who has inadvertent 

physical contact with a vehicle’s controls while under the influence of alcohol. 

The dissent cites no authority for strict liability under SDCL 32-23-1 or our 

case law.

6. And if the vehicle remains motionless, the state must prove that the “person 

[kept] the vehicle in restraint or [was] in a position to regulate its 

movements.” See supra ¶ 17.
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not dispute that his vehicle was operable and that he was in a position to 

manipulate a control, the only question is whether his control of the vehicle was 

such that it would have enabled him to operate the vehicle in its usual and ordinary 

manner. 

[¶21.] We have not addressed what control is necessary to operate a vehicle 

in its usual and ordinary manner. The circuit court relied on four cases:

Commonwealth v. Clarke, 150 N.E. 829 (Mass. 1926); People v. Wood, 538 N.W.2d 

351 (Mich. 1995); People v. Pomeroy, 276 N.W.2d 904 (Mich. Ct. App. 1979); and 

Moe v. Motor Vehicles Division, 889 P.2d 1334 (Or. Ct. App. 1995). Three of those 

cases involved facts that provide no guidance on this question.7 The only case with 

similar facts is Moe. However, Moe addressed the meaning of “drive,” not actual 

physical control. See 889 P.2d at 1336. 

[¶22.] Although we have not directly addressed what control is necessary to 

operate a vehicle in its usual and ordinary manner, the principles underlying our 

actual-physical-control statute provide guidance. “The foundations of South Dakota 

law on the ‘actual physical control’ prohibition are nearly identical to those 

 

7. See Clarke, 150 N.E. at 830 (ruling that “operating a motor vehicle” does not 

require the vehicle’s engine to be running, in the case of a defendant who, 

while seated behind the steering wheel, attempted to lock the transmission 

but instead caused the vehicle to go into neutral and roll into another 

vehicle); Wood, 538 N.W.2d at 352 (addressing the meaning of “operating a 

motor vehicle,” in the case of a defendant who was found unconscious behind 

the steering wheel of a running vehicle, with his foot on the brake pedal and 

the automatic transmission in drive); Pomeroy, 276 N.W.2d at 905-06

(addressing whether “operate” requires physical motion of a motor vehicle, in 

the case of a defendant who was found asleep, slumped over the steering 

wheel; and in the case of another defendant found asleep in his car, which 

was in gear, with the engine idling and the rear portion of the car in a ditch). 
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pronounced by the North Dakota Supreme Court in City of Fargo [v. Theusch, 462 

N.W.2d 162 (N.D. 1990)].” Kitchens, 498 N.W.2d at 652. In City of Fargo, the court 

explained: “The purpose of the ‘actual physical control’ offense is a preventive 

measure[,] . . . long construed . . . to broadly prohibit any exercise of dominion or 

control over a vehicle by an intoxicated person.” 462 N.W.2d at 163-64 (emphasis 

added) (citation omitted) (internal citations omitted). Thus, “[t]he real purpose of 

the actual physical control statute is to deter individuals who have been drinking 

intoxicating liquor from getting into their vehicles, except as passengers.” Id. at 

163 (citation omitted). The actual-physical-control statute “enable[s] the drunken 

driver to be apprehended before he strikes[,]” because “an intoxicated person seated 

behind the steering wheel of a motor vehicle is a threat to the safety and welfare of 

the public.” Kitchens, 498 N.W.2d at 652 (quoting Kirby v. Dep’t of Pub. Safety, 262 

N.W.2d 49, 51 (S.D. 1978)). 

[¶23.] Thus, in considering the actual-physical-control question, our cases 

have examined the defendant’s position in the vehicle and concomitant ability to 

control the vehicle. Where actual physical control existed, the defendants were

positioned in their vehicles in some way that would have enabled them to actually

operate their vehicles in the usual and ordinary manner. See id. (involving a 

defendant found slumped over the steering wheel, with his key in one of his pockets; 

his vehicle was parked in a convenience store’s parking lot, close to a city street; 

and no one else was present who could have controlled the vehicle unless the 

defendant first relinquished his control); State v. Remacle, 386 N.W.2d 38, 38 (S.D. 

