State v. Clemensen: Expansive Construction of Elder Theft by Exploitation for POA Misuse and Encumbrance of Trust Property

Introduction

In State v. Clemensen, 2025 S.D. 68, the Supreme Court of South Dakota affirmed the conviction of Ronald Peter Clemensen for seven counts of theft by exploitation of his elderly mother, Betty. The case centers on the son’s use of a power of attorney (POA) and access to his mother’s assets—including a revocable living trust and a sizeable investment account—to obtain funds and encumber family farmland in order to prop up his failing business.

The opinion is important well beyond its facts. It clarifies and significantly broadens the application of South Dakota’s elder exploitation statute, SDCL 22‑46‑3, in at least four key ways:

• “Support” under SDCL 22‑46‑3 is not limited to financial support of an indigent parent. A child who assumes broad caregiving and financial-management responsibilities for an elder can be deemed to have assumed a “duty to provide support” even when the elder has substantial assets.
• Trust-owned property can be “property of an elder” for purposes of criminal exploitation. Placing assets into a revocable trust does not remove them from the protection of SDCL 22‑46‑3 when the trust is for the elder’s benefit.
• “Appropriation” of property includes encumbering assets with mortgages, not just outright theft. Exercising control by mortgaging an elder’s land to secure one’s personal debts constitutes appropriation—even if the elder is not personally liable on the loan, and even if the mortgage is later voided in civil litigation.
• Elder “consent” is not dispositive. Transactions nominally approved by a cognitively declining elder may still be exploitation where the caregiver uses the relationship of trust to divert assets for personal gain.

The Court also addresses the proper framing of a “good faith” defense in elder exploitation prosecutions and confirms that such a defense is not an independent affirmative defense; it is simply the inverse of the State’s burden to prove intent to defraud.

Summary of the Opinion

The State charged Clemensen with:

• Two counts of aggravated grand theft by exploitation (amounts > $500,000) based on two $750,000 mortgages he signed in 2016 with First Dakota National Bank, encumbering his mother’s trust farmland to secure loans solely in his own name; and
• Five counts of grand theft by exploitation ($5,000–$100,000) based on:
  • A $100,000 mortgage in favor of Great Plains Bank, similarly using trust land as collateral for his personal loan; and
  • Four separate margin-loan withdrawals (2015–2017) from Betty’s Edward Jones investment account that were funneled through a joint checking account and used to support his failing trucking and equipment business, Crossroads Truck and Trailer.

A jury convicted him on all seven counts. On appeal, Clemensen raised two principal claims:

1. The evidence was insufficient to prove the elements of theft by exploitation under SDCL 22‑46‑3, and the circuit court should have granted his motions for judgment of acquittal.
2. The trial court inadequately instructed the jury on his “good faith” defense by failing to give a pattern instruction (2‑2‑1) clarifying that the State had to disprove good faith beyond a reasonable doubt.

The Supreme Court:

• Affirmed the sufficiency of the evidence, holding that:
  • Clemensen voluntarily assumed a duty to support his elderly mother;
  • He was “entrusted” with her property, including trust assets and investment accounts;
  • He “appropriated” her property by exercising control over it (mortgaging land and diverting investment funds) for purposes not in the “due and lawful execution” of her trust; and
  • He acted with specific intent to defraud, inferable from the pattern and circumstances of his conduct.
• Rejected his jury-instruction challenge, holding that the court’s “good faith” instruction correctly placed and described the State’s burden to prove intent to defraud, rendering additional pattern instructions unnecessary and negating any claim of plain error.

Detailed Analysis

I. Factual and Procedural Background

Arlo and Betty Clemensen owned approximately 1,440 acres of farmland in Spink County and maintained significant investments, including accounts managed by Edward Jones. Arlo oversaw the finances; Betty maintained the home. They had two children: Ronald (the defendant) and Patrice (Patti). Ronald farmed with Arlo and also owned Crossroads Truck and Trailer, a business that later experienced severe financial distress.

After Arlo’s death in 2011, Ronald:

• Became the primary caregiver for his then 85‑year‑old mother;
• Managed her finances, including a joint checking account at Plains Commerce Bank funded by her Social Security and investment distributions; and
• Eventually obtained a POA in his favor and worked with counsel to establish the “Betty Clemensen Living Trust,” a revocable living trust with Betty as initial trustee and beneficiary, and Ronald and Patti as successor co-trustees and beneficiaries.

