SD (Appellant) v Trianglecat (Respondent) 2026 SDCR 40
In re SD v Trianglecat [2026] Crim 19 dismissal with prejudice [2026] SDCR 40
| Date | 23rd April 2026 |
| Judges |
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| Held |
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| Ruling | 3-0 |
| Applicable precedent |
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MAJORITY OPINION by Judge Zepz367
(With Chief Judge Matt Cheney and Judge Tech Support agreeing)
Introduction
[1] The state, through state attorney MisterLax, has appealed Judge Notcommunists’s decision to dismiss SD v. Trianglecat [2026] Crim 19 with prejudice with four main arguments. The first argument is that probable cause was present as Bore was “a known member of TIDE”and that evidence supports that, citing SD v TIDE [2025] Crim 70 alongside 2 screenshots of Bore admitting he was in TIDE. The second argument is that Article 9a of the Courtroom Procedures Act 2025 limits dismissals with prejudice to only specific scenarios outlined in that very provision. The third argument from the state is that the Judge should have been recused as they previously petitioned for habeas corpus of the defendant. The fourth and final argument from the state is on erroneous findings of evidence, as the state alleges the Judge had not considered all of the legally admitted evidence when making a decision. The state says that they thought the evidence was under consideration, and that the presiding Judge should’ve asked for clarification or re-presentation if it was required.
[2] In their response, the defendant’s attorney Muggy, acting as the respondent, responds to each of the state’s arguments at length. In response to the defense’s first argument, the respondent states that the evidence that Bore is “clearly seen as satirical”. They also mention that connection with a former member of TIDE as of March 2025 can not amount to association as all laws regarding prohibition of association with proscribed organizations were passed more than a month later. Regarding the second argument, the respondent states that the petitioner's reading conflicts with previous precedent and previous readings of the law, such as SD v Guava [2026] Crim 6 and SD v 1bz2 [2026] Crim 11, thus stating that Article 9a Courtroom Procedures Act list is not an exhaustive list, but more so just a baseline. On point three, the respondent mentions that the presiding Judge is the court of first instance for recusal, the respondent then continues by saying that the petition for habeas corpus of the defendant does not amount to a conflict of interest necessary for recusal. In regards to the fourth and final point by the state, the respondent states that the defense was never provided with this evidence that prosecution is citing. They also mention that the burden of proof lies with the prosecution, and that the judge had no obligation to ask for clarification.
=== Did Judge Notcommunist consider all pieces of evidence?
[3] The Court shall start with the State's fourth and final point. The Court had subpoenaed the evidence in question and then asked the presiding Judge, Notcommunist whether they considered it in their decision. In their testimony, Judge Notcommunist said that they did indeed consider and acknowledge that evidence, but that in their opinion it did not amount to probable cause. As Judge Notcommunist had considered this evidence in their decision, the Court sees no reason to entertain any arguments from the state or respondent as they are both irrelevant.
Should Judge Notcommunist have been recused?
[4] The Court sees no reason to answer this question. The respondent brings up a valid point that if the state had considered Judge Notcommunist biased, that they should’ve motioned for recusal in the pre-trial. The Court of Review is also not a court of first instance for recusal. As that motion never happened, the Court will not rule on Judge Notcommunist’s recusal.
Is Article 9a §3. of the Courtroom Procedures Act an exhaustive list?
[5] A much more interesting question compared to the previous ones is about Article 9a. The state argues that the list in Article 9a §3. is an exhaustive one and that the elements listed in Article 9a §3. are the only times a case can be dismissed without prejudice. The respondent vehemently disagrees with this point, bringing up past precedent of cases being dismissed with prejudice when a lack of probable cause is present.
- [5.1] For reference, Article 9a of the Courtroom Procedures Act states:
§3. A Judge shall dismiss a case with prejudice – (a) If the case is dismissed after the opening statements at trial; (b) If the case, or a case with similar charges or facts has been brought and dismissed without prejudice more than twice; (c) If dismissing without prejudice would violate the rights of an accused against being tried twice on the same or similar facts or charges. (i) This provision applies for criminal cases only. §3.1. To avoid doubt, nothing in this Article prevents part of a case from being dismissed without dismissing the entire case.
