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Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee. Eirinberg, Sioux Falls, South Dakota, Attorney for defendant and appellant. One of the individuals depicted in a few of the pictures was later identified as A. were sexually charged, covering both anal and oral sex.[¶ 6.] During one of these conversations, Dubois elicited pictures from A. stating: “I will show you mine, if you show me yours.” Dubois later sent pictures of himself naked to A. The court sentenced Dubois to thirty years in the South Dakota State Penitentiary.[¶ 8.] Dubois appeals raising the following issues:1. Although the trial court did not repeat on the record the balancing procedure analysis previously conducted at the motion hearing, the court had clearly warned that if Dubois asserted the defense of mistake of identity and no intent, the probative value “may outweigh the prejudicial effect.”[¶ 25.] To determine if the court conducted the two-part test, we consider the courts analysis at both the pre-trial motion hearing and during trial. Read More

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