STATE v. ELLEFSON

No. 12675.

287 N.W.2d 493 (1980)

STATE of South Dakota, Plaintiff and Respondent, v. Richard ELLEFSON, Defendant and Appellant.

Supreme Court of South Dakota.

Decided January 16, 1980.

Rehearing Denied February 21, 1980.


Attorney(s) appearing for the Case

Leann Larson Finke, Asst. Atty. Gen., Pierre, for plaintiff and respondent; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Thomas K. Wilka of Burns, Hagen & Wilka, Sioux Falls, for defendant and appellant.


FOSHEIM, Justice.

A jury found the defendant guilty of the crime of rape stemming from sexual intercourse with a child under the age of fifteen years. He was sentenced to a term of ten years. We affirm the conviction but remand for reconsideration of the sentence.

The defendant questions the constitutionality of the statute (SDCL 22-22-1(4)) under which he was convicted. As it relates to this case, the statute reads:

Rape is an act of sexual penetration...

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