State v. Ogden

#31010-a-JMK 2026 S.D. 40 IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA STATE OF SOUTH DAKOTA, Plaintiff and Appellant, v. GARY DEAN OGDEN, JR., Defendant and Appellee. APPEAL FROM THE MAGISTRATE COURT OF THE FIRST JUDICIAL CIRCUIT UNION COUNTY, SOUTH DAKOTA THE HONORABLE KASEY SORENSEN Judge NICK MICHELS PAUL E. BACHAND JENNA SEVERYN Special Assistant Attorneys General South Dakota Department of Game, Fish and Parks Pierre, South Dakota Attorneys for plaintiff and appellant. MICHAEL P. SCHMIEDT JOHN M. HINES of Crary Huff Law, P.C. Sioux City, Iowa Attorneys for defendant and appellee. CONSIDERED ON BRIEFS OCTOBER 7, 2025 OPINION FILED 06/24/26 #31010 KERN, Retired Justice [¶1.] Gary Dean Ogden Jr. was arrested and charged with boating under the influence and several other offenses in July 2024, as a result of an incident that occurred on the Missouri River. At the time of his arrest, Ogden was on the river between South Dakota and Nebraska. Ogden filed a motion to dismiss for lack of jurisdiction, arguing that all relevant events occurred on the Nebraska side of the river and that South Dakota lacked jurisdiction. After an evidentiary hearing, the magistrate court found that Ogden’s arrest occurred near the Nebraska shore beyond the centerline of the river’s designed channel. The court found that state statutes SDCL 41-15-2 and 42-8-67, granting conservation officers jurisdiction over the entire boundary waters of the state to the furthermost shoreline, were federally preempted by the South Dakota-Nebraska Boundary Compact (1989 Compact). For these reasons, the court concluded that South Dakota lacked jurisdiction and granted Ogden’s motion to dismiss. [¶2.] After the case was dismissed, the State filed a direct appeal with this Court, which we dismissed for lack of jurisdiction. The State then petitioned for an intermediate appeal under SDCL 23A-32-5, which we granted. The State contends the magistrate court abused its discretion by taking evidence on Ogden’s jurisdictional challenge and by dismissing the case for lack of jurisdiction. Ogden argues the State’s intermediate appeal is untimely and this Court lacks appellate jurisdiction. Alternatively, Ogden contends the magistrate court properly dismissed the case against him for lack of jurisdiction. We conclude we have jurisdiction over the appeal, and that the magistrate court did not err by taking testimony to -1- #31010 determine the jurisdictional question. We also conclude the magistrate court did not err in determining that South Dakota does not have concurrent jurisdiction over the boundary waters at issue. We affirm. Factual and Procedural History [¶3.] During the evening hours of July 27, 2024, South Dakota Wildlife Conservation Officers Josh Vanden Bosch and Taylor Kirchener were patrolling the waters of the Missouri River between Union County, South Dakota, and Dakota County, Nebraska. At approximately 9:30 p.m., they stopped a boater for lack of proper navigational lights. The officers asked the boater, subsequently identified as Ogden, to bring his boat to the middle of the river to perform a safety check.1 [¶4.] After tying the boats together, Officer Vanden Bosch allegedly observed indicators of Ogden’s alcohol impairment. After some disagreement between the parties, the officers completed a sobriety test and informed Ogden that he was under arrest.2 Ogden refused to cooperate and was placed in handcuffs. He was transported to the Union County jail, ticketed, and released. An information was filed against him on August 23, 2024, charging him with several offenses arising from the incident.3 1. Officer Vanden Bosch’s body camera captured the initial encounter and relative location of the boat to the river’s shoreline. 2. These facts are set forth in Officer Vanden Bosch’s probable cause statement, which was not admitted into evidence during the motion hearing, but is part of the settled record. The magistrate court did not enter findings of fact regarding Ogden’s alleged behavior or intoxication. 