Beginning in 2015, Crossroads struggled. Ronald turned to Betty’s assets:

• With their Edward Jones advisor, William Edwards, he arranged multiple margin loans against Betty’s investment accounts:
  • $88,000 in 2015;
  • $114,000 in 2016; and
  • Three more loans in 2017 totaling $120,000.
• Each margin loan was authorized in Betty’s name, transferred to the joint checking account, and then moved by Ronald to his personal or business accounts. None were repaid; the margin balance exceeded $300,000 by mid‑2017.

At the same time, Ronald leveraged Betty’s farmland:

• In 2010, Arlo and Betty had personally co-signed a mortgage to help Ronald secure a Dakotah Bank loan.
• In 2015, after the trust was created, Betty (as trustee) signed another mortgage with Dakotah Bank securing a loan Ronald used partly for Crossroads.
• By 2016, Dakotah Bank required Ronald to refinance elsewhere. Ronald then:
  • Obtained a $100,000 loan from Great Plains Bank, secured by a mortgage on trust farmland that he signed as “POA” for Betty; and
  • Closed two $750,000 loans at First Dakota National Bank, secured by multiple quarters of trust farmland (and some of his own trust land), again signing the mortgages as “POA” for Betty while signing the promissory notes solely in his personal capacity.

In 2017, after Betty’s grandson Brett learned that trust farmland and Betty’s Aberdeen home were proposed for sale, he became suspicious and reported possible elder abuse. The Division of Criminal Investigation’s Agent Lunzman investigated, interviewed Betty (who demonstrated significant memory deficits), and obtained Ronald’s phone and business records. Evidence showed severe financial distress at Crossroads and text messages indicating Ronald viewed his mother’s accounts as a source of funds.

A grand jury indicted Ronald on multiple counts of theft by exploitation under SDCL 22‑46‑3. At trial, the State presented testimony from Brett, Agent Lunzman, and professionals including the Edward Jones advisor and estate-planning paralegals and attorneys. Banking officials testified in Ronald’s case‑in‑chief. Ronald did not testify.

The State also introduced part of a memorandum decision from a separate 2021 civil case in which a circuit court, in litigation brought by Betty’s estate, had declared the First Dakota mortgages void because only the trustee (Betty) could encumber trust property, and the POA did not confer such authority on Ronald. The jury convicted Ronald on all charged counts. The circuit court imposed fully suspended penitentiary sentences and placed him on probation. Ronald appealed.

II. The Legal Framework: SDCL 22‑46‑3 and Related Provisions

SDCL 22‑46‑3 defines “theft by exploitation” of an elder (or adult with a disability) as follows:

Any person who, having assumed the duty voluntarily, by written contract, by receipt of payment for care, or by order of a court to provide for the support of an elder or an adult with a disability, and having been entrusted with the property of that elder or adult with a disability, with intent to defraud, appropriates such property to a use or purpose not in the due and lawful execution of that person's trust, is guilty of theft by exploitation.

Key elements the State had to prove beyond a reasonable doubt were:

1. Assumption of duty to provide support to an elder (voluntarily, by contract, by payment for care, or by court order);
2. Entrustment with the elder’s property;
3. Appropriation of that property to a use or purpose not in the “due and lawful execution” of that trust (here, “trust” is used in the ordinary sense of confidence, not necessarily in the formal “trust” law sense); and
4. Intent to defraud—a specific intent element.

The statute concludes: “Theft by exploitation is punishable as theft pursuant to chapter 22‑30A.” This cross‑reference does not import theft definitions into SDCL 22‑46‑3; it imports the felony “grading” and punishment scheme from the general theft chapter. Thus, the value of the property appropriated determines whether the offense is, for example, a Class 2 or Class 4 felony.

Related provisions relied upon by the Court include:

• SDCL 22‑46‑1(3) – defining “elder” as a “person” over a specified age;
• SDCL 22‑46‑1(5) – defining “exploitation” as wrongful taking or exercise of control over property of an elder with intent to defraud; and
• SDCL 22‑1‑1 – rejecting strict construction of penal statutes and directing that criminal laws be interpreted “according to the fair import of their terms, with a view to effect their objects and promote justice.”

