#26231-a-GAS

2012 S.D. 87

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

CASEY R. MORGAN, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SEVENTH JUDICIAL CIRCUIT

PENNINGTON COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE JOHN J. DELANEY

Retired Judge

* * * *

MARTY J. JACKLEY

Attorney General

KIRSTEN E. JASPER

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff

and appellee.

MITCHELL D. JOHNSON

Rapid City, South Dakota Attorney for defendant

and appellant.

* * * *

ARGUED NOVEMBER 6, 2012

OPINION FILED 12/05/12
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SEVERSON, Justice.

[¶1.] On the morning of January 26, 2011, Casey Morgan was caring for 

K.N., the daughter of his fiancée, Mary Lindley, and D.M., the son of Morgan and 

Lindley. K.N. and D.M. were arguing over a book that K.N. was assigned to read as 

homework. Morgan heard the children arguing and grabbed K.N., forcefully 

squeezed and held her face, and yelled at her. Then Morgan took K.N. to school. At 

school, K.N. was crying and explained to her teacher why she was upset. Later in 

the morning, bruising developed on K.N.’s face and her teacher reported the 

incident to the school principal. After being notified by the school principal, the 

school’s liaison police officer reported the incident to the South Dakota Department 

of Social Services. K.N. was taken into protective custody after a trip to the 

emergency room. Morgan was later charged with and found guilty of aggravated 

child abuse. Morgan appeals, arguing that the verdict is not sustained by the 

evidence. Viewed in the light most favorable to the verdict, there was sufficient 

evidence to support Morgan’s conviction beyond a reasonable doubt. We affirm.

BACKGROUND

[¶2.] Casey Morgan was engaged to Mary Lindley. The couple’s son, D.M., 

age three, and Lindley’s daughter, K.N., age six, lived in their home and were cared 

for by Morgan and Lindley. On January 26, 2011, Lindley left for work around 7:00

a.m., leaving Morgan to get the children ready for daycare and school. 

[¶3.] On that morning, K.N. and D.M. argued about K.N.’s guided reading 

book. D.M. took K.N.’s book and would not return the book to his sister so she could 

pack her things for school. Reading the guided reading book was K.N.’s homework 
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assignment, but she had not completed her assignment. Morgan heard K.N. and 

D.M.’s argument and disciplined K.N. for arguing and for failing to finish her 

homework. Morgan grabbed and squeezed K.N.’s face, wrapping his hand around 

her chin. While squeezing K.N.’s face, Morgan yelled “What’s the rule?” a number 

of times until K.N. responded that the house rule was to “do my homework.”

Morgan used enough force to cause significant bruising across K.N.’s face and neck, 

a contusion on K.N.’s upper lip and on the inside of her mouth because her lips were 

forced against her teeth, ecchymoses (a type of bruising), a swollen lip, and a

subconjunctival hemorrhage (broken blood vessels) in one of K.N.’s eyes.

[¶4.] After Morgan disciplined K.N., he took her to school. When K.N. 

arrived at school, she was crying, sobbing, and having difficulty breathing. K.N. 

went to the school’s office to get lip salve for her lips. When she arrived at her first 

grade classroom, K.N.’s teacher saw that K.N. was crying and sobbing and had a 

swollen upper lip. K.N.’s teacher asked K.N. to come to her desk in the back of the 

classroom. The teacher asked K.N. what happened and K.N. stated that Morgan 

was mad at her and had “squeezed” her face. K.N. demonstrated what happened by 

grabbing her own face and told her teacher that Morgan asked K.N. “What’s the 

rule?” several times while squeezing K.N.’s face.

[¶5.] Later in the morning, K.N.’s teacher noticed red and purple bruises 

developing on K.N.’s face and along her jawline and chin. K.N.’s teacher contacted

the school’s office and requested that Principal Patricia Hamm come to her class. 