3. Ogden was charged with the following: count 1, boating under the influence in violation of SDCL 42-8-45(1) and in the alternative under SDCL 42-8- (continued . . .) -2- #31010 [¶5.] Ogden filed a motion to dismiss for lack of jurisdiction under SDCL 23A-8-2. He argued that South Dakota lacked jurisdiction because “all of the pertinent events occurred in Nebraska, and South Dakota law is inapplicable.” Ogden contended that under the Sixth Amendment to the United States Constitution, a defendant has a right to trial in the “state, county[,] and district wherein the crime was alleged to have been committed.” [¶6.] Ogden also asserted that South Dakota’s jurisdiction over the river is governed by the 1989 Compact enacted by both states and approved by Congress. Article II(a) of the 1989 Compact, codified at SDCL 1-2-8, fixes the permanent compromise boundary between Dakota County, Nebraska, and Union County, South Dakota, at the “centerline of the designed channel of the Missouri River (the westerly channel adjacent to Section 5, Township 29 North, Range 7 East of the 6th P.M. shall be considered the main channel).” Ogden argued that the 1989 Compact preempts conflicting state laws, particularly SDCL 42-8-67, which grants South Dakota conservation officers jurisdiction over the entire boundary waters of the state to the furthermost shorelines. [¶7.] In response, the State urged the magistrate court to deny Ogden’s motion to dismiss, arguing that “a trial court cannot inquire into the legality or sufficiency of the evidence upon which an [i]nformation is based when considering a dismissal under SDCL 23A-8-2.” In the alternative, the State argued that the ________________________ (. . . continued) 45(2); count 2, failure to have boat lights required while operating in violation of SDCL 32-3A-1(1); count 3, obstructing law enforcement in violation of SDCL 22-11-6; and count 4, resisting arrest in violation of SDCL 22-11-4(2). -3- #31010 language of the 1989 Compact pertains only to land, not ownership of waters overlying the land, and “both federal law and state law grant South Dakota concurrent jurisdiction over the waters of the Missouri River.” [¶8.] At a hearing on the motion to dismiss, the State reasserted its argument that the magistrate court could not inquire into the sufficiency of the evidence because this was “really a question for the trier of fact.” Over the State’s objection, the court allowed Ogden to call Officer Vanden Bosch as a witness and received his body camera video into evidence as Exhibit B.4 [¶9.] At the evidentiary hearing, Officer Vanden Bosch testified that he had worked as a conservation officer for 11 years and frequently patrolled the river with Nebraska officers. He acknowledged, however, that on the evening in question there were no Nebraska officers on board. When asked to describe the location of the arrest, Officer Vanden Bosch was unable to identify on a map the exact location of the stop, but stated it was “within a mile upstream from Miners Bend.” He further remembered asking Ogden to move his boat toward the middle of the river to avoid rocks near the Nebraska shoreline. Officer Vanden Bosch estimated the rocks were 30 to 50 yards from Ogden’s boat. Following Officer Vanden Bosch’s testimony, the State reasserted its 1989 Compact interpretation argument, and the court took the matter under advisement. [¶10.] The magistrate court issued a memorandum opinion, followed by findings of fact and conclusions of law, which incorporated the opinion by reference, 4. Exhibit A, a map of the Missouri River flowing between the two counties, was examined by Officer Vanden Bosch during the hearing but was not received into evidence, nor is it part of the record on appeal. -4- #31010 and entered an order of dismissal signed, dated, and filed on January 13, 2025. The court found that Nebraska and South Dakota were parties to the 1989 Compact setting the compromise boundary line between “Union County, South Dakota and Dakota County, Nebraska, fixed at the centerline of the designed channel of the Missouri River.” Based on the evidence presented, the court found that when Officer Vanden Bosch initiated the stop, Ogden was “near the Nebraska shoreline” and “on the Nebraska side of the centerline of the designed channel[.]” [¶11.] The magistrate court dismissed the case, reasoning that because the stop occurred on the Nebraska side of the boundary, Union County lacked jurisdiction to bring the charges against Ogden. Ogden’s attorney of record received an email through the Odyssey system5 on January 14, 2025, notifying him of the order granting the motion to dismiss.6 [¶12.] Following the magistrate court’s decision, the court emailed the 5. Odyssey® is the electronic filing and serving platform used by the courts in South Dakota. 