III. Precedents and Authorities Cited

A. Sufficiency of the Evidence Cases

The Court reiterated standard sufficiency principles, primarily through:

• State v. Bolden, 2024 S.D. 22, 6 N.W.3d 238 – reaffirming that:
  • Denial of a motion for judgment of acquittal is reviewed de novo;
  • The Court views the evidence in the light most favorable to the verdict and asks whether any rational trier of fact could have found the essential elements beyond a reasonable doubt;
  • Appellate courts do not weigh evidence or assess witness credibility; those are jury functions.
• State v. Seidel, 2020 S.D. 73, 953 N.W.2d 301; State v. Brim, 2010 S.D. 74, 789 N.W.2d 80; State v. Strozier, 2013 S.D. 53, 834 N.W.2d 857 – similar restatements of the sufficiency standard.

These cases frame the deferential posture the Court takes toward the jury’s verdict in elder exploitation prosecutions.

B. The Earlier Exploitation Case: State v. Warren

State v. Warren, 462 N.W.2d 195 (S.D. 1990), is the leading prior case on SDCL 22‑46‑3. In Warren, the defendant operated an elder-care business and exploited an elderly client by:

• Charging him more than other clients because “he can afford it”; and
• Using her position of trust to obtain a $24,000 check to pay off her own mortgage.

The Court affirmed her exploitation conviction, emphasizing:

• The special vulnerability of elders and the heightened trust inherent in caregiving relationships; and
• That “exploitation” includes exploiting the elder’s ability to pay, not just stealing already scarce resources.

In Clemensen, Warren served two critical roles:

1. It supported rejecting the defendant’s argument that elder exploitation requires the victim to be indigent or unable to provide for herself.
2. It provided a concrete example of how an elder’s apparent consent to a transaction, obtained in the context of a dependent caregiving relationship, does not necessarily negate exploitation.

C. Statutory Interpretation References

• Lapin v. Zeetogroup, LLC, 2025 S.D. 36, 24 N.W.3d 541 – reaffirmed that where a statute leaves a term undefined, courts may consult dictionary definitions to ascertain its “plain and ordinary meaning.” Lapin supports the Court’s resort to Merriam‑Webster’s definition of “support” as “assist, help.”
• State v. Kwai, 2023 S.D. 42, 994 N.W.2d 712 – underscored SDCL 22‑1‑1’s directive that penal statutes be interpreted according to their fair import to effect their objects and promote justice, rather than narrowly or technically. This is pivotal in rejecting defendant’s narrow views of “support,” “property of an elder,” and “appropriation.”

D. Intent to Defraud and Pattern of Conduct

• Bruggeman by Black Hills Advoc., LLC v. Ramos, 2022 S.D. 16, 972 N.W.2d 492, and State v. Morse, 2008 S.D. 66, 753 N.W.2d 915 – define “intent to defraud” as acting willfully and with specific intent to deceive or cheat, usually to cause financial loss to another or gain to oneself. This definition was incorporated into the jury instructions and used as the governing mental state.
• State v. Kessler, 2009 S.D. 76, 772 N.W.2d 132 – a theft-by-deception case emphasizing that intent to defraud must exist at the time the property is obtained. Significantly, Kessler noted the absence of any pattern of entering loans and absconding. By contrast, in Clemensen, the Court stresses there was a damaging pattern: repeated “loans” from Betty’s accounts and land, never repaid, all to address Ronald’s chronic financial crises.
• State v. Holzer, 2000 S.D. 75, 611 N.W.2d 647; State v. Krouse, 2022 S.D. 54, 980 N.W.2d 237 – confirm that intent is rarely proved directly and may be inferred from actions, conduct, and surrounding circumstances. These cases underwrite the Court’s reliance on circumstantial evidence—such as Ronald’s ongoing financial straits, repeated use of his mother’s assets, and lack of repayment—to infer fraudulent intent.

E. Jury Instructions and Plain Error

For the instructional issues, the Court drew on a line of cases:

• State v. Turner, 2025 S.D. 13, 18 N.W.3d 673; State v. Pfeiffer, 2024 S.D. 71, 14 N.W.3d 636; State v. Tuopeh, 2025 S.D. 16, 19 N.W.3d 37 – reiterate that trial courts have broad discretion in formulating jury instructions, and the question on appeal is whether, considered as a whole, the instructions correctly state the law and adequately inform the jury.
• State v. Robertson, 2023 S.D. 19, 990 N.W.2d 96; State v. McMillen, 2019 S.D. 40, 931 N.W.2d 725; State v. O’Brien, 2024 S.D. 52, 11 N.W.3d 881 – articulate the four-part plain-error test and emphasize the requirement of showing prejudice (a reasonable probability of a different outcome but for the error).
• State v. Hernandez, 2016 S.D. 5, 874 N.W.2d 493 – held that failure to object to venue waives that issue; cited to reject Clemensen’s belated venue challenge.