1986) (involving a defendant found slumped over the driver’s seat, with the key in 
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the ignition); Petersen v. Dep’t of Pub. Safety, 373 N.W.2d 38, 39 (S.D. 1985) 

(involving a defendant found asleep in the front seat, leaning against the driver’s 

door with his legs and feet extended across the front seat, and the key in the 

ignition); Hall, 353 N.W.2d at 42 (involving a defendant found “sitting in the 

driver’s seat and although he was slumped over, the vehicle controls were within his 

reach; [the defendant] completely dominated the [vehicle], the key was in the 

ignition, the doors were locked, he could have sat up and driven off at any time and 

no one else could have controlled the vehicle unless [the defendant] relinquished his 

control”); State v. DuBray, 298 N.W.2d 811, 813 (S.D. 1980) (“Defendant was found 

alone and asleep on the driver’s side; the motor was running and the transmission 

was still in drive.”); Kirby, 262 N.W.2d at 52 (involving a defendant found “behind 

the wheel, albeit perhaps dozing; there was no one else in the vehicle; the motor was 

running; the parking lights were on; [and] the vehicle was in a position where it 

could easily have resumed travel on the street”); State v. MacDonald, 260 N.W.2d 

626, 627 (S.D. 1977) (“[Defendant] was sitting behind the steering wheel of the car, 

with the motor running and the headlights on.”).

[¶24.] Unlike our previous cases, at the time of this incident, Nekolite was 

not exercising dominion or control over the vehicle. Unlike the defendants in 

Kitchens, Hall, DuBray, and Kirby, Nekolite had a non-intoxicated designated 

driver present who was to exercise control of the vehicle. See Kitchens, 498 N.W.2d 

at 652 (finding actual physical control based in part on the fact that “[n]o one else 

could have had control of the vehicle unless [the defendant] first relinquished his 

[control]”); Hall, 353 N.W.2d at 42 (same); DuBray, 298 N.W.2d at 813 (“Defendant 
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was found alone and asleep on the driver’s side [of the vehicle.]”); Kirby, 262 N.W.2d 

at 52 (same). Further, Nekolite’s position with respect to the vehicle was not such 

as would have enabled him to actually operate the vehicle in its “usual and ordinary 

manner.” Although his key was within reach,8 Nekolite was merely standing 

outside the vehicle, reaching across the passenger seat, attempting to get a 

cigarette from the driver’s area. The only physical control alleged involved an 

inadvertent bump of the gear shift as Nekolite was attempting to retrieve his

cigarettes from the vehicle. However, reaching across the passenger’s seat of a 

vehicle to the driver’s side to get a cigarette, while standing outside the vehicle, 

neither puts an actor in such control as would enable him to actually operate the 

vehicle in its usual and ordinary manner nor reflects any exercise of dominion or 

control over the vehicle.9 Therefore, we reverse the lower courts’ rulings that 

Nekolite was in actual physical control of the vehicle.

 

8. The key was in a “cubbyhole . . . by the dash.”

9. Nekolite’s inadvertent contact with the gear shift relates to the first, but not 

the third, element of the actual-physical-control definition. Nevertheless, the

dissent purports to apply the third element, reasoning that “movement of the 

gear shift in this case is control that would enable and did enable Nekolite to 

‘actually operate the vehicle in the usual and ordinary manner.’” See infra 

Dissent ¶ 32. But it defies common sense to suggest that inadvertently 

striking the gear shift while standing outside the vehicle, and while reaching 

from the passenger’s side to the driver’s side to get a cigarette, constitutes the 

actual physical control of the vehicle (or the gear shift) that enables the 

operation of the vehicle “in the usual and ordinary manner.”

The dissent also contends that “[i]t makes no sense to say being intoxicated 

and sleeping in the driver’s seat of a vehicle is actual physical control, but 

being intoxicated and manipulating the gears so the vehicle moves and 

actually causes property damage is not.” See infra Dissent ¶ 34. But the 

finder of fact must consider all the evidence in determining whether a 

(continued . . .)
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[¶25.] The State, however, argues that Nekolite’s acts also meet the 

definition of “drive” in SDCL 32-23-1. This argument was not presented to the 

magistrate or circuit courts. The issue before both courts was whether Nekolite 

violated SDCL 32-23-1 by having actual physical control of his vehicle. “[T]his 

Court has long held that it will not consider issues for the first time on appeal.” 

State v. Morse, 2008 S.D. 66, ¶ 11 n.1, 753 N.W.2d 915, 919 n.1 (citation omitted). 

We decline to address this issue.

[¶26.] Reversed and remanded with instructions to vacate the judgment of 

conviction.

[¶27.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, concur.

[¶28.] SEVERSON and WILBUR, Justices, concur in part and dissent in 

part.

WILBUR, Justice (concurring in part and dissenting in part).

[¶29.] I agree with the majority opinion’s conclusion that appellate review of 

the facts is limited in this case; however, I part company with the majority opinion’s 

conclusion that Nekolite was not in actual physical control of his vehicle. 