6. The settled record does not contain a similar email receipt for the State’s attorneys of record. In his brief responding to the State’s petition for intermediate appeal, Ogden argues that under SDCL 15-6-5(b)(2), it is presumed by law that the State received a similar email. SDCL 15-6-5(b)(2) provides: Unless otherwise ordered by the court, all documents filed with the court electronically through the Odyssey® system or served electronically through the Odyssey® system are presumed served upon all attorneys of record at the time of submission. -5- #31010 parties’ attorneys on January 21, 2025, informing them that it had issued an order. 7 The following day, the State filed a notice of appeal. This Court dismissed the appeal on February 10 because there is no right of direct appeal from a magistrate court order under SDCL 23A-32-5. Upon receipt of this Court’s order, the State filed a notice of entry of order on February 18, 2025, and on February 27, filed a petition for intermediate appeal under SDCL 23A-32-5. We granted the petition for an intermediate appeal on April 4, 2025. [¶13.] The State raises two issues on appeal, and Ogden argues this Court lacks appellate jurisdiction. We address all three issues, which we restate as follows: 1. Whether this Court lacks jurisdiction because the petition for intermediate appeal was not timely filed. 2. Whether the magistrate court abused its discretion by considering Ogden’s jurisdictional challenge and by taking evidence. 3. Whether the magistrate court erred by dismissing the case for lack of jurisdiction over Ogden’s offense. Standard of Review [¶14.] The 1989 Compact is not only a contract between South Dakota and Nebraska, it is also “a federal statute enacted by Congress.” Alabama v. North 7. The email provided: Good morning, since I’ve entered an order dismissing all charges[,] the file can be closed with no further court dates. The State may file their notice of appeal in accordance with the applicable statutes. The email does not indicate that the court attached a copy of the order to the email. -6- #31010 Carolina, 560 U.S. 330, 351 (2010). We review the 1989 Compact—a federal statute—as well as our own state statutes de novo “with no deference given to the circuit court’s legal conclusions.” State v. Hillyer, 2025 S.D. 30, ¶ 10, 23 N.W.3d 782, 787 (quoting State v. Kurtz, 2024 S.D. 13, ¶ 12, 4 N.W.3d 1, 4). We review the trial court’s decision whether to grant or deny a motion to dismiss an information for an abuse of discretion. See State v. Fisher, 2013 S.D. 23, ¶ 9, 828 N.W.2d 795, 799 (citation omitted). “An abuse of discretion ‘is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable.’” State v. Huante, 2026 S.D. 6, ¶ 30, 31 N.W.3d 715, 725 (citation omitted). Analysis and Decision 1. Whether this Court lacks jurisdiction because the petition for intermediate appeal was not timely filed. [¶15.] As an initial matter, Ogden challenges this Court’s jurisdiction over the present appeal, arguing the State’s petition for intermediate appeal was not timely filed. Ogden submits that the magistrate court’s email and the Odyssey email notification constituted “notice of entry of order or judgment” for purposes of SDCL 23A-32-6, which provides that “[a]n appeal under § 23A-32-4 or 23A-32-5 must be taken within ten days after written notice of entry of the judgment or order.”8 Accordingly, Ogden contends that the State’s petition for intermediate 8. SDCL 23A-32-5 provides: An appeal by a prosecuting attorney may be taken to the Supreme Court from: (continued . . .) -7- #31010 appeal filed on February 27, 2025, was untimely, having occurred 45 days after the State presumably received the Odyssey email informing it that the magistrate court entered the order of dismissal on January 13. In support of this argument, Ogden relies on State v. Sharpfish (Sharpfish I), 2018 S.D. 63, 917 N.W.2d 21. [¶16.] In Sharpfish I, the State petitioned for intermediate appeal on July 5, 2017, and “attached an email from the circuit court dated June 19, 2017.” Id. ¶ 12, 917 N.W.2d at 23. In its petition, the State “acknowledged the attachment as ‘constituting notice of entry’ of order.” Id. We held that under SDCL 23A-32-6, the State’s appeal was untimely because it was filed “more than ten days after the notice of entry of the order[.]” Id. ¶ 13. [¶17.] In