[6] How should the court go about solving this? Well the easiest way is by seeing where similar language has been used and seeing the rulings. Similar questions have already been brought up before due to Article 19 §3. of the Constitution including similar language. That specific provision states “shall include” and it was addressed by the Court of Review in Ref re Financial Privacy and Classification of Taubot [2025] SDCR 9. In [23] of that ruling, the Court of Review said that the phrase “shall include” is an illustrative one and not an exhaustive one. As the relevant provision of the Courtroom Procedures Act 2025 includes very similar language, the Court agrees with the aforementioned Court of Review ruling. “Shall dismiss” in Article 9 §3. of the Courtroom Procedures Act 2025 acts more as a baseline on when cases should be dismissed with prejudice, and it does not mean those are the only examples of when the case shall be dismissed with prejudice.
[7] Now that it has been determined that list in Courtroom Procedures Act Article 9 §3. is not an exhaustive one. Can cases without probable cause be dismissed with prejudice? The Court believes so. Dismissal with prejudice acts as a permanent ending to a case with the same or similar facts or charges. Probable cause is a prerequisite to the start of any legal proceedings. If there is no probable cause, the case can not continue or even start. If the case can not even start, then why should it be able to be refiled? Such an interpretation risks opening the door to abuses of process and potential infringements of constitutional rights. Thus, dismissing a case, which is without probable cause, with prejudice, is legal.
Was there probable cause?
[8] Now that we have solved all other questions, it is time to discuss the very reason for the dismissal, lack of probable cause. Firstly, we need to get the facts straight:
- [8.1] The state is charging the defendant Trianglecat with a violation of Article 51 Division 2 Subdivision 4 of the Criminal Code. The state alleges that by being friends with “an active member of TIDE”, the defendant associated with a member of a proscribed organization, thus committing an offense.
- [8.2] In terms of evidence, the state has brought screenshots and an affidavit that Trianglecat is friends with Bore on discord. The state has also brought statements of Bore from April 2025 about how they were in TIDE and verdict in SD v TIDE [2025] Crim 70 as evidence that Bore is indeed a member of TIDE.
- [8.3] Article 51 Division 2 Subdivision 4 requires that a person associate with either proscribed organization or a member of a proscribed organization to commit the offence. Thus to determine if there is probable cause, the court needs to examine whether friendship connection can be considered association and whether Bore is even a member of TIDE.
- [8.4] In terms of probable cause, according to Writ of Habeas Corpus Mythrows [2025] SDIC 3, probable cause is reached if there is good reason to believe a crime was committed and that a particular person was probably responsible.
[9] Firstly, we must examine whether Bore is even a member of TIDE. In SD v TIDE [2025] Crim 70, Bore (in SD v TIDE referred to as Bort) was convicted on conspiracy to commit ToS violations. While Bore has not directly been convicted of Terrorist Conspiracy, the judgement in SD v TIDE has clearly affirmed that he is a member, [24] states that: “[24] Allowing one to be labeled an asset or operator, being in a discord dedicated solely to committing massive and egregious ToS violations, continuing to identify as part of a group actively planning to commit terrorism”. Bore was part of the redacted nine which this paragraph is referring to. Being in a discord server of a proscribed organization is one of the examples of being a member per Article 51 Division 2 Subdivision 1 §2. Thus, the Court determines that Bore is indeed a member of proscribed organization.
[10] Now that we have determined that Bore is a member of a proscribed organization, we must examine whether being friended with a person on discord presents probable cause for a violation of associating with a member of a proscribed organization. The Court rejects the way the respondent and the original judgement have interpreted how SD v _xxxiii4 [2025] Crim 121 should be used in this particular case. Associating with a member and associating with an organization itself need to be looked through a different lens. The trial court seemed to determine that because there was no proof of involvement in an organization, the case should be dismissed, but the law states that associating with just a member is enough. The Court agrees with SD v _xxxiii4 that association requires some degree of involvement, but involvement should be determined differently when examining what kind of association was committed. For example, simply conversing with a person or being in the same server with them wouldn’t meet probable cause for associating with a member, but being friends with them suggests some kind of involvement with the person.
[11] Applying this to the probable cause definition, is there a good reason to believe a crime was committed? It’s clear that the defendant is maintaining an active friendship with Bore, which as explained previously suggests a degree of involvement. Going back to the probable cause definition in [8], one more element needs to be fulfilled, that being whether a particular person was responsible for the crime in question. In this case that is easy to determine as from the evidence we can see that Trianglecat was friended with Bore, thus the Court determines that probable cause existed.
Verdict
[12] The decision to dismiss SD v Trianglecat [2026] Crim 19 with prejudice is reversed and the case is remanded back to the lower court.
Dicta
[13] The court thanks the respondent Muggy and the petitioner MisterLax for their time, as well as Judge Notcommunist’s for answering the questions posed to them.