When Principal Hamm arrived at K.N.’s classroom, K.N.’s teacher reported her 

conversation with K.N.
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[¶6.] Principal Hamm contacted the school’s liaison police officer, Trevor 

Tollman. Hamm and Tollman met with K.N. and K.N. relayed the events of the 

morning. After meeting with K.N., Tollman travelled to Lindley’s workplace and 

suggested to Lindley that K.N. see a doctor. Lindley could not leave work to take 

K.N. to the doctor. Tollman did not believe that Lindley would take K.N. to the 

doctor after her workday ended, so he contacted the South Dakota Department of 

Social Services, initiating the process to take K.N. and her brother, D.M., into 

protective custody.

[¶7.] Trista Depurdy from the Department of Social Services met K.N. at 

the school and took her to the Rapid City Regional Hospital for an examination. 

K.N. was examined by Dr. John Hill. Dr. Hill asked K.N. about the bruises and 

K.N. stated that someone grabbed her face. Dr. Hill determined that the 

explanation fit K.N.’s injuries and the bruising indicated that a hand and fingers 

wrapped around her face. He testified at trial that if K.N.’s face “was being 

squeezed, it was being squeezed pretty hard.” Dr. Hill found a contusion on K.N.’s 

upper lip and on the inside of her mouth, which was likely caused by compression 

between a force and K.N.’s teeth. Dr. Hill also noted ecchymoses, a swollen lip, and 

a subconjunctival hemorrhage in one of K.N.’s eyes. Dr. Hill determined that K.N.’s 

injuries were caused by a significant amount of force. 

[¶8.] Morgan was later indicted and arrested on a charge of aggravated 

child abuse.

[¶9.] On October 3 and 4, 2011, the trial court held a jury trial. The jury 

found Morgan guilty of aggravated child abuse. The trial court sentenced Morgan 
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to 15 years in the state penitentiary as a habitual offender, with 10 years 

suspended. Morgan appeals, arguing that the verdict is not sustained by the 

evidence and his actions were permissible discipline.

STANDARD OF REVIEW

[¶10.] Claims of insufficient evidence are “viewed in the light most favorable 

to the verdict.” State v. Beck, 2010 S.D. 52, ¶ 7, 785 N.W.2d 288, 292 (citing State v. 

Carter, 2009 S.D. 65, ¶ 44, 771 N.W.2d 329, 342). See also State v. Janklow, 2005 

S.D. 25, ¶ 16, 693 N.W.2d 685, 693. “The question is whether ‘there is evidence in 

the record which, if believed by the fact finder, is sufficient to sustain a finding of 

guilt beyond a reasonable doubt.’” Beck, 2010 S.D. 52, ¶ 7, 785 N.W.2d at 292

(quoting Carter, 2009 S.D. 65, ¶ 44, 771 N.W.2d at 342). See also State v. Buchholz, 

1999 S.D. 110, ¶ 33, 598 N.W.2d 899, 905. We will not “resolve conflicts in the 

evidence, assess the credibility of witnesses, or reevaluate the weight of the 

evidence.” Beck, 2010 S.D. 52, ¶ 7, 785 N.W.2d at 292 (citing Carter, 2009 S.D. 65, ¶ 

44, 771 N.W.2d at 342). “‘If the evidence, including circumstantial evidence and 

reasonable inferences drawn therefrom sustains a reasonable theory of guilt, a 

guilty verdict will not be set aside.’” Id. (quoting Carter, 2009 S.D. 65, ¶ 44, 771 

N.W.2d at 342). 

ANALYSIS

[¶11.] Aggravated child abuse is prohibited under SDCL 26-10-1. Section 26-

10-1 provides in part, “[a]ny person who abuses, exposes, tortures, torments, or 

cruelly punishes a minor in a manner which does not constitute aggravated assault, 

is guilty of a Class 4 felony. If the victim is less than seven years of age, the person 
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is guilty of a Class 3 felony.” SDCL 26-10-1 also allows a person to assert an 

affirmative defense, based on the use of reasonable force to discipline a child. A 

parent, parent’s authorized agent, or guardian of a child* may use reasonable force 

to correct the child “if restraint or correction has been rendered necessary by the 

misconduct of the child . . . or by the child’s refusal to obey the lawful command of 

such parent, or authorized agent, [or] guardian, . . . and the force used is reasonable 

in manner and moderate in degree.” SDCL 22-18-5. 