IV. The Court’s Legal Reasoning on the Elements of SDCL 22‑46‑3

A. Assumption of the Duty to Provide Support

Ronald argued that he had no “duty to support” his mother under SDCL 22‑46‑3 because Betty was not indigent; indeed, she had substantial assets. He invoked SDCL 25‑7‑27, which requires financially able adult children to provide “necessary food, clothing, shelter, or medical attendance” to a parent “unable to provide for oneself,” and contended no such duty existed here.

The Court rejected this argument on several grounds:

1. SDCL 22‑46‑3 does not incorporate SDCL 25‑7‑27. There is no cross‑reference or textual indication that criminal exploitation applies only when the adult child has a statutory support obligation triggered by parental indigence.
2. The statute delineates several ways a duty to support may arise: “voluntarily, by written contract, by receipt of payment for care, or by order of a court.” These are independent bases; SDCL 25‑7‑27 is not exclusive.
3. “Support” is broader than mere financial sustenance. Drawing on dictionary definitions per Lapin, the Court read “support” as “assist, help.” Thus, one can assume a duty to support an elder by managing finances, providing transportation, overseeing care, and performing other assistance—even where the elder can afford professional services.

On the facts, the Court found “uncontradicted evidence” that:

• Ronald handled all of Betty’s finances after Arlo’s death;
• He paid her bills, managed accounts, took care of her home, and drove her to appointments;
• He described himself as “taking care of everything” for her; and
• He accepted appointment as Betty’s agent under a broad financial POA.

These facts allowed the jury to find that Ronald voluntarily assumed a duty to support his mother under SDCL 22‑46‑3, regardless of whether SDCL 25‑7‑27’s narrower criteria were met.

B. Entrustment with the Property of an Elder

Ronald next argued that:

• Betty had placed “all her property” into a revocable trust; thus the property belonged to the trust, not to “an elder,” which SDCL 22‑46‑1(3) defines as a “person” (not a trust); and
• Only the trustee (Betty) could be “entrusted” with trust property, so he, as her POA, could not be deemed entrusted for purposes of SDCL 22‑46‑3.

The Court rejected this narrow view for both doctrinal and policy reasons:

1. Nature of a revocable living trust. Betty’s trust was revocable; she was both initial trustee and primary beneficiary. She retained the right to use income and principal for her benefit. In substance, the “trust property” was still Betty’s property for purposes of the exploitation statute, even if legal title was nominally in the trustee’s name.
2. Purpose of SDCL 22‑46‑3. The object of the elder-exploitation statute is to protect elders and adults with disabilities from financial abuse. Interpreting “property of an elder” to exclude assets held in a revocable trust for that elder’s benefit would create a large and irrational loophole: moving assets into a plan commonly used for estate planning would suddenly strip criminal protection from those assets. The Court refused such a result, invoking SDCL 22‑1‑1 and Kwai.
3. Entrustment through the POA and joint accounts.
   • Through the POA, Betty empowered Ronald, as her agent, to conduct real property transactions, manage bank and investment accounts, and take other financial actions.
   • By adding Ronald as joint owner and authorized signer on the Plains Commerce checking account (funded solely by her income and investments), and by signing Edward Jones documents authorizing him as her agent and attorney‑in‑fact, Betty entrusted him with her property.
   • Ronald in fact used this authority to execute the three mortgages and to funnel the margin loan proceeds to his business.

The Court explicitly noted that it was not deciding how these assets would be treated under other bodies of law (trust, probate, tax). Its holding was confined to SDCL 22‑46‑3: for purposes of criminal elder exploitation, the jury could treat the property as Betty’s and could find that Ronald had been entrusted with it.

C. Appropriation for Purposes Not in the Due and Lawful Execution of the Elder’s Trust

1. “Appropriates” vs. “Steals”

Ronald contended that SDCL 22‑46‑3 required a showing that he “stole” from his mother, and that no theft occurred because:

• He never took title to the farmland; and
• He acted with her consent, especially regarding the margin loans.

The Court stressed that the statute uses the term “appropriates,” not “steals.” Consulting Black’s Law Dictionary and SDCL 22‑46‑1(5), the Court equated “appropriation” with:

• “The exercise of control over property, esp. without permission; a taking of possession”; and
• The “wrongful taking or exercising of control” over an elder’s property with intent to defraud.