response to Ogden’s reliance on Sharpfish I, the State notes that Ogden did not file a notice of entry of order. In the State’s view, the ten-day time limit for filing began when the State filed the notice of entry on February 18, 2025. Further, the State submits that Sharpfish I is distinguishable because here, the ________________________ (. . . continued) (1) An order of a circuit court or a magistrate suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding; (2) An order of a circuit court or a magistrate sustaining a motion to dismiss a complaint on statutory grounds or otherwise. An appeal under this section may not be taken after a defendant has been put in risk of double jeopardy and is not a matter of right but of sound judicial discretion. Appeals from such orders shall be taken in the same manner as intermediate appeals in subdivision § 15-26A-3(6). No appeal taken under this section shall delay any trial unless a stay be granted in the discretion of the Supreme Court. -8- #31010 State did not consent to or make any concession that the magistrate court’s email constituted notice of entry of the order. [¶18.] “The Supreme Court shall have such appellate jurisdiction as may be provided by the Legislature[.]” S.D. Const. art. V, § 5. “The right to appeal is statutory and therefore does not exist in the absence of a statute permitting it.” State v. Edelman, 2022 S.D. 7, ¶ 10, 970 N.W.2d 239, 241 (quoting State v. Sharpfish (Sharpfish II), 2019 S.D. 49, ¶ 12, 933 N.W.2d 1, 7). “[I]t is settled law that the failure to timely file a notice of appeal is a jurisdictional defect.” State v. Mulligan, 2005 S.D. 50, ¶ 5, 696 N.W.2d 167, 169 (per curiam) (citations omitted). As we determined in Mulligan, the filing requirements of SDCL 15-26A-13 are mandatory, as are the requirements of SDCL 23A-32-6. See id. Failure to comply with SDCL 23A-32-6 deprives this Court of appellate jurisdiction. [¶19.] Under SDCL 23A-32-12, the procedure to appeal an intermediate order entered in a criminal case is set forth in SDCL 15-26A-13 to -17, inclusive. SDCL 15-26A-13 provides in pertinent part: An appeal from an intermediate order made before trial as prescribed by subdivision 15-26A-3(6) may be sought by filing a petition for permission to appeal, together with proof of service thereof upon all other parties to the action in circuit court, with the clerk of the Supreme Court within ten days after notice of entry of such order. (Emphasis added.) Additionally, SDCL 15-26A-15 requires the appealing party to attach the following documents to its petition: “(1) A conformed copy of the order sought to be reviewed; (2) All findings of fact, conclusions of law, or memorandum opinions relating thereto; and (3) The notice of entry of the order sought to be appealed.” (Emphasis added.) -9- #31010 [¶20.] The “written notice of entry” requirement of SDCL 23A-32-6 mirrors our civil rule, SDCL 15-26A-6.9 When examining this civil counterpart, the Court has held that written notice of entry of judgment requires more than a party’s mere knowledge that an order has been entered. Havlik v. Havlik, 2014 S.D. 84, ¶¶ 9–11, 857 N.W.2d 422, 425 (rejecting a claim that the mailing of a certified copy of an order by the prevailing party’s counsel to opposing counsel constituted written notice of entry). This is because a “notice of entry of judgment gives to a party the power to set running the time after which his adversary may not appeal and assures each party that the statutory period of time within which he may appeal does not commence to run until his adversary has given such notice.” Id. ¶ 10 (quoting Kallstrom v. Marshall Beverages, Inc., 397 N.W.2d 647, 650 (S.D. 1986)); see also In re Sales and Use Tax Refund Request of Media One, Inc., 1997 S.D. 17, ¶ 7, 559 N.W.2d 875, 877 (holding that a judge’s letter accompanied by the judgment, findings of fact and conclusions of law did not trigger the 60-day timeframe for commencing an appeal because it did not contain a written notice of entry of judgment and the judge was not a party to the case). Thus, knowledge that an order has been entered is not the equivalent of having received a copy of the order or notice of entry of order. 