[¶30.] The majority opinion relies on the definition of actual physical control 

found in South Dakota Criminal Pattern Jury Instruction 3-10-10. I agree with the 

________________________

(. . . continued)

defendant was in actual physical control of the vehicle. The dissent’s result is 

premised solely on Nekolite’s inadvertent bump of the gear shift, without 

giving any consideration to his position and relationship with the vehicle. All

our cases involving actual physical control, however, have considered the 

defendant’s position and relationship with respect to the vehicle. See supra ¶ 

23. We do the same in this case.
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majority opinion that “pattern jury instructions are not law, are not authoritative, 

and are not binding on this Court[.]” However, I disagree that this Court should 

rely solely upon the pattern jury instruction to control the analysis of this case and, 

effectively, add elements to SDCL 32-23-1. By accepting the parties’ agreement 

that the pattern jury instruction controls the analysis of the facts in this case, this 

Court would effectively give the pattern jury instruction the force of law when the 

Legislature has not adopted the language of the instruction. The words of SDCL 

32-23-1 “must be given their plain meaning and effect.” See Slama v. Landmann 

Jungman Hosp., 2002 S.D. 151, ¶ 5, 654 N.W.2d 826, 827 (citations omitted). The 

Legislature has clearly provided that “No person may . . . be in actual physical 

control of any vehicle while” under the influence of alcohol. SDCL 32-23-1. If the 

Legislature wanted to add the language of the pattern jury instruction to SDCL 32-

23-1, then it could have easily done so. And it has had several opportunities to do so 

in light of our prior cases. Yet, the Legislature has not expressly done so. While the 

pattern jury instruction may have “been carefully drafted to reflect the law,” it is 

not the law. 

[¶31.] Furthermore, North Dakota case law, cited with approval by the 

majority opinion, establishes that we should construe our actual physical control 

statute broadly: “We have long construed the actual physical control statute to 

broadly prohibit any exercise of dominion or control over a vehicle by an intoxicated 

person.” City of Fargo v. Theusch, 462 N.W.2d 162, 163-64 (N.D. 1990) (emphasis 

added). Interpreting our statute broadly and applying it to the facts of this case, 

Nekolite’s control of the gear shift constitutes actual physical control of the vehicle. 
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Nekolite’s manipulation of the gear shift caused a vehicle to move even though he 

was not seated in the driver’s seat. While our prior cases on actual physical control 

happen to involve defendants who were located in or near the driver’s seat, it should 

not matter where a defendant is located so long as his actions control the vehicle. 

[¶32.] However, even if I were to accept the majority opinion’s use and 

application of the pattern jury instruction to the facts of this case, I would disagree 

with the outcome. Here, under the third factor of the majority opinion’s analysis, 

Nekolite did have such control as would “enable [him] to actually operate the 

vehicle in the usual and ordinary manner.” The trial court found that “the vehicle 

was being manipulated by Mr. Nekolite in that he admitted he reached in, struck 

the gear shift mechanism[,]” which then caused the vehicle to move and damage 

another vehicle. The usual and ordinary manner of operating a vehicle requires the 

manipulation of a gear shift mechanism to cause the vehicle to move. And the 

movement of the gear shift in this case is control that would enable and did enable 

Nekolite to “actually operate the vehicle in the usual and ordinary manner.” 

[¶33.] Moreover, Nekolite was in position to control the gear shift in the 

ordinary and usual manner. Nekolite was leaning over the passenger seat of the 

vehicle to reach his cigarettes on the driver’s side floor by the pedals when he 

bumped the gear shift into neutral. The trial court did not make a specific finding 

that Nekolite was “standing outside the vehicle” when he struck the gear shift 

mechanism. See supra Majority Opinion ¶ 24. The fact is that even if Nekolite 

were “standing outside the vehicle,” he still had sufficient control which enabled 

him to operate the vehicle in the usual and ordinary manner.
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[¶34.] “The purpose of the ‘actual physical control’ [prohibition] is a 

preventative measure.” Theusch, 462 N.W.2d at 163. As a preventative measure, 

the actual physical control offense protects the safety and welfare of the public. See 

supra Majority Opinion ¶ 22. Because public safety and welfare is our concern, we 

have held in previous cases that an intoxicated person who is asleep or slumped 

over in the driver’s seat is in actual physical control because he or she could easily 

awaken and operate the vehicle. It makes no sense to say being intoxicated and 

sleeping in the driver’s seat of a vehicle is actual physical control, but being 

intoxicated and manipulating the gears so the vehicle moves and actually causes 

property damage is not. 

[¶35.] In summation, I would rely on a plain reading of the language of SDCL 

32-23-1 and not interpret actual physical control so narrowly as to always require 

that a defendant be seated in the vehicle. In this case, Nekolite’s actions and 

control caused the vehicle to move resulting in damage to the property of another 

person—clearly threatening the safety and welfare of the public. I would affirm the 

trial court’s ruling that Nekolite was in actual physical control of his vehicle. 

[¶36.] SEVERSON, Justice, joins this special writing.