Thus, the focus is on control, not just on formal acquisition of title. Appropriation can occur when:

• An agent uses an elder’s assets as collateral for his own debts;
• An agent diverts investment funds for personal purposes; or
• A caregiver leverages their position to cause the elder to make financially harmful transfers for the caregiver’s benefit.

The reference to chapter 22‑30A is solely for assigning felony grades and penalties; it does not import narrower theft definitions that would limit “appropriation” to outright stealing or physical taking.

2. Mortgaging the Farmland

Applying this understanding, the Court held that Ronald appropriated Betty’s property by:

• Executing a $100,000 Great Plains mortgage on trust land as “POA,” securing his personal note; and
• Executing two $750,000 First Dakota mortgages on largely trust land, again as “POA,” while signing the notes solely as borrower.

Crucially:

• No evidence showed that Betty even knew of these 2016 transactions.
• The POA did not authorize Ronald to use Betty’s property as collateral to secure his debts—i.e., it did not permit self‑dealing.

The defense argued that because a later civil ruling declared the First Dakota mortgages void (due to lack of authority), no effective appropriation occurred. The Court flatly rejected this:

• The legality or enforceability of the mortgages in subsequent civil litigation does not retroactively alter the character of Ronald’s conduct when he executed them.
• By purporting to bind the land as collateral for his $1.5 million in loans, he exercised control over his mother’s property in a way that placed it at risk, even if a later court voided the instruments.

On valuation, Ronald contended that the State’s calculation overstated the amount appropriated because $665,000 of the First Dakota loan proceeds went to repay a prior debt on which Arlo and Betty had been obligors; thus, he argued, that portion benefitted Betty rather than him. He suggested netting that amount from the total before dividing between the two $750,000 counts, which would reduce the value below the $500,000 threshold.

The Court refused, clarifying that the “appropriation” in Counts 6 and 7 was the act of encumbering trust property up to $750,000 per mortgage, not the net personal benefit Ronald received from the loan proceeds. Because each mortgage subjected Betty’s land to up to $750,000 of debt, each count satisfied the >$500,000 valuation element.

3. Margin Loans from the Investment Account

Regarding the four charged investment transactions, the Court found ample evidence of appropriation:

• Each margin loan was secured by Betty’s investment portfolio.
• Funds were wired to the joint checking account to which Ronald had access and from which he drew checks to himself or Crossroads.
• The Edward Jones advisor repeatedly warned Betty that this pattern was “not good,” and the margin balance eventually exceeded $300,000, reducing her “nest egg.”
• Betty’s cognitive condition deteriorated over time; by 2017 she was in assisted living with significant memory impairment.

Although Betty nominally approved the margin loans, the Court highlighted several critical realities:

• Ronald approached Betty only when he needed money for his failing business.
• He told the advisor he would repay “soon,” but made no repayments; no written agreement to repay was ever documented.
• Edwards became sufficiently alarmed about the pattern of draws and Betty’s cognitive decline that he contacted Edward Jones’s legal department, which then prohibited further margin loans.

The Court drew an important doctrinal line: “Just because an elder may say ‘yes’ to a financial transaction does not mean it is not exploitation.” In a relationship where:

• The elder is very old (Betty was near 90);
• Cognitively impaired; and
• Emotionally and practically dependent on the caregiver-child;

“consent” may simply reflect the elder’s feeling of having “no other choice”—as in Warren, where the elder paid the caretaker’s inflated charges and loan demands because he believed “Nothing else I can do.”

The jury could therefore find that Ronald wrongfully exercised control over Betty’s property, for his own benefit, in a manner inconsistent with the trust she reposed in him.

D. Intent to Defraud

Intent to defraud was perhaps the most hotly contested element. Ronald claimed:

• He believed he was acting within his authority and intended to pay back his mother;
• Banks and professionals (lenders, advisors, lawyers) had reviewed and approved the structures; and
• Betty knew and approved the margin loans and had previously allowed her land to secure his debts.