9. SDCL 15-26A-6 provides in pertinent part: An appeal from a judgment or order must be taken within thirty days after the judgment or order shall be signed, attested, filed and written notice of entry thereof shall have been given to the adverse party. -10- #31010 [¶21.] However, our cases have not consistently held that only one of the parties can provide the written notice of entry of an order or that a separate “written notice of entry” must accompany the order. In an earlier case, Canton Concrete Products Corp. v. Alder, neither party filed a notice of entry of order. 273 N.W.2d 120, 122 (S.D. 1978). Instead, the clerk of the court mailed certified copies of the order to the appellant’s counsel who admitted he received the mailed order. Id. The Court held that the “mailing of a certified copy of the order constituted written notice of the filing of the order under SDCL 15-26-2.”10 Id. When explaining this holding, the Court stated that there is “no requirement that the service of the certified copy must be made by the attorney for the prevailing party, particularly where the appellant’s counsel admits that he received the certified copy mailed by the clerk.” Id. (emphasis added). [¶22.] In State v. Waters, the Court held that hand delivery of a copy of the court’s order satisfied SDCL 23A-32-6. 472 N.W.2d 524, 524–25 (S.D. 1991) (per curiam). In that case, the circuit court granted Waters’s motion to dismiss and entered an order. Id. at 524. On the same day, Waters had a copy of the order hand delivered to the State and completed a certificate of service that he filed with the 10. At the time, SDCL 15-26-2 provided: Any appeal other than from a judgment must be taken within sixty days after written notice of the filing of the order shall have been given to the party appealing. An appeal from the judgment must be taken within sixty days after the judgment shall be signed, attested, filed and written notice of entry thereof shall have been given to the adverse party. SDCL 15-26-2 (repealed 1980). -11- #31010 court. Id. The State’s notice of appeal was filed 21 days later. Id. at 525. The State alleged it did not receive notice of the order but did not contest that Waters filed a certificate of service as proof of its delivery. Id. The Court relied on the provision in SDCL 15-6-5(b) that “[a]n attorney’s certificate of service, the written admission of service by the party or his attorney or an affidavit shall be sufficient proof of service[,]” and held that the attorney’s sworn statement in the certificate of service that the State had been served with a copy of the court’s order satisfied the requirements of SDCL 23A-32-6. Id. Rather than strictly applying the “written notice of entry” language as we have in more recent cases, the Court dismissed the appeal for lack of appellate jurisdiction based on the sufficiency of proof that the State had received a copy of the challenged order. Id. [¶23.] Given the Court’s later rulings in Havlik and Media One, supra, whether Alder and Waters are controlling is questionable. Regardless, unlike the scenario here, there was proof in the record in those two cases, either via a certificate of service or an admission of receipt, that the appealing party had at least received a copy of the order being appealed. Nor does the current appeal present the distinctive scenario in Sharpfish I, in which the State attached the email from the circuit court to its petition as the notice of entry of order it was appealing from. [¶24.] Here, the State has never conceded that the magistrate court’s email, which did not attach a copy of the order, or the presumed Odyssey notification constitutes notice of entry of the order. Further, there is no evidence in the record that Ogden served a copy of the order on the State or that court personnel provided -12- #31010 the State with a copy of the order. The court’s email merely stated, “Good morning, since I’ve entered an order dismissing all charges the file can be closed with no further court dates. The State may file their notice of appeal in accordance with the applicable statutes.” While the State undoubtedly knew the order existed by virtue of the magistrate court’s email, our more recent rulings, aside from the unique scenario in Sharpfish I, do not support Ogden’s claim that a party’s mere knowledge of an order satisfies the written notice requirements of SDCL 23A-32-6. See State v. Antuna, 2024 S.D. 78, ¶ 15, 15 N.W.3d 439, 445 (rejecting a claim similar to Ogden’s that a petition for discretionary appeal was untimely, based, in part, on our determination that there