## Facts

- An eleven-year-old child entered a retail store during business hours with her aunt.
- While in the store, she took and ate a piece of candy from a display and left without paying.
- The store manager stopped her outside; she admitted she had eaten the candy without paying.
- The State filed a juvenile delinquency petition alleging second-degree burglary under SDCL 22-32-3.
- After an adjudicatory hearing, the circuit court sustained the burglary allegation and adjudicated the child delinquent.

## Issues

1. Whether the State proved beyond a reasonable doubt that the child entered the store with intent to commit a crime inside, as required by SDCL 22-32-3.
2. Whether, absent intent at entry, the child “remain[ed]” in the store “with intent to commit any crime therein” within the meaning of SDCL 22-32-3 when she was lawfully present in a store open to the public.

## Decision

- The Supreme Court of South Dakota reversed the delinquency adjudication and disposition.
- The evidence was insufficient to prove second-degree burglary beyond a reasonable doubt under either the “enters” or “remains” prong of SDCL 22-32-3.
- The court did not reach other arguments because the insufficiency of the evidence was dispositive.

## Legal Principles

- In a juvenile delinquency adjudication based on a criminal offense, the State must prove each element beyond a reasonable doubt.
- For burglary under SDCL 22-32-3, the State must prove intent to commit a crime existed at entry, or that the accused unlawfully remained and, at that point, had the requisite intent.
- A spontaneous theft committed after lawful entry, without evidence of intent at the moment of entry, does not establish burglary intent at entry.
- Interpreting “remains” to include any lawful customer who stays in a store after forming intent to steal would improperly convert ordinary shoplifting into burglary; “remains” is construed to require unlawful presence.

## Conclusion

Because the child lawfully entered and was lawfully present in the store, and the record contained no proof that she had criminal intent at entry or that she unlawfully remained, the State failed to establish second-degree burglary beyond a reasonable doubt, requiring reversal of the delinquency adjudication.


In re T.J.E., 426 N.W.2d 23 (S.D. 1988)