The Court acknowledged that intent is rarely proved by direct evidence. Applying Bruggeman, Morse, Holzer, and Krouse, it looked to the “acts, conduct and inferences” from the circumstances. Several factors supported a finding of fraudulent intent:

1. Pattern of self‑benefiting use of Betty’s assets. Ronald repeatedly used his mother’s property (both land and investments) as collateral or a cash source to respond to his own worsening financial crises, not to meet Betty’s needs or preserve her estate.
2. Lack of transparency and authorization. No evidence showed that Betty was informed of, let alone approved, the 2016 mortgages. Ronald used the POA to sign for her, even though the POA did not authorize self‑dealing or mortgaging trust land on his own behalf.
3. Lack of repayment or even formal loan terms. Despite assurances that he would repay the margin loans “soon,” Ronald never made payments and never documented any loan obligations to Betty.
4. Escalating depletion of Betty’s assets concurrent with his business distress. Agent Lunzman’s investigation and text messages revealed Ronald was “in a bind” and that he described money as “in mom’s account,” treating her assets as a personal reservoir.
5. Contrast with earlier, legitimate transactions. When Arlo was alive, any use of the farm as collateral involved Arlo and Betty personally signing the loans and mortgages, making clear they understood and accepted the risk. After Arlo’s death and the new POA, Ronald relied on unilateral signatures as “POA” with no evident disclosure to Betty.

This combination of:

• Concealed or poorly explained encumbrances;
• One‑sided benefit to Ronald;
• Lack of repayment; and
• Use of fiduciary powers beyond the POA’s scope;

supported the inference that Ronald acted “with the specific intent to deceive or cheat” and to obtain a dishonest financial advantage, satisfying the “intent to defraud” element at the time of appropriation, as required by Kessler.

E. Overall Sufficiency of the Evidence

Applying the Bolden/Seidel standard, the Court concluded that, viewed in the light most favorable to the prosecution, the record allowed a rational jury to find every element of SDCL 22‑46‑3 proven beyond a reasonable doubt for each count. The Court also:

• Dismissed as “frivolous” the suggestion that the State had not proven Ronald was the person who committed the acts; and
• Held that his venue challenge was waived under Hernandez because he failed to raise it below.

V. Jury Instructions and the “Good Faith” Defense

A. Instruction 21 and the Framing of Good Faith

At trial, Ronald proposed (and obtained) a non‑pattern instruction on good faith, given as Instruction 21. It told the jury:

• “One of the issues in this case is whether the defendant acted in good faith.”
• “Good faith” is a defense if the jury finds he did not act with intent to defraud.
• The State bears the burden of proving beyond a reasonable doubt that he acted with intent to defraud.
• Evidence of good faith may be considered along with all other evidence to determine whether intent to defraud existed.

In closing, defense counsel relied heavily on this instruction, arguing that:

• Ronald believed he had authority to sign the mortgages as POA because banks had reviewed and accepted the documents; and
• He believed he could legitimately use funds from margin loans because Betty had approved them and wanted to help him.

Thus, the defense theory was that Ronald’s subjective good faith negated the specific intent to defraud.

B. Appellate Complaint: Failure to Give Pattern Instruction 2‑2‑1

On appeal, Ronald argued that good faith operates as an “affirmative defense” and that the trial court should have, on its own initiative, supplemented Instruction 21 with South Dakota Criminal Pattern Jury Instruction 2‑2‑1 (sometimes called a “claim of right” instruction applicable in theft cases). Pattern 2‑2‑1, in essence, provides that if the jury finds the defendant acted under an honest and reasonable claim of right to the property, or did not know the property was another’s, then the specific intent element for theft is lacking and the jury must acquit.

Ronald conceded he had not requested pattern instruction 2‑2‑1 at trial, so he sought plain-error review of the court’s failure to give it sua sponte.

C. The Court’s Plain-Error Analysis

Under Robertson, McMillen, and O’Brien, plain error requires:

1. An error;
2. That is “plain” (clear or obvious);
3. That affects substantial rights (prejudice—a reasonable probability of a different result); and
4. That seriously affects the fairness, integrity, or public reputation of the proceedings.

The Court found no error at all. Instruction 21 already:

• Explicitly told the jury that good faith is a defense insofar as it negates the intent to defraud;
• Stated that the State must prove intent to defraud beyond a reasonable doubt; and
• Directed the jury to consider evidence of good faith when evaluating whether the requisite intent existed.

The Court noted that this is “essentially the same” as what pattern instruction 2‑2‑1 would have provided in the context of a specific‑intent theft offense. Because Instruction 21 clearly articulated the State’s burden and the relationship between good faith and intent, the trial court had no duty to give the pattern instruction, and there was no instructional deficiency—plain or otherwise.