was “insufficient evidence in the record to establish that Antuna served the State with notice of entry of [the order being appealed]” (emphasis added)). [¶25.] For these reasons, the application of the relevant rules to the facts of this case does not support a dismissal for lack of appellate jurisdiction. Here, the order granting the motion to dismiss was entered on January 13, 2025, and the magistrate court emailed the parties on January 21. A written notice of entry was not filed until the State did so on February 18. Nine days later, on February 27, the State petitioned this Court for an intermediate appeal, which was within the proscribed ten-day time period of SDCL 23A-32-6. The State’s petition was therefore timely, and the Court has appellate jurisdiction.11 11. The dissent, relying primarily on the Court’s decision in Labidee v. City of Pierre, 177 N.W. 499 (S.D. 1920), and what appears to be dicta in In re T.C., 278 N.W.2d 452, 454 (S.D. 1979), concludes that the State waived its right to receive a notice of entry of the order by filing a notice of appeal, and (continued . . .) -13- #31010 2. Whether the magistrate court abused its discretion by considering Ogden’s jurisdictional challenge and by taking evidence. [¶26.] The State argues the “magistrate court erred and abused its discretion when it dismissed the charges based upon its pretrial factual determination regarding venue, and its holding that the court lacked subject-matter jurisdiction.” ________________________ (. . . continued) consequently, the State’s later petition for discretionary appeal was untimely. But the Court’s appellate jurisdiction was not at issue in In re T.C. Instead, that case involved issues related to whether a circuit court deprived the appellant of the ability to object to the court’s findings of fact, conclusions of law, and dispositional decree by violating notice provisions in SDCL 15-6- 52(a). We rejected the appellant’s claims, noting that SDCL 15-6-52(a) did not contain some of the requirements asserted by appellant. 278 N.W.2d at 454. We then noted that the purpose of a notice of entry of a judgment was to set the time within which a judgment could be appealed and cited Labidee for the premise that the appellant had waived her right to notice of entry by filing her appeal before receiving such notice. Id. Aside from the fact that this statement had nothing to do with alleged errors appellant asserted in In re T.C., the citation to Labidee to support this broad premise was misplaced. While Labidee supports the general notion that a party may waive the right to notice of entry, it did not declare that the filing of a notice of appeal constitutes a waiver of such notice in all circumstances. Labidee involved a much different scenario than the one here, and the opinion draws distinctions between an express and implied waiver, the latter of which is “questionable if there are not present some of the elements of estoppel.” 177 N.W. at 501. In Labidee, after the circuit court entered an order overruling the defendant’s demurrer to a complaint, the defendant sought and received a stay of all proceedings in the circuit court until such time within which an appeal could be taken had expired. Id. When determining that the motion for a stay constituted an implied waiver, this Court noted that the stay would prevent the giving of notice of entry of the order, and thus, “the time within which an appeal could be taken would never expire.” Id. We then concluded that “the necessary element of estoppel to support an implied waiver” was present under the circumstances. Id. Unlike the circumstances in Labidee, after this Court dismissed the State’s initial unauthorized appeal, there was nothing preventing Ogden from providing and filing a notice of entry of order triggering the timeframe in which the State could file a petition for discretionary appeal. Indeed, Ogden has not even raised the issue of implied waiver and estoppel here. -14- #31010 (Emphasis added.) The State has referred to both venue and jurisdiction before the magistrate court and in its briefing on appeal. Venue concerns the county or locality of prosecution. State v. Whistler, 2014 S.D. 58, ¶¶ 11–12, 851 N.W.2d 905, 909–10. Jurisdiction concerns the court’s ability to “act on a criminal charge[.]” LaCroix v. Fluke, 2022 S.D. 29, ¶ 20, 975 N.W.2d 150, 158 (citation omitted); see State v. Haase, 