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STATE v. MALCOLM

#29644.

985 N.W.2d 732 (2023)

2023 S.D. 6

STATE of South Dakota, Plaintiff and Appellee, v. Lee Todd MALCOLM, Defendant and Appellant.

Supreme Court of South Dakota.

OPINION FILED January 25, 2023.

Attorney(s) appearing for the Case

SCOTT R. BRATLAND , Watertown, South Dakota, Attorney for defendant and appellant.

MARTY J. JACKLEY , Attorney General, CHELSEA WENZEL , JENNY JORGENSON , Assistant Attorneys General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

[¶1.] Lee Malcolm was convicted of nine counts of third-degree rape involving J.C. in violation of SDCL 22-22-1(4). Malcolm's defense theory was that J.C. gave "advance consent" to the instances of sexual penetration before she passed out and became incapable of giving contemporaneous consent. The circuit court rejected the...

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