This aligns with Pfeiffer, which recognizes that a court does not abuse its discretion by declining duplicative instructions where the legal principle is already embodied elsewhere in the charge.

Implicitly, the Court also rejected the notion that “good faith” is a separate affirmative defense that would shift any burden to the defendant. Instead, good faith functions simply as a way of describing the absence of fraudulent intent, which the State must always prove.

VI. Simplifying Key Legal Concepts

1. “Support” Under SDCL 22‑46‑3

“Support” in this statute does not only mean providing money or basic necessities to a destitute parent. It encompasses helping an elder with:

• Financial management (paying bills, handling accounts);
• Property management (maintaining the home, negotiating with lenders);
• Transportation and caregiving tasks; and
• Decision‑making for health, housing, and financial matters.

A child who steps into this comprehensive caretaker/manager role has “assumed the duty to provide support” for purposes of SDCL 22‑46‑3.

2. Entrustment and POA vs. Trustee

“Entrustment” means that the elder has given the defendant authority or practical control over their property. This can occur via:

• A formal instrument, such as a power of attorney;
• Joint bank accounts or signatory authority; or
• Practical arrangements where the caregiver controls access to funds.

Separately, in trust law, a “trustee” is the person legally responsible for managing trust property. In this case, Betty was initially both trustee and beneficiary. Ronald was not the trustee when he signed the mortgages; he acted as POA. The jury could nonetheless find that he was “entrusted” with Betty’s property because she authorized him to act as her financial agent and gave him de facto control of her accounts.

3. Revocable Living Trusts and “Property of an Elder”

A revocable living trust is often used in estate planning. Typically:

• The elder (settlor) transfers property to herself as trustee;
• She remains the primary beneficiary during life; and
• She retains the power to revoke or amend the trust at any time.

For exploitation purposes, such trust property remains, in substance, “the property of an elder,” because it exists for her benefit and under her ultimate control. Otherwise, a simple change in title would undermine the protective purpose of the elder abuse laws.

4. Appropriation vs. Theft

“Appropriation” in SDCL 22‑46‑3 is broader than common‑law theft. It includes:

• Mortgaging or pledging the elder’s property as collateral for one’s own debts;
• Transferring funds from accounts titled in the elder’s name (or for her benefit) to accounts one controls;
• Manipulating the elder into signing checks or authorizations that effectively divert wealth.

No actual change of title or physical taking is required. What matters is unlawful exercise of control with intent to defraud.

5. Margin Loans

A “margin loan” is a loan from a brokerage firm secured by the value of the client’s investment account:

• The assets in the account are collateral; if the loan is not repaid and the account value drops, the firm can liquidate investments.
• Interest accrues on the borrowed amount, and the net value of the portfolio declines accordingly.

Using margin loans repeatedly to move funds out of an elder’s investment account—particularly without a realistic plan to repay—can quickly erode the elder’s financial security.

6. Intent to Defraud and Good Faith

“Intent to defraud” means acting deliberately to deceive or cheat, usually to gain financially at someone else’s expense. It is a specific mental state:

• If the defendant honestly, even if mistakenly, believed he had authority to use the elder’s assets in a particular way and intended no unfair advantage, that may negate intent to defraud.
• However, the jury may infer fraudulent intent from patterns such as:
  • Repeated self‑benefiting transactions;
  • Absence of disclosure or consent;
  • Failure to repay “loans”; and
  • Use of fiduciary powers in self‑dealing ways.

“Good faith” is simply the absence of fraudulent intent. It is not a separate defense that the defendant must prove; it is a way of arguing that the State failed to prove the intent element beyond a reasonable doubt.

7. Plain Error

Plain error review is reserved for unpreserved issues. To win under this standard, a defendant must show:

• The trial court committed an error;
• The error was clear or obvious;
• The error affected the defendant’s substantial rights (likely changed the outcome); and
• The error seriously affected the fairness, integrity, or public reputation of judicial proceedings.

In Clemensen, since the jury was properly instructed on the State’s burden to prove intent to defraud and the role of good faith, there was no error to begin with, so the plain‑error doctrine did not apply.