446 N.W.2d 62, 64 (S.D. 1989) (per curiam) (distinguishing criminal subject matter jurisdiction as a court’s power to adjudicate a case and venue as the appropriate county for prosecution); 4 Wayne R. LaFave et al., Criminal Procedure § 16.1(a) (4th ed. 2025) (same). Ogden argued to the magistrate court that it lacked jurisdiction; he did not make any argument regarding venue. Moreover, the magistrate court dismissed the case for lack of jurisdiction. We, therefore, limit our analysis to this question. [¶27.] “As this Court long ago explained, before a court can ‘act on a criminal charge[,]’ the ‘court must have personal and subject matter jurisdiction[.]’” LaCroix, 2022 S.D. 29, ¶ 20, 975 N.W.2d at 158 (citation omitted) (alterations in original). If either is absent, the judgment is “wholly void and without any force or effect whatever.” Id. ¶ 20, 975 N.W.2d at 159 (quoting Haase, 446 N.W.2d at 64). Therefore, this threshold requirement “may be challenged at any time during the pendency of the proceedings and for the first time on appeal.” State v. Neitge, 2000 S.D. 37, ¶ 9, 607 N.W.2d 258, 260 (first quoting Haase, 446 N.W.2d at 64; then citing SDCL 23A-8-3). Without subject matter jurisdiction, a court is without the power to “hear a case, determine the facts, apply the law[,] and set a penalty.” -15- #31010 Haase, 446 N.W.2d at 64 (citation omitted). Ogden’s motion to dismiss challenged the magistrate court’s authority to do just that. [¶28.] The State appears to argue, however, that the magistrate court could not dismiss the information based on lack of jurisdiction, maintaining that the court’s authority to dismiss the information is restricted to the nine grounds in SDCL 23A-8-2, which provides: Upon motion of a defendant made pursuant to subdivision 23A- 8-3(1), (2), or (3), the court must dismiss an indictment or information in any of the following cases: (1) When it is not found, endorsed, and presented or filed as prescribed by this title; (2) When the names of the witnesses are not inserted at the foot of the indictment or information or endorsed thereon; (3) When it does not substantially conform to the requirements of this title; (4) When more than one offense is charged in a single count; (5) When it does not describe a public offense; (6) When it contains matter which, if true, would constitute a legal justification or excuse of the offense charged, or other bar to the prosecution; (7) When the grand jury which filed the indictment had no legal authority to inquire into the offense charged because it was not within the jurisdiction of the grand jury or because the court was without jurisdiction of the offense charged; (8) When a person was permitted to be present during the session of the grand jury while the charge embraced in the indictment was under consideration, except as provided in § 23A-5-11; or -16- #31010 (9) When a defendant charged by information did not have or waive a preliminary hearing before the information was filed. (Emphasis added.) The State argues these nine grounds are exclusive, relying primarily on State v. Vatne, for this proposition and asserting the court erred because the dismissal was not based on any of these grounds. 2003 S.D. 31, ¶ 14, 659 N.W.2d 380, 384. [¶29.] The Vatne court’s prior description of these nine grounds as “exclusive” is somewhat misleading because there are a number of additional grounds under which criminal charges can be dismissed and which are not specifically enumerated in SDCL 23A-8-2. See, e.g., State v. O’Neal, 2024 S.D. 40, ¶ 37, 9 N.W.3d 728, 745 (“Dismissal of an indictment is warranted when there is a showing ‘that the preindictment delay . . . caused substantial prejudice to [a defendants’] rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.’” (alterations in original) (quoting United States v. Marion, 404 U.S. 307, 324 (1971))); SDCL 23A-44-5.1(5) (providing for dismissal of the offenses charged if the 180-day rule is violated). [¶30.] But here, Ogden’s motion to dismiss was based on lack of jurisdiction, which is one of the grounds enumerated in SDCL 23A-8-2. Pursuant to SDCL 23A- 8-2(7), dismissal of an information shall be granted if “the court was without jurisdiction of the offense charged.” Additionally, Ogden’s jurisdictional argument is a defense that is allowed to be brought “at any time during the pendency of the -17- #31010 proceedings.” SDCL 