[¶12.] By allowing a defense of reasonable force in child abuse cases, the 

Legislature determined “that corporal punishment will not be absolutely prohibited, 

nor will it be allowed in all instances with any amount of force a parent decides to 

use.” In re C.F., 2005 S.D. 126, ¶ 25, 708 N.W.2d 313, 318. In this case, the trial 

court gave the jury Instruction No. 1, part 8, which states:

Permissible Discipline. The use or attempted use of force upon a 

child is not unlawful if committed by a parent or the authorized 

agent of a parent in the exercise of a lawful authority to restrain 

or correct the child if the force has been rendered necessary by 

the misconduct of the child, or by the child’s refusal to obey the 

lawful command of the parent or the parent’s authorized agent, 

and the force used is reasonable in manner and moderate in 

degree.

[¶13.] Morgan argues that K.N.’s bruises and injuries were not severe and 

long-lasting and are not as traumatic as the injuries received by other children in 

 

* In order for the parental discipline privilege to apply, SDCL 22-18-5 requires 

that the person administering the discipline must be a parent, authorized 

agent of a parent, guardian of the child, or teacher or school official. In this 

case, there was no discussion by Morgan or the State as to whether Morgan 

was an authorized agent or guardian of K.N. Thus, we do not address this 

issue on review.
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other child abuse cases in South Dakota. See Beck, 2010 S.D. 52, 785 N.W.2d 288; 

State v. Well, 2000 S.D. 156, 620 N.W.2d 192; State v. Augustine, 2000 S.D. 93, 614 

N.W.2d 796; State v. Hoffman, 430 N.W.2d 910 (S.D. 1988); State v. Eagle Hawk, 

411 N.W.2d 120 (S.D. 1987). Thus, Morgan argues he is not guilty of aggravated 

child abuse. However, we review the record to determine if there is sufficient 

evidence to support the jury’s guilty verdict beyond a reasonable doubt. 

[¶14.] The jury was instructed that the State must prove, beyond a 

reasonable doubt, the essential elements of aggravated child abuse. The 

instructions stated that the elements were (1) “on or about January 26, 2011, in 

Pennington County,” (2) “Mr. Morgan abused, exposed, tortured, tormented or 

cruelly punished K.N.,” and (3) “K.N. was then less than 7 years of age.” The 

instructions also contained definitions of “proof beyond a reasonable doubt,” 

“evidence,” “abuse,” “expose,” “torture,” “torment,” and “cruelly punish.” As noted 

above, the jury was also instructed on permissible discipline. Morgan did not object 

to the jury instructions or propose alternative jury instructions.

[¶15.] It was established at trial that K.N. was six years old on January 26, 

2011. It was also established that Morgan was caring for K.N. at the time of the 

incident. Lindley testified that K.N. was not injured when she left to go to work 

that morning. K.N. testified that Morgan grabbed and squeezed her face after 

finding her arguing with her brother over her guided reading book. Dr. Hill 

testified that K.N.’s explanation fit her injuries. Dr. Hill also stated that if K.N.’s 

face “was being squeezed, it was being squeezed pretty hard.” Other witnesses 

testified about K.N.’s bruising and her emotional and physical state on the day of 
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the incident, and the consistency of her statements throughout the day. There was 

evidence that Morgan used a significant amount of force—enough to cause extensive

bruising across K.N.’s face and neck, a contusion on K.N.’s upper lip and on the 

inside of her mouth, ecchymoses, a swollen lip, and a subconjunctival hemorrhage in 

one of K.N.’s eyes. Evidence was presented from which the jury could find that 

Morgan’s actions, grabbing and squeezing K.N.’s face, were not permissible 

discipline. The evidence presented and the natural inferences that may be drawn 

from it “‘sustains a reasonable theory of guilt.’” State v. Shaw, 2005 S.D. 105, ¶ 19, 

705 N.W.2d 620, 626 (quoting Buchholz, 1999 S.D. 110, ¶ 33, 598 N.W.2d 899, 905).

CONCLUSION

[¶16.] There is sufficient evidence in this case to support the jury verdict 

finding Morgan guilty of aggravated child abuse beyond a reasonable doubt. We 

affirm Morgan’s conviction.

[¶17.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and 

WILBUR, Justices, concur.