VII. Impact and Implications

A. Elder Law and Criminal Prosecution

State v. Clemensen significantly strengthens tools for prosecuting financial elder abuse in South Dakota. Its lasting contributions include:

• Broad definition of “support.” Many exploitation cases involve adult children or caregivers who are primarily providing services, not direct financial support. This decision confirms that such relationships can satisfy the “duty to provide support” element even when the elder has substantial means.
• Coverage of modern estate-planning vehicles. Elders frequently hold assets in revocable living trusts. This decision ensures those assets are covered by SDCL 22‑46‑3 when the trust is for the elder’s benefit, preventing estate-planning formalities from becoming safe havens for exploitation.
• Focus on control, not formal ownership. By aligning “appropriation” with wrongful exercise of control, the decision covers a wide range of conduct—mortgaging, pledging, or otherwise encumbering property without proper authority—that typically arises in POA and caregiving settings.
• Recognition of “consensual” exploitation. The Court’s explicit statement that an elder’s “yes” does not automatically defeat an exploitation charge is particularly important. Prosecutors can proceed even where an elder, due to dependency, fear, or cognitive decline, has nominally approved transactions that are manifestly against her interest.

B. Duties of Agents Under a Power of Attorney

The case also carries a clear message about POA misuse:

• Agents must understand that a POA generally requires acting in the principal’s best interests; using it to secure personal debts or rescue a failing business is classic self‑dealing.
• Reliance on the fact that “the bank allowed it” is not a defense to criminal exploitation. Lenders may be misled or may focus primarily on collateral sufficiency, not on the scope of the agent’s fiduciary authority.
• Family caregivers in farming communities, where the norm has often been to “use the land” informally to help children’s operations, must recognize that these arrangements can cross into criminal territory if they exploit an elder’s dependence or exceed granted authority.

C. Guidance for Estate Planners, Financial Advisors, and Lenders

The decision has practical implications for professionals:

• Estate planners should:
  • Explain clearly the distinction between trustee and agent under a POA, and
  • Consider including or excluding self‑dealing authority with explicit language so that third parties better understand the agent’s powers.
• Financial advisors (like Edwards):
  • Should document concerns and steps taken when they perceive potential exploitation;
  • May take comfort that courts will view their raising concerns (as Edwards did) favorably;
  • Should recognize that repeated margin loans for a caregiver’s benefit are red flags.
• Lenders should:
  • More carefully scrutinize POAs used to encumber elderly clients’ property;
  • Consider direct contact with the principal, particularly if elderly or absent from closing; and
  • Understand that their acceptance of a POA does not immunize a borrower from criminal liability.

D. Clarification of Valuation in Exploitation Cases

By rejecting net‑benefit calculations for the mortgage counts, the Court clarified that:

• The value element in SDCL 22‑46‑3 (linked to chapter 22‑30A) focuses on the amount of property the defendant subjected to wrongful control—here, the face value of the mortgages—rather than the personal net gain realized.
• This approach prevents a defendant from arguing that using part of the proceeds to discharge the elder’s prior debt reduces the value of the appropriation for felony‑grading purposes.

E. Jury Instructions and Defense Strategy

From a trial-practice standpoint, the case emphasizes:

• Defense counsel should specifically request any desired pattern instructions; failure to do so will limit appellate review to plain error.
• Courts are not obligated to give redundant instructions; as long as the burden of proof and elements (including mental state) are properly explained, failure to use a particular pattern form will not normally be reversible.
• “Good faith” is best understood and argued as a factual negation of fraudulent intent rather than as a standalone affirmative defense.

Conclusion

State v. Clemensen is a major elder exploitation decision in South Dakota. It:

• Interprets “support” broadly to include non‑financial caregiving and financial management responsibilities;
• Holds that revocable trust assets can constitute “property of an elder” for criminal exploitation purposes;
• Clarifies that “appropriation” under SDCL 22‑46‑3 includes mortgaging or otherwise encumbering an elder’s property for the defendant’s benefit, even if title does not transfer and the mortgage is later voided;
• Affirms that elder “consent,” especially from a cognitively impaired or dependent elder, does not negate exploitation when the caregiver exploits the relationship of trust; and
• Confirms that good faith is not a separate affirmative defense but simply the absence of fraudulent intent, which the State must always prove.

By affirming Ronald Clemensen’s convictions, the Supreme Court sends a clear signal: individuals who assume control over an elder’s affairs—particularly family members wielding POAs—must use that authority strictly for the elder’s benefit. Leveraging an elder’s land and investments to rescue one’s own failing business, especially without full disclosure and genuine, informed consent, is not merely bad judgment or poor financial planning; under SDCL 22‑46‑3, it is theft by exploitation, subject to serious criminal sanctions.