23A-8-3(3).12 To the extent a statutory basis was required for the magistrate court to consider Ogden’s motion to dismiss the information, under the scenario presented here, such a basis existed under both SDCL 23A-8-2(7) and 23A-8-3(3). [¶31.] The State next contends that the magistrate court abused its discretion when it “inquired into the legality or sufficiency of the evidence and testimony when considering dismissal.” The State argues that “[a]n indictment returned by a legally constituted and unbiased grand jury, like an information drawn by a prosecutor, if valid on its face, is enough to call for trial of the charge on the merits.” State v. Cameron, 1999 S.D. 70, ¶ 11, 596 N.W.2d 49, 52 (citation omitted). The State maintains that the information was facially valid, as it alleged the offenses occurred in Union County, and the court could not inquire into the “legality or sufficiency of the evidence” concerning jurisdiction. In response, Ogden maintains that the magistrate court “did not consider whether the facts constituted the crime charged, or whether the facts were legally insufficient” to charge or 12. SDCL 23A-8-3 provides in part: Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. Motions may be written or oral at the discretion of the judge. The following must be raised prior to trial: ... (3) Defenses and objections based on defects in the indictment or information (other than that it fails to show jurisdiction in the court or to charge an offense which objections shall be noticed by the court at any time during the pendency of the proceedings)[.] -18- #31010 convict him, but simply “interpreted the law regarding South Dakota’s jurisdiction on boundary waters and correctly concluded that the [c]ourt lacked jurisdiction.” [¶32.] In a criminal proceeding, when a court must determine whether it has jurisdiction, it does not thereby “inquire into the legality or sufficiency of the evidence upon which indictment is based.” Cf. State v. Springer-Ertl, 1997 S.D. 128, ¶ 8, 570 N.W.2d 39, 41 (reversing a lower court’s decision dismissing an information for lack of probable cause when it inquired into the “legality or sufficiency of the evidence”). Rather, it determines whether it has the power or authority to “hear [the] case, determine the facts, apply the law[,] and set a penalty.” Haase, 446 N.W.2d at 64. And to make this decision, “the court may hold hearings, consider live testimony, or review affidavits and documents.” Chase Alone v. C. Brunsch, Inc., 2019 S.D. 41, ¶ 12, 931 N.W.2d 707, 711 (examining civil jurisdictional challenges); see State v. Winckler, 2026 S.D. 19, ¶ 17, 33 N.W.3d 58, 68 (reviewing a jurisdictional issue in a criminal case and noting that, when considering “disputes regarding the facts upon which subject matter jurisdiction rests[,]” a circuit court “is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case” (quoting Chase Alone, 2019 S.D. 41, ¶ 12, 931 N.W.2d at 710–11)). [¶33.] In order to determine whether it had jurisdiction, the magistrate court permitted the testimony of Officer Vanden Bosch. His testimony was primarily focused on the location of the stop on the river, not on the details of the offense, such as whether Ogden’s blood alcohol content was over the legal limit or whether Ogden’s conduct rose to the level of resisting arrest. The court’s findings of fact and conclusions of law similarly focused on whether Ogden was within South Dakota’s -19- #31010 jurisdictional reach. The court found that based on the evidence presented, Ogden was stopped on the Nebraska side of the centerline of the designed channel and that the State produced no compelling evidence to the contrary. The court made no findings regarding the sufficiency of the evidence necessary to convict Ogden of the offenses charged, but limited its inquiry to whether it had the power or authority to hear the case against Ogden. See Haase, 446 N.W.2d at 64. We therefore conclude that the magistrate court did not abuse its discretion when it received evidence on this issue. [¶34.] Further, we cannot say that the magistrate court clearly erred in determining Ogden’s location. State v. Medicine, 2015 S.D. 45, ¶ 5, 865 N.W.2d 492, 495 (“[W]e review the circuit court’s factual findings for clear error[.]” (citation omitted)). The court made four factual findings on the issue of Ogden’s location at the time of the stop. 5. On July 27, 2024,